CyberFone Systems LLC v. ZTE (USA) Inc.

Filing 360

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 2/4/2014. Associated Cases: 1:11-cv-00827-SLR, 1:11-cv-00830-SLR, 1:11-cv-00833-SLR, 1:11-cv-00834-SLR(nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CYBERFONE SYSTEMS, LLC,
Plaintiff,
v.
ZTE (USA), INC.,

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Civ. No. 11-827-SLR

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Defendant.
CYBERFONE SYSTEMS, LLC,
Plaintiff,

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v.

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ALCATEL-LUCENT, USA, INC., et al.,

Civ. No. 11-830-SLR

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Defendants.
CYBERFONE SYSTEMS, LLC,
Plaintiff,
v.
VIZIO, INC., et al.,
Defendants.
CYBERFONE SYSTEMS, LLC,

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Civ. No. 11-833-SLR

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Plaintiff,

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UNITED PARCEL SERVICE, et al.,

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v.

Defendants.

Civ. No. 11-834-SLR

Richard D. Kirk, Esquire, Stephen B. Brauerman, Esquire and Vanessa Ribeiro
Tiradentes, Esquire of Bayard, P.A., Wilmington, Delaware. Counsel for Plaintiffs. Of
Counsel: Daniel Hipskind, Esquire, Eric J. Carsten, Esquire, Fredricka Ung, Esquire,
Jacob R. Buczko, Esquire and Marc A. Fenster, Esquire of Russ, August & Kabat.
Steven J. Balick, Esquire, John G. Day, Esquire, Lauren E. Maguire, Esquire and
Andrew C. Mayo, Esquire of Ashby & Geddes, Wilmington, Delaware. Counsel for
Defendant ZTE (USA) Inc. Of Counsel: Barry W. Graham, Esquire and Yanbin Xu,
Esquire of Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P.
John W. Shaw, Esquire and Andrew E. Russell, Esquire of Shaw Keller LLP,
Wilmington, Delaware. Counsel for Defendant Alcatei-Lucent USA, Inc.
Frederick L. Cottrell, Ill, Esquire and Katharine Crawford Lester, Esquire of Richards,
Layton & Finger, PA, Wilmington, Delaware. Counsel for Defendant Toshiba America
Information Systems Inc. Of Counsel: Douglas F. Stewart, Esquire of Bracewell &
Giuliani LLP.
Adam Wyatt Poff, Esquire and Pilar G. Kraman, Esquire of Young Conaway Stargatt &
Taylor LLP, Wilmington, Delaware. Counsel for Defendant VIZIO, Inc. Of Counsel:
Adrian M. Pruetz, Esquire, Avraham Schwartz, Esquire and Charles C. Koole, Esquire
of Glaser Weil Fink Jacobs Howard Avchen & Shapiro LLP. Steven R. Hansen,
Esquire and Edward S. Quon, Esquire of Lee Tran & Liang APLC.
Gregory B. Williams, Esquire of Fox Rothschild LLP of Wilmington, Delaware. Counsel
for Defendant Mitsubishi Electric Visual Solutions America, Inc. Of Counsel: Laura L.
Chapman, Esquire of Sheppard, Mullin, Richter & Hampton LLP and Victor de Gyarfas,
Esquire of Foley & Lardner LLP.
Jack B. Blumenfeld, Esquire, Karen Jacobs Louden, Esquire, and Stephen Kraftschik,
Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware. Counsel for
Defendants lngenico Corp., lngenico Inc. and United Parcel Service, Inc. Of Counsel:
John Fry, Esquire of Morris, Manning & Martin, LLP.

MEMORANDUM OPINION

Dated: February 4, 2014
Wilmington, Delaware

~t.Wdge
I. INTRODUCTION
Plaintiff CyberFone Systems, LLC ("plaintiff'), previously named LVL Patent
Group, LLC, is the assignee of U.S. Patent Nos. 6,044,382 ("the '382 patent"),
5,805,676 ("the '676 patent"), 5,987,103 ("the '1 03 patent"), 8,019,060 ("the '060
patent") and 7,334,024 ("the '024 patent"), relating to telecommunications technologies.
Plaintiff initially asserted infringement of combinations of these patents against a total of
175 defendants and 970 accused products across a span of 21 related cases. The
court has since granted defendants' motion for summary judgment of invalidity as to the
'060 patent. Presently before the court is the issue of claim construction of three
disputed limitations of the remaining patents ("the patents-in-suit").

II. STANDARD OF REVIEW
Claim construction is a matter of law. Phillips v. A WH Corp., 415 F.3d 1303,
1330 (Fed. Cir. 2005) (en bane). Claim construction focuses on intrinsic evidence- the
claims, specification and prosecution history - because intrinsic evidence is "the most
significant source of the legally operative meaning of disputed claim language."
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996); Markman v.
Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S.

370 (1996). Claims must be interpreted from the perspective of one of ordinary skill in
the relevant art at the time of the invention. Phillips, 415 F.3d at 1313.
Claim construction starts with the claims, id. at 1312, and remains centered on
the words of the claims throughout. Interactive Gift Express, Inc. v. Compuserve, Inc.,

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256 F.3d 1323, 1331 (Fed. Cir. 2001 ). In the absence of an express intent to impart
different meaning to claim terms, the terms are presumed to have their ordinary
meaning. /d. Claims, however, must be read in view of the specification and
prosecution history. Indeed, the specification is often "the single best guide to the
meaning of a disputed term." Phillips, 415 F.3d at 1315.

Ill. DISCUSSION
A. The Patents-In-Suit
All four patents-in-suit claim priority to the same application, filed on May 19,
1995, which issued as the '676 patent on September 8, 1998. The '1 03 patent was
filed on August 11, 1997 as a continuation of the '676 patent and issued on November
16, 1999. The '382 patent was filed on June 20, 1997 as a continuation-in-part of the
'676 patent and issued on March 28, 2000. The '024 patent was filed on February 10,
2005 and claims priority to the '676 patent through a series of continuation and
continuation-in-part applications. It issued on February 19, 2008. The patents-in-suit
are directed to "[a] data transaction processing system including a transaction entry
device" in which "menus are used to navigate the user to forms which facilitate the entry
of data." (See, e.g., '676 patent, 1:10-16) As the patents-in-suit share a nearly
identical specification with respect to the limitations currently at issue, the court will refer
to the specification of the '676 patent in its claim construction analysis.
The specification of the '676 patent explains that the present invention was
designed to meet the needs associated with the telephone/computer systems of the
prior art which are "typically quite complicated and expensive and are limited by the

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types of operating software" used. (ld. at 1:48-51, 2:19-20) As such, "[e]limination of
the requirement of a conventional operating system and the associated application
programs for the microcomputer of a data entry device would greatly decrease the cost
of such a device." (ld. at 1:61-64) It explains that "to date, this has not been possible
because the operating system is needed to run the application programs which control
the data communications .... " (ld. at 1:64-67) "[A] data entry system is desired which
does not have the inherent limitations of conventional point-of-entry systems such as
the requirement of a standard operating system .... " (/d. at 2:6-1 0) An associated
device would preferably "provide a wide range of functionality without requiring a local
operating system program and a plurality of applications programs for implementing
each function." (ld. at 2:16-20) Claims 1 and 4 of the '676 patent are reproduced
below:
1. A system for entering transaction data into a remote database,
comprising:
a data input device;
a display;
a data transaction terminal including a microprocessor, a
form memory which stores a plurality of menus and forms for
presentation to a user, and a form driven operating system
which controls a process implemented by said
microprocessor to present to said display for each process
at least one form stored in said form memory as data
streams, said at least one form being selected by said user
from one of said menus using said data input device, said
one menu providing said user with an option of selecting at
least one of said at least one form, another menu, and an
updating process, each form eliciting data input of a desired
transaction type into said data input device by said user and
including at least one prompt customized to said desired
transaction type, wherein said process implemented by said
microprocessor is changed by changing said at least one
form, and wherein when said user selects said updating

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process from said menu, data streams are downloaded to
said form memory to update said menus and forms in
accordance with said desired transaction type, said data
transaction terminal further including means for formatting at
least said data input by said user in response to said at least
one prompt into a data transaction for transmission to said
remote database; and
a database server associated with said remote database
which receives said data transaction, creates from said data
transaction, depending on said desired transaction type, at
least one additional data transaction containing data for a
particular record in said remote database, and stores said at
least one additional data transaction in said particular
record.

(/d. at 24:49-25:18)
4. A system as in claim 1, wherein said form driven
operating system comprises a transaction assembly server
(TAS) which presents said data streams to said
microprocessor for display on said display, and said
formatting means comprises a transaction buffer which
stores said data input into said data input device by said
user in response to said at least one prompt until said data
transaction is completed for transmission to said remote
database.
(/d. at 25:35-42) Claim 28 of the '024 patent is representative of a claim containing the

disputed limitation "client module" and recites:
28. A two-way communication device for communicating
with a network across a communication line, said two-way
communication device comprising:
a display to display information;
a network interface to communicate across said
communication line; and
a client module running on a processor, said client module
generating and sending a data transaction to a remote
processing capability on the network across the
communication line, said client module receiving a response
from said remote processing capability and displaying
information on said display based on said response, and

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said client module generating and sending a voice signal
across said communication line.
('024 patent, 27:32-45)

B. Limitations of the Patents-In-Suit
1. "Form driven operating system" 1
The court construes this limitation as "firmware - a set of instructions
programmed on a hardware device - that, together with forms, operates to control a
microprocessor without the need for a conventional operating system (such as DOS or
Windows)." This construction is consistent with the specification and prosecution
history of the patents-in-suit.
The specification of the '676 patent, e.g., defines a form driven operating system
in two locations. 2 First,
[t]he microcode of the T AS PROM 95 and the parameter
streams from the form/menu memory 96 thus operate
together as a simple form driven operating system for
microprocessor 94 for all applications and is the sole code

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The limitation appears in claims 1, 13, and 39 of the '676 patent; claims 1, 15,
18, and 45 of the '1 03 patent; and claims 1, 13, 19, 22, 30, 34, and 36 of the '382
patent.
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The '382 patent mentions "form driven operating system" in additional locations
(see '382 patent, 16:55-62, 19:44-49), but is consistent with the definitions contained in
the original specification of the '676 patent. The '382 patent specification at columns
16:55-62 provides:
The microcode of the T AS PROM 95 and the parameter
streams from the form/menu memory 96 thus operate
together as a simple form driven operating system for
microprocessor 94 for all applications and is the sole code
used to control microprocessor 94 for any and all
applications (i.e., no conventional application programs and
no full-scale operating system such as DOS™ or WindowsTM
needs to be provided).

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used to control microprocessor 94 (i.e., no conventional
operating system or application programs are provided).

(ld. at 13:50-56) In a preferred embodiment, the form driven operating system is
described as follows:
[T]he transaction assembly (application) server (TAS) is a
data stream stored in T AS PROM 95 which together with the
forms from form/menu memory 96 create a simple form
driven operating system which provides the necessary
control data (firmware) to microprocessor 94 so that no
conventional operating system is necessary.
(!d. at 16: 11-16)3 The specification further explains that "the TAS firmware from TAS
PROM 95 and menus and forms from form/menu memory 96 of the invention together
replace a conventional operating system and individual application programs." (ld. at
14:13-16; see a/so '382 patent, 17:24-27) Additionally, "since the data transactions are
created without the use of an operating system or application programs, the transaction
entry device is quite simple and inexpensive .... " ('676 patent, 2:37-40)4
The prosecution histories of the '676 and '1 03 patents also support this
construction, as applicant repeatedly argued that "[t]he microcode of the T AS PROM 95
and the parameter streams from the form/menu memory 96 instead operate together as
a simple form driven operating system for microprocessor 94 for all applications and is

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The parties do not dispute that a form driven operating system consists of a
transaction assembly server (TAS) working in connection with forms. (D. I. 351 at 3)
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The present invention is unique in that it "provides a simple, user friendly way to
enter transaction data without requiring a local operating system to run various
application programs." ('676 patent, 4:17-22) The specification also states that the
microprocessor is "driven by an operating system independent transaction assembly (or
application) server (TAS) comprised of data streams stored in a flash PROM." (ld. at
2:52-55)
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the sole code used to control microprocessor 94." (See D. I. 343, 5 ex. Eat Jan. 3, 1997
Response at 16, March 18, 1997 Response at 22; id., ex. K at Feb. 18, 1998 Response
at 24) Additionally, applicant amended the claims of the '676 patent to add the "form
driven operating system" limitation to adequately distinguish the claims from prior art
that contained operating systems running application programs. 6 (See id., ex. Eat
March 18, 1997 Response at 18-19) Applicant's March 18, 1997 response is further
indicative as to what the inventor believed his invention to be as he argued that the prior
art did not "teach a system which uses one or more low cost terminal devices using
form driven operating systems instead of conventional application programs running on
a standard operating system to facilitate the entry of data into one or more remote
databases .... " (/d. at 33)

2. "Client module"
In offering a construction for the limitation "form driven operating system" above,
the court was cognizant of the "client module" limitation at issue in the '024 patent, a
limitation not found in the specification but only in certain claims of the '024 patent_?

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D.l. 343 in 11-827; 0.1.156 in 11-830; 0.1.186 in 11-833; and 0.1. 305 in 11-

834.
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"[T]he Examiners expressed their collective belief that each of the independent
claims would read on a general purpose computer having a microprocessor running a
conventional operating system (such as DOS or Windows™) and an application
program of the type disclosed by [the prior art] for presenting forms to the user for
completion." Applicant's representative "agreed to reconsider the claims in view of the
cited prior art and to consider amending the claim language to specify that the invention
uses a simple form driven operating system in place of the conventional operating
system and application programs .... " (See 0.1. 343, ex. Eat March 18, 1997
Response at 18-19)
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See e.g., '024 patent, 24:63-25:22, 27:32-45.

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Plaintiff argued that the "form driven operating system" limitation should be construed
as "computer code" that, together with forms, functions by "defining a table of menu
options and/or database interfaces" to "control the behavior of [a] microprocessor."
Plaintiff proposes that "client module" be construed consistent with its plain and
ordinary meaning, to wit, "discrete computer code that runs on a computer that receives
services from another computer." 8
Defendants argue that these limitations - "form driven operating system" and
"client module" - should be construed the same, based on the specification. Plaintiff
disagrees, but does contend that both these limitations involve "computer code" without
being limited to firmware.
The court concludes that the only invention described in the specification
involves the use of "firmware," as opposed to the generic concept of "computer code."
Indeed, plaintiffs proposed constructions are so broad- use of computer code to
perform certain functions on a non-conventional operating system - that such
constructions do not serve the public notice function of claims and their scope. In sum,
because the phrase "form driven operating system" has no ordinary meaning in the art,
the court looked to the specification (which is replete with references to firmware in
describing the inventive aspects of the limitation) for its construction. Although the
limitation "client module" has an ordinary meaning, its breadth of scope is inconsistent

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A "module" is defined as "a program unit that is discrete and identifiable" or "a
logically separable part of a program" (D. I. 343, ex. D), whereas a "client" is defined as
"a computer that receives services from another computer .... " Douglas A. Downing
et al., Dictionary of Computer Terms (4th ed., 1995). Plaintiff also articulated the
meaning of client as "a piece of software on the client side as opposed to the server
side." (D.I. 359 at 70:11-13)
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with both the specification and the public notice function of the claims at issue and shall
be construed consistently with "form driven operating system."
This construction is consistent with the language of the claims of the '024 patent.
For example, claim 1 of the '024 patent recites, "creating, in a client module executing
on a processor in said wireless mobile device, a data transaction .... " ('024 patent,
24:66-67) Claim 28 recites, "a client module running on a processor, said client module
generating and sending a data transaction to a remote processing capability on the
network across the communication line .... " (/d. at 27:38-41) The descriptions
correspond to the role of the form driven operating system.

3. "Transaction assembly server (TAS)" 9
The court construes this limitation as "firmware - the set of instructions
programmed on a hardware device." This is consistent with the construction of "form
driven operating system," of which theTAS is a part, and the specification, which
explains that:
The TAS is absolutely self-contained in its relationship to the
hardware of the transaction entry device and in general
performs the two basic functions of (1) generating a
template or form from a data stream and (2) developing a
data transaction as the user inputs data in response to
prompts in the template or form.
('676 patent, 2:55-60) Additionally, "theTAS firmware from TAS PROM 95 and menus
and forms from form/menu memory 96 of the invention together replace a conventional
operating system and individual application programs." (/d. at 14:13-16; see also '382
patent, 17:24-27)
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The limitation appears in claims 4 and 16 of the '676 patent; claims 4 and 19 of
the '1 03 patent; and claim 1 of the '382 patent.

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IV. CONCLUSION
For the foregoing reasons, the court construes "form driven operating system" as
"firmware - a set of instructions programmed on a hardware device - that, together with
forms, operates to control a microprocessor without the need for a conventional
operating system (such as DOS or Windows);" "client module" as "firmware- a set of
instructions programmed on a hardware device - that, together with forms, operates to
control a microprocessor without the need for a conventional operating system (such as
DOS or Windows);" and "transaction assembly server" as "firmware- the set of
instructions programmed on a hardware device." An appropriate order shall issue.

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