Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 1 of 14 PageID #: 2141
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`
`
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` IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`LOYALTY CONVERSION SYSTEMS
`CORPORATION,
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` Plaintiff,
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`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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` Defendants. §
`
`
` v.
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`
`
`Case No. 2:13-CV-655
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`AMERICAN AIRLINES, INC., et al.,
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`CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
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`On August 28, 2014, the Court held a hearing to determine the proper construction of the
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`disputed claim terms in United States Patent Nos. 8,313,023 (“the ’023 patent”) and 8,511,550
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`(“the ’550 patent”), owned by plaintiff Loyalty Conversion Systems Corporation (“Loyalty”).
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`After considering the arguments made by the parties at the hearing and in the parties’ claim
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`construction briefing (Dkt. Nos. 110, 113, and 115), the Court issues this Claim Construction
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`Memorandum Opinion and Order.
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`I. BACKGROUND
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`On August 20, 2013, Loyalty filed separate actions against each of the nine defendants.
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`All nine actions were later consolidated for all purposes except venue under the lead case, No.
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`2:13-cv-655. Case No. 2:13-cv-655, Dkt. No. 18. In its complaints, Loyalty asserted claims 31-
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`34, 36-42, and 44-46 of the ’023 patent, and claims 1-3 and 5-7 of the ’550 patent against each of
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`the nine defendants.
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`1
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`ASKELADDEN 1516
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 2 of 14 PageID #: 2142
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`The ’023 patent, entitled “Exchange of Non-Negotiable Credits of an Entity’s Rewards
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`Program for Entity Independent Funds,” is directed to a system by which non-negotiable credits
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`earned in an awards program (such as airline frequent flyer miles or hotel loyalty award points)
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`can be converted into credits that can be used to purchase goods or services from a vendor other
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`than the issuing entity. The ’550 patent, entitled “Graphical User Interface for the Conversion of
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`Loyalty Points Via a Loyalty Point Website,” is directed to a graphical user interface, such as a
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`website, that includes a conversion option that, as in the ’023 patent, allows the conversion of
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`non-negotiable credits earned from one entity into a form that can be used to purchase goods or
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`services from another vendor.
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`The common specification of the two patents explains that loyalty rewards issued to
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`customers are typically redeemable with the granting entity or its affiliates, but not with other
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`unaffiliated entities. The lack of transferability reduces the attractiveness of the rewards to
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`customers and leads to some customers having modest amounts of rewards from multiple
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`providers, none of which have significant value to the customer. In addition, the specification
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`cites delays in processing requests for redemption of awards and the expiration of awards as
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`discouraging consumers from participating in awards programs. ’023 patent, col. 1, line 18,
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`through col. 2, line 11; ’550 patent, col. 1, line 37, through col. 2, line 32.
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`Other aspects of the invention described in the common specification are (1) “a software
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`method for converting non-negotiable credits into negotiable funds,” in which the conversion of
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`non-negotiable credits into negotiable funds at an agreed-upon conversion rate is automatically
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`determined and the conversion transaction automatically performed; and (2) a “Web-based credit
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`to fund conversion system,” in which the negotiable funds obtained through conversion of non-
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`2
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 3 of 14 PageID #: 2143
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`negotiable credits can be used for e-commerce purchases from vendors that do not honor the
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`non-negotiable credits. ’023 patent, col. 2, line 66, through col. 3, line 24; ’550 patent, col. 3, ll.
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`21-46.
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`II. DISCUSSION
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`Only three groups of terms or phrases from the two patents are in dispute: In the ’550
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`patent, the parties dispute the meaning of the phrase “to convert.” In the ’023 patent, the parties
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`dispute the meaning of the term “transfer[s] or conversion[s],” and the related term “conversion
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`or transfer.” Also at issue are the phrase “the at least one of the one or more computers” and the
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`phrase “the one or more non-transitory computer-related mediums” in claims 31 and 39 of the
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`’023 patent, respectively. The plaintiff contends that none of those terms needs construction, as
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`each should be given its plain and ordinary meaning. The defendants disagree. In their view, the
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`terms “convert,” “transfer[s] or conversion[s],” and “conversion or transfer” should all be
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`construed to mean conversions that occur approximately immediately. The defendants contend
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`that the phrases “the at least one of the one or more computers” and “the one or more non-
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`transitory computer-related mediums,” are both indefinite for lack of proper antecedent bases,
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`and that the claims in which those terms appear are therefore invalid on indefiniteness grounds.
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`A. “To Convert,” “Transfer[s] or Conversion[s],” and “Conversion or Transfer”
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`The plaintiff argues that the phrases “transfer[s] or conversion[s]” and “conversion or
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`transfer,” used in the ’023 patent, and the phrase “to convert,” used in the ’550 patent, should be
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`given their plain and ordinary meaning. The defendants argue that each of those phrases should
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`be construed to mean “to convert in an approximately immediate fashion.” The Court concludes
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`that the disputed terms should be given their plain and ordinary meaning and that they are not
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`3
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 4 of 14 PageID #: 2144
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`used in the ’023 and’550 patents in a way to require that they be accorded the narrower meaning
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`advocated by the defendants.
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`The claim language contains nothing that would support the defendants’ argument that
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`the disputed phrases, and in particular the term “convert,” as those phrases are used in the
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`patents, mean “to convert in an approximately immediate fashion.” To the contrary, the context
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`in which the phrases are used in the claims suggests that the terms are intended to be accorded
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`their ordinary meaning in common parlance. In particular, several dependent claims in the ’550
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`patent, claims 7, 15, and 19, recite methods in which the customer’s selection of the conversion
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`option and the updating of the Web page or pages in accordance with the selection is done
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`“within a single user-interactive Web session” or a “single user-interactive session.”
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`Loyalty argues that the presence of those dependent claims, in which the entire
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`transaction (and thus the conversion) is approximately immediate, indicates that the independent
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`claims of the two patents are not limited to embodiments featuring “approximately immediate”
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`transactions. The defendants respond that principles of claim differentiation are inapplicable
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`here, because the defendants’ proposed construction would not render any of the dependent
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`claims wholly superfluous. While that is so, the dependent claims, which are directed to
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`processing “within a single user-interactive Web session” or “user-interactive session,” capture
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`the concept of “approximately immediate” transactions. That is particularly clear because the
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`specification states that the term “approximately immediate,” as used in the patents, signifies
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`“that a transaction can occur within a single Web session.” ’023 patent, col. 2, ll. 42-43; ’550
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`patent, col. 2, ll. 63-64. The specification does not describe any other method of attaining
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`“approximately immediate” results, so the presence of the dependent claims strongly suggests
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`4
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 5 of 14 PageID #: 2145
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`that the independent claims do not require the entire transaction, including the conversion, to be
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`conducted in a single web session. The specification thus supports Loyalty’s argument that the
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`terms “convert,” “transfer,” and “conversion,” as used in the independent claims of the two
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`asserted patents, are not limited to conversions and transfers that are “approximately immediate.”
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`As support for their proposed construction, the defendants look to the common
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`specification of the ’023 and ’550 patents. In particular, they focus on the portion of the
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`specification that describes one of the problems encountered by consumers when redeeming non-
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`negotiable credits: the time that such conversions can take. The specification explains that the
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`steps of a conventional redemption
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`often require days or weeks to complete. For instance, consumers participating in
`online entertainment sites often are required to wait a minimum of three days for
`their entertainment credits to be redeemed. Redemption delay can be particularly
`aggravating to e-commerce consumers, who by nature of an e-commerce
`marketplace expect rapid responses and immediate consumer gratification.
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`’023 patent, col. 1 ll. 47-54; ’550 patent, col. 1, line 67 through col. 2 line 7. From this language,
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`the defendants infer that the specification “clearly disparages prior-art conversion techniques
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`based on the lengthy delay consumers experience in redeeming their non-negotiable credits.”
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`Dkt. No. 113, at 5. According to the defendants, the specification “expressly distinguishes the
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`claimed invention on precisely this point,” by stating that the invention overcomes the time
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`problem by “providing systems and methods for converting non-negotiable credits into
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`negotiable funds in an approximately immediate fashion.” Id. The defendants then quote several
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`excerpts from the specification in which the specification states that the invention permits
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`consumers to convert non-negotiable credits “in an approximately immediate fashion”; that it
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`“can have approximately immediate results”; that the entire method “can occur in an
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`5
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 6 of 14 PageID #: 2146
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`approximately immediate fashion”; and that the conversion agency “can automatically
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`approximately immediately convert” such credits into a quantity of negotiable funds. Id. The
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`defendants conclude that, by distinguishing the prior art for not allowing approximately
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`immediate conversions and praising the invention for allowing conversions in that manner, the
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`patentees disclaimed a broader meaning for the term “conversion” and limited themselves to a
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`method in which conversions occur in an approximately immediate fashion.
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`The defendants’ argument is unconvincing. Nothing in the specification requires that the
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`claimed method convert non-negotiable credits
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`into negotiable funds “approximately
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`immediately,” as the defendants claim, much less that the term “convert” be given that
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`unconventional meaning. The specification simply points out that the computerized system
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`gives the claimed method the capacity to conduct such conversions quickly, which the prior art
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`systems discussed in the specification did not do. The immediate conversion feature is thus
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`expressed as an advantage of the system as a whole, not as a limitation of the claims, and
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`certainly not as a limitation of the claims driven by a narrow definition of the term “convert.” It
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`is common for a specification to describe various advantages or purposes of a claimed invention,
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`but that does not mean that an accused product that does not embody each of those advantages or
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`serve each of those purposes is thereby excluded from the patent’s coverage. See Praxair, Inc. v.
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`ATMI, Inc., 543 F.3d 1306, 1325 (Fed. Cir. 2008) (“[I]t is generally not appropriate to limit
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`claim language to exclude particular devices because they do not serve a perceived purpose of
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`the invention.”) (internal quotation marks omitted); Kim v. ConAgra Foods, Inc., 465 F.3d 1312,
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`1319 (Fed. Cir. 2006) (“The mere fact that one object of the invention is to produce a slow acting
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`oxidant which is functional throughout the entire manufacturing process does not mean that this
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 7 of 14 PageID #: 2147
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`particular feature was adopted as a limitation in each claim of the patent.”); E-Pass Techs., Inc.
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`v. 3Com Corp., 343 F.3d 1364, 1370 (Fed. Cir. 2003) (“An invention may possess a number of
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`advantages or purposes, and there is no requirement that every claim directed to that invention be
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`limited to encompass all of them.”); Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d
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`1294, 1301 (Fed. Cir. 2003) (“Advantages described in the body of the specification, if not
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`included in the claims, are not per se limitations to the claimed invention.”) (internal quotation
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`marks omitted). Those principles apply even if the specification disparages the prior art on the
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`ground that it lacks advantages found in the invention; absent a clear disavowal of claim scope,
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`language touting the advantages of the claimed invention over the prior art does not justify
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`reading limitations into otherwise clear claim language. See Golight, Inc. v. Wal-Mart Stores,
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`Inc., 355 F.3d 1327, 1332-33 (Fed. Cir. 2004).
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`The cases relied upon by the defendants are not helpful to them. In each of those cases
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`the specification defined the invention restrictively, so as to exclude a particular embodiment. In
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`SciMed Life Systems, Inc. v. Advanced Cardiovascular Systems, Inc., 242 F.3d 1337 (Fed. Cir.
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`2001), the specification made clear that the catheters recited in the claims used coaxial structures,
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`not the alternative, dual lumen structures. The specification was sufficiently clear on that point
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`that the court was able to conclude that the patent used the term “catheter” to mean coaxial
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`catheters, not catheters having any other structure. Id. at 1340-45. The same is true of Eon-Net
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`LP v. Flagstar Bancorp, 653 F.3d 1314 (Fed. Cir. 2011), where the court defined the term
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`“document or file” as limited to information originated from hard copy documents, in light of the
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`specification’s definition of the invention “as a system that processes information derived from
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`hard copy documents.” Id. at 1321-23. Likewise, in Honeywell International, Inc. v. ITT
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 8 of 14 PageID #: 2148
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`Industries, Inc., 452 F.3d 1312 (Fed. Cir. 2006), the court construed the term “electrically
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`conductive fibers” to exclude carbon fibers in light of the remarks in the specification explaining
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`why carbon fibers would not be suitable as “electrically conductive fibers.” Id. at 1320.
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`In all three of those cases, the specification made clear that the term used in the claims
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`was to be defined narrowly, to exclude the broader meaning proposed in the litigation. Here, the
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`specification merely touted the capacity of the patented system to allow immediate conversion
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`and disparaged the referenced prior art systems for not allowing such conversions. Nothing in
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`the specification suggests that the patent does not cover embodiments that use the patented
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`method but do not allow conversions to be performed immediately.
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`The Federal Circuit has criticized courts for importing limitations from the specification
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`into the claims. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc).
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`What the defendants are proposing is even worse: to import an advantageous feature of the
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`invention from the specification and convert it into a restrictive limitation on the claims. The
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`Court concludes that nothing in the specification supports such a strained construction of the
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`terms in dispute here. The Court therefore holds that the phrase “to convert” needs no
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`construction and can be easily understood by reference to its plain and ordinary meaning.
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`B. “The at Least One of the One or More Computers”
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`The plaintiffs contend that the phrase “the at least one of the one or more computers” in
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`claim 31 of the ’023 patent should be given its plain and ordinary meaning. The defendants do
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`not propose a construction to that phrase, but instead assert that the phrase is indefinite and that
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`claim 31 and its dependent claims are therefore invalid for indefiniteness.
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`Claim 31 contains the following three limitations, quoted in pertinent part:
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 9 of 14 PageID #: 2149
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`at least one of one or more computers detecting a communication over a
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`network to grant a consumer a quantity of the entity independent funds . . .
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`responsive to the communication, at least one of one or more computers
`granting the consumer the quantity of the entity independent funds; and
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`the at least one of the one or more computers accepting at least a portion
`of the quantity of entity independent funds in exchange for the goods or services
`that the commerce partner provides, wherein the one or more computers do not
`accept the non-negotiable credits of the entity’s rewards program for the goods or
`services in [the] absence of the conversion or transfer.
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`’023 patent, col. 10, ll. 7-27 (emphases added).
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`The defendants argue that the portion of the third underlined limitation, which recites
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`“the at least one of the one or more computers,” is indefinite because it lacks a clear antecedent
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`basis. In particular, the defendants argue that it is unclear whether the computers that accept the
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`quantity of entity-independent funds are the computers that detect a communication over a
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`network or the computers that grant the consumer the quantity of entity-independent funds.
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`According to the defendants, a person of ordinary skill reading the patent would “interpret claim
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`31 to have at least two conflicting interpretations. First, the detecting and accepting steps could
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`be performed by the same set of computers with the granting step performed by a different set of
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`computers. Second, the detecting and granting steps could be performed by the same set of
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`computers with the accepting step performed by a different set of computers.” Dkt. No. 113, at
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`11-12 (emphases removed). Because the claim is susceptible to two conflicting interpretations,
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`the defendants argue, it does not serve to provide public notice of the scope of the claim with
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`reasonable certainty and is therefore invalid for indefiniteness in light of the Supreme Court’s
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`recent decision in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014).
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`Taken in isolation, the language of claim 31 can be construed in a manner that makes the
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`claim coherent, albeit awkward. The first two references to sets of “one or more computers”
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 10 of 14 PageID #: 2150
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`provide that at least one of one or more computers detects a communication to grant a consumer
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`a quantity of entity-independent funds (the first reference) and that in response to the
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`communication at least one of one or more computers grants the consumer the quantity of entity-
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`independent funds (the second reference). That much is clear, and the defendants do not contend
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`otherwise. The third reference to a set of “one or more computers” provides that a portion of the
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`entity-independent funds are accepted in exchange for goods or services, a function that is
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`performed by “the at least one of the one or more computers.”
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`It is those introductory words—“the at least one of the one or more”—that create
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`confusion as to the meaning of the claim. However, that language can be squared with the rest of
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`the claim if the claim as a whole is read to mean that at least one of the first set of computers or
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`at least one of the second set of computers not only performs the function assigned to its own set
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`of computers, but also performs the function of accepting the entity-independent funds in
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`exchange for goods or services. Although the claim language does not specify which of the “at
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`least one of one or more computers” is the antecedent for the third reference to “one or more
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`computers,” that problem can be solved by construing the antecedent for the third reference to be
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`either the first set of computers or the second set of computers, or both.
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`To be sure, there is no indication in the specification or elsewhere that the invention was
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`intended to be limited in that fashion. However, the alternative construction offered by
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`Loyalty—that each of the three functions can be performed by a different computer or set of
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`computers—is unsatisfactory, because it wholly ignores the antecedent reference in the limitation
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`that recites “the at least one of the one or more computers accepting at least a portion of the
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`quantity of entity independent funds.” Based on the language of claim 31 standing alone, the
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 11 of 14 PageID #: 2151
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`Court would be prepared to construe that claim to mean that a computer performing the
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`“accepting” function would also have to perform the “detecting” function, or the “granting”
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`function, or both. But the language of claim 31 does not stand alone.
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`As the defendants pointed out at the claim construction hearing, claim 37, which depends
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`from claim 31, is inconsistent with that interpretation of claim 31. Claim 37 recites the method
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`of claim 31 and then adds “wherein a plurality of different ones of the one or more computers
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`detects the communication, grants the consumer the quantity of entity independent funds, and
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`accepts the portion of the quantity of entity independent funds.” In referring to a plurality of
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`“different ones of the one or more computers,” claim 37 requires that the three functions—
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`detecting, granting, and accepting—each be performed by a different computer or set of
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`computers. As such, claim 37 conflicts with the construction of claim 31 set out above, in which
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`the computer or computers that perform the accepting step also perform either the detecting step
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`or the granting step, or both.
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`The clash between claim 37 and the only construction of claim 31 that makes linguistic
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`sense leaves the Court in a quandary as to the meaning of claim 31. Under the Federal Circuit’s
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`pre-Nautilus test, the Court might be inclined to disregard the incoherent language of the “the at
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`least one of the one or more computers” limitation and construe claim 31 as if that limitation
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`read simply “at least one of one or more computers.” But it is hard to ignore the patentee’s
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`obviously conscious decision to depart from that language in the “the at least one of the one or
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`more computers” limitation, in favor of a different formulation using the word “the” twice. In
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`the end, the Court is left to guess at the meaning of claim 31. Because the meaning of that claim,
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`in the Court’s view, would not “inform those skilled in the art about the scope of the invention
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`with reasonable certainty,” Nautilus, 134 S. Ct. at 2129, the Court holds that claim 31 is invalid
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`for indefiniteness.1
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`C. “The One or More Non-Transitory Computer-Readable Mediums”
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`The defendants also contend that the phrase “the one or more non-transitory computer-
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`readable mediums,” which is found in claim 39 of the ’023 patent, is indefinite.
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`Claim 39 of the ’023 patent contains the following limitations, quoted in pertinent part:
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`A computer program product comprising:
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`one or more non-transitory computer-readable mediums;
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`program instructions, stored on at least one of the one or more non-
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`transitory computer-readable mediums, to detect a communication over a network
`to grant a consumer a quantity of entity independent funds . . .
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`one or more non-transitory computer-readable mediums;
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`program instructions, stored on at least one of the one or more non-
`transitory computer-readable mediums, to, responsive to the communication,
`grant the consumer the quantity of entity independent funds; and
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`program instructions, stored on at least one of the one or more non-
`transitory computer-readable mediums, to accept at least a portion of the quantity
`of entity independent funds in exchange for the goods or services that the
`commerce partner provides . . . .
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`‘023 patent, col. 11, ll. 1-38 (emphases added).
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`The defendants argue that claim 39 and its dependent claims are indefinite because claim
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`39 refers to two non-transitory computer-readable mediums and three program instructions, but
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`does not make clear which of the three program instructions are stored on which of the two non-
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`1 Loyalty offered an expert declaration in support of its argument that claim 31 is not
`indefinite. The declaration, however, simply asserts that the phrase “the at least one of the one or
`more computers” would be “readily understandable to a person of ordinary skill in the art who
`would understand [it] with reasonable certainty to refer to the same set of one or more computers
`. . . in claim[] 31,” and that the phrase “one or more computers” is “used consistently throughout
`the claim.” Dkt. No. 115-2, at 5, 6. Those statements are of no help to the Court. They are
`entirely conclusory and do not focus on, explain, or even appear to recognize the linguistic
`problem created by the confusing antecedent reference in the “the at least one of the one or more
`computers” limitation.
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 13 of 14 PageID #: 2153
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`transitory computer-readable mediums, except to specify that the first program instruction is
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`stored on the first non-transitory computer-readable medium.
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`Once again, the claim drafting is sloppy, but in this case it is not indefinite. The second
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`reference to the “one or more non-transitory computer-readable mediums” is entirely redundant
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`of the first. The claim does not recite a second set of non-transitory computer-readable
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`mediums, but simply repeats that limitation, which appears to be the result of a drafting error.
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`Interpreting the second reference to the “one or more non-transitory computer-readable
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`mediums” as simply a duplication of the first, the claim is not indefinite, as it simply recites that
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`the three program instructions are stored on at least one of the one or more non-transitory
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`computer-readable mediums, a concept that would be perfectly clear to a person of ordinary skill
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`in the art.
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`Even if the second reference to “one or more non-transitory computer-readable mediums”
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`were not regarded as a drafting error but instead were treated as a separate limitation, the claim
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`would still not be indefinite. The defendants appear to agree that the first set of program
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`instructions must be stored on the first of the “one or more non-transitory computer-readable
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`mediums,” as the reference to the first set of program instructions comes before the second
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`recitation of “one or more non-transitory computer-readable mediums.” But even as to the
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`second and third set of program instructions, the requirement that they be “stored on at least one
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`of the one or more non-transitory computer-readable mediums” does not create ambiguity, as the
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`reference to “one or more non-transitory computer-readable mediums” could refer to either the
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`first iteration of that limitation or the second. Accordingly, the claim is properly read to allow
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`for the second and third set of program instructions to be stored on either the first or second set
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`Case 2:13-cv-00655-WCB Document 125 Filed 09/02/14 Page 14 of 14 PageID #: 2154
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`of “one or more non-transitory computer-readable mediums.” That is, the second and third set of
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`program instructions can be stored on any of the non-transitory computer-readable mediums.
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`Reading the claim language in that way, the claims have exactly the same coverage, whether the
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`second recitation of “one or more non-transitory computer-readable mediums” was a drafting
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`error or was intended to be an independent limitation, separate from the first reference to “one or
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`more non-transitory computer-readable mediums.”
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`Thus, while the language of claim 39 of the ’023 patent is broad and permissive, the
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`scope of the claim is clear. Because the claim language does not restrict how program
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`instructions are distributed across computers, it does not leave the reader with doubt as to the
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`scope of the claim. The challenged language from claim 39 is therefore not indefinite, and claim
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`39 and its dependent claims are not invalid for indefiniteness.
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` IT IS SO ORDERED.
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`SIGNED this 2d day of September, 2014.
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`_____________________________
`WILLIAM C. BRYSON
`UNITED STATES CIRCUIT JUDGE
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`14