Ancora Techs. v. Apple, Inc.
`
`United States Court of Appeals for the Federal Circuit
`
`March 3, 2014, Decided
`
`2013-1378, 2013-1414
`
`ANCORA TECHNOLOGIES, INC., Plaintiff-Appellant, v.
`APPLE, INC., Defendant-Cross Appellant.
`
`Reporter
`744 F.3d 732 *; 2014 U.S. App. LEXIS 3895 **; 109 U.S.P.Q.2D (BNA) 2135 ***; 2014 WL 803104
`the specification or prosecution history, to depart from
`the ordinary meaning of "program," as the district court's
`construction did; [2]-District court was correct to reject a
`challenge
`to
`"volatile memory" and
`"non-volatile
`memory" as indefinite and not meeting the standards of
`35 U.S.C.S. § 112(b) because there was no dispute that
`the terms had a meaning that was clear, settled, and
`objective in content, and the specification did not
`supplant that understanding.
`
`Subsequent History: US Supreme Court certiorari
`denied by Apple, Inc. v. Ancora Techs., Inc., 135 S. Ct.
`957, 190 L. Ed. 2d 832, 2015 U.S. LEXIS 277 (U.S.,
`2015)
`
`Prior History: [**1] Appeals from the United States
`District Court for the Northern District of California in No.
`11-CV-6357, Judge Yvonne Gonzalez Rogers.
`
`Ancora Techs., Inc. v. Apple Inc., 2012 U.S. Dist. LEXIS
`183045 (N.D. Cal., Dec. 31, 2012)
`
`Outcome
`District court's construction of "program" as limited to
`application
`programs
`reversed. District
`court's
`conclusion that the terms "volatile memory" and "non-
`volatile memory" were not indefinite affirmed.
`
`Disposition: AFFIRMED
`PART, AND REMANDED.
`
`IN PART, REVERSED
`
`IN
`
`Case Summary
`
`Overview
`
`HOLDINGS: [1]-In a patent infringement case involving
`a patent that claimed methods for verifying that a
`software program on a computer was licensed to be
`there, the district court erred in its construction of
`"program" as limited to application programs, thereby
`excluding operating systems from the class of programs
`that the claimed method checks for authorization under
`a license. There was no support in this case, in either
`
`Counsel: JOHN S. LEROY, Brooks Kushman P.C., of
`Southfield, Michigan, argued for plaintiff-appellant. With
`him on the brief were MARK A. CANTOR, MARC
`LORELLI, and JOHN P. RONDINI.
`
`DEANNE E. MAYNARD, Morrison & Foerster LLP, of
`Washington, DC, argued for defendant-cross appellant.
`With her on the brief were BRIAN R. MATSUI and
`NATALIE R. RAM, OF WASHINGTON, DC; MICHAEL
`A. JACOBS, RICHARD S.J. HUNG, and FRANCIS C.
`HO, of San Francisco, California; and BITA RAHEBI, of
`Los Angeles, California.
`
`Judges: Before RADER, Chief Judge, TARANTO, and
`CHEN, Circuit Judges.
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`
`Opinion by: TARANTO
`
`Opinion
`
` [*733] [***2136] TARANTO, Circuit Judge.
`
`Ancora Technologies, Inc., owns U.S. Patent No.
`6,411,941, which claims methods for verifying that a
`software program on a computer is not there without
`authorization, but is licensed to be there. In December
`2010, Ancora sued Apple Inc., alleging that products
`running Apple's iOS operating system infringed the '941
`patent. The United States District Court for the Northern
`District of California construed the claims. Ancora
`Techs., Inc. v. Apple Inc., 11-CV-06357, 2012 U.S. Dist.
`LEXIS 183045, 2012 WL 6738761 (N.D. Cal. Dec. 31,
`2012). [**2] Ancora stipulated to summary judgment of
`non-infringement under the district court's construction
`of
`the claim
`term "program." The district court
`subsequently entered final judgment dismissing all
`claims and counterclaims. Ancora appeals the district
`court's construction of "program," while Apple cross-
`appeals the district court's holding that the terms
`"volatile memory" and "non-volatile memory" are not
`indefinite. We affirm in part, reverse in part, and
`remand.
`
`BACKGROUND
`
`'941 patent, entitled "Method of Restricting
`The
`Software Operation within a License Limitation,"
`describes a method of preventing unauthorized software
`use by checking whether a software program
`is
`operating within a license and stopping the program or
`taking other remedial action if it is not. The specification
`states that methods for checking license coverage of
`software were known in the art at the time the inventors
`applied for the '941 patent. But some of those methods
`were vulnerable to hacking, the specification observes,
`while others were expensive and
`inconvenient
`to
`distribute. '941 patent, col. 1, lines 19-32.
`
`The specification describes [**3] a method that it says
`over-comes those problems. In particular, it discloses
`using the memory space associated with the computer's
`basic input/output system (BIOS), rather than other
`memory space, to store appropriately encrypted license
`information to be used in the verification process. See,
`e.g., id., col. 1, line 46, through col. 2, line 5; id., col. 4,
`
`lines 45-48; id., col. 5, lines 19-24. It states that, while
`the contents of the BIOS memory space may be
`modified, the level of programming expertise needed to
`do so is unusually high, and the risk of accidentally
`damaging the BIOS and thereby rendering the computer
`inoperable "is too high of a risk for the ordinary software
`hacker to pay." Id., col. 3, lines 4-14. Thus, the inventors
`stated that their method makes use of the existing
`computer hardware (eliminating
`the expense and
`inconvenience of using additional [*734] hardware),
`while storing the verification information in a space that
`is harder and riskier for a hacker to tamper with than
`storage areas used by earlier methods.
`
`Claim 1, the only independent claim Ancora asserts, is
`representative:
`
`1. A method of restricting software operation within
`a license for use with a computer [**4] including an
`erasable, non-volatile memory area of a BIOS of
`the computer, [***2137] and a volatile memory
`area; the method comprising the steps of:
`selecting a program residing in the volatile
`memory,
`using an agent to set up a verification structure
`in the erasable, non-volatile memory of the
`BIOS, the verification structure accommodating
`data that includes at least one license record,
`verifying
`the program using at
`least
`the
`verification structure from the erasable non-
`volatile memory of the BIOS, and
`acting on
`the program according
`verification.
`
`the
`
`to
`
`Id., col. 6, line 59, through col. 7, line 4.
`
`The parties have not meaningfully disagreed about the
`ordinary meaning of the claim terms at issue on appeal:
`"program,"
`"volatile memory," and
`"non-volatile
`memory." But Apple has relied on examples in the
`specification, as well as statements by the applicants
`and the examiner during prosecution, to argue that the
`terms do not have those ordinary meanings in this
`patent. Specifically, Apple has argued that the term
`"program" (which is to be verified for authorization under
`a license) is limited to an application program, i.e., one
`that relies on an operating system in order to run, thus
`excluding an [**5] operating system itself. Apple also
`has argued that the terms "volatile memory" and "non-
`volatile memory" are indefinite because an example
`given in the specification is irreconcilable with the
`ordinary meaning of the terms. The district court agreed
`with Apple on the first point (finding non-infringement on
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`
`that basis) but disagreed with Apple on the second
`(rejecting invalidity for indefiniteness on that basis). Both
`sides appeal. We have jurisdiction under 28 U.S.C. §
`1295(a)(1).
`
`principle is often of limited importance, the difference in
`terminology tends to reinforce, rather than undermine,
`adoption of the broad ordinary meaning of "program" by
`itself.
`
`Nothing in the specification clearly narrows the term
`"program." The general disclosure in the specification
`refers to the to-be-verified software as a "software
`program," "software," or a "program," without limiting the
`subject matter to particular types of programs. See, e.g.,
`id., col. 1, lines 7, 40; id., col. 2, lines 63, 66. The only
`instances in which the specification discusses using the
`claimed invention to verify application programs are
` [***2138] found in examples that the specification
`makes clear are not limiting. See, e.g., id., col. 1, line 45
`(characterizing the example at col. 1, line 46, through
`col. 2, line 59, as "a specific non-limiting example"); id.,
`col. 3, line 33 (describing a "preferred embodiment"); id.,
`col. 4, line 66 (characterizing the preferred embodiment
`described in columns 5 and 6 as a "non-limiting example
`only"). Such examples are "not sufficient to redefine the
`term . . . to have anything other [**8] than its plain and
`ordinary meaning." IGT v. Bally Gaming Int'l, Inc., 659
`F.3d 1109, 1118 (Fed. Cir. 2011). Thus, nothing in the
`specification would lead one of ordinary skill in the art to
`understand that the claims use "program" in a sense
`narrower than its ordinary meaning.
`
`requires more extended
`The prosecution history
`discussion, but it too does not require a meaning that
`substitutes
`for
`the ordinary one.
`In reading
`the
`prosecution history, it is important to keep in mind the
`distinction between a program whose coverage by a
`license is being checked and a piece of software that
`embodies the patent's claimed method of checking. The
`term "program" in the claims refers exclusively to the to-
`be-verified program. Indeed, neither the specification
`nor the claims use the term "program" to refer to
`software (a set of instructions) that, when run, performs
`the claimed verification steps, instead referring to the
`invention as a "method," "system," or, in one instance, a
`"license verifier application." See, e.g., '941 patent, col.
`1, lines 6-8; id., col. 2, line 14.
`
`The prosecution-history statements that Apple cites are
`focused on the verifying software, not clearly (or in any
`event relevantly) [**9] on the to-be-verified program,
`and so cannot support Apple's narrowing argument.
`Specifically, the applicants distinguished their invention
`over a combination of two references: one disclosed
`storage in the BIOS memory area by the BIOS software
`itself; the other disclosed software implemented in or
`through an operating system. The applicants explained
`
`DISCUSSION
`
`Claim construction and indefiniteness are matters of law
`that this court reviews de novo. Cybor Corp. v. FAS
`Techs., Inc., 138 F.3d 1448, 1451 (Fed. Cir. 1998);
`Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1319 (Fed.
`Cir. 2008).
`
`A A
`
`ncora challenges the district court's conclusion that the
`term "program" is limited to application programs,
`thereby excluding operating systems from the class of
`programs
`that
`the claimed method checks
`for
`authorization under a license. We agree with Ancora. A
`claim term should be given its ordinary meaning in the
`pertinent context, unless the patentee has made clear
`its adoption of a different definition or otherwise
`disclaimed that meaning. See, e.g., Thorner v. Sony
`Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed.
`Cir. 2012). [**6] There is no reason in this case to
`depart from the term's ordinary meaning.
`
`Apple nowhere seriously disputes that the ordinary
`meaning of the word "program" in the computer context
`encompasses both operating systems and
`the
`applications that run on them (as well as other types of
`computer programs). And the district court explained
`that, although the term "program" may have many
`different meanings depending on the context, "to a
`computer programmer" a program is merely a "set of
`instructions" for a computer. [*735] Ancora, 2012 U.S.
`Dist. LEXIS 183045, 2012 WL 6738761, at *7. That
`clear meaning governs here, we conclude, because
`there is nothing sufficient to displace it.
`
`The claims themselves point against a narrowing of the
`term "program" to application programs. Claim 1 recites
`a "method of restricting software operation" (if license
`coverage of the software cannot be verified) and refers
`to the restricted software simply as a "program." '941
`patent, col. 6, line 59, through col. 7, line 4. In contrast,
`independent claim 18, which is not asserted here,
`recites a "method for accessing an application software
`program" and then repeatedly refers to the "application
`software program." Id., col. 8, lines 31-52 (emphases
`added). [**7] Although claim 18 is not a dependent
`claim, and claim differentiation as an
`interpretive
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`
`that their invention differed from the prior art in that it
`both operated as an application running through an
`operating system and used the BIOS level for data
`storage and retrieval—a combination that was not
`previously [*736] taught and that an ordinarily skilled
`application writer would not employ:
`
`[T]here is no suggestion or motivation to combine
`Misra and Ewertz in the manner suggested in the
`Office Action. BIOS
`is a configuration utility.
`Software license management applications, such
`as the one of the present invention, are operating
`system (OS) level programs. . . . [W]hen BIOS is
`running, the computer is in a configuration mode,
`hence OS is not running. Thus, BIOS and OS level
`programs are normally mutually exclusive.
`. . .
`
`against
`proceeds
`invention
`present
`[T]he
`conventional wisdom in the art. Using BIOS to store
`application data such [**10] as that stored in
`Misra's local cache for licenses is not obvious. The
`BIOS area is not considered a storage area for
`computer applications. An ordinary skilled artisan
`would not consider the BIOS as a storage medium
`to preserve application data
`for at
`least
`two
`reasons.
`First, . . . [a]n ordinary person skilled in the art
`makes use of OS features to write data to storage
`mediums. There is no OS support whatsoever to
`write data to the system BIOS. Therefore, an
`ordinary person skilled in the art would not consider
`the BIOS as a possible storage medium. . . .
`Second, no file system is associated with the BIOS.
`. . . This is further evidence that OS level
`application programmers would not consider the
`BIOS as a storage medium for license data.
`Amendment dated Feb. 5, 2002, at 6-7, in Appl. No.
`09/164,777 (emphasis added).
`
`"license
`invention as a
`the
`to
`reference
`The
`management application[]" and the identification of
`persons of ordinary skill
`in
`the relevant art as
`"application programmers" who "make[] use of OS
`features" demonstrate that the applicants understood
`that their claimed methods would be implemented as
`application software, rather than lower-level system
`software. But those representations, [**11] made in
`distinguishing prior art, concerned software
`that
`implemented the invented method. The to-be-verified
`software is different from the verifying software. The
`statements from the prosecution history on which Apple
`relies do not say that the program being verified must be
`
`to
`reference
`the
`an application program. Even
`"application data" in describing Misra, even [***2139] if
`read to refer to data about a to-be-verified program
`(which is not clear), does not distinguish Misra, or limit
`the present claims, on that basis.1
`
`Other prosecution statements cited by Apple no more
`establish the narrowing it urges. Although Apple makes
`much of language about storing "application data" in the
`BIOS area, Amendment dated Feb. 5, 2002, at 7,
`nothing in the applicants' statements indicates that the
`"application" in question is the to-be-verified software,
`as opposed to the verifying software; and in any event,
`the language does not rise to the level of a disclaimer
`regarding nature of the to-be-verified software. Likewise,
`although [**12] the examiner stated in his reasons for
`allowance that "the closest prior art systems, singly or
`collectively, do not teach licensed programs running at
`the OS level interacting with a program verification
`structure stored in the BIOS," Notice of Allowability
`dated Feb. 20, 2002, at 4, in Appl. No. 09/164,777, that
`statement is at worst a slip: under the claims, it is
`indisputably [*737] the verifying software that interacts
`with
`the verification structure.
`In any event,
`the
`statement is not the applicants' statement. See Salazar
`v. Procter & Gamble Co., 414 F.3d 1342, 1345 (Fed.
`Cir. 2005) (remarks in the examiner's statement of
`reasons for allowance insufficient to limit claim scope).
`And, as quoted above, the applicants were clear that the
`OS-level language referred to the verifying software.
`
`the
`in
`represent
`the applicants
`finally, did
`Nor,
`prosecution history, or elsewhere, that verification must
`occur before the to-be-verified program is loaded (so
`that software for performing verification that depended
`on a running operating system could not verify the
`operating system). To the contrary, the first step in claim
`1 is "selecting a program residing in the volatile
`memory," '941 patent, [**13] col. 6, line 63, and the
`examiner understood that "software would have to be
`loaded a priori in order to reside in volatile memory."
`Office Action dated Jan. 15, 2002, at 3, in Appl. No.
`09/164,777 (emphasis added). The specification does
`describe an embodiment in which the verifying software
`is "a priori running in the computer" when a to-be-
`verified program is loaded into memory. '941 patent, col.
`2, lines 14-15. But that is part of what is merely a "non-
`limiting example" that is "by no means binding." Id., col.
`1, line 45; id., col. 2, line 61.
`
`1 We do not have before us a contention that the verification
`software must be an "application." We do not address whether
`such a contention matters in this case or has been preserved.
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`referred to as "volatile memory." Apple contends that
`because "a hard disk is a quintessential example of non-
`volatile memory" and "the specification does not explain
`how a hard disk can fall into the category of volatile
`memory . . . or what characteristics differentiate volatile
`from non-volatile memory . . . a person of ordinary skill
`would not know what falls within the scope of the
`claims." Cross-Appellant Br. at 38.
`
`We are not persuaded that Apple's conclusion is
`properly drawn from the passages on which it relies. To
`begin with, the terms at issue have so clear an ordinary
`meaning that a skilled artisan would not be looking for
`clarification in the specification. There [**16] is no facial
`ambiguity or obscurity in the claim term. Moreover, the
`specification nowhere purports to set out a definition for
`"volatile" or "non-volatile" memory, and nothing in it
`reads like a disclaimer of the clear ordinary meaning.
`Under our claim-construction law, a clear ordinary
`meaning is not properly overcome (and a relevant
`reader would not reasonably think it overcome) by a few
`passing references that do not amount to a redefinition
`or disclaimer.
`
`this case, moreover, a skilled artisan would
`In
`appreciate that the passages at issue have a possible
`meaning that is not (what would be surprising) starkly
`irreconcilable with the clear meaning of "volatile" and
`"non-volatile" memory, which are the claim terms. (The
`claims do not mention a hard disk at all, and the only
`specific example of "volatile" memory set out in the
`claims is Random Access Memory (RAM), '941 patent,
`col. 8, lines 1-2, which all agree is "volatile" in the
`ordinary sense.) As the district court observed, it is well
`known that a computer's hard disk is routinely used as
`"virtual" memory to provide temporary storage when
`there is insufficient RAM to complete an operation,
`Ancora, 2012 U.S. Dist. LEXIS 183045, 2012 WL
`6738761, at *5, in [**17] which case (it is undisputed)
`the data become inaccessible through the usual means
`once power is removed (even if the data can still be
`found on the hard disk by more sophisticated means),
`Cross-Appellant Br. at 50; J.A. 1672. This explanation
`for the otherwise-perplexing example of a hard disk as
`"volatile" memory finds support in the specification's
`statement that "the volatile memory is a RAM e.g. hard
`disk and/or internal memory of the computer." '941
`patent, col. 4, lines 53-54 (emphasis added). Although
`oddly phrased, the reference to a "hard disk" as an
`example of RAM suggests that the patentee meant to
`refer
`to
`the hard disk only
`in
`its capacity as
`supplemental memory in conjunction with the main
`RAM—rather than to assert, in a passing and indirect
`
`We conclude that the district court erred in construing
`"program" to mean "a set of instructions for software
`applications that can be executed by a computer."
`Ancora, 2012 U.S. Dist. LEXIS 183045, 2012 WL
`6738761, at *10 (emphasis added).
`
`B I
`
`n its cross-appeal, Apple challenges the district court's
`rejection of its contention that the claims at issue are
`invalid because the terms "volatile memory" and "non-
`volatile memory" are indefinite. Under what is now 35
`U.S.C. § 112(b), a claim must be "sufficiently definite to
`inform the public of the bounds of the protected
`invention, i.e., what subject matter is covered by the
`exclusive rights of the patent." Halliburton Energy
`Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1249 (Fed. Cir.
` [**14] The Supreme Court currently
`2008).
`is
`considering how to refine the formulations for applying
`the definiteness requirement. See Nautilus, Inc. v.
`Biosig Instruments, Inc., Sup. Ct. No. 13-369, cert.
`granted, 134 S. Ct. 896, 187 L. Ed. 2d 702, 2014 WL
`92363 (2014). In this case, we think that we can reject
`the indefiniteness challenge without awaiting the Court's
`clarification. However other circumstances may be
`evaluated, it suffices to reject the challenge in this case
`that the claim language and the prosecution history
`leave no reasonable uncertainty about the boundaries of
`the terms at issue, even considering certain aspects of
`the specification that could engender confusion when
`read in isolation.
`
`Most importantly, there is no dispute that the terms
`"volatile memory" and "non-volatile memory" have a
`meaning that is clear, settled, and objective in content.
`Both parties and the district court agreed that, as a
`general matter, "[t]o one of ordinary skill in the art, a
`volatile memory
`is memory whose data
`is not
`maintained when the power is removed and a non-
`volatile memory is memory whose data is maintained
`when the power is removed." Ancora, 2012 U.S. Dist.
`LEXIS 183045, 2012 WL 6738761, at *4. That meaning
` [**15] firm
`leaves
`the
`relevant public with a
`understanding of the scope of the claim terms, unless
`something exceptional sufficiently supplants
`that
`understanding. Apple argues that the specification does
`so. We conclude otherwise.
`
` [***2140] Apple's argument rests on the fact that, three
`times, the specification uses language [*738] referring
`to a hard disk as an example of volatile memory. '941
`patent, col. 1, line 21; id., col. 3, line 9; id., col. 4, line
`53. All sides agree that a hard disk maintains data when
`the power is removed and for that reason is not normally
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`manner, a meaning sharply in conflict with clear usage.
`
`For those reasons, under the demanding standards for
`displacing as clear an ordinary meaning as exists in this
`case, we doubt that an ordinarily skilled artisan could
`have a reasonable uncertainty about the governing
`scope of the claims—even before completing the claim-
`meaning inquiry by examining the prosecution history.
`And the inquiry must, in fact, continue: an ordinarily
` [**18] skilled artisan must consult
`the prosecution
`history to confirm the proper understanding of a claim
`term's meaning, especially if other aspects of the inquiry
`raise questions. See, e.g., Ecolab, Inc. v. Envirochem,
`Inc., 264 F.3d 1358, 1366 (Fed. Cir. 2001) ("[T]he
`prosecution history . . . should always be consulted to
`construe
`the
`language of
`the claims."); Texas
`Instruments Inc. v. U.S. [*739] Int'l Trade Comm'n, 871
`F.2d 1054, 1063 (Fed. Cir. 1989) ("The public . . . must
`look to both the patent specification and the prosecution
`history, especially where there is doubt concerning the
`scope of the claims."). And here, the prosecution history
`eliminates any reasonable basis for thinking that the
`patent has adopted a meaning different from the clear
`ordinary one.
`
`During prosecution, the examiner stated, in a June 22,
`2001 office action, that he was "relying on the standard
`definition of 'non-volatile' memory as memory that is
`maintained even when the power is removed from the
`storage system" in rejecting the claims as anticipated.
`Office Action dated Jun. 22, 2001, at 3, in Appl. No.
`09/164,777. In the same office action, the examiner
`rejected the claims for indefiniteness because of the
` [**19] specification references to a hard disk as volatile.
`Id. at 5-6. The applicants responded by amending the
`claims to restrict the covered non-volatile memory to a
`memory area of the computer [***2141] BIOS and did
`not dispute the examiner's understanding of "volatile"
`and "non-volatile" memory in their ordinary meaning (for
`the anticipation rejection). Amendment dated Nov. 14,
`2001, in Appl. No. 09/164,777. The examiner was
`clearly satisfied both as to anticipation and as to
`indefiniteness, even though the amended claim still
`referred to "volatile" memory standing alone (and "non-
`volatile" areas associated with the BIOS), because he
`allowed the amended claims.
`
`Depending on important details, this kind of sequence
`has sometimes sufficed for inference of a disclaimer of
`an otherwise-clear meaning. See, e.g., Biogen Idec, Inc.
`v. GlaxoSmithKline LLC, 713 F.3d 1090, 1097 n.6 (Fed.
`Cir. 2013) (disclaimer arose where the applicants "let[]
`stand an examiner's narrow characterization of a claim
`
`term" and "adopt[ed] . . . that characterization to
`overcome the examiner's . . . rejection"). Here the
`question asked of the prosecution history is much more
`modest: does it confirm the clear ordinary meaning
` [**20] by resolving any doubts about whether the
`patentee had displaced
`that meaning
`in
`the
`specification? We think that the natural meaning of the
`prosecution history—including satisfaction as
`to
`definiteness upon making an amendment that effectively
`made clear the applicants' acceptance of the ordinary
`meaning—is just that confirmation.
`
`Apple invokes a portion of Allen Engineering Corp. v.
`Bartell Industries, Inc., 299 F.3d 1336, 1349 (Fed. Cir.
`2002), that involved the requirement of 35 U.S.C. §
`112(b) (formerly § 112, ¶ 2) that the claim must claim
`what the "applicant regards as his invention." That
`requirement
`is distinct
`from
`the same provision's
`requirement that the claim be sufficiently clear to be
`definite. See Allen, 299 F.3d at 1348; Solomon v.
`Kimberly-Clark Corp., 216 F.3d 1372, 1377, 1379 (Fed.
`Cir. 2000); In re Knowlton, 481 F.2d 1357, 1366 n.7
`(CCPA 1973). In any event, this case is unlike Allen,
`where the patentee agreed that the claim language did
`not match what he regarded as his invention, as the
`intrinsic record unambiguously showed, and this court
`denied the patentee's request to reject the claim
`language's clear, ordinary meaning. Here, Ancora
`embraces the claim language's [**21] clear, ordinary
`meaning, and for the reasons we have explained, we do
`not think that the specification and prosecution history
`establish that the applicants regarded their invention as
`something contrary to that meaning.
`
`Accordingly, the district court was correct to reject
`Apple's challenge to "volatile memory" and "non-volatile
`memory" as indefinite.
`
` [*740] CONCLUSION
`
`For the foregoing reasons, we reverse the district court's
`construction of "program" as limited to application
`programs, affirm the court's conclusion that the terms
`"volatile memory" and "non-volatile memory" are not
`indefinite, and remand.
`
`No costs.
`
`AFFIRMED IN PART, REVERSED IN PART, AND
`REMANDED
`
`End of Document
`
`IPR2021-00570
`ANCORA EX2019
`
`