DSS Technology Management, Inc. v. Apple, Inc.
Filing
175
CLAIM CONSTRUCTION ORDER by Judge Haywood S. Gilliam, Jr..(This order denies the 157 Motion to Strike as moot). Case Management Statement due by 1/3/2019 and Further Case Management Conference set for 1/8/2019 02:00 PM in Oakland, Courtroom 2, 4th Floor. (ndrS, COURT STAFF) (Filed on 12/6/2018) Modified on 12/6/2018 to remove duplicate order. (ndrS, COURT STAFF).
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DSS TECHNOLOGY MANAGEMENT,
INC.,
Plaintiff,
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Case No. 14-cv-05330-HSG
CLAIM CONSTRUCTION ORDER
Re: Dkt. Nos. 72, 157
v.
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APPLE, INC.,
United States District Court
Northern District of California
Defendant.
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I.
BACKGROUND
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Plaintiff DSS Technology Management, Inc. filed its complaint against Defendant Apple,
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Inc. on November 26, 2013 in the Eastern District of Texas, alleging infringement of U.S. Patent
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Nos. 6,128,290 (the “’290 patent”) and 5,699,357 (the “’357 patent”). Dkt. No. 1. Plaintiff later
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withdrew all infringement allegations as to the ’357 patent, so presently only the ’290 patent is at
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issue. See Dkt. No. 96 at 2, 4. On November 7, 2014, the Eastern District of Texas granted
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Defendant’s motion to transfer the case to the Northern District of California. Dkt. No. 85. On
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February 13, 2015, the case was reassigned to this Court.
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On December 4, 2014, Defendant filed two petitions for inter partes review (IPR) of the
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’290 patent. Dkt. No. 99 at 1. All of the ’290 patent claims asserted by Plaintiff were covered by
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Defendant’s petitions. Id. at 3. On May 1, 2015, the Court stayed this case pending results of the
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IPRs. Dkt. No. 122. Both IPRs resulted in a final decision in Plaintiff’s favor, and the Court lifted
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the stay on July 27, 2018. Dkt. No. 145.
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Plaintiffs currently assert claims 1 through 4 of the ’290 patent, and the parties propose
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seven claim terms for construction. Dkt. No. 165. This order follows claim construction briefing,
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a technology tutorial, and a claim construction hearing.
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II.
LEGAL STANDARD
Claim construction is a question of law to be determined by the Court. Markman v.
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Westview Instruments, Inc., 517 U.S. 370, 384 (1996). “The purpose of claim construction is to
determine the meaning and scope of the patent claims asserted to be infringed.” O2 Micro Int’l
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Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (internal quotation
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marks omitted).
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Generally, claim terms should be “given their ordinary and customary meaning”—in other
words, “the meaning that the term[s] would have to a person of ordinary skill in the art in question
at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en
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banc) (internal quotation marks omitted). There are only two circumstances where a claim is not
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entitled to its plain and ordinary meaning: “1) when a patentee sets out a definition and acts as his
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United States District Court
Northern District of California
own lexicographer, or 2) when the patentee disavows the full scope of a claim term either in the
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specification or during prosecution.” Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362,
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1365 (Fed. Cir. 2012).
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When construing claim terms, the Federal Circuit emphasizes the importance of intrinsic
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evidence such as the language of the claims themselves, the specification, and the prosecution
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history. Phillips, 415 F.3d at 1312–17. The claim language can “provide substantial guidance as
to the meaning of particular claim terms,” both through the context in which the claim terms are
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used and by considering other claims in the same patent. Id. at 1314. The specification is likewise
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a crucial source of information. Id. at 1315–17. Although it is improper to read limitations from
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the specification into the claims, the specification is “the single best guide to the meaning of a
disputed term.” Id. at 1315 (noting that “the specification is always highly relevant to the claim
construction analysis,” and that “[u]sually, it is dispositive” (internal quotation marks
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omitted)); see also Merck & Co. v. Teva Pharm. USA, Inc., 347 F.3d 1367, 1371 (Fed. Cir.
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2003) (explaining that “claims must be construed so as to be consistent with the specification”).
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Despite the importance of intrinsic evidence, courts may also consider extrinsic evidence—
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technical dictionaries, learned treatises, expert and inventor testimony, and the like—to help
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construe the claims. Phillips, 415 F.3d at 1317–18. For example, dictionaries may reveal what
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the ordinary and customary meaning of a term would have been to a person of ordinary skill in the
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art at the time of the invention. Frans Nooren Afdichtingssystemen B.V. v. Stopaq Amcorr
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Inc., 744 F.3d 715, 722 (Fed. Cir. 2014) (“Terms generally carry their ordinary and customary
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meaning in the relevant field at the relevant time, as shown by reliable sources such as
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dictionaries, but they always must be understood in the context of the whole document—in
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particular, the specification (along with the prosecution history, if pertinent).”). Expert testimony
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can also help “to ensure that the court’s 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 establish that a particular term in the patent
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or the prior art has a particular meaning in the pertinent field.” Phillips, 415 F.3d at 1318.
Extrinsic evidence is, however, “less significant than the intrinsic record in determining the legally
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United States District Court
Northern District of California
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operative meaning of claim language.” Id. at 1317 (internal quotation marks omitted).
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III.
PERSON OF ORDINARY SKILL IN THE ART
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The parties agree that a “person of ordinary skill in the art” of the ’290 patent is: “a person
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with a bachelor of science in electrical engineering and at least two years of experience in the area
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of wireless communication or similar experience.” Dkt. No. 72 at 6; Dkt. No. 74 at 31.
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IV.
Pursuant to the parties’ stipulation, the Court will not construe the claim terms “local
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AGREED TERMS
oscillator” and “controlled by said oscillator,” appearing in claims 9 and 10, which are no longer
asserted in this matter. Dkt. No. 165 at 2. The parties also agreed during the Markman hearing
that the construction of the term “adapted to operate within a short range of [said server unit]”
should be: “within a range in which the accuracy of synchronization is not appreciably affected by
transit time delays, including at least the range of within 20 meters.” Id. at 2–3.
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Defendant’s proposed definition of person of ordinary skill in the art states that work experience
should be one to two years.
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V.
DISPUTED TERMS
A.
“code sequence” (claims 1 & 3)
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Plaintiff’s Construction
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“information specifying the time at
which a communication may occur”
Defendant’s Construction
“a series of values, where each value in the series
represents a time slot within a frame interval
where a unit’s transmitter is energized or a time
slot where a unit’s transmitter is depowered”
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The Court adopts Plaintiff’s construction modified as follows: “a series of values
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specifying the time at which a communication between a server and a peripheral unit may
occur”
United States District Court
Northern District of California
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Claim 1 states, in relevant part: “said server and peripheral transmitters being energized in
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low duty cycle RF bursts at intervals determined by a code sequence which is timed in relation to
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said synchronizing information.” Dkt. No. 72-1 (“’290 Patent”) at claim 1 (emphasis added).
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Claim 3 states, in relevant part: “wherein a code sequence for a given one of said units is
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transmitted within a respective time slot.” Id. at claim 3 (emphasis added).
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Defendant contends that “code sequence” is a coined term that would have no meaning to a
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person of skill in the art without further definition in the specification. Dkt. No. 74 at 6.
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Defendant’s construction therefore limits the term to the single embodiment found in column 7 of
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the specification. See ’290 Patent at 7:18–43. That embodiment describes the use of Optically
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Orthogonal Codes (OOCs), which act as the code sequences of the claims. Id. These OOCs
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contain “codewords” that are sequences of many zeroes, “with three scattered ones representing
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the locations of the slots in which RF bursts are to be transmitted or received.” Id. at 7:27–29.
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Defendant cites two Federal Circuit cases to support its proposition that “code sequence” is
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a coined term that would have no independent meaning to a person of skill in the art. Id. (citing
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Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) and MyMail,
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Ltd. v. Am. Online, Inc., 476 F.3d 1372, 1376 (Fed. Cir. 2007)). Neither case supports
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Defendant’s proffered construction. In MyMail, “[b]oth parties agree[d] that the term” was “a
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coined term, without a meaning apart from the patent.” MyMail, Ltd. v. Am. Online, Inc., 476 F.3d
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1372, 1376 (Fed. Cir. 2007). And Irdeto Access notes that “if a disputed term has no previous
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meaning to those of ordinary skill in the prior art[,] its meaning, then, must be found [elsewhere]
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in the patent.” Irdeto Access, 383 F.3d at 1300 (internal quotation marks omitted). Here, the
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record does not establish that “code sequence” had no other accepted meaning to persons of
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ordinary skill of the art at the time of the patent. Plaintiff notes that the term was used commonly
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at the time of the ’290 patent, including in at least one patent cited on the face of the ’290 patent.
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Dkt. No. 82 at 3 (citing U.S. Pat. No. 5,371,734).
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Where, as here, “guidance is not provided in explicit definitional format, the specification
may define claim terms ‘by implication’ such that the meaning may be ‘found in or ascertained by
a reading of the patent documents.’” Irdeto Access, 383 F.3d at 1300 (quoting Bell Atl. Network
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United States District Court
Northern District of California
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Servs., Inc. v. Covad Communications Group, Inc., 262 F.3d 1258, 1268 (Fed.Cir.2001)) (some
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internal quotation marks omitted). The term “code sequence” is not defined explicitly in the
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specification, nor is it defined by implication. In fact, the defining embodiment to which
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Defendant points never recites the phrase “code sequence.” See ’290 Patent at 7:18–43. Further,
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because Defendant has not established that the term “code sequence” is a coined term, and
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therefore defined by the specification, the Court must apply the “heavy presumption” that the term
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be given its ordinary meaning to a person of skill in the art at the time of invention. Aylus
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Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1358 (Fed. Cir. 2017).
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Defendant’s construction is too narrow to encompass the plain meaning of “code
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sequence.” Defendant’s construction imports the terms “time slot” and “frame interval” from the
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specification and dependent claims, and adds from the OOC embodiment the condition that certain
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elements of the code sequence must correspond to time periods when the transmitter is
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“depowered.” The plain meaning of “code sequence” does not include these limitations.
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Plaintiff’s construction, as Defendant points out, does not capture the plain meaning of the
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terms “code” or “sequence.” See Dkt. No. 74 at 3. “Information,” on its own, does not limit the
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term to its plain meaning, as it encompasses values that are not encoded, as well as values that are
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not sequential (e.g., a single digit). Defendant proffers several dictionary definitions of the term
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“sequence,” all of which connote a series of items or objects. Dkt. No. 74 at 6 n.4; Dkt. No. 74-2
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¶ 29.
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The Court therefore adopts the following construction, which incorporates the plain
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meaning of the term without incorporating narrowing elements from the specification: “a series of
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values specifying the time at which a communication between a server and a peripheral unit may
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occur.”
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B.
“which is timed in relation to” (claim 1)
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Plaintiff’s Construction
“occurring at a specified interval of time
relative to”
Defendant’s Construction
“the values of the code sequence are aligned to
correspond to time slots in a frame interval”
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United States District Court
Northern District of California
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The Court adopts Plaintiff’s construction.
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Claim 1 reads, in relevant part: “said server and peripheral transmitters being energized in
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low duty cycle RF bursts at intervals determined by a code sequence, which is timed in relation to
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said synchronizing information.” ’290 Patent at claim 1 (emphasis added).
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Defendant’s proposed construction again unnecessarily imports certain limitations of the
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column 7 embodiment into the claims. Because the clause “which is timed in relation to” modifies
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the term “code sequence,” Defendant’s construction tracks the language and functionality from the
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same column 7 embodiment discussed above with respect to the term “code sequence.” See Dkt.
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No. 74 at 10; ’290 Patent at 7:18–43. But given the Court’s construction of “code sequence,” the
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plain meaning of the phrase “timed in relation to” does not limit the claim to “time slots” within a
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“frame interval.”
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Further, the doctrine of claim differentiation creates a presumption that “an
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independent claim should not be construed as requiring a limitation added by a dependent claim.”
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Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380 (Fed. Cir. 2006).
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Although neither “time slot” nor “frame interval” appears in the text of claim 1, each of those
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terms is written into dependent claims that depend on claim 1. See ’290 Patent at claim 2, 3.
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Plaintiff’s proffered construction neither improperly limits that scope of the claim term nor
expands the term beyond its plain meaning. The Court therefore adopts Plaintiff’s proposed
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construction: “occurring at a specified interval of time relative to.”
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C.
“time slots” (claim 2)
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Plaintiff’s Construction
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“intervals of time”
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Defendant’s Construction
“a fixed period of time within a predetermined
frame interval where a respective peripheral unit
or server microcontroller unit is to transmit or
not, and whether it will receive or not”
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The Court adopts Plaintiff’s construction.
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Claim 2 reads, in relevant part: “wherein said server and peripheral units are allocated
respective time slots within a predetermined frame interval for transmitting.” ’290 patent at claim
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United States District Court
Northern District of California
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2 (emphasis added).
Defendant’s construction: (1) superfluously repeats the limitation “within a predetermined
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frame interval”; and (2) adds without any apparent basis a limitation wherein the server or
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peripheral unit will either “receive or not.” Both parties agree that the time slots described in the
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specification “represent periods of times in which a peripheral device . . . may be assigned to
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transmit or receive data.” Dkt. No. 72 at 16 (citing ’290 patent at 5:44–63, Fig. 6); Dkt. No. 74 at
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13. However, Defendant offers no evidence that a person of skill in the art at the time of the
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invention would read the phrase “time slots within a predetermined frame interval for
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transmitting” to mean “time slots within a predetermined frame interval for either transmitting or
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receiving.” The Court finds no reason to read elements found in the specification into the
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language of these claims.
Plaintiff’s proposed construction neither improperly limits that scope of the claim term nor
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expands the term beyond its plain meaning. The Court therefore adopts Plaintiff’s proposed
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construction: “intervals of time.”
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D.
“RF synchronizing beacons” (claim 4)
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Plaintiff’s Construction
“transmissions used to establish or
maintain synchronization”
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Defendant’s Construction
“RF bursts that are nonuniformly spaced in time
and define a unique frame interval for a server
microcomputer unit”
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The Court adopts Defendant’s construction.
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Claim 4 reads, in relevant part: “wherein said server microcomputer unit transmits RF
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synchronizing beacons at times within each of a predetermined sequence of frames which times
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vary in accordance with a code unique to the particular server microcomputer unit.” ’290 patent at
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United States District Court
Northern District of California
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claim 4 (emphasis added).
Both parties agree that “RF synchronizing beacons” is a term that was not well-known to a
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person of skill in the art at the time of the patent without further definition in the specification.
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See Dkt. No. 72 at 18; Dkt. No. 74 at 16. Both parties point to the embodiment in columns 7 and 8
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of the specification as an illuminating definition of the term. Dkt. No. 72 at 18 (citing ’290 patent
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at 7:63–8:8); Dkt. No. 74 at 16 (citing ’290 patent at 7:63–8:20). The relevant disclosure in the
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specification states:
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As will be understood by those skilled in the art, the TDMA system
is greatly facilitated by the establishment of a common frame time
base between PEA and PDA. In establishing this common time
base, the present invention employs timing or synchronization
beacons (SBs) transmitted by the PDA. Each SB consists of eight
RF bursts spread out over 252 slots. One of the SBs arbitrarily starts
a frame. The positions of the remaining seven SBs are selected
pseudo-randomly with two restrictions. First the maximum interval
between two successive SBs is less than 6.144 milliseconds.
Secondly, the positions must allow a unique frame determination
based on the intervals between SBs. Thus for example, equidistantly
spaced SBs are not allowed.
’290 patent at 7:62–8:8 (emphasis added).
Plaintiff contends that, because the individual words “RF,” “synchronizing,” and “beacon”
were known in to those of skill in the art, the term “RF synchronizing beacon” was known, and
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therefore is not subject to limitation by the specification. Dkt. No. 82 at 6. Plaintiff argues that
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“stringing together several well-known words does not suddenly transform the phrase comprised
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of those words into a ‘coined term.’” Id.
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The Court disagrees. Here, although the claim language strings well-known words
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together, Plaintiff acknowledges that the resulting phrase was not known in the art outside of the
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patent. Dkt. No. 72 at 18. The phrase is therefore potentially subject to limitations outlined in the
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specification. See Irdeto Access, 383 F.3d at 1300 (“[I]f a disputed term has ‘no previous meaning
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to those of ordinary skill in the prior art[,] its meaning, then, must be found [elsewhere] in the
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patent.’”).
Plaintiff’s proposed construction does not capture the specification’s description that the
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synchronization beacons must be spaced such that “the positions . . . allow a unique frame
determination based on the intervals between SBs.” ’290 patent at 8:6–7. Defendant’s proposed
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United States District Court
Northern District of California
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construction successfully captures this description from the specification without importing
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additional limitations not found in the specification’s embodiment. The Court therefore adopts
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Defendant’s proposed construction: “RF bursts that are nonuniformly spaced in time and define a
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unique frame interval for a server microcomputer unit.”
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E.
“[RF bursts at] intervals determined by a code sequence” (claim 1)
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Plaintiff’s Construction
Defendant’s Construction
“a plurality of periods of time determined “periods between time slots where the
by a code sequence [information
transmitters are energized are preset by a code
specifying the time at which a
sequence”
communication may occur]”
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The Court adopts Plaintiff’s construction.
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Claim 1 reads, in relevant part: “said server and peripheral transmitters being energized in
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low duty cycle RF bursts at intervals determined by a code sequence, which is timed in relation to
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said synchronizing information.” ’290 Patent at claim 1 (emphasis added).
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Defendant’s proposed construction, similar to its proposed constructions for “code
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sequence” and “timed in relation to,” improperly imports the term “time slot” into claim 1. See
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Sections V(A) and V(B), supra. Further, Defendant defines “determined” to mean “predetermined
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or preset,” Dkt. No. 74 at 19 (emphasis added), a proposal that has no basis in the plain meaning
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of the claim language or in the specification.
Plaintiff’s proposed construction simply defines “intervals” as “periods of time.”
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Defendant does not contend that this definition fails to encompass the embodiments in the
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specification, and simply argues that Plaintiff’s definition “does not assist the jury.” Dkt. No. 74
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at 19. Given the clear deficiencies in Defendant’s construction and no substantive objection to
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Plaintiff’s proposed construction, the Court adopts Plaintiff’s proposed construction: “a plurality
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of periods of time determined by a code sequence.”
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F.
“a server microcomputer” (claim 1)
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United States District Court
Northern District of California
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Plaintiff’s Construction
plain meaning, or: “a host computer
acting as the hub of a local network”
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Defendant’s Construction
“a portable device used to effect bidirectional
wireless data communication with peripheral
units”
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The Court adopts Plaintiff’s construction.
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Defendant contends that “server microcomputer” was a coined term with no understood
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meaning at the time of the invention, and therefore must be limited to the descriptions in the
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specification. Dkt. No. 74 at 25–28. Because all of the embodiments in the specification describe
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a portable server, Defendant reads that limitation into its construction for this term. Id.
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Defendant cites Nystrom v. TREX Co., Inc. as an example of a claim term (“board”) that
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was limited to the scope of the embodiments in the specification (boards made of wood), despite
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no clear disavowal of claim scope. Nystrom v. TREX Co., 424 F.3d 1136, 1142–1146 (Fed. Cir.
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2005). The term at issue here is different from the term “board” in Nystrom for several reasons.
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First, in Nystrom, “both parties acknowledge[d] the ordinary meaning of ‘board’ as ‘a piece of
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sawed lumber.’” Id. at 1145. Here, neither party contends that the ordinary meaning of “server
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microcomputer” requires portability. Further, the prosecution history in Nystrom included a
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statement distinguishing the invention from prior art on the basis that the prior art was not directed
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to wooden boards. Id. at 1144.
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Here, Plaintiff invokes the doctrine of claim differentiation and points to a parent patent to
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the ’290 patent whose claims are limited to portable sever microcomputer units. Dkt. No. 72 at 29
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(citing Dkt. No. 72-6 at claims 1, 6, 11, 12, 15, and 18). The ’357 patent (parent to the ’290
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patent) explicitly uses the word “portable” to describe a “server microcomputer” in each of its
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independent claims. See Dkt. No. 1-2 (“’357 patent”) at claims 1, 6, 11, 12, 15, 18. The ’357
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patent specification is nearly identical to the ’290 patent specification. One of the few notable
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differences lies in column 3 of each patent. The ’357 patent reads:
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Northern District of California
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These devices include a server microcomputer which is battery
powered and portable so as to be carried on the person of a user
and a plurality of peripheral units which are also battery powered
and portable and which provide input information from the user or
output information to the user.
’357 patent at 3:17–21 (emphasis added). In contrast, the ’290 patent reads:
These devices include a server microcomputer and a plurality of
peripheral units which are battery powered and portable and which
provide input information from the user or output information to the
user.
’290 patent at 3:22–25.
The explicit inclusion of the “portable” limitation in the specification and in each claim
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describing a “server microcomputer” in the ’357 patent is evidence that portability is not an
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inherent characteristic of a server microcomputer. The absence of the term “portable” as a
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descriptor of the server microcomputer in the specification and claims of the ’290 patent, and the
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use of the word “portable” in several independent claims—including claim 1—to describe
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peripheral units, also weighs in favor of a construction that differentiates between the claim term
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at issue here and other claim terms in the intrinsic record. See ’290 patent at claims 1, 5, and 6.
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Defendant’s contention that “server microcomputer” had no understood meaning in the art
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is not based on any evidence that the term was not prevalent at the time of the invention. Rather,
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Defendant relies on the lack of evidence presented by Plaintiff that the term “server
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microcomputer” was well-known. Dkt. No. 74 at 26. The mere absence of evidence is not
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sufficient to overcome the “heavy presumption” that the term be given its ordinary meaning to a
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person of skill in the art at the time of invention. Aylus Networks, 856 F.3d at 1358.
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Defendant’s proffered construction improperly limits that scope of the claim term. The
Court therefore adopts Plaintiff’s proposed construction: “a host computer acting as the hub of a
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local network.”
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VI.
CONCLUSION
The Court CONSTRUES the disputed terms as follows:
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Claim(s)
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Claim Term
Construction
“a series of values specifying the time at
which a communication between a
server and a peripheral unit may occur”
1, 3
“code sequence”
1
“which is timed in relation to”
“occurring at a specified interval of time
relative to”
2
“time slots”
“intervals of time”
4
“RF synchronizing beacons”
“RF bursts that are nonuniformly spaced
in time and define a unique frame
interval for a server microcomputer
unit”
1
“[RF bursts at] intervals determined by a
code sequence”
“a plurality of periods of time
determined by a code sequence”
1
“a server microcomputer”
“a host computer acting as the hub of a
local network”
1
“within a range in which the accuracy of
“adapted to operate within a short range of synchronization is not appreciably
[said server unit]”
affected by transit time delays, including
at least the range of within 20 meters”
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United States District Court
Northern District of California
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In addition, the Court SETS a further case management conference (“CMC”) for January
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8, 2019 at 2:00 p.m. The Court DIRECTS the parties to meet and confer before the CMC to
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discuss a proposed case schedule through trial and to submit a joint CMC statement by January 3,
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2019.2
IT IS SO ORDERED.
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Dated: 12/6/2018
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge
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United States District Court
Northern District of California
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In its responsive claim construction brief, Apple relies on the testimony of Phillip Carvey, the
named inventor of the ’290 patent. See Dkt. No. 74-1. Plaintiff filed a motion to strike this
testimony. Dkt. No. 157. The Court does not rely on the Carvey testimony and DENIES
the Motion to Strike as moot.
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