Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 1 of 17 PageID #: 1033
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`JOE ANDREW SALAZAR,
`
`
` Plaintiff,
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` vs.
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`
`HTC CORPORATION,
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` Defendant.
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`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Civil Action No. 2:16-cv-01096-JRG-RSP
`
`JURY DEMANDED
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`
`
`
`PLAINTIFF JOE ANDREW SALAZAR’S REPLY TO DEFENDANT HTC
`CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`

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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 2 of 17 PageID #: 1034
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`TABLE OF CONTENTS
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`TERMS IN DISPUTE...................................................................................................1
`1. “base station”...........................................................................................................1
`2. Defendant’s proposed “microprocessor” limitations ..............................................3
`a. Defendant mischaracterizes the prosecution history...................................3
`b. IPXL Holdings is not applicable because the claims only
`indicate a capability of the structure rather than actual use.........................4
`3. Defendant’s proposed “memory device limitations”................................................6
`a. Section 112(f) does not apply......................................................................6
`b. Defendant’s proposed construction in the alternative
`should be rejected........................................................................................7
`4. “selector”.................................................................................................................8
`5. “data detector”.......................................................................................................10
`6. “command code set”..............................................................................................10
`7. “communications protocols”..................................................................................11
`8. “parameter sets”.....................................................................................................12
`9. “backup battery power source”..............................................................................12
`10. “a plurality of home entertainment systems”.........................................................12
`11. “external device”....................................................................................................13
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`CONCLUSION............................................................................................................13
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`I.
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`II.
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`ii
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 3 of 17 PageID #: 1035
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Biosonix, LLC v. Hydrowave, LLC, 230 F. Supp.3d 598 (E.D. Tex. 2017)............................4, 8, 9
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`Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010)......................................1
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`Halliburton Energy Servs., Inc. v. M–I LLC, 514 F.3d 1244 (Fed. Cir. 2008)................................6
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`Hand Held Prods., Inc. v. Amazon.com, Inc., No. CV 12-768, 2014 WL 2873902 (D. Del. June
`24, 2014)..........................................................................................................................................8
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`Huawei Techs. Co. v. T-Mobile US, Inc., No. 2:16-CV-00057, 2017 WL 2691227 (E.D. Tex.
`June 22, 2017)..................................................................................................................................6
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`IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377 (Fed. Cir. 2005)............................4, 5
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`Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898 (Fed. Cir. 2004)..........................................10
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`LifeNet Health v. LifeCell Corp., 837 F.3d 1316 (Fed. Cir. 2016)..................................................5
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`Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354 (Fed. Cir. 2004)........................9
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`Masco Corp. v. United States, 303 F.3d 1316 (Fed. Cir. 2002)......................................................6
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`Microprocessor Enhancement Corp. v. Tex. Instruments Inc., 520 F.3d 1367 (Fed. Cir.
`2008)............................................................................................................................................5, 7
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`Microsoft Corp. v. Multi–Tech Sys., Inc., 357 F.3d 1340 (Fed. Cir. 2004).....................................3
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`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005).................................................................1
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`Purdue Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123 (Fed. Cir. 2006)............................4, 8
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`Seachange Int’l, Inc. v. C–COR, Inc., 413 F.3d 1361 (Fed. Cir. 2005)..........................................2
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`Smartflash LLC v. Apple Inc., 77 F. Supp.3d 535 (E.D. Tex. 2014)...............................................9
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`Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376 (Fed. Cir. 2011).................................7, 8
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`UltimatePointer, LLC. v. Nintendo Co., 816 F.3d 816 (Fed. Cir. 2016).........................................5
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`VDP Patent, LLC v. Welch Allyn Holdings, Inc., 623 F. Supp.2d 414 (S.D.N.Y. 2008)................8
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`Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015)................................................6
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`iii
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 4 of 17 PageID #: 1036
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`In its responsive claim construction brief, Defendant HTC Corporation attempts to depart
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`from the ordinary meaning of the claim terms and rewrite the claims by importing limitations
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`from embodiments in the specification and arbitrarily adding claim limitations in an effort to
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`narrow the scope of the claims and/or convert claims from capability claims 1 to claims that
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`require “use” limitations. Defendant’s § 112 and prosecution history estoppel arguments are
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`misplaced and Defendant provides no testimony of one skilled in the art to support its
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`propositions. As detailed below, the intrinsic record does not support Defendant’s propositions
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`and the Court should not depart from the ordinary meaning of the claim terms.
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`I.
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`TERMS IN DISPUTE
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`1.
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`“base station”
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`Realizing its original proposed construction was indefensible, Defendant, in its
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`responsive claim construction brief, makes a second attempt to redefine “base station.” 2
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`Defendant’s new construction is similarly untenable as it is inconsistent with the doctrine of
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`claim differentiation, attempts to import limitations from the specification based on particular
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`embodiments, and is inconsistent with the claims of the ‘467 Patent when read in light of the
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`specification.
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`Defendant’s argument that the base station comes with structures that allow users to
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`employ additional functions is without merit and inconsistent with the doctrine of claim
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`differentiation. See Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (explaining
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`1 See, e.g., Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1204 (Fed. Cir. 2010) (“we
`have held that, to infringe a claim that recites capability and not actual operation, an accused
`device ‘need only be capable of operating’ in the described mode”).
`2 Defendant in its P.R. 4-2 and 4-3 disclosures proposed “a device separate from a handheld
`device that transmits signals to and receives signals from a handheld device and that is powered
`by an alternating current source and a backup battery pack.”
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`1
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 5 of 17 PageID #: 1037
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`that when a dependent claim adds a limitation to an independent claim, it is presumed that the
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`independent claim does not include the limitation); Seachange Int’l, Inc. v. C–COR, Inc., 413
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`F.3d 1361, 1369 (Fed. Cir. 2005) (doctrine of claim differentiation). In particular, Defendant’s
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`reliance on dependent claim 12 for the proposition that a base station must come with “a
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`telephone line interface” would render claim 12 meaningless. Claim 12, which depends from
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`claim 10, states that “The communication, command, control, and sensing system of claim 10
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`wherein said base station is coupled to at least one telephone line via a telephone line interface.”
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`Claim 10 is completely devoid of any reference to a telephone line interface, and the only
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`meaningful difference between these claims is the telephone line interface limitation. Thus,
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`Defendant’s proposed construction should be rejected because it would render the additional
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`element of claim 12 superfluous.
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`The figures of the ‘467 Patent also contradict Defendant’s proposed construction. For
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`example, Figures 3 and 5, among other components, include a sensor, alternating current line,
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`and backup battery power source. Defendant’s proposed construction violates the doctrine of
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`claim differentiation and would also render superfluous claims 13 (where the base station is
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`adapted to couple frequency modulated signals to an alternating current power line) and claim 14
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`(where the base station further comprises a backup battery power source).
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`Defendant’s attempt to impose limitations on the base station to differentiate the base
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`station from the handset is directly contradicted by the claims and specification of the ‘467
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`Patent. The specification teaches that “It is another object of the invention to provide a means
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`for loading the microprocessor external memory of the handset or base station with updated or
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`accessory programs and/or data bases. The loading can be accomplished via a telephone line, a
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`telephone base unit transceiver, a personal computer...” See Col. 2:47-55. The ‘467 Patent
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`2
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 6 of 17 PageID #: 1038
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`contemplates that microprocessor external memory can be loaded from either the handset or the
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`base station. The patent does not discriminate between the components and functionality of the
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`handset or base station.
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`Plaintiff’s reference to the language of the Summary of the Invention in its opening brief
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`is highly relevant. See Microsoft Corp. v. Multi–Tech Sys., Inc., 357 F.3d 1340, 1348 (Fed. Cir.
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`2004). Here, the Summary of the Invention describes a base station and handset as having
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`“similar components and function[ing] in substantially the same manner.” Nowhere in the
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`Summary of the Invention is there any reference to any other components that make up a handset
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`or base station, and in particular, there is no reference to a telephone line interface. Accordingly,
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`the Court should reject Defendant’s proposed construction that departs from the ordinary
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`meaning of the claim term.
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`2.
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`Defendant’s proposed “microprocessor” limitations
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`a.
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`Defendant mischaracterizes the prosecution history
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`In attempting to narrow the claims of the ‘467 Patent from “capability” claims to claims
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`with “use” limitations, Defendant mischaracterizes the prosecution history, specification, and
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`language of the claims. Defendant’s argument is based on the false premise that because
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`Krisbergh did not teach or disclose a communication system that includes a microprocessor that
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`“creates a plurality of reprogrammable communication protocols,” then the scope of the claims
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`of the ‘467 Patent must be limited to teach or disclose a communication system that includes a
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`microprocessor
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`that creates a plurality of reprogrammable communication protocols.
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`Defendant’s argument relies on one sentence of the prosecution history taken out of context.
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`This argument is directly contradicted by unequivocal statements made by both the patentee and
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`the Patent Examiner in its Notice of Allowability that explicitly state that the claims of the ‘467
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`3
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 7 of 17 PageID #: 1039
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`Patent are capability claims and there is no use limitation, as Defendant asserts.
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`Krisbergh, unlike the ‘467 Patent, does not disclose capability claims. See Dkt. No. 91,
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`Exhibit D (Patentee’s Nov. 3, 1997 Response to Office Action Dated May 1, 1997) at p. 9-10
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`[hereinafter “Patentee’s Response to Office Action”]; Declaration of Frances H. Stephenson,
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`Exhibit G, p.3 (Sept. 26, 2017). In the Notice of Allowability for the application that resulted in
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`the ‘467 Patent, the Examiner confirmed, as the patentee argued, “the additional capability to
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`recreate an external devices command code set from a set of parameters for the external device
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`and thus, reduce the required memory space to store command code sets to that of the parameter
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`set alone has not been observed in the prior art” (emphasis in original). There is no support in
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`the intrinsic evidence for narrowing the ‘467 Patent’s claims given the clear and unequivocal
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`statements made by the patentee and the Examiner to the contrary.3 The Court should reject
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`Defendant’s argument to change the claim language and add additional limitations, including
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`that the microprocessor be “configured to create a plurality of control signals” (instead of “for
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`generating a plurality of control signals”) and “to create all of the command code sets for
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`[reprogrammable] communication protocols for each of the plurality of external devices with
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`which the system is intended to communicate.”
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`b.
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`IPXL Holdings is not applicable because the claims only
`indicate a capability of the structure rather than actual use
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`Defendant’s argument with respect to IPXL Holdings is also without merit. In IPXL
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`Holdings, the Federal Circuit held that a claim is invalid under § 112 if it claims both an
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`apparatus and use of the apparatus by a user because “it is unclear whether infringement ...
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`occurs when one creates a[n infringing] system, or whether infringement occurs when the user
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`3 Disavowal through prosecution history must be clear, unmistakable, and unambiguous. Purdue
`Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123, 1136 (Fed. Cir. 2006); Biosonix, LLC v.
`Hydrowave, LLC, 230 F. Supp.3d 598, 602-03 (E.D. Tex. 2017).
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`4
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 8 of 17 PageID #: 1040
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`actually uses [the system in an infringing manner].” IPXL Holdings, L.L.C. v. Amazon.com,
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`Inc., 430 F.3d 1377, 1383-84 (Fed. Cir. 2005) (emphasis added). IPXL Holdings has repeatedly
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`been distinguished from cases where an apparatus possesses the recited structure and capability
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`of performing the recited functions. See Microprocessor Enhancement Corp. v. Tex. Instruments
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`Inc., 520 F.3d 1367, 1375 (Fed. Cir. 2008) (holding that the claim was not indefinite because the
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`limitation only indicated a capability of the structure rather than actual use); UltimatePointer,
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`LLC. v. Nintendo Co., 816 F.3d 816, 826 (Fed. Cir. 2016); LifeNet Health v. LifeCell Corp., 837
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`F.3d 1316, 1326-27 (Fed. Cir. 2016) (finding claims not indefinite where they did not mix an
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`apparatus with a method of using that apparatus).
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`Here, the language of the claims at issue relating to the microprocessor (a structure) recite
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`the capability of the microprocessor for performing the recited functions. In particular, the
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`claims and specification of the ‘467 Patent make clear that the microprocessor4 has the capability
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`to create plurality of reprogrammable communication protocols and recreate a desired command
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`code set. See ‘467 Patents claim 1, 10, and 34; Exhibit D p. 10-11. Unlike in IPXL Holdings, in
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`the claims of the ‘467 Patent there is no user activity recited. Furthermore, the timing of the
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`creating/recreating of the command code set has no bearing on this issue of notice of
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`infringement because a person of ordinary skill in the art at the time of the invention would
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`understand that infringement occurs upon creation of the system that is capable of performing the
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`creating/recreating of the command code set, and when that happens is immaterial.5
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`Accordingly, the claim terms provide reasonable notice about when infringement occurs
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`4 As discussed in the following section, Defendant’s assertion that the memory device recreates
`command code sets is false.
`5 HTC has provided no support for the proposition that the timing of when the element is
`performed by the system impacts the IPXL Holdings or § 112 analysis.
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`5
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`and who might be an infringer. Defendant’s argument that the claims of the ‘467 Patent are
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`indefinite and invalid should be rejected.
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`3.
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`Defendant’s proposed “memory device” limitations
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`a.
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`Section 112(f) does not apply
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`Defendant’s argument that § 112(f) applies to these claim terms/phrases must be rejected.
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`There is a rebuttable presumption that § 112(f) does not apply in the absence of the claim
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`language “means” or “step for.” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1348 (Fed.
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`Cir. 2015); Masco Corp. v. United States, 303 F.3d 1316, 1326 (Fed. Cir. 2002). The
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`presumption stands or falls according to whether one of ordinary skill in the art would
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`understand the claim with the functional language, in the context of the entire specification, to
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`denote sufficiently definite structure or acts for performing the function. Huawei Techs. Co. v.
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`T-Mobile US, Inc., No. 2:16-CV-00057, 2017 WL 2691227, at *7 (E.D. Tex. June 22, 2017).6
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`
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`As addressed in Plaintiff’s opening brief, the claims of the ‘467 Patent do not include the
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`language “means” or “step for,” therefore § 112(f) is not applicable. Nevertheless, Defendant
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`argues that the “memory device limitations” should be construed under § 112(f) because “each
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`term recites ‘function without reciting sufficient structure for performing that function.’” In
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`making its argument, Defendant misleads the Court with a reading of the claim language that is
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`simply not supported by the claim language or the specification of the ‘467 Patent. It is clear
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`from the language of the claims and Defendant’s own later proposed construction, 7 that the
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`6 See Halliburton Energy Servs., Inc. v. M–I LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008)
`(overcoming the presumption of patent validity “demands clear and convincing evidence that a
`skilled artisan could not discern the boundaries of the claim”). It should be noted that Defendant
`has provided no evidence of the opinion of one of ordinary skill in the art with respect to the
`interpretation of this term or any term in the ‘467 Patent.
`7 Defendant’s proposed construction is that “parameter sets” should be construed as “a set of
`predefined encoded data stored in the memory device that the microprocessor retrieves and uses
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`6
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 10 of 17 PageID #: 1042
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`functionality Defendant attributes to the memory device is attributed to the microprocessor. A
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`microprocessor, and not a memory device, is capable of performing the “recreate” function.
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`Defendant provides no support for its unreasonable reading of the claim language and provides
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`no evidence that a person of ordinary skill in the art would interpret the claim language in such a
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`manner.
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`Arguendo, even if there were any confusion about the language of the claim, the
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`specification explicitly explains what a memory device does and gives specific examples of
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`memory device structure. The specification teaches that “a memory device, such as a RAM,
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`ROM, EPROM, or EEPROM . . . is configured to store a finite set of parameters…” Col. 8:22-
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`27. Reading the claims in light of the specification, a person of ordinary skill in the art would
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`understand that ROM or RAM store data and are not capable of recreating command code sets.
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`The specification also defines a microprocessor and what a microprocessor does in great detail
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`and describes the microprocessor numerous times as the structure capable of creating and
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`recreating command code. See Col. 7:30-17:28. Defendant’s argument is wholly unreasonable
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`and contradicts the plain language of the claims and a universal understanding of the capabilities
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`of a microprocessor and a memory device by one of ordinary skill in the art. Accordingly,
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`Defendant has failed to rebut the presumption that § 112(f) does not apply, and the Court should
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`reject Defendant’s argument.
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`b.
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`Defendant’s proposed construction in the alternative should be
`rejected
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`Defendant proposed construction for this claim term/phrase is incomprehensible and
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`Defendant provides no reasonable basis to rewrite the claim language at issue. In Typhoon, the
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`to recreate a command code set.” It is clear from this construction that Defendant understands
`that this functionality is attributable to a microprocessor, not the memory device.
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`7
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 11 of 17 PageID #: 1043
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`Federal Circuit made clear that apparatus claims may appropriately use functional language if the
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`apparatus as provided is “capable” of performing the recited function without later needing to be
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`modified to perform that function. See Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376,
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`1380 (Fed. Cir. 2011); Microprocessor Enhancement Corp., 520 F.3d at 1375.
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`To the extent Defendant attempts to rely on Typhoon to depart from the ordinary meaning
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`of the claim language, Defendant’s arguments should be rejected.8 Typhoon is inapposite to the
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`case at hand because it involved the function of “memory for storing” in the abstract (requiring
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`an association with recited structure in the specification) and not the structure of a specifically
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`defined memory device that is already capable of performing the recited function,9 as in the ‘467
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`Patent. In Typhoon, the court found that the specification required that the memory element at
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`issue actually “stores a data collection application.” Id. at 1381. With respect to the claims of
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`the ‘467 Patent, there has been no clear, unmistakable, and unambiguous disavowal justifying the
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`departure from the ordinary meaning of the term “memory device.” See Purdue Pharma L.P. v.
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`Endo Pharms., Inc., 438 F.3d 1123, 1136 (Fed. Cir. 2006); Biosonix, LLC v. Hydrowave, LLC,
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`230 F. Supp.3d 598, 602-03 (E.D. Tex. 2015).
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`Defendant provides no support or reasoning as to why removing the phrase “coupled to
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`microprocessor” would provide the jury with clarity. Further, since the phrase “coupled to a
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`microprocessor” is included in Defendant’s proposed construction with respect to claim 34,
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`8 Defendant also references, in a conclusory manner, Typhoon in its arguments relating to its
`proposed constructions of selector and data detector.
`9 If Defendant is attempting to again argue that the memory device can perform the “recreate”
`function rather than storing data, as discussed in the previous section, Defendant has not
`provided any evidence of a person of ordinary skill in the art that supports such a reading. See
`Hand Held Prods., Inc. v. Amazon.com, Inc., No. 12-768, 2014 WL 2873902, at *5, *16, *27 (D.
`Del. June 24, 2014) (pointing to Amazon’s lack of expert testimony in ultimately rejecting its
`indefiniteness arguments); VDP Patent, LLC v. Welch Allyn Holdings, Inc., 623 F. Supp.2d 414,
`423 (S.D.N.Y. 2008) (stating that extrinsic evidence may be necessary to invalidate a claim as
`indefinite).
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`8
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`

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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 12 of 17 PageID #: 1044
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`Defendant’s decision to omit it in its proposed constructions relating to claims 1 and 10
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`underscores the fact that its constructions are arbitrary and without purpose. Accordingly, the
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`Court should reject Defendant’s attempt to depart from the ordinary meaning of this term.
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`4.
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`“selector”
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`The claim language makes clear that a selector is a structure that is capable of performing
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`the recited function without modification to perform the function. See, e.g., Claims 2 and 10 (“a
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`selector controlled by said microprocessor for enabling said radio frequency transceiver and said
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`infra-red frequency receiver, to transmit a desired command code . . .” (emphasis added)); see
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`also Fig. 3; Fig. 5; Smartflash LLC v. Apple Inc., 77 F. Supp.3d 535, 540 (E.D. Tex. 2014)
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`(explaining that even if a term covers a broad class of structures and identifies structures by their
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`function, it is sufficient to avoid means-plus-function treatment); see also Lighting World, Inc. v.
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`Birchwood Lighting, Inc., 382 F.3d 1354, 1360 (Fed. Cir. 2004).
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`Defendant’s proposed construction attempts to rewrite this claim term to require use by a
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`user and add limitations without any analysis or support. Defendant’s argument that this claim
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`term should be narrowed based on statements taken out of context made by the patentee during
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`prosecution of the ‘467 Patent is without merit. In Patentee’s Response to Office Action, the
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`examples of what Krisbergh does not teach cited by Defendant is prefaced by the statement that
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`“[t]he references cited by the Examiner either alone or in combination do not even discuss the
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`problems solved by the present invention, nor do they, disclose or teach the figures of the present
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`invention as claimed.” Dkt. No. 91, Exhibit D at p. 12. The patentee further states that “none of
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`the references disclose a selector that allows the transmission and reception of the same signals
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`via either radio frequency (RF) range or infra-red frequency (IR) range as desired. Krisbergh’s
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`system does not even includes an IR transceiver.” Id. at 12-13. As Krisbergh does not have an
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`9
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 13 of 17 PageID #: 1045
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`IR transceiver, Krisbergh cannot be used as a basis to narrow selector as Defendant suggests.
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`Nothing in the prosecution history rises to the level of clear, unmistakable, and unambiguous
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`disavowal that would be required to rewrite the claim as Defendant proposes. See Biosonix, 230
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`F. Supp.3d at 614.
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`Without any support or analysis, Defendant arbitrarily adds the limitation that “a
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`device...receives signals from external devices via both radio frequency and infra-red.” This is
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`directly contradicted by the claim language that states “via either radio frequency signals and
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`infra-red signals.” As noted with respect to the memory device, the specification of the ‘467
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`Patent provides no clear, unmistakable, and unambiguous disavowal justifying adding limitations
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`to the claims, as proposed by Defendant. Accordingly, the Court should reject Defendant’s
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`attempt to depart from the ordinary meaning of this term.
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`5.
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`“data detector”
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`The claim language makes clear that a data detector is a structure that is capable of
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`performing the recited function without modification to perform the function. See, e.g., Claim
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`10 (“a data detector coupled to said selector for receiving signals transmitted from each one of
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`said external devices . . .” (emphasis added)); see also Fig. 3; Fig. 5.
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`
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`Without any support or analysis, Defendant arbitrarily rewrites this claim term, departing
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`from its ordinary meaning, by inserting the language “through the selector.” As with respect to
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`the other terms, the specification of the ‘467 Patent provides no clear, unmistakable, and
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`unambiguous disavowal justifying adding limitations to the claims, as proposed by Defendant.
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`Accordingly, the Court should reject Defendant’s attempt to depart from the ordinary meaning of
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`this term.
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`6.
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`“command code set”
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`10
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`

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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 14 of 17 PageID #: 1046
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`
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`Defendant’s proposed construction attempts to import limitations from a particular
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`embodiment of the ‘467 Patent into the claims and should be rejected. See Liebel-Flarsheim Co.
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`v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004) (“[I]t is improper to read limitations from a
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`preferred embodiment described in the specification—even if it is the only embodiment—into
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`the claims absent a clear indication in the intrinsic record that the patentee intended the claims to
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`be so limited.”).
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`
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`Defendant’s proposed construction also arbitrarily inserts language into this claim term
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`based on attorney argument. In particular, Defendant adds the limitation of “a set of signals that
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`constitute the universe of signals.” There is nothing in the ‘467 Patent claims, specification, or
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`the prosecution history that teaches this limitation. As with respect to the other terms, the
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`specification of the ‘467 Patent provides no clear, unmistakable, and unambiguous disavowal
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`justifying adding limitations to the claims, as proposed by Defendant. Accordingly, the Court
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`should reject Defendant’s attempt to depart from the ordinary meaning of the term.
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`7.
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`“communications protocols”
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`
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`Defendant’s proposed construction improperly adds limitations to the claims of the ‘467
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`Patent based solely on attorney argument and should therefore be rejected. Defendant’s
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`proposed construction also misrepresents what the intrinsic evidence states. The intrinsic
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`evidence cited by Defendant states that “One embodiment of handset 10, in accordance with the
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`present invention, is configured to communicate with various devices such as TV sets, VCR sets,
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`CD players, and Cable boxes...” See Col. 7:34-37.
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`
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`Defendant also arbitrarily inserts language into this claim term based on attorney
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`argument. Defendant’s addition of “two or more devices” and “to produce an action” is not
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`supported by the claims or specification of the ‘467 Patent and would not help a jury understand
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`11
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`

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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 15 of 17 PageID #: 1047
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`this claim term. Further, Defendant’s construction is misleading and suggests that the
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`communication protocols provide a set of rules for TV sets and/or VCR sets or other such
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`external devices to communicate with each other. Again, as with the other terms, the
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`specification of the ‘467 Patent provides no clear, unmistakable, and unambiguous disavowal
`
`justifying adding limitations to the claims, as proposed by Defendant. Accordingly, the Court
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`should reject Defendant’s attempt to depart from the ordinary meaning of the term.
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`8.
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`“parameter sets”
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`
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`Defendant’s proposed construction of parameter sets improperly imports limitations from
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`the specification and should be rejected. Defendant’s purported intrinsic evidence does not
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`support its construction. The ‘467 Patent does not teach the “predefined encoded data”
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`limitation in Defendant’s cited references to the specification or anywhere else. Again, as with
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`the other terms, the specification of the ‘467 Patent provides no clear, unmistakable, and
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`unambiguous disavowal justifying adding limitations to the claims, as proposed by Defendant.
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`Accordingly, the Court should reject Defendant’s attempt to depart from the ordinary meaning of
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`the term.
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`9.
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`“backup battery power source”
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`As discussed before in connection with the term “base station,” Defendant’s proposed
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`construction attempts to improperly limit a backup battery power source to a base station that
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`would render the claim language of claim 14 superfluous. Claim 14 depends from claim 10 and
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`already states “said base station further comprises a backup battery power source.” Again,
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`Defendant has not shown any clear, unmistakable, and unambiguous disavowal of the scope of
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`this term. The Court should reject Defendant’s attempt to depart from the ordinary meaning of
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`this term.
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`12
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`Case 2:16-cv-01096-JRG-RSP Document 94 Filed 09/26/17 Page 16 of 17 PageID #: 1048
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`10.
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`“a plurality of home entertainment s