IconFind, Inc. v. Google, Inc.

Filing 94

BRIEF - MARKMAN - by IconFind, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C - part 1, # 4 Exhibit C - part 2, # 5 Exhibit C - part 3, # 6 Exhibit C - part 4, # 7 Exhibit C - part 5, # 8 Exhibit C - part 6, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F)(Folgers, Anna)

EXHIBIT B

Case 2:09-cv-00109-WBS-JFM

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo---11
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ICONFIND INC.,
NO. CIV. 09-109 WBS JFM

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Plaintiff,

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v.

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YAHOO! INC.,

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MEMORANDUM AND ORDER RE:
MOTION FOR CLAIM CONSTRUCTION
Defendant.
/

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----oo0oo---Iconfind Inc. (“Iconfind”) seeks to improve access to

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the Internet’s contents by organizing network or web pages

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through a standardized categorization system for the information

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contained on those pages.

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B2 (“the ‘459 patent”) categorizes network pages based on their

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content, including the copyright status of the material on the

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page and whether the pages contain commercial or non-commercial

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information.

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Flickr online photo management and sharing application infringes

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on the ‘459 patent by incorporating the Creative Commons license

Plaintiff’s U.S. Patent No. 7,181,459

Plaintiff contends that Yahoo! Inc.’s (“Yahoo!”)

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into its website and allowing Flickr users to assign Creative

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Commons licenses to their photographs.
On November 5, 2009, defendant filed a motion for claim

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construction, and the court held a Markman1 hearing on December

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7, 2009.

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relevant documents, along with the parties’ arguments at the

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Markman hearing, the court construes the disputed claims as set

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forth below.

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I.

After considering the parties’ briefs and all other

Factual and Procedural Background
Iconfind is the owner of U.S. Patent No. 7,181,459 B2

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(“the ‘459 patent”), issued on February 20, 2007 and entitled

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“Method of Coding, Categorizing, and Retrieving Network Pages and

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Sites.”

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“‘459 patent”].)

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sorting network pages into a hierarchy of categories based on

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their content.

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(Mot. Claim Construction Ex. 1 [hereinafter cited as
The ‘459 patent describes a method for manually

Claim one of the patent states:

1. A computer implemented method of categorizing a
network page, comprising:
Providing a list of categories, wherein said list
of categories include a category for transacting
business and a category for providing information, and
wherein said list of categories include a category
based on copyright status of material on a page;
assigning said network page to one or more of said
list of categories;
providing a categorization label for the network
page using the copyright status of material on the
network page; and
controlling usage of the network page using the
categorization label and the copyright status of the
network page.

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1

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Markman v. Westview Instruments, Inc., 517 U.S. 370, 372,
116 S.Ct. 1384 (1996).
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(‘459 patent 12:24-38.2)

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network pages into three categories: (1) a category for providing

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information; (2) a category for transacting business; and (3) a

4

category based on the copyright status of the material on the

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network page.

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based on the copyright status of the material on the page.

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label, along with the copyright status of the network age, are

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used to control the usage of the page, by, for example,

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permitting a user to limit his network pages solely to pages in

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Id.

The network page is then assigned a label

particular categories.

11

Claim one of the ‘459 patent sorts

That

(9:40-12:12.)

The preferred embodiment of the invention describes a

12

four-tiered categorization system, depicted in the ‘459 patent as

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Figure 1.

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network pages into whether they are for transacting business or

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providing information.

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pages according to subject matter.

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divides the pages according to the types of files associated with

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the network page.

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according to the copyright status of the material on the network

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page.

(‘459 patent Fig. 1.)

The “first tier” divides

(4:60-65.)

(5:29-47.)

The “second tier” divides the
(5:10-28.)

The “third tier”

Another tier divides the pages

(5:48-58.)
In the preferred embodiment, a designer of a network

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page manually assigns the page to appropriate categories by

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applying a “categorization code” for each category to which the

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page is assigned.

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various “codes” to form a “categorization label” that is placed

(6:62-65.)

The network designer then combines

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27
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2

The format #:## signifies the column and line number of the
‘459 patent. Subsequent references to content within the ‘459
patent are made solely using this numerical format.
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on a network page.

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categorization label and determine how the page is categorized.

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(7:27-47.)

Filed 12/14/2009

Search engines can then read the

During the prosecution of the ‘459 patent, the

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inventors repeatedly had their patent rejected due to the prior

5

art that disclosed categorizing web pages.

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Construction Ex. 2 at IF001485-90.)

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narrowed the claims of their patent to claim a categorization

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system which included at least the three categories of

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transacting business, providing information, and copyright

10

(Mot. Claim

The inventors eventually

status.

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Yahoo!’s Flickr is an online photo management and

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sharing application.

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upload digital photos to the Flickr website for storage and

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sharing.

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others.

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searched by various “tags” that may be attached to them.

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Flickr also incorporates the Creative Commons license system

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whereby users can select to grant others the right to use their

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photographs with certain restrictions.

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a non-profit organization that provides free licenses to users to

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mark their creative work with the usage restrictions they want

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their work to carry.

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their photographs with a Creative Commons license.

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Id.
Id.

(Mot. Claim Construction 6.)

Flickr users

Users can make their photos private or visible to
Photographs that are public may be browsed or

Id.

Id.

Id.

Creative Commons is

Flickr users have the option to “tag”

On January 13, 2009, plaintiff filed a complaint with

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this court alleging that the Creative Commons license on Yahoo!’s

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Flickr site infringes the ‘459 patent.

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court is defendant’s motion for claim construction pursuant to

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4

Presently before the

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Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).

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II.

Discussion

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A.

Legal Standard

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The court, not the jury, must determine the meaning and

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scope of patent terms.

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F.3d 967, 979 (Fed. Cir. 1995), aff'd., 517 U.S. 370, 372, 116

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S.Ct. 1384 (1996).

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court often looks to both intrinsic and extrinsic evidence.

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Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.

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11

Markman v. Westview Instruments, Inc., 52

When construing disputed claim terms, the

Cir. 1996).
Intrinsic evidence includes the language of the claims,

12

specification, and prosecution history.

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1582. The language of a patent's claims are “generally given

14

their ordinary and customary meaning,” which is “the meaning that

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the term would have to a person of ordinary skill in the art in

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question . . . as of the [patent's] effective filing date.”

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Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005).

18

“Importantly, the person of ordinary skill in the art is deemed

19

to read the claim term not only in the context of the particular

20

claim in which the disputed term appears, but in the context of

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the entire patent, including the specification.” Id.

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Vitronics, 90 F.3d at

The specification “is the single best guide to the

23

meaning of a disputed term.”

Vitronics, 90 F.3d at 1582. The

24

specification can provide further guidance on the meaning of

25

terms in the claims by, for example, (1) revealing a “special

26

definition given to a claim term by the patentee that differs

27

from the meaning it would otherwise possess,” Phillips, 415 F.3d

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at 1316, (2) revealing an “intentional disclaimer, or disavowal,

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of claim scope by the inventor,” Id., or (3) defining a term by

3

implication, “such that the meaning may be found in or

4

ascertained by a reading of the patent documents,”

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Pharms. Corp. v. Abbott Labs., 375 F.3d 1328, 1334-35 (Fed. Cir.

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2004).

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examples in the specification, however, cannot be read into the

8

claim.

9

F.3d 1298, 1306 (Fed. Cir. 2003).

Novartis

Limitations from the preferred embodiments or specific

Anchor Wall Sys. v. Rockwood Retaining Walls, Inc., 340

The patent's prosecution history “can often inform the

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meaning of the claim language by demonstrating how the inventor

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understood the invention and whether the inventor limited the

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invention in the course of prosecution, making the claim scope

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narrower than it would otherwise be.”

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1317.

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Phillips, 415 F.3d at

Extrinsic evidence “consists of all evidence external

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to the patent and prosecution history, including expert and

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inventor testimony, dictionaries, and learned treatises.”

19

Markman, 52 F.3d at 980.

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“vary or contradict” claim language, Vitronics, 90 F.3d at 1584,

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but it can be useful “for a variety of purposes, such as to

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provide background . . . [and] to ensure that the court's

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understanding of the technical aspects of the patent is

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consistent with that of a person of skill in the art, or to

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establish that a particular term in the patent or the prior art

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has a particular meaning in the pertinent field.”

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F.3d at 1318.

When used, extrinsic evidence cannot

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Phillips, 415

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B.

Disputed Terms

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Viewing the disputed terms from the perspective of a

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person of ordinary skill in the art at the time of the invention,

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the court adopts the constructions set forth below.
The five disputed terms appear in boldface below.3

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6

1. A computer implemented method of categorizing a
network page, comprising:

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10

providing a list of categories, wherein said
list of categories include a category for
transacting business and a category for
providing information, and wherein said list
of categories include a category based on
copyright status of material on a page;

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. . . ;

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13

providing a categorization label for the
network page using the copyright status of
the material on the network page;

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. . . .

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9

15
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19. The method of claim 1, further comprising providing
a categorization code that can be used to label the
page with the categorization label that indicates the
categories to which the page is assigned.

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(12:24-38, 13:40-43.)
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1.

Network Page

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The parties’ proposed constructions are as follows:
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Plaintiff

Defendant

Page on the Internet, private
corporate network, intranet,
local area network or other
network.

All files, data, and
information presented when a
network address is accessed,
including any text, audio,
advertising, images, files,
graphics, or graphical user
interface.

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22
23
24
25
26
27
28

3
These terms appear in independent claims 1, 30, and 31, and
dependent claims 19-27 of the ‘459 patent.

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The parties’ dispute over this term revolves around whether the

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term “page” needs to be separately defined.

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dispute the meaning of “network.”

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distinguish “network page” from “material on a page” and

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“material on the network page.”

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counsel for the plaintiff conceded that an image on a “page” did

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not constitute a “page.”

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“page” did not need to be further defined.

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The parties do not

The patent claims clearly

(14:15-50.)

At oral argument,

The parties then agreed that the term

Therefore, the term “page” needs no further

10

construction, and the court concludes that the term “network

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page” means “Page on the Internet, private corporate network,

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intranet, local area network or other network.”

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2.

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Category for Transacting Business
The parties’ proposed constructions are as follows:

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Plaintiff

Defendant

16

Category for (1) e-commerce
pages, which provide users
with the ability to conduct
online purchases, sales,
leases, or other financial
transactions, (2) pages that
may be involved in transacting
business, but do not enable
the user to conduct the
transaction on-line, and (3)
other pages that contain
commercial information.

A category for network pages
that have as a primary purpose
transacting business.
In the alternative, this term
is indefinite.

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18
19
20
21
22
23
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Plaintiff’s proposed construction closely mirrors the preferred

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embodiment set out in the specification of the ‘459 patent, which

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states that:

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Web pages involved in transacting business include ecommerce pages, which provide users with the ability to
conduct online purchases, sales, leases, or other
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financial transactions, pages that may be involved in
transacting business, but do not enable the user to
conduct the transaction on-line, and other pages that
contain commercial information.

3
4

(4:62-5:4).

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impermissibly attempting to turn the description of the preferred

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embodiment into a definition, and that the term “commercial

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information” is ambiguous.
As to the former claim, criteria outlined in the

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9

The defendant argues that the plaintiff is

preferred embodiment do not ordinarily serve to limit the claims
See Anchor Wall Sys., 340 F.3d

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of the patent to those criteria.

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at 1306.

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in the preferred embodiment as long as that limitation properly

13

describes the whole invention.

14

ITT Indus., Inc., 452 F.3d 1312, 1318 (Fed. Cir. 2006);

15

Vitronics, 90 F.3d at 1582 (“Although words in a claim are

16

generally given their ordinary and customary meaning, a patentee

17

may choose to be his own lexicographer and use terms in a manner

18

other than their ordinary meaning, as long as the special

19

definition of the term is clearly stated in the patent

20

specification or file history.”

21

Yet the claim terms can be defined by what is set forth

See Honeywell Intern., Inc. v.

The specification “acts as a dictionary when it

22

expressly defines terms used in the claims or when it defines

23

terms by implication”); Irdeto Access, Inc. v. Echostar Satellite

24

Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) (“Even when guidance

25

is not provided in explicit definitional format, the

26

specification may define claim terms by implication such that the

27

meaning may be found in or ascertained by a reading of the patent

28

documents.”) (citations omitted); see also Phillips v. AWH Corp.,
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415 F.3d 1303, 1316 (Fed Cir. 2005) (“[T]he specification may

2

reveal an intentional disclaimer, or disavowal, of claim scope by

3

the inventor . . . . In that instance [], the inventor has

4

dictated the correct claim scope, and the inventor’s intention,

5

as expressed in the specification, is regarded as dispositive.”).

6

Often, it will be clear upon reading the specification in the

7

context of its purpose--which is to teach and enable those of

8

skill in the art to make and use the invention and to provide a

9

best mode for so doing--whether the patentee is setting out

10

specific examples of how to practice the invention or “whether

11

the patentee intends for the claims and the embodiments in the

12

specification to be strictly coextensive.”

13

1323.

14

Phillips, 415 F.3d at

In Honeywell International, the Federal Circuit found

15

that the preferred embodiment of a fuel filter was the only

16

embodiment of the invention because it referred to the fuel

17

filter as “this invention” on multiple occasions in the

18

specification.

19

at his word and the word was that the invention is a fuel

20

filter.”).

21

business” in this case does not expressly define the invention by

22

its terms.

23

involved in transacting business include [the three types of

24

pages listed by the plaintiff as its proposed construction.]”

25

(4:62-5:4) (emphasis added).

26

“include” is meant to convey a minimum rather than a maximum.

27

See Black’s Law Dictionary 831 (9th ed. 2009)(“To contain as a

28

part of something.

Id. (“The public is entitled to take the patentee

The preferred embodiment of “category for transacting

Here, the preferred embodiment states that “web pages

Generally, this use of the word

The participle including typically indicates
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a partial list.”).

2

it does not purport to limit categories for transacting business

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to the list of three types of web pages offered by the plaintiff

4

as its proposed construction.

5

By the preferred embodiment’s own language,

There is further support in the specification that the

6

use of the word “include” was meant to be illustrative rather

7

than definitional of the term “category for transacting

8

business.”

9

embodiment of another disputed term, “category for providing

The word “include” is used similarly in the preferred

Immediately after the

10

information.”

11

purported definition of “category for transacting business,” the

12

specification goes on to state: “Web pages involved in providing

13

information include pages that contain articles, journals,

14

publications, or other non-commercial materials.”

15

(emphasis added).

16

(5:4-6; see infra.)

(5:4-6)

The specification later, however, provides an example

17

of how one would categorize the fictional website www.abcde.com,

18

which had “as its purpose” the teaching of the alphabet, as

19

providing information.

20

categorizing pages as providing information is lacking from the

21

alleged definition of the term “category of providing

22

information,” indicating that the preferred embodiment is not the

23

only embodiment of that category.

24

“include” in the specification imply that what follows is

25

exclusive.

26

therefore, does not clearly define the term “category for

27

transacting business” as exclusive to the examples listed and

28

accordingly the court will not limit the scope of the patent

(8:31-32.)

(See ‘459 patent 4-5.)

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This purposeful metric for

Nor do other uses of the word

The preferred embodiment,

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claim to those examples.

2

The defendant’s proposed construction imports the term

3

“primary purpose,” which the plaintiff argues limits the term to

4

categories with one “primary purpose” when the specification is

5

clear that a web page can be assigned to both the transacting

6

business and providing information categories.

7

pages, asserts plaintiff, would therefore have two “primary

8

purposes” according to the defendant’s logic.

9

definition of the adjective “primary” applicable here is the

10

secondary definition, “something that stands first in rank,

11

importance, or value.”

12

986 (11th ed. 2003).

13

exclude the possibility of multiple “primary purposes,” and would

14

exclude the preferred embodiment of the invention which has

15

network pages categorized as both for transacting business and

16

for providing information.

(5:7-9.)

Such

The dictionary

Mirriam-Webster’s Collegiate Dictionary

This definition of “primary” appears to

17

Plaintiff further asserts that defendant’s proposed

18

construction excludes the preferred embodiments of e-commerce

19

pages and pages that contain commercial information.

20

regarding the first embodiment are without merit, as “transacting

21

business” would be thought to include web pages that allow users

22

to complete online commercial and financial transactions.

23

second embodiment of pages that merely “contain commercial

24

information” might be excluded if defendant’s “primary purpose”

25

construction is adopted.

26

embodiments would be included in the “primary purpose” language

27

proposed by the defendant, the defendant’s proposal would seem to

28

exclude pages that merely “contain” commercial information but

Concerns

The

While the other two preferred

12

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whose “primary purpose” remained the providing non-commercial

2

information.

3

must be rejected.

4

Therefore, the defendant’s proposed construction

Since the plaintiff and defendant both have proposed

5

constructions that do not perfectly align with the claims and

6

specifications of the patent, the court construes the term as: A

7

category for network pages that have as a purpose transacting

8

business.

9

they each preferred their own proposed construction, this

At oral argument both parties indicated that, while

10

construction could be satisfactory.

11

enough to encompass the preferred embodiment and also takes into

12

account the purposeful analysis that the patent specification has

13

indicated is also appropriate.

14

recognizes that for the patent to function the term “category for

15

transacting business” must both be sufficiently definite to be

16

meaningful to network page creators seeking to categorize their

17

network pages, and be flexible enough to allow them to categorize

18

their network pages as they best see fit.

19

avoids the term “commercial information” proposed by plaintiff

20

and challenged by defendant as impermissibly indefinite.

21

This definition is broad

Furthermore, this construction

This construction also

Therefore, the term “category for transacting business”

22

means “A category for network pages that have as a purpose

23

transacting business.”

24

3.

Category for Providing Information
The parties’ proposed constructions are as follows:

25
26

Plaintiff

Defendant

27

Category for pages that
contain articles, journals,
publications, or other non-

A category for network pages
that have as a primary purpose
the provision of information,

28

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for example, network pages
that contain articles,
journals, or publications.
In the alternative, this term
is indefinite.

2
3
4

Plaintiff’s proposed construction closely mirrors the

5
6

preferred embodiment set out in the specification of the ‘459

7

patent, which states that: “Web pages involved in providing

8

information include pages that contain articles, journals,

9

publications, or other non-commercial materials.”

(5:4-6.)

As

10

discussed above, the use of the word “include” in the preferred

11

embodiment, and the example of the fictional website

12

www.abcde.com, which had “as its purpose” the teaching of the

13

alphabet, as providing information (8:31-32), indicate that the

14

preferred embodiment is not the only embodiment of the “category

15

for providing information.”

16

therefore, improperly limits the claim to the preferred

17

embodiment.

Plaintiff’s proposed construction,

18

As also discussed above, defendant’s importation of the

19

term “primary purpose” likewise poses the problem of not aligning

20

with the preferred embodiment that allows for network pages to be

21

categorized as both providing information and transacting

22

business.

23

category for network pages that have as a purpose the provision

24

of information, for example, network pages that contain articles,

25

journals, or publications.

26

preferred embodiment and allows for other embodiments of the

27

invention, while eliminating the potentially troublesome

28

commercial/non-commercial distinction present in the plaintiff’s

Thus, the court proposes a modified construction:

A

This construction encompasses the

14

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proposed construction.

2

Defendants argue that any network page provides some

3

form of information, and that the term “category for providing

4

information” is indefinite so to render the patent invalid.

5

Because every network page theoretically “provides information,”

6

defendant argues that this category could include every network

7

page every made.

8

they have gone through the prosecution process with the Patent

9

Office, and defendants offer no expert testimony or evidence that

Patents enjoy a presumption of validity because

10

a person with ordinary skill in the art would not be able to

11

determine the scope of the patents claims.

12

therefore rejected.

This argument is

13

Therefore, the term “category for providing

14

information” means “A category for network pages that have as a

15

purpose the provision of information, for example, network pages

16

that contain articles, journals, or publications.”

17

4.

18

Categorization Label
The parties’ proposed constructions are as follows:

19

Plaintiff

Defendant

20

Tag indicating the category or
categories to which a page is
assigned.

The complete code string
representing all the
categories to which a network
page is assigned.

21
22
23
24

Defendant’s proposed construction clearly is contrary

25

to the preferred embodiment of the invention with respect to the

26

words “complete” and “all.”

27

categorization label preferably consists of the indicia for all

28

of the categories to which the page is assigned.”

The specification states that: “The

15

(7:3-4)

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(emphasis added).

According to the preferred embodiment,

2

therefore, it is not necessary that the categorization label

3

include the indicia representing every category to which the page

4

has been assigned.

5

which states: “The method of claim 20, wherein said

6

categorization label includes the indicia for each category to

7

which a page is assigned.”

8

claim 30, which includes both terms “categorization code” and

9

“categorization label,” makes clear that the categorization label

Plaintiffs also point to dependent claim 22,

(13:48-50.)

Furthermore, independent

10

need not contain the indicia of all the categories to which a

11

network page is assigned:

12

30. A computer implemented method for categorizing a
network page, comprising:

13
14
15
16
17
18
19

providing a list of categories, wherein said list of
categories include a category for transacting business
and a category for providing information, and wherein
said list of categories include a plurality of
categories based on the copyright status of material on
a page;
providing a categorization code for labeling the
network page with a categorization label, wherein said
categorization label indicates a set of categories and
subcategories to which the network page is assigned,
and wherein said categorization label indicates the
copyright status of material on the network page; and

20
21

controlling usage of the network page using the
categorization label and the copyright status of the
network page.

22
(14:17-33) (emphasis added.)
23
Plaintiff argues that the defendant’s proposed
24
construction also improperly reads “categorization code” and
25
“code string” into independent claim 1 of the ‘459 patent.
26
Specifically:
27
28

1. A computer implemented method of categorizing a
network page, comprising:
16

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3
4

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Providing a list of categories, wherein said list
of categories include a category for transacting
business and a category for providing information, and
wherein said list of categories include a category
based on copyright status of material on a page;
assigning said network page to one or more of said
list of categories;

5
6

providing a categorization label for the network
page using the copyright status of material on the
network page; and

7
8

controlling usage of the network page using the
categorization label and the copyright status of the
network page.

9
10
11

19. The method of claim 1, further comprising providing
a categorization code that can be used to label the
page with the categorization label that indicates the
categories to which the page is assigned.

12
(‘459 patent 12-13) (emphasis added.)

“[T]he presence of a

13
dependent claim that adds a particular limitation gives rise to a
14
presumption that the limitation in question is not present in the
15
independent claim.”

Phillips, 415 F.3d at 1314-15.

Dependent

16
claim 19 adds the limitation of “further comprising a
17
categorization code,” which presumably is not contained in
18
independent claim 1.

While independent claim 30 includes both

19
“categorization label” and “categorization code,” independent
20
claims 1 and 31 do not require a “categorization code.”

The

21
court will not import a dependent claim into independent claim 1
22
by importing the term “categorization code” to the term
23
“categorization label.”
24
Furthermore, the language of the specification, which
25
was quoted only in part by the defendant, states that: The
26
indicia for the categories are preferably placed in an unbroken
27
code string in the following order: first tier, second tier,
28
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1

third tier, and copyright-status categories.”

2

(emphasis added).

3

example of such a categorization label is a single, simple

4

character string consisting of the two-letter or two-numerical

5

indicia for all of the categories to which the page is assigned.”

6

(7:5-8) (emphasis added).

7

the preferred embodiment is the only embodiment of the

8

categorization label, and the court will not interpret the term

9

“categorization label” to require a “code string.”

10

(7:15-18)

The specification further states that: “An

It does not appear, therefore, that

Finally, because the patent does not limit its claims

11

to placing only one categorization label on a network page, it is

12

clear that each label does not need to include every category to

13

which a page is assigned in order for the patent to function.

14

network page creator could assign a network page two

15

categorization labels, each indicating only some of the

16

categories to which a page is assigned.

17

specification provides that a network page designer can

18

communicate the categories to which a page is assigned directly

19

to search engines rather than include those categories in the

20

categorization label.

21

a categorization label might not include every category to which

22

a network page is assigned.

23

(6:50-58.)

A

Furthermore, the

This clearly contemplates that

Defendants object to plaintiff’s including the word

24

“tag” in their proposed construction of the term “categorization

25

label.”

26

may choose to be his own lexicographer and use terms in a manner

27

other than their ordinary meaning, as long as the special

28

definition of the term is clearly stated in the patent

While the word “tag” may be a term of art, “a patentee

18

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1

specification or file history.”

Honeywell Intern., Inc., 452

2

F.3d at 1318.

3

words “tag” and “label” and “mark” in the verb form

4

interchangeably.

5

by plaintiff, however, uses the word “tag” as a noun, which is

6

not supported by the patent language as being synonymous with a

7

“label.”

8

confusingly also states that “The method also includes the step

9

of providing the creator with a categorization code that can be

In the specification, the patent clearly uses the

(6:50-53, 6:63-65.)

The construction suggested

Additionally, the preferred embodiment somewhat

10

used to tag or label each page or site.”

(6:63-65.)

11

Substituting the word “tag” for “label” in the definition adds

12

nothing to enlighten the jury.

13

add another word which arguable would have to be defined.

14

the plaintiff asserts that the patent uses the terms “tag” and

15

“label” interchangeably, this construction provides the same

16

meaning while avoiding possible confusion.

17

construction makes clear that the label need not include every

18

category to which a page is assigned.

To the contrary, it would just
Since

Furthermore, this

19

Therefore, the term “categorization label” means “Label

20

indicating a category or categories to which a page is assigned.”

21

5.

Categorization Code
The parties’ proposed constructions are as follows:

22
23

Plaintiff

Defendant

24
25

System of characters or
symbols that represent
categories.

A code representing a category
to which a network page is or
could be assigned.

26

The parties dispute whether the term “categorization code” refers

27

to an entire “system” of codes or to the individual codes that

28

correspond to each category.

The term “categorization code”
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appears in dependent claims 19, 20 25, and 30:

2
3
4

19. The method of claim 1, further comprising providing
a categorization code that can be used to label the
page with the categorization label that indicates the
categories to which the page is assigned.

5
6
7
8
9

20. The method of claim 19, wherein said categorization
code comprises an indicium for each of said categories.
25. The method of claim 19, wherein said categorization
label further includes an identifier to indicate that
said label is part of said categorization code.
30. A computer implemented method for categorizing a
network page, comprising:

10
11
12
13
14
15
16

providing a list of categories, wherein said list
of categories include a category for transacting
business and a category for providing information, and
wherein said list of categories include a plurality of
categories based on the copyright status of material on
a page;
providing a categorization code for labeling the
network page with a categorization label, wherein said
categorization label indicates a set of categories and
subcategories to which the network page is assigned,
and wherein said categorization label indicates the
copyright status of material on the network page; and

17
18

controlling usage of the network page using the
categorization label and the copyright status of the
network page.

19
20

(13:40-45; 14:3-5; 14:16-33) (emphasis added.)

21

patent's claims are “generally given their ordinary and customary

22

meaning.” Phillips, 415 F.3d at 1313.

23

term is read in the context of both the particular claim in which

24

it appears and in the context of the entire patent.

25

The language of a

Furthermore, the claim

Id.

These claims reveal a system of characters that

26

represent categories to which network pages can be assigned.

27

Specifically, dependent claim 20 refers to a categorization code

28

as comprising “an indicium for each of said categories” to which
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a page is assigned.

For claim 20 to make sense, the

2

term “categorization code” must contemplate a system that can

3

comprise the categorical indicia.

4

refers to an “identifier” to indicate that the categorization

5

label is part of the categorization code.

6

construction is nonsensical when posed along side claim 25.

7

“categorization code” is merely a two-letter indicium of a

8

particular category to which a page has been labeled, then the

9

categorization code should constitute part of the categorization

Likewise, dependent claim 25

Defendant’s proposed
If a

10

label rather than the label constituting a part of the code.

11

specification provides further light for interpreting claim 25:

12

The

The categorization label for a page preferably also
includes an identifier, such as a combination of
several characters or symbols, to indicate that the
characters or symbols that follow are part of a
categorization code system.

13
14
15

(7:8-11.)

16

speaks to dependent claim 25 of the specification, and uses the

17

term

18

“categorization code.”

19

used interchangeably, and is further evidence that the inventors

20

intended the term “categorization code” to mean a code system.

This portion of the preferred embodiment directly

“categorization code system” where the claim uses
According to the patent, the terms are

21

Defendants cite the example of coding a pornographic web

22

page, where the patent states: “The categorization label would be

23

‘coexvimu,’ which indicates: Commerce (co); Explicit (ex); Visual

24

(vi); and Multimedia (mu).

25

by the ‘X’ icon and the ‘ex’ code, . . . .”

26

the specification also uses the term “code” when referring to

27

individual category symbols, this is not in conflict with

28

recognizing that the term “categorization code” refers to the

The Explicit category 42, identified

21

(7:48-54.)

While

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individual codes as “indicia”:

3
4
5
6
7
8

The patent repeatedly refers to these

The list of categories includes at least one different
indicium for each category. The indicium is preferably
a universal symbol or icon that is not associated with
any one language, but it may also include a combination
of letters, numerals, or other characters, or symbols.
The indicia preferably used are universal icons and
two-letter or two-numeral indicia, as shown in FIG. 1.
Thus, the indicia for commerce are “co” and the “$”
symbol, while the indicum for “Public Domain” is “01.”
(6:3-11.)
The preferred embodiment further states: “The method

9
10

also includes the step of providing the creator with a

11

categorization code that can be used to tag or label each page or

12

site . . . . and is preferably the indicia shown in FIG 1.”

13

(6:63-7:1.)

14

“tiers” of categories and the fourth category comprising

15

copyright status, and the various categories within the tiers.

16

Accordingly, “categorization code” as used in this instance

17

cannot constitute a singular code or category, but must represent

18

the entire system of codes displayed in Figure 1 of the ’459

19

patent.

Figure 1 of the ‘459 patent displays the three

20

Defendant also points to portions of the provisional

21

patent applications which referred to the term “categorization

22

code” as both a system and as the individual string of codes as

23

evidence that the term could mean an individual code.

24

Yahoo! Reply Decl. Kevin A. Smith Ex. 15 Fig. 1 (“The iics

25

copyright code can simply be typed in at the end of the

26

categorization code . . . .”).)

27

that the defendant points to, however, did not use the term

28

“categorization label.”

(E.g.,

The provisional applications

Rather, they used the term
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“categorization code” to also mean what is now defined as the

2

“categorization label.”

3

applications may have used the term “categorization code” to

4

express multiple meanings, the ‘459 patent claims and

5

specification are consistent in their usage of the term.

6

While the provisional patent

Finally, the preferred embodiment generally speaks

7

about the “categorization code” as something that the network

8

page creator “uses” to assign categorization labels to network

9

pages.

(See 6:63-65; 7:1-3; 7:12-15.)

This conception of

10

“categorization code” aligns with a systemic view of the term,

11

and is incompatible with a construction that limits the term to

12

one particular set of characters or symbols in code.
Therefore, the term “categorization code” means “System

13
14

of characters or symbols that represent categories.”
The Court accordingly construes the claims as set forth

15
16

above.
IT IS SO ORDERED.

17
18

DATED:

December 14, 2009

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