Case 6:21-cv-00735-ADA Document 32-15 Filed 01/27/22 Page 1 of 39
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`Exhibit 12
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`Case 1:20-cv-00034-ADA Document 93 Filed 08/19/20 Page 1 of 38Case 6:21-cv-00735-ADA Document 32-15 Filed 01/27/22 Page 2 of 39
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
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`
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`CIVIL NO. 1-20-CV-00034-ADA
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`
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`ANCORA TECHNOLOGIES, INC.
` Plaintiff,
`
`v.
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`LG ELECTRONICS INC., LG
`ELECTRONICS U.S.A., INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
` Defendants.
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
`SUPPLEMENTAL CLAIM CONSTRUCTION ORDER
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`Before
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`the Court are
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`the Parties’ claim construction briefs: Plaintiff Ancora
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`Technologies, Inc. (“Ancora”) opening, responsive, and reply briefs (ECF No. 44, 50, and 53,
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`respectively) and Defendants LG Electronics Inc., LG Electronics U.S.A., Inc., Samsung
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`Electronics Co., Ltd., and Samsung Electronics America, Inc., (“Defendants”) opening,
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`responsive, and reply briefs (ECF No. 45, 49, and 52, respectively). The Court held the Markman
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`hearing on May 29, 2020. ECF No. 66. During that hearing, the Court informed the Parties of the
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`final constructions for all terms. The Court entered its Final Claim Construction Order on June 2,
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`2020. ECF No. 69. This Order does not alter any of those constructions but provides additional
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`rationale for the Court’s constructions.
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`I.
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`BACKGROUND
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`
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`Ancora filed this lawsuit alleging that Defendants infringed U.S. Patent No. 6,411,941
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`(“the ’941 Patent”). Compl. ¶ 16, ECF No. 1. The ’941 Patent is entitled “Method of Restricting
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`Software Operation Within a License Limitation.” Id. The patent is a “method and system of
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`identifying and restricting an unauthorized Software program’s operation.” ’941 Patent at 1:6–8.
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`The “background” section of the specification describes how “illegal copying [of software]
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`represents billions of dollars in lost profits to commercial software developers” and the need to
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`“substantially reduce or overcome the drawbacks” of existing solutions. Id. at 1:16–18, 33–35.
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`
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`Although the technology is not something completely new, the patent describes how the
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`restriction process is performed. Id. at 1:6–8. “This method strongly relies on the use of a key
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`and of a [license] record, which have been written into the non-volatile memory of a computer.”
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`Id. at 1:40–42. The invention allows for the immediate detection of unauthorized use of software
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`and a responsive defined action (e.g., informing the user of the unlicensed status or halting the
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`operation of the program under question). Id. at 2:22–26. The key is stored in the non-volatile
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`portion of the BIOS, which cannot be removed or modified. Id. at 1:50–52. The key is used in
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`conjunction with other identification information to encrypt the license record, which is stored in
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`another non-volatile section of the BIOS that may be optionally erased or modified. Id. at 1:40–
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`42. The invention utilizes an agent to set up a verification structure in the non-volatile memory
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`of the BIOS. Id. at 6:64–65. The verification structure is then used to verify the program which is
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`being used. Id. at 7:1–3.
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`A license verifier application can then encrypt the license record of any given software
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`using the key and compare it to the already encrypted license record stored in the BIOS. Id. at
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`2:13–19. In the case of a match, the program is verified to run. Id. at 2:19–20. However, if a
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`computer’s data were to be copied, an unauthorized copy of the encrypted license record could
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`be stored on a different computer. Id. at 2:20–26. When attempting to run the software on the
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`second computer, the encrypted license records will not match as they were encrypted with two
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`different keys. Id. at 2:56–59.
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`II.
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`LEGAL PRINCIPLES
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`The general rule is that claim terms are generally given their plain-and-ordinary meaning.
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`Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v.
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`CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated on other grounds by 135 S. Ct. 1846,
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`1846 (2015) (“There is a heavy presumption that claim terms carry their accustomed meaning in
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`the relevant community at the relevant time.”). The plain and ordinary meaning of a term is the
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`“meaning that the term would have to a person of ordinary skill in the art in question at the time
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`of the invention.” Phillips, 415 F.3d at 1313.
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`“‘Although the specification may aid the court in interpreting the meaning of disputed
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`claim language, particular embodiments and examples appearing in the specification will not
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`generally be read into the claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182,
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`1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571
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`(Fed. Cir. 1988)). “[I]t is improper to read limitations from a preferred embodiment described in
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`the specification—even if it is the only embodiment—into the claims absent a clear indication in
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`the intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co.
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`v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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`Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic
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`record in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at
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`1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)).
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`Technical dictionaries may be helpful, but they may also provide definitions that are too broad or
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`not indicative of how the term is used in the patent. Id. at 1318. Expert testimony also may be
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`helpful, but an expert’s conclusory or unsupported assertions as to the meaning of a term are not.
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`Id.
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`The “only two exceptions to [the] general rule” that claim terms are construed according
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`to their plain and ordinary meaning are when the patentee (1) acts as his/her own lexicographer
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`or (2) disavows the full scope of the claim term either in the specification or during prosecution.
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`Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). To act as
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`his/her own lexicographer, the patentee must “clearly set forth a definition of the disputed claim
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`term,” and “clearly express an intent to define the term.” Id. To disavow the full scope of a claim
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`term, the patentee’s statements in the specification or prosecution history must represent “a clear
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`disavowal of claim scope.” Id. at 1366. Accordingly, when “an applicant’s statements are
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`amenable to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.”
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`3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
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`Under the doctrine of claim differentiation, a court presumes that each claim in a patent
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`has a different scope. Phillips, 415 F.3d at 1314-15. The presumption is rebutted when, for
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`example, the “construction of an independent claim leads to a clear conclusion inconsistent with
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`a dependent claim.” Id. The presumption is also rebutted when there is a “contrary construction
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`dictated by the written description or prosecution history.” Seachange Int’l., Inc. v. C-COR, Inc.,
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`413 F.3d 1361, 1369 (Fed. Cir. 2005). The presumption does not apply if it serves to broaden the
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`claims beyond their meaning in light of the specification. Intellectual Ventures I LLC v.
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`Motorola Mobility LLC, 870 F.3d 1320, 1326 (Fed. Cir. 2017).
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`A. Means-Plus Function Claiming
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`A patent claim may be expressed using functional language. See 36 U.S.C. § 112 ¶ 61;
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`Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347–49 (Fed. Cir. 2015). In particular, § 112
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`¶ 6 provides that a structure may be claimed as a “means . . . for performing a specified function”
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`1The AIA changed the numeration of the relevant subsection from § 112 ¶ 6 to § 112(f). The substance of the
`subsection did not change, so the Court will refer to the relevant subsection as § 112 ¶ 6 in keeping with the
`numeration at the time of the patent filing.
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`and that an act may be claimed as a “step for performing a specified function.” Masco Corp. v.
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`United States, 303 F.3d 1316, 1326 (Fed. Cir. 2002). While there is a rebuttable presumption that
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`§ 112 ¶ 6 applies when the claim language includes “means” or “step for,” and that § 112 ¶ 6
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`does not apply in the absence of those terms, the presumption stands or falls according to
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`whether one of ordinary skill in the art would understand the claim with the functional language,
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`in the context of the entire specification, to denote sufficiently definite structure or acts for
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`performing the function. Id.
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`When it applies, § 112 ¶ 6 limits the scope of the functional term “to only the structure,
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`materials, or acts described in the specification as corresponding to the claimed function and
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`equivalents thereof.” Williamson, 792 F.3d at 1347. Construing a means-plus-function limitation
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`involves multiple steps. “The first step . . . is a determination of the function of the means-plus-
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`function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311
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`(Fed. Cir. 2001). “[T]he next step is to determine the corresponding structure disclosed in the
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`specification and equivalents thereof.” Id. A “structure disclosed in the specification is
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`‘corresponding’ structure only if the specification or prosecution history clearly links or
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`associates that structure to the function recited in the claim.” Id. The focus of the “corresponding
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`structure” inquiry is not merely whether a structure is capable of performing the recited function,
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`but rather whether the corresponding structure is “clearly linked or associated with the [recited]
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`function.” Id. The corresponding structure “must include all structure that actually performs the
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`recited function.” Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 412 F.3d 1291,
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`1298 (Fed. Cir. 2005). However, § 112 ¶ 6 does not permit “incorporation of structure from the
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`written description beyond that necessary to perform the claimed function.” Micro Chem., Inc. v.
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`Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).
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`For § 112 ¶ 6 limitations implemented by a programmed general-purpose computer or
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`microprocessor, the corresponding structure described in the patent specification must include an
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`algorithm for performing the function. WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d
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`1339,1349 (Fed. Cir. 1999). The corresponding structure is not a general-purpose computer but
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`rather the special purpose computer programmed to perform the disclosed algorithm. Aristocrat
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`Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008).
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`B. Indefiniteness
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` “[I]ndefiniteness is a question of law and in effect part of claim construction.” ePlus, Inc.
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`v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012). Patent claims must particularly
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`point out and distinctly claim the subject matter regarded as the invention. 35 U.S.C. § 112, ¶ 2.
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`A claim, when viewed in light of the intrinsic evidence, must “inform those skilled in the art
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`about the scope of the invention with reasonable certainty.” Nautilus Inc. v. Biosig Instruments,
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`Inc., 572 U.S. 898, 910 (2014). If it does not, the claim fails § 112, ¶ 2 and is therefore invalid as
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`indefinite. Id. at 901. Whether a claim is indefinite is determined from the perspective of one of
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`ordinary skill in the art as of the time the application was filed. Id. at 911.
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`In the context of a claim governed by 35 U.S.C. § 112, ¶ 6, the claim is indefinite if the
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`claim fails to disclose adequate corresponding structure to perform the claimed functions.
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`Williamson, 792 F.3d at 1351–52. The disclosure is inadequate when one of ordinary skill in the
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`art “would be unable to recognize the structure in the specification and associate it with the
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`corresponding function in the claim.” Id. at 1352. Computer-implemented means-plus-function
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`claims are indefinite unless the specification discloses an algorithm to perform the function
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`associated with the limitation. Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1319 (Fed. Cir.
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`2012).
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`III. ANALYSIS
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`After providing preliminary claim constructions to the parties on May 28, 2020, the
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`parties agreed oral argument was necessary for five only claim terms. Although the Court
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`already entered the final constructions of these five terms, and the remaining terms, the Court
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`takes this opportunity to provide its rationale for the five claim terms argued during the
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`Markman hearing.
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`A. Order of the Claim 1 Steps
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`Ancora’s Proposed Construction
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`LG/Samsung’s Proposed Construction
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`The “verifying a program” step cannot be
`completed until the “selecting a program” and
`“using an agent” steps have been completed,
`and the “acting on the program” step cannot be
`completed until the “verifying” step has been
`completed.
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`Claim 1 of the ‘941 patent recites a “method comprising the steps of:
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`The “verifying the program” step and “acting
`on the program” step of Claim 1 must occur, in
`order, after the “selecting a program” step and
`“using an agent” step.
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`selecting a program residing in the volatile memory,
`using an agent to set up a verification structure in the erasable, non-volatile memory
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`of the BIOS, the verification structure accommodating data that includes at
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`least one license record,
`verifying the program using at least the verification structure from the erasable
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`non-volatile memory of the BIOS, and
`acting on the program according to the verification.”
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`’941 Patent, Cl. 1 (emphasis added). The crux of the dispute between the Parties is whether a
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`step must start and finish before the next step can start or whether the execution of the two steps
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`may at least partially overlap, so long as the steps are completed in the order required by the
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`patent.
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`Ancora contends that the first two listed steps, “selecting a program” and “using an
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`agent,” may occur in any order, and that the third listed step, “verifying the program,” need only
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`be completed after the completion of the prior two steps, thus allowing its commencement at any
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`time. ECF No. 50 at 23–24. Ancora similarly contends the fourth listed step, “acting on the
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`program,” may occur at any time so long as it is not completed before the completion of the
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`“verifying the program” step. Id. Thus, Ancora argues that, if the steps of the method require
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`order, the order is based on the steps’ completion as opposed to their commencement. See id.
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`Defendants argue that there must be more order to the occurrence of the steps. ECF No.
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`45 at 25–26. While Defendants agree that the “selecting a program” and “using an agent” steps
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`may occur in any order, they argue that the “verifying the program” step may not begin until the
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`completion of the prior two steps. Id. Defendants similarly contend the “acting on the program”
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`step may not begin until the completion of the “verifying the program” step. Id. They contend
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`that the grammar and logic of the claim requires the order presented by Defendants. Id.
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`1. Some order is required for the Steps
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`When the steps of a method claim actually recite an order, the Court will ordinarily
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`construe the claim to require order. Kaneka Corp. v. Xiamen Kingdomway Grp. Co., 790 F.3d
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`1298, 1306 (Fed. Cir. 2015). Courts use a two-part test for determining if the steps of a method
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`claim that do not otherwise recite an order must be nonetheless performed in a specific order: (1)
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`the Court first examines the claim language to determine if, as a matter of logic or grammar, they
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`must be performed in the order written, and (2) if not, the Court next looks to the rest of the
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`specification to determine whether it “directly or implicitly requires such a narrow construction.”
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`Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369–70 (Fed. Cir. 2003) (quoting Interactive
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`Gift Express, Inc. v. CompuServe, Inc., 256 F.3d 1323, 1343 (Fed. Cir. 2000). “A method claim
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`can also be construed to require that steps be performed in order where the claim implicitly
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`requires order, for example, if the language of a claimed step refers to the completed results of
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`the prior step.” Kaneka Corp., 790 F.3d at 1306 (citing E-Pass Techs., Inc. v. 3Com Corp., 473
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`F.3d 1213, 1222 (Fed. Cir. 2007). Otherwise, the sequence in which such steps are written is not
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`a requirement. Altiris, Inc., 318 F.3d at 1370.
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`The steps of the method claim do not actually recite an order for the steps to follow;
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`therefore, the Court must proceed to the two-part test to determine if order must be given to the
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`steps. Looking to the claim language of the steps themselves, the steps require some order to
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`properly function because some of the actions in the claimed steps refer to the completed results
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`of actions in a prior step. See Kaneka Corp., 790 F.3d at 1306. Limitation [b] recites, in part,
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`“using an agent to set up a verification structure,” while Limitation [c] recites, in part,
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`“verifying the program using at least the verification structure.” ’941 Patent, Cl. 1 (emphasis
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`added). Because Limitation [b] sets up the verification structure while Limitation [c] uses it, the
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`use of the verification structure—as described in Limitation [c]—cannot complete until the setup
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`of the verification structure—as described in Limitation [b]—has completed.
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`Further, Limitation [c] recites, in part, “verifying the program using at least the
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`verification structure,” while Limitation [d] requires “acting on the program according to the
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`verification.” Id. (emphasis added). Because Limitation [c] verifies the program while
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`Limitation [d] acts on the program according to the verification, the acting step “according to the
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`verification—as described in Limitation [d]—cannot complete until the verification of the
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`program—as described in Limitation [c]—has completed.
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`While the language of the claim requires an order to the completion of certain limitations
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`in the ’941 Patent, neither the claim language nor the specification requires an order to when the
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`steps begin. Defendants postulate that “selecting a program,” as described in Limitation [a] must
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`necessarily begin and end before “verifying the program,” as described in Limitation [c], may
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`begin. ECF No. 45 at 25. However, Defendants have provided no evidence to show why the
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`selecting action and the verifying action could not be performed concurrently. Further,
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`Defendants’ argument runs counter to Federal Circuit precedent. See Kaneka Corp., 790 F.3d at
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`1306 (“We also disagree with the district court’s conclusion and Defendants’ arguments on
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`appeal suggesting that the claimed order requires that each step occur independently or
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`separately.”). In Kaneka, the court found that a claim method describing steps to an oxidation
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`process required some order, but the claims did not exclude a continuous process or one “in
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`which every claim step is occurring simultaneously.” Id. This Court similarly finds no reason to
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`impose all of the limitations on the claim steps that Defendants urge.
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`2. The Court’s Construction for the Order of Claim 1’s Steps
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`The Court finds that Claim 1 presents no restrictions on when any limitation may start,
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`nor when the entire step must fully complete. Instead, Claim 1 presents restrictions only on when
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`certain actions must complete before another is also completed. Thus, the Court will construct
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`the order of the Claim 1 steps as follows: use of the verification structure, as described in
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`Limitation [c], cannot complete until the “set up a verification structure” step has completed, as
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`described in Limitation [b]; “acting on the program according to the verification,” as described in
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`Limitation [d], cannot complete until the “verifying the program” is completed as described in
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`Limitation [c]; the “selecting a program residing in the volatile memory,” as described in
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`Limitation [a], can occur at any time.
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`B. “license” (Claim 1 Preamble)/ “license record” (Claims 1, 3, 6, 8, 9, 14, 16)
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`Ancora’s Proposed Construction
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`LG/Samsung’s Proposed Construction
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`The portion of the preamble reciting “A
`method of restricting software operations
`within a license . . .” is non-limiting. Thus, the
`term “license” does not need to be construed.
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`“license record” means “a record associated with a
`licensed program with information for verifying
`that licensed program”
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`The entire preamble of the claim is limiting.
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`“license” means a legal contract between a
`software provider and a user that specifies the
`rights of the user to use, distribute or resell the
`software”
`“license record” means “a record associated with a
`program with information for verifying that the
`program is licensed”
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`The parties dispute whether a portion of the preamble of Claim 1 is limiting, and
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`therefore dispute whether the term “license,” which appears only in the preamble of Claim 1,
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`needs to be construed. They further dispute the construction of the term “license record,” which
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`is found in the independent Claim 1 as well as several of the proceeding dependent claims.
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`Because the term “license” may be necessary to construe “license record,” the Court will address
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`both terms together.
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`1. The portion of the preamble containing “license” is non-limiting, and the term
`“license” does not need to be construed.
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`The preamble of Claim 1 recites:
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`
`
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`“A method of restricting software operation within a license for use with a
`computer including an erasable, non-volatile memory area of a BIOS of the
`computer, and a volatile memory area; the method comprising: . . .”
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`’941 Patent, Cl. 1 (emphasis added). The Parties agree that the underlined portion of the
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`preamble is limiting to the claim. ECF No. 4–5. However, the Parties disagree on whether the
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`emboldened portion of the preamble is limiting. Id.
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`
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`Courts presume that the preamble does not limit the claims. Am. Med. Sys., Inc. v.
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`Biolitec, Inc., 618 F.3d 1354, 1358 (Fed. Cir. 2010). In light of this presumption, a preamble
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`limits the invention if it recites essential structure or steps, or if it is “necessary to give life,
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`meaning, and vitality” to the claim. Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d
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`801, 808 (Fed. Cir. 2002) (quoting Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298,
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`1305 (Fed. Cir. 1999)). “Conversely, a preamble is not limiting ‘where a patentee defines a
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`structurally complete invention in the claim body and uses the preamble only to state a purpose
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`or intended use for the invention.’” Catalina, 289 F.3d at 808 (quoting Rowe v. Dror, 112 F.3d
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`473, 478 (Fed. Cir. 1997)). Further, the fact that a portion of the preamble is limiting does not
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`require that the entire preamble be limiting—particularly if the portion in question is “one that
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`only states the intended use of the invention.” TomTom, Inc. v. Adolph, 790 F.3d 1315, 1323
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`(Fed. Cir. 2015). The Federal Circuit has provided some “guideposts” regarding whether the
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`preamble is limiting: (1) if the preamble provides antecedent basis, (2) if the preamble is
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`essential to understand limitations or terms in the claim body, (3) if the preamble recites
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`“additional structure or steps underscored as important by the specification,” and (4) “clear
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`reliance on the preamble during prosecution to distinguish the claimed invention from the prior
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`art.” Catalina, 289 F.3d at 808–09.
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`Ancora argues that the portion of the preamble that includes the term “license” does not
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`provide an antecedent basis for a later term, nor does it recite essential structure underscored by
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`the specification. ECF No. 44 at 5. Ancora asserts that because the term “license” never appears
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`alone in the body of the claims, such an absence reinforces their argument that the first part of
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`the preamble does not provide antecedent basis for any of the claims and is thus non-limiting. Id.
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`Ancora further contends that the language in the first portion of the preamble merely states an
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`intended use, as opposed to an essential structure, and is thus non-limiting. Id. (citing TomTom,
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`790 F.3d at 1322.
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`Defendants argue that the totality of the record indicates that the preamble is limiting for
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`two reasons: (1) the intrinsic record shows that the invention is directed to limiting access to
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`licensed programs and not merely limiting access to any program; and (2) “license” as mentioned
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`in the preamble provides antecedent basis for many phrases in the asserted claims. ECF No. 49 at
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`19–20. For example, Defendants argue that “license” provides antecedent basis for the terms
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`“license record,” “license authentication bureau,” “request for license,” and “licensed software
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`program,” inter alia. Id. at 20, n.8. The Court disagrees on both fronts.
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`First, while licensure of specific programs may be an integral purpose and function of the
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`invention, the claim body adequately addresses the use of a license record to verify a specific
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`program. See ’941 Patent, Claim 1. Thus, the ’941 Patent “defines a structurally complete
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`invention in the claim body” and uses the disputed portion of the preamble “only to state a
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`purpose or intended use for the invention.” See Catalina, 289 F.3d at 808. Therefore, the
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`preamble need not be limiting on this basis.
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`Second, “license,” as mentioned in the preamble of Claim 1, does not provide antecedent
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`basis for the phrases which Defendants asserts. Plaintiff is correct that none of the terms or
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`phrases which Defendants asserts has antecedent basis with “license” is led by the articles “said”
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`or “the” on its initial appearance. See generally ’941 Patent at 6:58–8:68. The Federal Circuit has
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`found that a preamble term did not provide a necessary antecedent basis for the claim term in the
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`bodies of the independent claims. Am. Med. Sys., Inc. v. Bioletic, Inc., 618 F.3d 1354, 1359 (Fed.
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`Cir. 2010). Notably, the court found that “the generic term . . . in the preamble did not provide
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`any context essential to understanding the meaning of the claim term in the body of each claim.
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`Id. The Court finds that case instructive here, where the generic term “license” in the preamble
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`does not provide essential context or definition for understanding the meaning of terms such as
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`“license record” or “request for license” found in the body of Claim 1 or the proceeding claims.
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`See id.
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`The Court also finds the preamble and ruling in TomTom to be instructive to this case.
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`790 F.3d at 1322–23. There, the Federal Circuit found the intended-use portion of a preamble to
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`be non-limiting and therefore not requiring construction, even though the phrase following the
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`intended-use portion was limiting. Id. The Federal Circuit found that the portion was merely
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`“language stating a purpose or intended use and employs the standard pattern of such language:
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`the words ‘a method for a purpose or intended use comprising,’ followed by the body of the
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`claim, in which the claim limitations describing the invention are recited.” Id. at 1324. The
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`structure of the preamble in this case is highly similar to that in TomTom, and the Court finds no
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`reason to stray away from that precedent. See 790 F.3d at 1322
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`Having found that the portion of the preamble that includes the “license” does not recite
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`essential structure or steps, or give necessary life, meaning, and vitality to the claim, nor that it
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`provides antecedent basis for any of the claims, the Court finds this portion of the preamble to be
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`non-limiting. See Catalina, 289 F.3d at 808. Thus, the term “license” in the intended-use portion
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`of the preamble does not require construction.
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`2. “license record”
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`The Parties dispute the scope of the purpose of the “license record,” which is described in
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`the body of Claim 1, as well as many proceeding dependent claims. Ancora argues that the
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`license record holds information and is used with a licensed program “for verifying that licensed
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`program.” ECF No. 44 at 7–8. Defendants, on the other hand, argue that the license record holds
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`information and is used “for verifying that a program is licensed.” ECF No. 49 at 22–23. While a
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`fine distinction, Ancora argues that Defendants’ construction would limit the use of a license
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`record entirely to confirming whether the program being run is licensed. Id.
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`Ancora argues that Defendants’ proposed construction suggests that the program from
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`which the license record is derived must have a specific legal or contractual status. ECF No. 44
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`at 7. Ancora contends that the patent uses the word “licensed” to refer to authorization or
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`verification to run—“a concept that can include a program’s legal or contractual status but is not
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`limited to it.” Id. Ancora’s position is that a license record could comprise only information
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`sufficient to identify a program’s manufacturer, so long as it allows the program to run on the
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`computer. Id. at 8. Plaintiffs argue their proposed construction is consistent with a past court’s
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`construction of the same term from the same patent in a separate litigation. Id. at 7 (citing
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`Ancora Techs., Inc. v. Apple Inc., 2012 WL 6738761, at *11 (N.D. Cal. Dec. 31, 2012)
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`(construing “license record” to be “a record from a licensed program with information for
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`verifying that licensed program”)).
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`Defendants counter that Ancora’s proposed construction improperly broadens the license
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`record because verifying “a licensed program” presumes the program is already licensed, and the
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`program is then verified. ECF No. 45 at 24. Defendants argue that Ancora’s construction would
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`potentially encompass merely confirming that a program was not corrupted during transmission,
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`and this would be an improper broadening of the claim’s scope. Defendants believe their
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`construction is correct because the “purpose of the alleged invention is to utilize a ‘license
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`record’ to verify that a program is, in fact, licensed to run on a computer.” Id. While Defendants
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`insist their construction mirrors the specification, they fail to cite anything to support their
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`position. See id.; ECF No. 49 at 22–23; ECF No. 52 at 14.
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