Collarity Inc. v. Google Inc.

Filing 73

MEMORANDUM ORDER re: Claim Construction. Signed by Judge Mary Pat Thynge on 5/6/13. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

COLLARITY, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

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C. A. No. 11-1103-MPT

MEMORANDUM ORDER
I.

INTRODUCTION
This is a patent case. On November 7, 2011, Collarity, Inc. (“Collarity”) filed suit

against Google Inc. (“Google”) alleging infringement of U.S. Patent No. 7,756,855 (“the
‘855 patent”).1
On February 5, 2013, the parties submitted a Joint Claim Construction Chart
(“JCCC”),2 claim construction briefing commenced March 6, 2013,3 was completed
March 20, 2013,4 and the court conducted a Markman hearing April 18, 2013. This
order sets forth the court’s constructions of disputed claim terms discussed in briefing
and at the Markman hearing.
II.

CLAIMS-AT-ISSUE
Collarity asserts four Google products (Google Suggest, Google’s Related

Searches, Google+, and Google’s Knowledge Graph) infringe claims 1-16 of the ‘855
1

D.I. 1.
D.I. 57.
3
D.I. 65 (Collarity’s Opening Claim Construction Brief); D.I. 63 (Google’s Opening Claim
Construction Brief).
4
D.I. 68 (Collarity’s Responsive Claim Construction Brief); D.I. 67 (Google’s Answering Claim
Construction Brief).
2

patent.5
Claim 1 of the ‘855 patent recites:
1. A computer-implemented method comprising:
receiving, by a search system, from a user a search query comprising
keywords;
using at least one association graph comprising keywords, identifying, by
the search system, one or more suggested replacement keywords for one
or more of the keywords of the search query;
presenting the suggested replacement keywords to the user;
responsively to a selection of one of the suggested replacement keywords
by the user, substituting, by the search system, the selected suggested
replacement keyword for the corresponding one of the keywords of the
search query, to generate a refined search query; and
presenting search results to the user responsively to the refined search
query,
wherein identifying the one or more suggested replacement keywords
comprises:
designating, by the search system, one or more of the keywords of
the search query as anchor keywords, and the remaining keywords
of the search query as non-anchor keywords; and
identifying, by the search system, the one or more suggested
replacement keywords for one or more of the non-anchor keywords
and not for any of the anchor keywords.6
III.

CLAIM CONSTRUCTION
Collarity does not propose constructions for any of the disputed claim terms

based on its position that “[t]he claims of the ‘855 patent are straightforward and easily

5

D.I. 64 (Maikish Decl.), Ex. 1 (Collarity’s Fifth Supplemental Disclosure of Asserted Claims and
Preliminary Infringement Contentions) at 3; D.I. 63 at 4. Claims 1 and 16 are independent claims. Claims
2-15 are dependent, or multi-dependent, from claim 1.
6
‘855 patent, claim 1.

2

understood as written.”7 Google disagrees, stating the “terms are technical terms that
will be unfamiliar to a lay jury.”8 Google contends that although Collarity insists “the
‘plain and ordinary’ meaning of claim terms control the constructions[,it] refuses to state
what the ordinary meanings of these claim terms are.”9
“The words of a claim are generally given their ordinary and customary meaning
as understood by a person of ordinary skill in the art when read in the context of the
specification and prosecution history.”10 The Federal Circuit has stated “[t]here are only
two exceptions to this general rule: 1) when a patentee sets out a definition and acts as
his own lexicographer, or 2) when the patentee disavows the full scope of a claim term
either in the specification or during prosecution.”11
“To act as its own lexicographer, a patentee must ‘clearly set forth a definition of
the disputed claim term’ other than its plain and ordinary meaning.”12 “It is not enough
for a patentee to simply disclose a single embodiment or use a word in the same
manner in all embodiments, the patentee must ‘clearly express an intent’ to redefine the
term.”13
The standard for disavowal of claim scope is similarly exacting. “Where

7

D.I. 65 at 8.
D.I. 63 at 1.
9
D.I. 67 at 1.
10
Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Phillips
v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc)); see also Phillips, 415 F.3d at 1313 (“We
have made clear . . . that the ordinary and customary meaning of a claim term is the meaning that the
term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of
the effective filing date of the patent application.” (citing Innova/Pure Water, Inc. v. Safari Water Filtration
Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004)).
11
Thorner, 669 F.3d at 1365 (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1580
(Fed. Cir. 1996)).
12
Id. (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)).
13
Id. (quoting Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir.
2008)).
8

3

the specification makes clear that the invention does not include a
particular feature, that feature is deemed to be outside the reach of the
claims of the patent, even though the language of the claims, read without
reference to the specification, might be considered broad enough to
encompass the feature in question.” SciMed Life Sys., Inc. v. Advanced
Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed. Cir. 2001). “The
patentee may demonstrate intent to deviate from the ordinary and
accustomed meaning of a claim term by including in the specification
expressions of manifest exclusion or restriction, representing a clear
disavowal of claim scope.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d
1313, 1325 (Fed. Cir. 2002).14
As with its explanation of a patentee acting as its own lexicographer, the Federal Circuit
stated “[i]t is likewise not enough that the only embodiments, or all of the embodiments
contain a particular limitation.”15 The court concluded: “[w]e do not read limitations
from the specification into claims; we do not redefine words. Only the patentee can do
that. To constitute disclaimer, there must be a clear and unmistakable disclaimer.”16
For each of the disputed terms, Collarity argues the terms do not require
additional construction based on its contention the patentee neither expressed a clear
intent to define the term, nor disavowed any claim scope.
1.

keyword (claims 1-16)
Collarity’s proposed construction is: “keyword.”
Google’s proposed construction is: “a single word in a search query.”
Google contends the specification supports its construction and that, during

prosecution, the applicant also limited the meaning of “keyword” to a single word.17
Collarity argues the specification does not set forth a unique definition for keyword nor

14

Id. at 1366.
Id.
16
Id. at 1366-67.
17
D.I. 63 at 6-7.
15

4

express an intent to alter the ordinary and accustomed meaning of that word.18 It also
maintains Google’s construction violates the doctrine of claim differentiation and would
render portions of the claims superfluous.19 Finally, Collarity insists no surrender of
subject matter during prosecution occurred as there was no clear and unmistakable
disavowal of claim scope.20 As a result, Collarity contends no construction of keyword
is necessary and that its ordinary and customary meaning is, simply, keyword.
“The words of a claim are generally given their ordinary and customary meaning
as understood by a person of ordinary skill in the art when read in the context of the
specification and prosecution history.”21 As the Federal Circuit explained in Phillips,
“[t]he inquiry into how a person of ordinary skill in the art understands a claim term
provides an objective baseline from which to begin claim interpretation.”22 “Importantly,
the person of ordinary skill in the art is deemed to read the claim term not only in the
context of the particular claim in which the disputed term appears, but in the context of
the entire patent, including the specification.”23 “[T]he specification ‘is always highly
relevant to the claim construction analysis. Usually, it is dispositive; it is the single best
guide to the meaning of a disputed term.’”24
Collarity contends “keyword” is a well-understood term that does not require
further construction.25 Because the patentee did not set forth his own definition or

18

D.I. 65 at 10.
Id. at 10-11.
20
D.I. 68 at 5-7.
21
Thorner, 669 F.3d at 1365 (emphasis added).
22
Phillips, 415 F.3d at 1313 (citing Innova, 381 F.3d at 1116).
23
Id.
24
Id. at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
25
D.I. 65 at 10.
19

5

disclaim or disavow the full claim scope, Collarity maintains “keyword” should be given
its plain and ordinary meaning, i.e., “keyword.” Collarity does not explain, however, why
a person of ordinary skill in the art, reading the term in the context of the specification
and prosecution history, would conclude the proper construction of “keyword” is
“keyword.”
Collarity argues construing “keyword” as a “single word” violates the prohibitions
of reading limitations from the specification into the claims and/or limiting the claims
preferred embodiments.26 The court disagrees and determines, when read in context of
the of the claims and specification, “keyword” is a single word in a search query.
The specification states “[a] term comprises one or more keywords in a particular
order”27 and that “[t]he search query typically includes one or more terms that are
initially organized linearly in search field 52 (each of the terms includes one or more
keywords).”28 Therefore, a keyword is a word in a search query. This conclusion is
supported by the language of claim 1 which recites: “receiving . . . from a user a search
query comprising keywords”; “identifying . . . one or more suggested replacement
keywords for one or more of the keywords of the search query”; and “substituting . . .
the selected suggested replacement keyword for the corresponding one of the
keywords of the search query.”29
Collarity argues Google’s construction violates the doctrine of claim

26

D.I. 68 at 5.
‘855 patent, 18:26-27.
28
Id., 29:24-27 (emphasis added); id., 18:21-23 (“A search query comprises one or more
keywords, and, optionally, operators, such as Boolean operators and quotation marks.”) (emphasis
added).
29
Id., claim 1 (emphasis added).
27

6

differentiation because claim 12 uses the phrase “keyword of the search query.” Under
the doctrine of claim differentiation, a limitation from a dependent claim should not be
read into an independent claim, especially “when the limitation in dispute is the only
meaningful difference between an independent and dependent claim.”30 Collarity
maintains Google’s construction thus impermissibly attempts to import a limitation from
claim 12 into claim 1 and would also make the words “of the search query” superfluous.
The court again disagrees.
Claim 1 states the receiving a query “comprising keywords” and then refers to
actions taken associated with “the keywords of the search query.”31 Therefore, claim 12
does not add “the keywords of the search query” as a new limitation. Moreover, even if
it were a new limitation, “the keywords of the search query” is not the only meaningful
difference between claims 1 and 12. Initially, the court notes claim 12 depends from
claim 9, which itself contains the phrase “the keywords of the search query.” Claim 9
depends from claim 1 and further defines the “identifying the one or more suggested
replacement keywords for the one or more of the keywords of the search query” step as
“identifying synonyms of the one or more of the keywords of the search query as the
one or more suggested replacement keywords.”32 Claim 12 further defines the method
by which synonyms are identified. Therefore, the court rejects Collarity’s claim
differentiation argument.
Finally, the specification makes clear that a keyword is a single word. A term is

30

See SunRace Roots Enter. Co., Ltd. v. SRAM Corp., 336 F.3d 1298, 1302-03 (Fed. Cir. 2003)
(citing Ecolab, Inc. v. Paraclipse, Inc., 285 F.3d 1362, 1375-76 (Fed. Cir. 2002)).
31
‘855 patent, claim 1.
32
Id., claim 9.

7

comprised of “one or more keywords”33 When a term includes more than one keyword,
it is described as a “multi-keyword term.” For instance, “[i]f the identified category term
includes a plurality of keywords (e.g., ‘nobel prize’), a new vertex is added to the
[association graph] which includes the entire multi-keyword term as a single unit.”34 The
specification thus teaches each single word in “nobel prize” is a keyword and, therefore,
a keyword is a single word.
Consequently, the court adopts Google’s proposed construction and defines
“keyword” as “a single word in a search query.”35
2.

association graph (claims 1-16)
Collarity’s proposed construction is: “association graph.”
Google’s proposed construction is: “a graph or matrix that associates a first

keyword to one or more keywords.”
Google contends this term must be construed because the word “graph,” as the
word is commonly-understood (for instance X-Y plots, bar graphs, pie graphs, or line
graphs), will lead the jury in the wrong direction.36 Google argues those graphs are
completely different from the claimed association graph.37 Citing a dictionary of
mathematics, Google states “graph,” as used in the ‘855 patent, is a term of art in the
field of mathematics and an “association graph” is a specific type of mathematical graph

33

Id., 18:26-27.
Id., 24:34-37 (emphasis added); compare ‘855 patent, 15:33-36 (“In exemplary association
graph 100 shown in FIG. 3, a first vertex 110 includes the single-keyword term ‘physics,’ while a second
vertex 112 includes the single-keyword term ‘angular.’”) (emphasis added).
35
In light of the court’s conclusion that the claims and specification support Google’s proposed
construction, it is unnecessary to discuss Google’s argument that Collarity surrendered subject matter
during prosecution.
36
D.I. 63 at 8.
37
Id.
34

8

defined in the patent.38 To support its proposed construction, Google cites the
specification’s statement that “[a]n association graph can be represented visually as a
plurality of vertices linked (i.e., connected) by lines representing edges, as shown in
FIG. 3, or as an adjacency matrix, as described hereinbelow with reference to FIG. 4.”39
The specification states Figure 4, which shows a matrix, “represents the same
association information represented by association graph 100 of FIG. 3 . . . ."40
The court notes the citations Google references are descriptions of particular
embodiments.41 “[A]lthough the specification often describes very specific
embodiments of the invention, we have repeatedly warned against confining the claims
to those embodiments.”42 Google, however, maintains the patentee disavowed claim
scope by the specification’s statement that “[i]n some embodiments of the present
invention, the system uses profiles that do not comprise association graphs, such as
lists (e.g., ranked lists), vectors, sets of sets, and a non-associative multi-dimensional
matrix (e.g., three or more dimensions).”43 It contends those data structures are not
association graphs because they do not associate vertices to one or more vertices.44
Consequently, Google argues the proper construction of “association graph” is a data

38

Id.
‘855 patent, 15:9-12.
40
Id., 15:43-45.
41
Id., 14:17-20 (“Reference is made to FIG. 3 which shows an exemplary association graph 100,
in accordance with an embodiment of the present invention.”) (emphasis added); id., 15:43-46 (“FIG. 4
shows an exemplary association adjacency matrix 150 that represents the same association information
represented by association graph 100 of FIG. 3, in accordance with an embodiment of the present
invention.”) (emphasis added); see also id., 26:20-26 (“Reference is made to FIG. 11, which is an
exemplary hotspot 520 . . . . [E]ach hotspot is an association graph, which can be represented, for
example, as a graph or adjacency matrix, and can be stored in an appropriate data structure.”).
42
Phillips, 415 F.3d at 1323.
43
‘855 patent, 7:42-46 (emphasis added).
44
D.I. 67 at 6.
39

9

structure that encompasses the graphs depicted in Figures 3 and 4, but does not
encompass data structures identified as not comprising association graphs.45
The court determine’s Google’s construction improperly narrows the claims. The
specification broadly describes an “association graph”: “[t]he phrase ‘association
graph,’ as used herein, including the claims, includes any data structure that
conceptually includes vertices linked by edges, regardless of the nomenclature used to
describe the data structure, or how it may be represented, stored, structured, and/or
manipulated in memory and/or another storage medium.”46 That description
encompasses Figures 3 and 4, as well as additional data structures. It also excludes
data structures identified as not comprising association graphs, which Google states
are not association graphs because they do not associate vertices with one or more
vertices, through its description of an association graph as “any data structure that
conceptually includes vertices linked by edges.”47 Consequently, the court construes
“association graph” to mean “any data structure that conceptually includes vertices
linked by edges, regardless of the nomenclature used to describe the data structure, or
how it may be represented, stored, structured, and/or manipulated in memory and/or
another storage medium.”
3.

anchor keyword / non-anchor keyword (claims 1-15)
Collarity’s proposed construction for anchor keyword is: “anchor keyword.” Its

proposed construction for non-anchor keyword is: “non-anchor keyword.”

45

Id.
‘855 patent, 15:15-20 (emphasis added).
47
Id., 15:15-20 (emphasis added); see also id. 15:1-3 (“Each association graph comprises one or
more vertices, each of which is linked to one or more other vertices by respective edges.”).
46

10

Google’s proposed construction anchor keyword is: “a keyword that the search
system will not attempt to replace.” Its proposed construction for non-anchor keyword
is: “a keyword that the search engine will attempt to replace.”
The language of claim 1 is instructive in construing these terms. The claim
recites:
using at least one association graph comprising keywords, identifying, by
the search system, one or more suggested replacement keywords for one
or more of the keywords of the search query;
*****
wherein identifying the one or more suggested replacement keywords
comprises:
designating, by the search system, one or more of the keywords of
the search query as anchor keywords, and the remaining keywords
of the search query as non-anchor keywords; and
identifying, by the search system, the one or more suggested
replacement keywords for one or more of the non-anchor keywords
and not for any of the anchor keywords.48
As discussed below, the court determines the “designating” step must occur
before the “identifying” step. Therefore, the claim requires “one or more of the
keywords of the search query” be “designated . . . as anchor keywords, and the
remaining keywords of the search query as non-anchor keywords.” Once that
designation has occurred, the search system identifies “the one or more suggested
replacement keywords for one or more of the non-anchor keywords and not for any of
the anchor keywords.”
Thus, after the designation of anchor and non-anchor keywords is made, the

48

Id., claim 1.

11

search system does not identify “one or more suggested replacement keywords . . . for
any of the anchor keywords.” This language supports Google’s proposed construction
and is consistent with the specification’s statement: “[a]t an anchor term designation
step 1012, refinement processor 64 designates one or more of the terms of the query
as anchors. The anchors are generally particularly meaningful terms in the query, for
which the refinement processor does not offer replacement options.”49
Also after the designation of anchor and non-anchor keywords is made, the
search system identifies “the one or more suggested replacement keywords for one or
more of the non-anchor keywords.” This language does not support Google’s proposed
construction, that a non-anchor keyword is “a keyword that the system will attempt to
replace.” The claim language requiring identification of suggested replacement
keywords for “one or more of the non-anchor keywords” does not require that the
search system will attempt to replace each non-anchor keyword. Rather, in contrast to
anchor keywords the search system will not attempt to replace, the search system may,
or may not, attempt to replace each non-anchor keyword, so long as suggested
replacement keywords for one or more of the non-anchor keywords is identified.
Consequently, the court construes “anchor keyword” to mean “a keyword that the
search system will not attempt to replace” and “non-anchor keyword” to mean “a
keyword that the system may attempt to replace.”
4.

designating, by the search system, one or more keywords as anchor keywords
and the remaining keywords as non-anchor keywords (claims 1-15)
Collarity’s proposed construction is: “designating, by the search system, one or
49

Id., 40:24-28 (emphasis added).

12

more keywords as anchor keywords and the remaining keywords as non-anchor
keywords.”
Google’s proposed construction is: “designating or identifying at least one
keyword as an anchor keyword that the search engine will not attempt to replace, and
designating or identifying at least one keyword as a non-anchor keyword that the
search engine will attempt to replace.”
Google’s proposed construction essentially inserts its proposed construction for
anchor keyword and non-anchor keyword into this phrase. As the court has construed
those terms, above, it is not necessary to repeat those constructions in this phrase.
That redundancy would more likely confuse, rather than aid, the jury’s understanding of
the claim language.
Google’s only other substantive addition to the phrase is adding “or identifying”
after “designating.” Google contends the specification supports the inclusion of
“identifying” through its interchangeable use of “identifying” and “designating” in
reference to anchor and non-anchor keywords.50
The court does not view the addition of “or identifying” as aiding the jury’s
understanding of the claim language. Although Google asserts this phrase “contains
such terse language that might be confusing to a jury,”51 the court determines the word

50

D.I. 63 at 14 (citing ‘855 patent, 40:40-41(“[T]he refinement processor identifies a first anchor,
and decides whether to designate a second anchor based on [certain criteria].”); ‘855 patent, 41:20-22
(“Sometimes the refinement processor does not identify any anchors for a query. For example, the
refinement processor may not designate any anchors for a query if [certain conditions are met].”
(emphasis added))).
51
Id. at 15.

13

“designating” is neither terse nor would it be confusing to the jury.52 Consequently, the
court construes this phrase as written: “designating, by the search system, one or more
keywords as anchor keywords and the remaining keywords as non-anchor keywords.”53
5.

order of steps (claims 1-16)
Collarity contends the asserted claims do not require the steps therein to be

performed in a particular order.
Google contends the claimed steps must be performed in the following order:
1. The designating step must be performed before the identifying step.
(i.e., designating, by the search system, one or more of the keywords of
the search query as anchor keywords, and the remaining keywords of the
search query as non-anchor keywords) must be performed before the
identifying step (i.e., identifying, by the search system, the one or more
suggested replacement keywords for one or more of the non-anchor
keywords and not for any of the anchor keywords).
2. The identifying step must be performed before the presenting the
suggested replacement keywords step (i.e., presenting the suggested
replacement keywords to the user).
3. The presenting the suggested replacement keywords step must be
performed before the substituting step (i.e., responsively to a selection of

52

See Funai Elec. Co., Ltd. v. Daewoo Elecs. Corp., 616 F.3d 1357, 1366 (Fed. Cir. 2010) (“The
criterion is whether the explanation aids the court and the jury in understanding the term as it is used in
the claimed invention.”).
53
Google also suggests changing “one or more keywords as an anchor keyword and the
remaining keywords as non-anchor keywords” to “at least one keyword as an anchor keyword . . . and . . .
at least one keyword as a non-anchor keyword.” That suggestion appears to be little more than changing
the claim language for the sake of making a change and is also rejected.

14

one of the suggested replacement keywords by the user, substituting, by
the search system, the selected suggested replacement keyword for the
corresponding one of the keywords of the search query, to generate a
refined search query).
“Unless the steps of a method actually recite an order, the steps are not
ordinarily construed to require one.”54 To determine “if the steps of a method claim that
do not recite an order, must nonetheless be performed in the order in which they are
written” the court first looks “to the claim language to determine if, as a matter of logic
or grammar, they must be performed in the order written” and, if not, it looks “to the rest
of the specification to determine whether it ‘directly or implicitly requires such a narrow
construction.’”55 Examples of when, as a matter of logic or grammar, the claims must
be performed in the order written are where something referenced in a step does not
exist until a pervious step has been completed.56
Google contends step order is required because both as a matter of logic or
grammar the claims require that order and because the specification directly or implicitly
requires performing the claimed steps in the order written.57 Collarity argues the claim
language does not recite a step order, the steps do not refer to each other, and no step
references anything that is not in existence or is otherwise unavailable until a previous
54

Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1342 (Fed. Cir. 2001) (citing
Loral Fairchild Corp. v. Sony Corp., 181 F.3d 1313, 1322 (Fed. Cir. 1999) (stating that “not every process
claim is limited to the performance of its steps in the order written”)).
55
Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369-70 (Fed. Cir. 2003) (emphasis in original)
(quoting Interactive Gift, 256 F.3d at 1343).
56
See, e.g., Loral Fairchild, 181 F.3d at 1321 (finding a step order where the second step involved
the alignment of a structure created in the first step); Mantech Evntl. Corp. v. Hudson Envtl. Servs., Inc.,
152 F.3d 1368, 1375-76 (Fed. Cir. 1998) (holding the claim must be performed in the order written where
subsequent steps utilized the result of prior steps).
57
D.I. 63 at 15.

15

step is completed.58 It states Google’s specification-based argument improperly relies
on the description of a preferred embodiment and that “‘[n]owhere . . . is there any
statement that this order is important, any disclaimer of any other order of steps, or any
prosecution history indicating a surrender of any other order of steps.’”59 Collarity also
notes that, even where claim language requires steps to be performed in a certain
order, the prerequisite step may not have to be fully complete before the subsequent
step can begin.60
Google annotates claim 1 as follows:
1. A computer-implemented method comprising:
[a] receiving, by a search system, from a user a search query comprising
keywords;
[b] using at least one association graph comprising keywords, identifying,
by the search system, one or more suggested replacement keywords for
one or more of the keywords of the search query;
[c] [(“the presenting step”)] presenting the suggested replacement
keywords to the user;
[d] [(“the substituting step”)]
[d(1)] responsively to a selection of one of the suggested
replacement keywords by the user,

58

D.I. 65 at 16.
Id. at 17-18 (quoting Altiris, 318 F.3d at 1371).
60
Id. at 16 (citing Cybersettle, Inc. v. Nat’l Arbitration Forum, Inc., 243 Fed. Appx. 603, 609 (Fed.
Cir. 2007) (Holding the step of comparing an offer and a demand cannot occur until the step of receiving
the offer and demand but rejecting the argument that the step of comparing offers and demands cannot
begin until all offers and demands have been received. The court stated “the comparison and testing
steps logically cannot begin until an offer and a demand are received. But that does not mean that the
‘receiving’ steps must be completed before the comparison and testing steps begin. To the contrary, the
step of calculating the differences between demands and offers can occur concurrently with the receipt of
multiple demands and offers. As each new pair of bids is received, the bids are compared.”); Xerox Corp.
v. Google Inc., 801 F. Supp. 2d 293, 302 (D. Del. 2011) (Where the claimed method involved formulating
a search query based on the categorization of content, the court determined that “[t]he claims contain no
basis to require that the ‘formulating the query’ step begin only after the ‘identifying’ and ‘categorizing’
steps are completed.”)).
59

16

[d(2)] substituting, by the search system, the selected suggested
replacement keyword for the corresponding one of the keywords of
the search query, to generate a refined search query; and
[e] presenting search results to the user responsively to the refined search
query
[b (continued)] wherein identifying the one or more suggested
replacement keywords
comprises:
[step b(1)] [(“the designating step”)] designating, by the search
system, one or more of the keywords of the search query as
anchor keywords, and the remaining keywords of the search query
as non-anchor keywords; and
[step b(2)] [(“the identifying step”)] identifying, by the search
system, the one or more suggested replacement keywords for one
or more of the non-anchor keywords and not for any of the anchor
keywords.
According to Google, the steps of claim 1 naturally follow the sequence in which the
steps are written:
Step a: The system retrieves a query from the user.
Steps b and b(1): The system designates the anchor and non-anchor keywords
in the user-submitted query.
Steps b and b(2): The system identifies potential replacement keywords for the
non-anchor keywords only.
Step c: The system presents the potential replacement keywords to the user.
Step d(1): The user selects one replacement keyword, and, in response the
system performs step d(2).
Step d(2): The system substitutes the selected keyword for the corresponding
non-anchor keyword in the user-submitted query to generate a new, refined,
query.

17

Step e: The refined query is executed and search results are presented.61
Google maintains each step relies on the one that precedes it so the sequential nature
of the steps is apparent from the plain meaning of the claim language. Google states
the specification’s description of these steps confirms this order of steps.62 The court
agrees with Google that a logical reading of claim 1 requires the steps be performed in
the order it suggests.
Claim 1 requires “designating, by the search system, one or more of the
keywords of the search query as anchor keywords, and the remaining keywords of the
search query as non-anchor keywords” and “identifying, by the search system, the one
or more suggested replacement keywords for one or more of the non-anchor keywords
and not for any of the anchor keywords.” The identifying step refers to the non-anchor
keywords and anchor keywords previously designated. Thus, that designation must be
made before suggested replacement keywords for one or more of the non-anchor
keywords, but not for any of the anchor keywords, can be identified.
The claim also requires “presenting the suggested replacement keywords to the
user.” Logically, the suggested replacement keywords must be identified before they
can be presented to the user. Next, the claim recites “responsively to a selection of one
of the suggested replacement keywords by the user, substituting, by the search system,
the selected replacement keyword for the corresponding one of the keywords of the
search query, to generate a refined search query.” A user cannot select a suggested
replacement keyword for substitution until a suggested replacement keyword is

61
62

D.I. 63 at 16.
Id. at 17 (citing ‘855 patent, 39:64-42:65).

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presented to the user.
Because, “the sequential nature of the claim steps is apparent from the plain
meaning of the claim language and nothing in the written description suggests
otherwise,”63 the court adopts Google’s proposed step order requirement.
IV.

CONCLUSION
IT IS ORDERED, ADJUDGED, and DECREED that the disputed claim language

is construed as follows:
Claim Term

Court’s Construction

keyword (claims 1-16)

a single word in a search query

association graph (claims 1-16)

any data structure that conceptually
includes vertices linked by edges,
regardless of the nomenclature used to
describe the data structure, or how it may
be represented, stored, structured,
and/or manipulated in memory and/or
another storage medium

anchor keyword (claims 1-15)

a keyword that the search system will not
attempt to replace

non-anchor keyword (claims 1-15)

a keyword that the system may attempt
to replace

designating, by the search system, one
or more keywords as anchor keywords
and the remaining keywords as nonanchor keywords (claims 1-15)

designating, by the search system, one
or more keywords as anchor keywords
and the remaining keywords as nonanchor keywords

63

Mantech, 152 F.3d at 1376; cf. Xerox Corp. v. Google Inc., 801 F. Supp. 2d 293, 303 (D. Del.
2011) (“[T]he specification discusses and contemplates concurrent performance of steps.”). Here,
Collarity has not pointed to the specification discussing or contemplating concurrent performance of steps.

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Claim Term
order of steps (claims 1-16)

Court’s Construction
1. The designating step must be
performed before the identifying step.
(i.e., designating, by the search system,
one or more of the keywords of the
search query as anchor keywords, and
the remaining keywords of the search
query as non-anchor keywords) must be
performed before the identifying step
(i.e., identifying, by the search system,
the one or more suggested replacement
keywords for one or more of the nonanchor keywords and not for any of the
anchor keywords).
2. The identifying step must be
performed before the presenting the
suggested replacement keywords step
(i.e., presenting the suggested
replacement keywords to the user).
3. The presenting the suggested
replacement keywords step must be
performed before the substituting step
(i.e., responsively to a selection of one of
the suggested replacement keywords by
the user, substituting, by the search
system, the selected suggested
replacement keyword for the
corresponding one of the keywords of the
search query, to generate a refined
search query).

Wilmington, Delaware
May 6, 2013

_________________________________
UNITED STATES MAGISTRATE JUDGE

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