Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 1 of 45 PageID #: 8605
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`THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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` T
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`INTELLECTUAL VENTURES I LLC,
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`
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`v.
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`Plaintiff,
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` MOBILE USA, INC., T-MOBILE US,
`INC., ERICSSON INC.,
`TELEFONAKTIEBOLAGET LM
`ERICSSON,
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`
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`
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`Defendants.
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`
`
`CASE NO. 2:17-CV-577-JRG
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`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
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`Before the Court is the Opening Claim Construction Brief (Dkt. No. 165) filed by Plaintiff
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`Intellectual Ventures I, LLC (“Plaintiff” or “IV”). Also before the Court are Defendants T-Mobile
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`USA, Inc., T-Mobile US, Inc. (“T-Mobile”), Ericsson Inc., and Telefonaktiebolaget LM Ericsson’s
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`(“Ericsson’s”) (collectively, “Defendants’”) Responsive Claim Construction Brief (Dkt. No. 118)
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`and Plaintiff’s reply (Dkt. No. 126).
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 2 of 45 PageID #: 8606
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`Table of Contents
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`I. BACKGROUND ....................................................................................................................... 1 
`II. LEGAL PRINCIPLES ........................................................................................................... 1 
`III. AGREED TERMS................................................................................................................. 6 
`IV. DISPUTED TERMS .............................................................................................................. 6 
`A. “in an isochronous manner” .................................................................................................. 6 
`B. “periodic variation” ............................................................................................................... 9 
`C. “host workstation” ............................................................................................................... 12 
`D. “to optimize end-user quality of service (QoS) for an Internet Protocol (IP) flow,”
`“so as to optimize end-user quality of service (QoS) associated with said IP flow,”
`and “so as to optimize end-user internet protocol (IP) quality of service (QoS)” .............. 15 
`E. “assigning means for assigning future slots of a transmission frame to a portion of
`said IP flow in said transmission frame for transmission over said shared wireless
`network” .............................................................................................................................. 23 
`F. “means for applying an advanced reservation algorithm” ................................................... 26 
`G. “means for reserving a first slot for a first data packet of an Internet Protocol (IP)
`flow in a future transmission frame based on said algorithm” ........................................... 29 
`H. “means for reserving a second slot for a second data packet of said IP flow in a
`transmission frame subsequent in time to said future transmission frame based on
`said algorithm” .................................................................................................................... 31 
`I. “means for taking into account service level agreement (SLA) based priorities for said
`IP flow” ............................................................................................................................... 33 
`J. “the analyzed contents” and “the analyzed packet contents” ............................................... 35 
`K. “allocating the shared wireless bandwidth between the wireless base station
`transmitting in the downlink direction and the at least one CPE station transmitting
`in the uplink direction” and “allocate wireless bandwidth between the uplink
`direction and the downlink direction responsive to the analyzed packet contents and
`the analyzed reservation requests” ...................................................................................... 38 
`L. “said plurality of packets” ................................................................................................... 40 
`V. CONCLUSION...................................................................................................................... 42 
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 3 of 45 PageID #: 8607
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`I. BACKGROUND
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`
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`On August 9, 2017, Plaintiff brought suit alleging infringement of United States Patents
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`No. 6,628,629 (“the ’629 Patent”), 7,359,971 (“the ’971 Patent”), 7,412,517 (“the ’517 Patent”),
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`and RE46,206 (“the ’206 Patent”) (collectively, “the patents-in-suit”). (See Dkt. No. 1.)
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`
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`The ’629 Patent, titled “Reservation Based Prioritization Method for Wireless
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`Transmission of Latency and Jitter Sensitive IP-Flows in a Wireless Point to Multi-Point
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`Transmission System” and issued on September 30, 2003, bears the earliest priority date of
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`July 10, 1998. The Abstract of the ’629 Patent states:
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`A wireless telecommunications network having superior quality of service is
`provided. A system and method for assigning future slots of a transmission frame
`to a data packet in the transmission frame for transmission over a wireless
`telecommunication network system includes applying an advanced reservation
`algorithm, reserving a first slot for a first data packet of an internet protocol (IP)
`flow in a future transmission frame based on the algorithm, reserving a second slot
`for a second data packet of the IP flow in a transmission frame subsequent in time
`to the future transmission frame based on the algorithm, wherein the second data
`packet is placed in the second slot in an isochronous manner to the placement of
`the first data packet in the first slot. There may be a periodic variation between the
`placement of the first data packet in the first slot and the placement of second data
`packet in the second slot or no periodic variation between placements of slots. The
`advanced reservation algorithm makes a determination whether the IP flow is jitter-
`sensitive.
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`The parties submit that the patents-in-suit all share a common specification. (See Dkt. No.
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`
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`118 at 2.)
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`II. LEGAL PRINCIPLES
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`
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`It is understood that “[a] claim in a patent provides the metes and bounds of the right which
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`the patent confers on the patentee to exclude others from making, using or selling the protected
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`invention.” Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999).
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`Claim construction is clearly an issue of law for the court to decide. Markman v. Westview
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`Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996).
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`1
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`“In some cases, however, the district court will need to look beyond the patent’s intrinsic
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`evidence and to consult extrinsic evidence in order to understand, for example, the background
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`science or the meaning of a term in the relevant art during the relevant time period.” Teva Pharms.
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`USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015) (citation omitted). “In cases where those
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`subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that
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`extrinsic evidence. These are the ‘evidentiary underpinnings’ of claim construction that we
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`discussed in Markman, and this subsidiary factfinding must be reviewed for clear error on appeal.”
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`Id. (citing 517 U.S. 370).
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`
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`To ascertain the meaning of claims, courts look to three primary sources: the claims, the
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`specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must
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`contain a written description of the invention that enables one of ordinary skill in the art to make
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`and use the invention. Id. A patent’s claims must be read in view of the specification, of which
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`they are a part. Id. For claim construction purposes, the description may act as a sort of dictionary,
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`which explains the invention and may define terms used in the claims. Id. “One purpose for
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`examining the specification is to determine if the patentee has limited the scope of the claims.”
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`Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
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`
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`Nonetheless, it is the function of the claims, not the specification, to set forth the limits of
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`the patentee’s invention. Otherwise, there would be no need for claims. SRI Int’l v. Matsushita
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`Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
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`lexicographer, but any special definition given to a word must be clearly set forth in the
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`specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992).
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`Although the specification may indicate that certain embodiments are preferred, particular
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`embodiments appearing in the specification will not be read into the claims when the claim
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`2
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 5 of 45 PageID #: 8609
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`language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
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`34 F.3d 1048, 1054 (Fed. Cir. 1994).
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`
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`This Court’s claim construction analysis is substantially guided by the Federal Circuit’s
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`decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips,
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`the court set forth several guideposts that courts should follow when construing claims. In
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`particular, the court reiterated that “the claims of a patent define the invention to which the patentee
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`is entitled the right to exclude.” Id. at 1312 (quoting Innova/Pure Water, Inc. v. Safari Water
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`Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To that end, the words used in a claim
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`are generally given their ordinary and customary meaning. Id. The ordinary and customary
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`meaning of a claim term “is the meaning that the term would have to a person of ordinary skill in
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`the art in question at the time of the invention, i.e., as of the effective filing date of the patent
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`application.” Id. at 1313. This principle of patent law flows naturally from the recognition that
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`inventors are usually persons who are skilled in the field of the invention and that patents are
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`addressed to, and intended to be read by, others skilled in the particular art. Id.
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`
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`Despite the importance of claim terms, Phillips made clear that “the person of ordinary
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`skill in the art is deemed to read the claim term not only in the context of the particular claim in
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`which the disputed term appears, but in the context of the entire patent, including the
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`specification.” Id. Although the claims themselves may provide guidance as to the meaning of
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`particular terms, those terms are part of “a fully integrated written instrument.” Id. at 1315
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`(quoting Markman, 52 F.3d at 978). Thus, the Phillips court emphasized the specification as being
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`the primary basis for construing the claims. Id. at 1314–17. As the Supreme Court stated long
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`ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive portions
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`of the specification to aid in solving the doubt or in ascertaining the true intent and meaning of the
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`3
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 6 of 45 PageID #: 8610
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`language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878). In addressing the role of
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`the specification, the Phillips court quoted with approval its earlier observations from Renishaw
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`PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998):
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`Ultimately, the interpretation to be given a term can only be determined and
`confirmed with a full understanding of what the inventors actually invented and
`intended to envelop with the claim. The construction that stays true to the claim
`language and most naturally aligns with the patent’s description of the invention
`will be, in the end, the correct construction.
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`Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important role the specification
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`plays in the claim construction process.
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`
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`The prosecution history also continues to play an important role in claim interpretation.
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`Like the specification, the prosecution history helps to demonstrate how the inventor and the
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`United States Patent and Trademark Office (“PTO”) understood the patent. Id. at 1317. Because
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`the file history, however, “represents an ongoing negotiation between the PTO and the applicant,”
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`it may lack the clarity of the specification and thus be less useful in claim construction proceedings.
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`Id. Nevertheless, the prosecution history is intrinsic evidence that is relevant to the determination
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`of how the inventor understood the invention and whether the inventor limited the invention during
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`prosecution by narrowing the scope of the claims. Id.; see Microsoft Corp. v. Multi-Tech Sys.,
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`Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (noting that “a patentee’s statements during
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`prosecution, whether relied on by the examiner or not, are relevant to claim interpretation”).
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`
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`Phillips rejected any claim construction approach that sacrificed the intrinsic record in
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`favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court
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`condemned the suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
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`(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
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`dictionaries or otherwise) before resorting to the specification for certain limited purposes.
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`4
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`Phillips, 415 F.3d at 1319–24. According to Phillips, reliance on dictionary definitions at the
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`expense of the specification had the effect of “focus[ing] the inquiry on the abstract meaning of
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`words rather than on the meaning of claim terms within the context of the patent.” Id. at 1321.
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`Phillips emphasized that the patent system is based on the proposition that the claims cover only
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`the invented subject matter. Id.
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`
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`Phillips does not preclude all uses of dictionaries in claim construction proceedings.
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`Instead, the court assigned dictionaries a role subordinate to the intrinsic record. In doing so, the
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`court emphasized that claim construction issues are not resolved by any magic formula. The court
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`did not impose any particular sequence of steps for a court to follow when it considers disputed
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`claim language. Id. at 1323–25. Rather, Phillips held that a court must attach the appropriate
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`weight to the intrinsic sources offered in support of a proposed claim construction, bearing in mind
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`the general rule that the claims measure the scope of the patent grant.
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`The Supreme Court of the United States has “read [35 U.S.C.] § 112, ¶ 2 to require that a
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`patent’s claims, viewed in light of the specification and prosecution history, inform those skilled
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`in the art about the scope of the invention with reasonable certainty.” Nautilus, Inc. v. Biosig
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`Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). “A determination of claim indefiniteness is a
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`legal conclusion that is drawn from the court’s performance of its duty as the construer of patent
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`claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005)
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`(citations and internal quotation marks omitted), abrogated on other grounds by Nautilus, 134
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`S. Ct. 2120. “Indefiniteness must be proven by clear and convincing evidence.” Sonix Tech. Co.
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`v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).
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`5
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 8 of 45 PageID #: 8612
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`III. AGREED TERMS
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`In their July 25, 2018 Revised Joint Claim Construction and Prehearing Statement (Dkt.
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`No. 110-1, Ex. A) and their August 22, 2018 Joint Claim Construction Chart (Dkt. No. 128-1), the
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`parties submitted the following agreed-upon constructions:
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`Term
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`“reserving a second slot for a second data
`packet of said IP flow in a transmission frame,
`subsequent in time to said future transmission
`frame”
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`(’629 Patent, Claim 1)
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`“unlink direction”
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`(’517 Patent, Claim 1)
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`(CPE)
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`equipment
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`premises
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`“customer
`station(s)”
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`(’517 Patent, Claims 1, 12)
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`(’206 Patent, Claims 1, 112, 114)
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`“LIP flow”
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`(’206 Patent, Claim 32)
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`
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`IV. DISPUTED TERMS
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`A. “in an isochronous manner”
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`Construction
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`“reserving a second slot for a second data
`packet of said IP flow in a transmission frame
`subsequent in time to said future transmission
`frame”
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`The parties agree that the comma is a
`typographical printing error.
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`“uplink direction”
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`is a
`the “n”
`that
`The parties agree
`typographical printing error and should be a
`“p.”
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`the premises of a
`“devices residing on
`customer and used to connect to a telephone
`network, including ordinary telephones, key
`telephone systems, PBXs, video conferencing
`devices and modems”
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`“IP flow”
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`that
`The parties agree
`typographical printing error.
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`the “L”
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`is a
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`“in a manner which provides for consistent
`timed access”
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`“according to a consistent time interval”
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`6
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 9 of 45 PageID #: 8613
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`(Dkt. No. 110, Ex. B at 1; Dkt. No. 111 at 3; Dkt. No. 118 at 10; Dkt. No. 128-1 at 1.) The parties
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`submit that this term appears in Claim 1 of the ’629 Patent, Claim 12 of the ’971 Patent, and Claim
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`123 of the ’206 Patent. (Dkt. No. 110, Ex. B at 1.)
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`(1) The Parties’ Positions
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`Plaintiff argues that whereas Plaintiff’s proposed construction is taken from the
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`specification, “Defendants’ construction unnecessarily alters the patentee’s definition.” (Dkt. No.
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`111 at 4.)
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`
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`Defendants respond: “The patent explicitly defines an isochronous connection as one that
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`is ‘in phase with respect to time,’ and it equates that articulation with a more layman-friendly
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`explanation of delivering packets ‘at consistent time intervals.’” (Dkt. No. 118 at 11 (quoting ’629
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`Patent at 61:41–46).)
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`
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`Plaintiff replies that Defendants’ proposal of “‘consistent time interval’ has no antecedent
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`in the specification and is being used improperly to try to shade the meaning of the claim for later
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`stages of these proceedings.” (Dkt. No. 126 at 1.)
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`(2) Analysis
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`Plaintiff’s proposal is unclear as to the meaning of “access.” Even though that word
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`appears in one of the below-reproduced disclosures, referring to “access” would not be consistent
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`with the context in which the disputed term appears in the claims. Claim 1 of the ’629 Patent, for
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`example, recites the disputed term in the context of placing a data packet in a slot (emphasis
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`added):
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`1. A method for assigning future slots of a transmission frame to a data packet in
`the transmission frame for transmission over a wireless medium, comprising:
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`applying a reservation algorithm;
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`reserving a first slot for a first data packet of an internet protocol (IP) flow
`in a future transmission frame based on said reservation algorithm; and
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`7
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 10 of 45 PageID #: 8614
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`reserving a second slot for a second data packet of said IP flow in a
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`transmission frame, subsequent in time to said future transmission frame based on
`said reservation algorithm,
`wherein said second data packet is placed in said second slot in an
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`isochronous manner to the placing of said first data packet in said first slot.
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`As to the proper construction, the specification discloses:
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`In legacy networks created primarily for voice traffic by telephone companies, data
`transmission was accomplished with reference to a circuit-centric definition of
`[Quality of Service (“QoS”)]. In this definition, QoS implied the ability to carry
`asynchronous (i.e. transmission of data through start and stop sequences without
`the use of a common clock) as well as isochronous (i.e. consistent timed access of
`network bandwidth for time-sensitive voice and video) traffic.
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`’629 Patent at 13:53–60 (emphasis added).
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`For calls that are sensitive to jitter, meaning calls that are time sensitive, it is
`important to maintain an isochronous (i.e., in phase with respect to time)
`connection. With such signals, it is important that the data be dispersed in the same
`slot between frames, or in slots having a periodic variation between frames. For
`example, vertical reservation 1480 shows a jitter sensitive signal receiving the same
`slot for downlink communications in each frame. Specifically, the signal is
`assigned slot 1422 in frames 1402-1416. If the frame-to-frame interval is 0.5 ms,
`then a slot will be provided to the IP flow every 0.5 ms. As another example,
`diagonal reservation 1482 shows a jitter sensitive signal receiving a slot varying by
`a period of one between sequential frames. Specifically, the signal is assigned slot
`1440 in frame 1402, slot 1438 in slot [sic, frame] 1404, . . . slot 1426 in frame 1416,
`to create a “diagonal.” If the frame-to-frame interval is 0.5 ms and the slot-to-slot
`interval is 0.01 ms, then a slot can be provided to the IP flow every 0.5 minus 0.01,
`equals 0.49 mms [sic, ms]. Thus, to decrease the frame interval, a diagonal
`reservation of positive slope can be used. To obtain an increased frame interval, a
`diagonal of negative slope such as, e.g., negative slope diagonal uplink reservation
`1486. The diagonal reservation 1482 can also be more pronounced (i.e., using a
`greater or lesser slope), depending on the period between sequential frames desired.
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`Reservation patterns 1480, 1482, 1484 and 1486 are useful patterns for jitter
`sensitive communications. Also illustrated is a vertical reservation 1486, similar to
`vertical reservation 1480, useful for a jitter sensitive communication in the uplink
`direction.
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`Id. at 61:41–62:3 (emphasis added); see also id. at 50:59–61, Fig. 14. At the September 5, 2018
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`hearing, Plaintiff was amenable to construing “isochronous” to mean “in phase with respect to
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`time,” as disclosed above. (See Dkt. No. 151 at 5:16–20.)
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`
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`8
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`
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`Yet, while the use of “i.e.” in these disclosures indicates that “isochronous” has a particular
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`meaning, the disclosure of “i.e. in phase with respect to time” is unclear and does not adequately
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`address the meaning of “isochronous manner,” as used in the claims at issue here. The two
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`separate, different above-reproduced uses of “i.e.” prevent a finding of any clear definition by the
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`patentee. See Renishaw, 158 F.3d at 1249 (“The patentee’s lexicography must, of course, appear
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`with reasonable clarity, deliberateness, and precision before it can affect the claim.”); see also CCS
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`Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (“[T]he claim term will not
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`receive its ordinary meaning if the patentee acted as his own lexicographer and clearly set forth a
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`definition of the disputed claim term in either the specification or prosecution history.”) (emphasis
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`added). Instead, the context provided by these disclosures supports Defendants’ proposed
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`construction, in particular as to consistency with respect to time.
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`
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`Moreover, Defendants’ proposal comports with technical dictionary definitions of
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`“isochronous” that refer to a “time interval,” a “constant phase relationship,” and “a fixed
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`frequency or period.” (Dkt. No. 118, Ex. 2, Telephony’s Dictionary 165 (2d ed. 1986); id., Ex. 3,
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`McGraw-Hill Dictionary of Scientific and Technical Terms 1057 (5th ed. 1994).)
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`
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`The Court therefore hereby construes “in an isochronous manner” to mean “according
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`to a consistent time interval.”
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`B. “periodic variation”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
`
`Plain meaning, “regular variation of the
`location within frames into which the data is
`successively placed”
`
`“changing of the placement between frames,
`while maintaining a consistent time interval”
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`9
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 12 of 45 PageID #: 8616
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`(Dkt. No. 110, Ex. B at 2; Dkt. No. 111 at 4; Dkt. No. 118 at 13; Dkt. No. 128-1 at 3.) The parties
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`submit that this term appears in Claim 3 of the ’629 Patent and Claim 14 of the ’971 Patent. (Dkt.
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`No. 110, Ex. B at 2.)
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`
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`
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`(1) The Parties’ Positions
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`Plaintiff argues: “Defendants’ proposed construction is unhelpful and designed to sow jury
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`confusion. It is the location of the data packet within the transmission frame that varies. The
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`placement does not change between frames as Defendants propose.” (Dkt. No. 111 at 5.)
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`
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`Defendants respond that “Defendants’ construction memorializes what is undisputed;
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`although isochronous placement with ‘periodic variation’ allows the particular slot for the packet
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`to change between frames, the interval between packet slots must be the same” (as required by the
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`independent claims from which the claims here at issue depend). (Dkt. No. 118 at 13.) Defendants
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`argue that Plaintiff’s proposed construction “could be misinterpreted to mean that, although this
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`dependent claim does not permit any regular variation of the slot location, it is acceptable in this
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`claim (and therefore in the independent claims) to have an irregular variation of the slot location.”
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`(Id. at 14.)
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`
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`Plaintiff replies that, under Defendants’ proposed construction, “[t]he relationship between
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`frames, slots, and consistent time intervals is unclear, and there is no way that a jury will
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`understand what this means.” (Dkt. No. 126 at 1.)
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`
`
`
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`(2) Analysis
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`Claims 1–3 of the ’629 Patent,1 for example, recite (emphasis added):
`
`1. A method for assigning future slots of a transmission frame to a data packet in
`the transmission frame for transmission over a wireless medium, comprising:
`
`applying a reservation algorithm;
`
`1 Claim 2 of the ’629 Patent is not asserted but has been reproduced here for context. Claims 2
`and 3 depend from Claim 1, which is likewise reproduced here for context.
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`10
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`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 13 of 45 PageID #: 8617
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`reserving a first slot for a first data packet of an internet protocol (IP) flow
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`in a future transmission frame based on said reservation algorithm; and
`reserving a second slot for a second data packet of said IP flow in a
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`transmission frame, subsequent in time to said future transmission frame based on
`said reservation algorithm,
`
`wherein said second data packet is placed in said second slot in an
`isochronous manner to the placing of said first data packet in said first slot.
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`2. The method of claim 1, wherein there is a periodic variation between the placing
`of said first data packet in said first slot and the placing of second data packet in
`said second slot.
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`3. The method of claim 1, wherein there is no periodic variation between the
`placing of said first data packet in said first slot and the placing of second data
`packet in said second slot.
`
`The claims thus recite variation, and Plaintiff acknowledges that where variation is periodic
`
`
`
`it “varies by a regular amount.” (Dkt. No. 111 at 4.) Also, the specification provides context in
`
`which “varying by a period” refers to repeatedly varying by a particular amount from one frame
`
`to the next:
`
`As another example, diagonal reservation 1482 shows a jitter sensitive signal
`receiving a slot varying by a period of one between sequential frames. Specifically,
`the signal is assigned slot 1440 in frame 1402, slot 1438 in slot [sic, frame] 1404, .
`. . slot 1426 in frame 1416, to create a “diagonal.” If the frame-to-frame interval is
`0.5 ms and the slot-to-slot interval is 0.01 ms, then a slot can be provided to the IP
`flow every 0.5 minus 0.01, equals 0.49 mms [sic, ms].
`
`’629 Patent at 61:51–59 (ellipsis in original; emphasis added); see id. at Fig. 14.
`
`
`
`As to Plaintiff’s proposal of “frames into which the data is successively placed” and
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`Defendants’ proposal of “between frames,” the parties’ proposals are directed to other claim
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`language and should not be incorporated within the construction of “periodic variation.”
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`
`
`The Court therefore hereby construes “periodic variation” to mean “repeated variation
`
`by a particular amount.”
`
`
`
`11
`
`

`

`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 14 of 45 PageID #: 8618
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`C. “host workstation”
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`Plaintiff’s Proposed Construction
`
`Defendants’ Proposed Construction
`
`Plain meaning, “a computer or other device
`that communicates with other computers on a
`network and includes a terminal or interface to
`accept input”
`
`“end-point running one or more applications
`and capable of serving as the source or
`destination of an IP flow to or from a
`subscriber end-point”2
`
`
`(Dkt. No. 110, Ex. B at 3; Dkt. No. 111 at 5; Dkt. No. 118 at 14; Dkt. No. 128-1 at 4–5.) The
`
`parties submit that this term appears in Claim 12 of the ’971 Patent. (Dkt. No. 110 Ex. B at 3.)
`
`
`
`
`
`(1) The Parties’ Positions
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`Plaintiff argues that “‘host workstation’ is a commonly used generic term,” and
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`“Defendants improperly try to limit this general term to a narrow example . . . .” (Dkt. No. 111
`
`at 5, 7.)
`
`
`
`Defendants respond that “[n]ot every computer with an interface is a ‘host’ workstation,”
`
`and “IV’s construction improperly includes intermediate devices, such as routers (computers that
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`communicate with other computers over a network and include an interface to accept input) . . . .”
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`(Dkt. No. 118 at 16.)
`
`
`
`Plaintiff replies: “A ‘host computer’ is a staple term of computer science, which appears in
`
`tens of thousands of patents in the PTO database. The word ‘host’ simply means that the device
`
`can connect to a network. Similarly, a ‘host workstation’ is a host computer that also functions as
`
`a workstation—i.e., it has a terminal or interface to accept input.” (Dkt. No. 126 at 2.)
`
`
`
`
`
`(2) Analysis
`
`The specification refers to “host computers” as well as to “workstation[s]”:
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`Network 148 includes an example local area network including a plurality of host
`computers such as, e.g., client workstation 138 and server 136, coupled together
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`2 Defendants previously proposed: “end-point running one or more applications and serving as the
`source or destination of an IP flow to or from a subscriber end-point.” (Dkt. No. 110, Ex. B at 3.)
`
`
`
`12
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`

`

`Case 2:17-cv-00577-JRG Document 197 Filed 11/06/18 Page 15 of 45 PageID #: 8619
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`by wiring including network interface cards (NICs) and a hub, such as, e.g., an
`Ethernet hub. The LAN is coupled to data network 142 by a network router 140
`which permits data traffic to be routed to workstations 144 and 146 from client 138
`and server 136.
`
`’971 Patent at 30:49–56 (emphasis added); see id. at 31:56–60 (“A local area network (LAN) can
`
`be thought of as a plurality of host computers interconnected via network interface cards (NICs)
`
`in the host computers. The NICs are connected via, for example, copper wires so as to permit
`
`communication between the host computers.”).
`
`
`
`This disclosure is consistent with Defendants’ proposal that a “host workstation” is an end
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`point rather than an intermediate device such as “a network router” or “an Ethernet hub” or, for
`
`that matter, “wiring.” ’971 Patent at 30:49–56; see id. at Fig. 3B. As Defendants have urged, this
`
`understanding gives meaning to the constituent term “host.” See Merck & Co. v. Teva Pharm.
`
`USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) (“A claim construction that gives meaning to all
`
`the terms of the claim is preferred over one that does not do so.”). Plaintiff argued at the September
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`5, 2018 hearing that Plaintiff’s proposal of requiring “a terminal or interface to accept input” would
`
`exclude network routers, but Plaintiff failed to demonstrate how this is so. Plaintiff has also urged
`
`that the specification refers to a “host workstation” in terms of accepting input, but Plaintiff has
`
`not shown how its cited disclosures compel such a construction. See ’971 Patent at 30:53–56,
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`32:6–9, 64:1–4, 64:24–31, 72:36–41, 73:47–49, Figs. 1, 2A.
`
`
`
`As to Defendants’ proposal of referring to an “IP flow,” this proposal is consistent wit