Cellport Systems, Inc. v. HTC Corporation, et al

Filing 62

ORDER re Claim Construction. by Judge R. Brooke Jackson on 1/7/14. (rbjcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-00173-RBJ
CELLPORT SYSTEMS, INC.,
Plaintiff,
v.
HTC CORPORATION,
HTC AMERICA HOLDING INC., and
HTC AMERICA, INC.,

Defendants.
Consolidated with,

Civil Action No. 13-CV-178-RBJ
CELLPORT SYSTEMS, INC.,
Plaintiff,
v.
NOKIA CORPORATION, and
NOKIA INC.
Defendants.

ORDER

These consolidated cases are before the Court on joint motions for construction of certain
terms in United States Patent No. 6,122,514 (the ‘514 patent). The Court held a “Markman”
hearing on November 20, 2013 and has also considered the parties’ briefs and their respective
technology tutorials.
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FACTUAL BACKGROUND
The ‘514 patent, filed in 1997 and issued in 2000, bears the title, “Communications
Channel Selection.” The language of the patent is typically complex and technical, but the
following simplified example should suffice for illustrative purposes.1 An individual in a
moving vehicle has a mobile phone. The phone has various “applications” (software programs)
that generate information such as voice information (talking to someone) or data (such as email).
Each application has certain transmission requirements expressed as “operating parameters,”
such as minimums for bandwidth and security, and maximums for jitter, latency and cost. See,
e.g., ‘514 patent [#1-1] at Fig. 4. The information generated (or received) by the phone is
transmitted over a “network channel,” such as a cellular or a satellite network channel.
The subject invention is a communications system, including both a method (independent
Claim 1) and an apparatus (independent Claim 17) for transferring information. Again using the
phone and vehicle example, the system first identifies network channels that are “available” (will
work) in the specific location of the vehicle.2 The system then determines which of the available
channels is actually available for selection or “acceptable” (will work well) by comparing the
channel’s operating parameters to the particular application’s requirements for each operating
parameter. Id. at Fig. 3. If more than one network channel is acceptable, a weighting factor
reflecting the weight or importance attached to each operating parameter is applied. Id. at Fig. 4.
This results in the selection of the best or most “suitable” network channel for the transmission

The example of a phone in a moving vehicle was used to illustrate defendants’ tutorial. Cellport’s
tutorial uses a different example, i.e., a mobile unit (computer) in an ice-cream delivery truck with
applications that monitor the temperature of the freezer and the status of the truck’s engine. A similar
example was used in the patent’s specification. See ‘514 patent [CM/ECF docket entry #1-1] at Col.5:4347. The Court has used the phone example for simplicity of explanation, not to define terms based on a
particular use or embodiment.
2
The system also provides certain “recovery procedures” if there is no “available” channel.
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of that information from that phone at that location. As the vehicle continues to move the system
senses the presence of new available and acceptable network channels and continues to select the
most suitable of the available and acceptable channels. The system can also determine the
optimum time for the transition from one channel to another to occur to assure a smooth
continuation of the transmission of the information.3
CONSTRUCTION OF DISPUTED TERMS
Claim construction is a matter of law for the Court. Markman v. Westview Instruments,
Inc., 517 U.S. 370, 384-91 (1996). The objective is to give disputed terms in a patent claim the
meaning that a person of ordinary skill in the relevant art would have given them at the time of
the invention unless the patent applicant has clearly and unambiguously defined the terms
differently. See, e.g., Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 493 F.3d 1358, 1361
(Fed. Cir. 2007).
The Court principally considers “intrinsic evidence,” i.e., the words of the claim itself in
the context of the entire patent including as relevant the specification and the prosecution history.
Phillips v. AWH Corp., 415 F.3d 1303, 1313-17 (Fed. Cir. 2005), cert. denied, 546 U.S. 1170
(2006). The specification is “the single best guide to the meaning of a disputed term.” Vitrionics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The court may not, however,
read limitations from the specification, particularly the disclosed embodiments, into the claim.
Phillips, 415 F. 3d at 1323-24. “Extrinsic evidence” such as dictionaries, treatises and, in the
present case, the parties’ technology tutorials, can also be considered, although such evidence
generally should be given less weight than intrinsic evidence. See id. at 1317-19.
In a “Modified Joint Claim Construction & Pre-Hearing Statement,” tendered at the
beginning of the hearing, the parties notified the Court of certain agreed constructions and of 20
3

The latter process, implemented by a “link scheduler,” is not provided in all embodiments.

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disputed terms. At the Court’s request, the parties identified certain disputed terms, 10 in
number, that they considered to be the most critical. The Court here defines those 10 terms and
will define additional terms only if the parties later deem it to be necessary.
Claim 1 (the terms construed are bolded)
A method for transferring information when a number of different
network channels are available over which the information can be
transferred, comprising:
providing first information for transfer relative to a mobile unit;
providing second information for transfer relative to said mobile unit;
selecting a first network channel from a plurality of different
network channels, including said first network channel and a second
network channel, over which at least said first information is to be
transferred relative to said mobile unit, wherein said network channels
communicate directly with network interfaces located with the mobile
unit including said first network channel communicating with a first
network interface and said network channel communicating with a
second network interface;
deciding after said selecting step that said second network channel is
to be used to transfer said second information, said deciding step
taking into account a position of said mobile unit; and
controlling within said mobile unit a use of said second network
interface in transferring said second information relative to said
mobile unit, said controlling step including a switching from using
said first network channel to using said second network channel,
wherein said controlling step is conducted free of any request related
to change communicated to said second network channel from said
first network channel.
1. “first information.”4
Cellport proposes: “information originating above a transport layer and passing through a
protocol stack,” adding that this would not be indefinite. Defendants propose: “a first portion of
a voice or data communication.” I note that neither the term “first information” nor the term
“second information” is found in the specification section of the patent.
4

The terms “first information” and “second information” are found in both Claim 1 and Claim 17.

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In all embodiments of the system described in this invention, information to be
transmitted is processed as it passes from the application through a “transport layer,” then
through a “protocol stack,” and then through a “network interface” to the network channel.
Collectively, these layers are deemed the “terminal stack.” See, e.g., ‘514 Patent, col. 5:61-col.
6:35; Fig. 1, item 12. See also Cellport Tutorial [#56] at 18. Claim 1 describes a method for
selecting the most suitable among a plurality of available network channels to use to transmit the
processed information. It is also fundamental to the invention that “the system is able to
dynamically adapt to situations where the currently used network channel becomes unavailable
or inappropriate and the transfer of information has not yet been completed.” Col. 2:6-9
(emphasis added). Thus, “the system is able to switch network channels within the course of a
particular information transfer or session when it is determined that a more advantageous
channel is now available.” Col.2:9-13 (emphasis added). It does this by switching to a second
available channel that has become more suitable during the course of the transmission due, for
example, to the movement of the mobile unit, or in the words of Claim 1, “deciding after said
(first) selecting step that said second network channel is to be used to transfer said second
information, said deciding step taking into account a position of said mobile unit.” Col. 14: 66Col. 15:2.
Therefore, the Court concludes that the term “first information” refers to the information
transmitted through the first-selected network channel, and “second information” refers to the
information transmitted through the second-selected network channel. Once selected, the second
network channel becomes, in turn, a first network channel until the system switches the mobile
unit to a new second network channel; and the process repeats through the continuation of the
particular information transfer as the mobile unit continues to change locations. This

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interpretation is also consistent with the phrase in Claim 1, “selecting a first network channel
from a plurality of different network channels, including said first network channel and a second
network channel.” Col.14:56-57.
Cellport points to language in the specification indicating that a mobile unit can have
different applications, and that the applications may transmit information at different times or
according to different priorities. Opening Brief [#55] at 10, citing col 9:17-34 and col. 12:5963.5 To my mind this begs the question of what constitutes “first” and “second” information.
Each transmission must begin with a network channel, but when that channel becomes
inappropriate, the transmission must be switched to a more suitable network channel. That is, by
my reading, the essence of the invention.
In that context, the defendants’ proposed interpretation of “first information” as
constituting “a first portion of a voice or data communication” makes sense. Cellport’s proposed
definition, essentially that all information originating above a transport layer and passing through
a protocol stack is first information except that which isn’t first information, does not make
sense.
2. “second information.”
Cellport proposes: “information distinct from the first information, originating above a
transport layer and passing through a protocol stack,” again adding that this would not be
indefinite. Defendant HTC proposes: “a second portion of a voice or data communication.”
Defendant Nokia proposes: “a second portion of the voice or data communication.”

HTC, although in the context of arguing about Claim 17, seems to make a similar argument, pointing to
Col.4:64-Col.5:1, which states that a “currently used network channel can be switched to another network
channel because, for example, a different application with higher priority requires a different network
channel.”
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For the reasons discussed above with respect to the term “first information,” the Court
does not agree with Cellport’s definition. The Court concludes that Nokia’s proposed
construction better captures the concept that the switch occurs during the continuation of the
same transmission. Accordingly, “second information” is defined to mean “a second portion of
the voice or data communication.”
3. “selecting a first network channel from a plurality of different network channels.”
Cellport proposes: plain and ordinary meaning. Defendants propose: “choosing a first
network channel from at least two available and acceptable network channels based on an
analysis of application requirements and network channel operating parameter values.”
During oral argument I suggested that the plain and ordinary meaning seemed clear
enough. I stand by that comment, but it was made from the viewpoint of this Court as a lay
interpreter of the language. Upon review of the briefs and argument transcript, and further study
of the patent including its specification, I am convinced that one skilled in the art would interpret
this term as implicitly referring to the selection of the most suitable network channel from a
plurality of available and acceptable network channels, because that is a fundamental element of
the invention. See, e.g., ‘514 patent [#1-1], Summary of the Invention, Col.2:2-4; Col.3:23-44. I
conclude that one skilled in the art would also interpret the term as implicitly basing the selection
on application requirements and network channel operating parameter values, since that too is
fundamental to the invention. See, e.g., Abstract (describing the system as including a link
selector for selecting an acceptable network channel using application requirements and channel
operating parameter values); Summary of the Invention, Col.2:32-Col.3:8; Col.4:50-58. Those
inherent qualifications (basing the network channel selection on application requirements and
network channel operating parameter values) are not provided later in the claim.

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Thus, the plain language, without further qualification, is overly broad and potentially
misleading. Defendants’ proposed construction makes explicit what is implicit, and the Court
adopts that construction.
4. “deciding after said selecting step that said second network channel is to be used
to transfer said second information.”
Cellport proposes: plain and ordinary meaning. Defendants propose: “determining based
on an analysis of application requirements and network channel operating parameter values that
the second network channel is desirable over the selected first network channel for transfer of the
second information.”
In the previous example, the term was easy enough to understand on its face, but the plain
and ordinary meaning was too broad to fit the patent. Here, the term lacks a plain and ordinary
meaning. The defendants’ proposal provides more clarity. However, the Court’s interpretation
is “determining, based on application requirements and network channel operating parameter
values, that a second network channel is more suitable for the transmission of the second
information.”
5. “taking into account a position of said mobile unit.”
Cellport proposes: “taking into account a position of said mobile unit relative to an
available network.” Defendants propose: “including using a geographic location of the mobile
unit as part of the deciding step.” During oral argument counsel modified Cellport’s position,
now suggesting that the parties’ proposals be combined into something like, “taking into account
a geographic location of the mobile unit or its position relative to an available network as part of
the deciding step.”

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First, it must be noted that the dispute does not truly concern the meaning of “position.”
That term, quite simply, is synonymous with “location.” For example, in discussing the
reliability problems that network channel selection systems face, the specification notes that
these problems exist particularly with mobile units “whose position changes during the transfer.”
‘514 patent, Col.1:20-25. Similarly,
The channel selection process is made more complicated and difficult when the
transmitter and/or receiver of the transferred information is part of a mobile unit.
In such a case, because of the movement of the mobile unit, such as a vehicle, a
presently accessed network channel may no longer be available for use because of
the new geographic position of the mobile unit. That is, the presently utilized
network channel may not be available in the new location of the mobile unit. The
network channel selection process is rendered even more complicated when, due
to the different geographic position of the mobile unit, a previously available
channel is now available to the mobile unit.
Col.1:62-65 (emphasis added).
The dispute, arising from the parties’ jockeying for “position” in the later
infringement/invalidity debate, concerns how the “position” or location of the mobile unit
is determined within the meaning of this patent. I conclude that both parties have it
partially right.
It is evident that, at least in those embodiments in which a link scheduler is
included, “position” includes the type of measurements provided by a GPS system, i.e.,
latitude, longitude, altitude, speed, bearing, etc. In the Summary of the Invention section
of the specification I find the following:
With regard to the determination made by the link scheduler as to the future
availability of one or more available network channels, the link scheduler relies
on the current geographic position of the transmitter or receiver of the
information, whichever or both is applicable. The link scheduler also relies on
future geographic position information, which can be found by the link scheduler
using movement related data, such as the velocity of the mobile unit that includes
the transmitter or receiver.
Col. 4:4-11.
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The meaning of “geographic position” is further developed in the Detailed Description
section of the specification:
The link scheduler provides the capability of combining current system location,
as part of the mobile unit, with geographic coverage maps. That is, the link
scheduler is useful in identifying network cannels that may become available later
due to movement of the mobile unit. This functional capability can also be
coupled with information transfer priority, with the link scheduler contributing to
the determination as to whether the information should be buffered or transmitted
immediately.
The link scheduler also communicates with a global positioning system (GPS) of
the selection apparatus.
The GPS is used to provide the location of the mobile unit having the
communications system and the direction of travel thereof. A highly accurate
time measurement is also derived. With this GPS-derived location and velocity
information, the link scheduler can determine which network channels will be
going off-line and schedule a channel switch before loss of communication
occurs.
Col.12:26-44. See also Col.9:64-67; Col.13:8-15, 51-61; and Claim 26, Col.17:19-Col.18:3.
Figure 1 of the ‘514 patent graphically shows the interaction of the link scheduler and
GPS. Similarly, the Cellport Technology Tutorial [#56] indicates that GPS “[p]rovides location
information such as GPS coordinates, velocity, and time.” Id. at 22. Cellport’s opening brief [#55]
concedes, as it must, that the link scheduler augments the selection process with GPS location
information, and that Claim 1 uses “position” in a sense that includes geographical coordinates. Id. at 6,
12.

However, it is not at all clear that the term “position” is limited to what can be
determined by the GPS system. For one thing, not all embodiments have a link scheduler.
Moreover, as a matter of common sense, the position of the mobile unit in relation to an
available network channel is relevant. If the mobile unit is not within a network’s coverage area,
then the network cannot be available for transmission of information from that mobile unit.

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Also, the link selector necessarily uses signal strength in its operation. See, e.g., Col.4:37-49.
See also Col.1:54-62.
Accordingly, the Court concludes that “position” means “location.” The location is
provided both by its position relative to an available network and by GPS data. The system takes
into account the “position” or “location” of the mobile unit by using this information as
appropriate to the particular task.

Claim 17 (the terms construed are bolded)
An apparatus for transferring first and second information when
a plurality of different network channels including a first network channel
and a second network channel are available over which the information
can be transferred, comprising
network interfaces located with a mobile unit that communicate with the
plurality of network channels including a first network interface
communicating with the first network channel and a second network
interface communicating with the second network channel;
a protocol stack located with the mobile unit and in communication with
the second network channel;
a link selector held with the mobile unit that is use in determining that
the first network channel is to be used for transferring at least the
first information, said link selector is also used in determining that a
change is to be made from using the first network channel to using the
second network channel to transfer the second information, said
protocol stack receiving an indication that the second network
channel is to be used and provides second network channel
addressing information to said second network interface that is
used in directing the second information to the second network
channel for transfer, with the second information then being
transferred using the second network channel and all control for
said change to using the second network channel being conducted
interiorly of the mobile unit.

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1. “protocol stack.”
Cellport proposes: “the IP protocol layer in a TCP/IP or UDP/IP protocol stack.”
Defendants propose: “unit that addresses and delivers information through the first and second
network channels using the first and second network channel addresses.”
Cellport acknowledges that “[t]he ‘514 patent uses the term ‘protocol stack’ differently
from how it was normally used in the art.” Cellport Tutorial [#56] at 20. Accord Opening Brief
[#55] at 8. There is nothing inherently wrong with defining a term that has a plain and ordinary
meaning to one skilled in the art in a different way. An inventor may be his own lexicographer
so long as his definition of the disputed claim term is clearly provided in the specification or the
prosecution history. See, e.g., CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.
Cir. 2002).
Although Cellport’s proposed definition is circular (a “protocol stack” is a layer in a
“protocol stack”), I think I understand Cellport’s point. An individual of ordinary skill in the art
would have an understanding of the normal usage of a TCP/IP or a UCP/IP protocol stack, such
as that discussed in Murphy, et al., TCP/IP TUTORIAL AND TECHNICAL OVERVIEW (5th ed.),
submitted as Exhibit B [#55-2] to Cellport’s Opening Brief. Cellport’s proposed definition could
alert that individual that this patent’s use of the term “protocol stack” refers to a specific layer
within what would normally be thought of as a TCP/IP or a UCP/IP protocol stack. The problem
is, I find nothing in the claim or the specification that restricts the invention to a TCP or UCP
transport protocol. On the contrary, the “Detailed Description” section states, the “[t]ransport
layer typically utilizes available protocols, such as the transmission control protocol (TCP) and
the user datagram protocol (UDP).” Col. 5:65-66 (emphasis added). Defendants point out that
the invention contemplates the possibility of communication with network channels that do not
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use the TCP/IP or UDP/IP protocol, such as in dependent claim 28. Joint Response Brief [#60 in
No. 13CV180] at 15-16. By the same token, the Court concludes that the defendants’ proposed
definition, although accurate so far as it goes, provides insufficient guidance as to what this
patent’s “protocol stack” is.
The Court finds guidance as to the meaning of “protocol stack” in the specification at
Col. 5:37-Col. 6:29 and in Fig. 1. The “protocol stack” as that term is used in this invention is a
layer or unit within what in normal usage would be called a “protocol stack” but here is called a
“terminal stack.” More specifically, because data generated by an application must be converted
to a transmittable form, the invention utilizes a series of sub-systems or layers that prepare the
data for transfer by converting it (or re-converting information being received) into an
appropriate form and directing it to the network channel. These layers collectively comprise the
“terminal stack.” The “protocol stack” layer within the terminal stack generates the network
address or addresses, i.e., directs the information (which, in the case of data transmissions, the
transport layer breaks down into data packets) to the chosen network channel through a network
interface. See Col.6:1-5. See also defendants Exhibit B, ‘514 File History, September 7, 1999
Office Action Response, [#60-2 in No. 13CV180] at 19. It uses a protocol such as, in a preferred
embodiment, the Internet protocol. Col.6:13-15.
2. “determining that the first network channel is to be used for transferring at least
the first information.”
Cellport proposes: plain and ordinary meaning (not indefinite). Defendants propose:
“choosing a first network channel from at least two available and acceptable network channels
for transferring at least first information based on an analysis of application requirements and
network channel operating parameter values.”

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The subject phrase is similar to the phrase, “selecting a first network channel from a
plurality of different network channels” in Claim 1, and my reasoning is similar to that explained
there. The phrase describes a use of what the invention calls a “link selector.” The link selector
chooses the most suitable network channel by comparing each potential channel’s operating
parameters to the operating parameter requirements of the application. Thus, one use of the link
selector is to determine the most suitable network channel to transmit the first information
generated by the application within the coverage area of the available networks, using the
application’s requirements and the network channels’ operating parameter values to do so.
Another use of the link selector is to select a different and more suitable network channel to use
to continue the transmission as the geographic position of the mobile unit changes.
One part of the subject phrase on which no party comments is the term “at least” as in
“determining that the first network channel is to be used for transferring at least the first
information.” (emphasis added). The first network channel is the channel chosen as the most
suitable for the transmission of the first information. How, then, does one explain “at least first
information,” which implies that the first network channel might transmit something other than
the first information. The term makes sense to this Court if one allows for the possibility that the
mobile unit could move into, out of, and back into the coverage area of the first network channel
chosen, such that it could be the most suitable channel for more than the first information
transmitted. It could, for example, become the most suitable channel for “second information”
as the mobile unit moves from another coverage area back into the first coverage area.
In any event, the Court concludes that the defendants’ proposed construction is
reasonable and is more complete and helpful than simply resorting to “plain and ordinary
meaning.”

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3. “said protocol stack receiving an indication that the second network channel is to
be used
4. and provides second network channel addressing information to said second
network interface that is used in directing the second information to the second
network channel for transfer,
5. with the second information then being transferred using the second network
channel.”
The parties have broken the longer phrase into three parts. As to each part, Cellport
proposes the terms be given their plain and ordinary meaning which, Cellport argues, will not
render them indefinite. Defendants counter that the use of plain and ordinary meaning at least as
to the second phrase would render the term indefinite, and they instead propose that the first
phrase (#3 above) requires that the protocol stack is, in fact, receiving an indication that the
second network channel is to be used; the second phase (#4 above) requires that the second
network channel information is, in fact, being provided by the protocol stack; and that the last
phrase (#5 above) requires that the second information is, in fact, being transferred using the
second network channel.
The Court’s construction is closer to Cellport’s position, and it sees no need to break the
longer phrase into component parts. Consistent with its foregoing constructions, the Court
concludes that this phrase simply means that the protocol stack, which is used to address or
direct data to the most suitable network channel, is used not only to direct the first information to
the first network channel but also, when the mobile unit changes location and a second channel
becomes the most suitable channel, to address or direct information (second information) to the
most suitable network channel for transmission of that information.

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DATED this 7th day of January, 2014.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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