CallWave Communication LLC v. AT&T Mobility LLC et al.

Filing 393

MEMORANDUM OPINION providing claim construction for the disputed terms found in U.S. Patent No., 7,397,910, 7,555,110, 7,636,428,7,822,188, 8,064,588, 8,325,901, and 8,351,591. Within five days the parties shall submit a proposed order consistent with this Memorandum Opinion suitable for submission to the jury. Signed by Judge Richard G. Andrews on 6/3/2015. Associated Cases: 1:12-cv-01701-RGA, 1:12-cv-01702-RGA, 1:12-cv-01704-RGA, 1:13-cv-00711-RGA(nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CALL WAVE COMMUNICATIONS, LLC,
Plaintiff,

v.

Civil Action No. 12-1701-RGA

AT&T MOBILITY, LLC, et al.,
Defendants.
CALL WAVE COMMUNICATIONS, LLC,
Plaintiff,
Civil Action No. 12-1702-RGA

v.
SPRINT SPECTRUM L.P., et al.,
Defendants.
CALLWAVE COMMUNICATIONS, LLC,
Plaintiff,

Civil Action No. 12-1704-RGA

v.
VERIZON SERVICES CORP., et al.,
Defendants.
BROADSOFT, INC.,
Plaintiff,

Civil Action No. 13-711-RGA

V.

CALLWAVE COMMUNICATIONS, LLC,
Defendant.

MEMORANDUM OPINION
Edmond D. Johnson, Esq., James G. McMillan, III, Esq., PEPPER HAMILTON LLP,
Wilmington, DE; William D. Belanger, Esq. (argued), Noah V. Malgeri, Esq., Leah R. McCoy,
Esq., Christopher Boundy, Esq., Suparna Datta, Esq., L. Andrew Tseng, Esq., PEPPER
HAMILTON LLP, Boston, MA; Gregory S. Bishop, Esq. (argued), Charles F. Koch, Esq.,
PEPPER HAMILTON LLP, Redwood City, CA.
Attorneys for Plaintiff CallWave Communications, LLC.
Jack B. Blumenfeld, Esq., Paul Saindon, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL
LLP, Wilmington, DE; Scott R. Samay, Esq. (argued), Howard I. Shin, Esq., Krishnan
Padmanabhan, Esq. (argued), WINSTON & STRAWN LLP, New York, NY.
Attorneys for Defendant Google, Inc.
Karen Jacobs, Esq., Stephen J. Kraftschik, Esq., Eleanor G. Tennyson, Esq., MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE.
Attorneys for Defendants Sprint Spectrum L.P., et al.
Benjamin J. Schladweiler, Esq., SEITZ ROSS ARONSTAM & MORITZ LLP, Wilmington, DE;
Robert J. Scheffel, Esq., WILEY REIN LLP, Washington, DC.
Attorneys for Defendants Verizon Services Corp., et al.
John G. Day, Esq., Tiffany Geyer Lydon, Esq., Andrew C. Mayo, Esq., ASHBY & GEDDES,
Wilmington, DE; Peter Yi, Esq., COOLEY LLP, Reston, VA.
Attorneys for Broadsoft, Inc.

June1._, 2015

Pending before the Court is the issue of claim construction for the disputed terms found
in U.S. Patent Nos. 7,397,910 ("the '910 patent"); 7,555,110("the'110 patent"); 7,636,428 ("the
'428 patent"); 7,822,188 ("the '188 patent"); 8,064,588 ("the '588 patent"); 8,325,901 ("the '901
patent"); and 8,351,591 ("the '591 patent") (collectively, the "Call Processing Patents").

I.

BACKGROUND
CallWave Communications, LLC ("CallWave") filed the instant actions for patent

infringement against Defendants on December 12, 2012.

(D .I. 1). 1

Broadsoft, Inc.

("Broadsoft") filed an action for declaratory judgment against CallWave on April 23, 2013.
(C.A. No. 13-711, DJ. 1).

The Court has considered the parties joint claim construction brief

(DJ. 216), joint appendix (DJ. 217), and oral argument.

(DJ. 254).

subsequent letters addressing issues raised at oral argument.

II.

The parties also filed

(DJ. 243, 245-48 & 253).

LEGALSTANDARD
"It is a bedrock principle of patent law that the claims of a patent define the invention to

which the patentee is entitled the right to exclude."

Phillips v. AWH Corp., 415 F.3d 1303,

1312 (Fed. Cir. 2005) (en bane) (internal quotation marks omitted).
formula or catechism for conducting claim construction.'

'"[T]here is no magic

Instead, the court is free to attach the

appropriate weight to appropriate sources 'in light of the statutes and policies that inform patent
law."'

SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting

Phillips, 415 F.3d at 1324).

When construing patent claims, a court considers the literal

language of the claim, the patent specification, and the prosecution history.

Markman v.

Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en bane), ajf'd, 517 U.S. 370

1 All references to docket items, unless otherwise indicated, use the numbering of the docket in Case No. 12-1701.

1

( 1996).

Of these sources, "the 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."

Phillips, 415 F .3d at 1315 (internal quotation marks and citations omitted).

"[T]he words of a claim are generally given their ordinary and customary meaning ....
[Which 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."
Id at 1312-13 (internal quotation marks and citations omitted).

"[T]he ordinary meaning of a

claim term is its meaning to [an] ordinary artisan after reading the entire patent."
(internal quotation marks omitted).

Id at 1321

"In some cases, the ordinary meaning of claim language as

understood by a person of skill in the art may be readily apparent even to lay judges, and claim
construction in such cases involves little more than the application of the widely accepted
meaning of commonly understood words." Id. at 1314 (internal citations omitted).
When a court relies solely upon the intrinsic evidence-the patent claims, the
specification, and the prosecution history-the court's construction is a determination oflaw.
See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).

The court may also

make factual findings based upon consideration of extrinsic evidence, which "consists of all
evidence external to the patent and prosecution history, including expert and inventor testimony,
dictionaries, and learned treatises."
citations omitted).

Phillips, 415 F.3d at 1317-19 (internal quotation marks and

Extrinsic evidence may assist the court in understanding the underlying

technology, the meaning of terms to one skilled in the art, and how the invention works.

Id

Extrinsic evidence, however, is less reliable and less useful in claim construction than the patent
and its prosecution history.

Id.

2

"A claim construction is persuasive, not because it follows a certain rule, but because it
defines terms in the context of the whole patent."

Renishaw PLC v. Marposs Societa' per

Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would
exclude the inventor's device is rarely the correct interpretation."

Osram GmbH v. Int 'l Trade

Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (internal quotation marks and citation omitted).

III.

CONSTRUCTION OF DISPUTED TERMS
"call"

1.

a.

Plaintiff's proposed construction: 2 No construction is necessary.

If the Court determines construction is necessary: Connection or request for connection.
b.

Defendants 'proposed construction: A voice path and associated

c.

Court's construction: Telephone call.

signaling information.

CallWave argues that no construction is necessary because the term "call" is readily
understood to mean "a phone call."

(D.I. 216 at 18).

During oral argument, CallWave agreed

that "telephone call" was a "perfectly appropriate" construction of the term "call."
11:1-5).

(D.1. 254 at

Defendants note in their briefing that "[t]he asserted patents are expressly directed

toward call processing systems and consistently use the term 'call' in the sense of a phone call."
(D.1. 216 at 15).
signaling.

Defendants, however, argue that a "call" requires both a voice path and

(D .I. 254 at 23 :2-4).

I disagree.

The '188 patent specification provides that

"[t]he present invention relates generally to telecommunications, and more particularly to
telephone call processing."

(D.I. 171-2 at 47, 2:7-8).

2

Common usage of the term "call" does

The Court notes that Plaintiff proposed two alternatives for each of the fourteen terms. This makes Plaintiffs
claim construction briefing substantially outside of the norm. Cf 35 U.S.C. § 285 (exceptional case).

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not require a voice path and signaling, as one can place a call without establishing a connection
with the intended call recipient.

Thus, Defendants' proposed construction is not consistent with

the plain and ordinary meaning of the term, and is narrower than the claims and specification
env1s1on.

Therefore, the Court construes the term as "telephone call."
2.

"outcall from the call processing system" and "outcall"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Outgoing call.

b.

Defendants' proposed construction: A call originated from the call

c.

Court's construction: An outgoing call from the call processing

processing system.

system.
Defendants argue that the usage of"outcall" in the claims of the '188 patent
makes clear that it must be "originated from the call processing system."

(D.I. 216 at 23).

CallWave objects to the use of the word "originated" (D.I. 254 at 45:3-13), arguing that it may
exclude embodiments disclosed in the specification.

(Id. at 46:1-13).

CallWave also argues

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that Defendants' proposed construction would render the language "from a call processing
system" in claim 1 of the '188 patent superfluous.

(D.I. 216 at 25).

The Court recognizes that

certain claims refer to an "outcall from the call processing system," but other claims do not.
Defendants, in turn, propose to construe "outcall" uniformly throughout the patent as originating
from the call processing system.

(D.1. 254 at 21:4-14).

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Where the claims use the word

"outcall," alone, the term has an antecedent basis in the term "outcall from the call processing
system."

To make this clear, I have construed the term "outcall" to mean "an outgoing call

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from the call processing system."

In instances where "outcall" is followed by "from the call

processing system," the term "outcall" is construed as "an outgoing call."
Call Wave also points out that the specifications of the' 188 and '591 patents refer to
"outcalls placed by the subscriber."

(D.I. 243; 171-2 at 73, 53:5 & 171-3 at 1, 52:67). 3

Defendants note, however, that the full sentence cited by CallWave states that "[t]he transfer and
conferencing call management functions are optionally made available by the system on inbound
calls to the subscriber and on outcalls placed by the subscriber."

(D.I. 171-2 at 73, 53:2-5).

Defendants highlight the passage immediately preceding this sentence, which makes clear that
the sentence relates to an embodiment of the patent involving a virtual telephone number (VTN):
"As similarly described herein, optionally, a single phone number (e.g., a VTN) associated with
a subscriber can be used to reach communication devices (e.g., a mobile phone, a work fixed,
landline phone, a home fixed, landline phone, a VoIP phone, etc.) associated with different lines
and/or carriers."

(Id. at 72, 52:59-63).

Defendants also point to earlier passages describing

the same embodiment, explaining that "when a call is placed to the VTN, the call is optionally
connected to the call processing system.

The call can then be connected by the call processing

system to the user (e.g., by placing an outcall to a terminal associated with the user and bridging
the incoming call and the out call)."

(Id. at 72, 52:24-28).

The context of the sentence cited

by CallWave makes clear that a call placed by the subscriber must go through the call processing
system, and thus the actual "outcall" still comes from the call processing system.

The Court is

unaware of any other instances where the term "outcall" is used to describe anything but a call

3 Defendants note that the '591 patent is a continuation of the '188 patent, and has an identical specification. (D.1.
246 at 1 n. l). Thus, Defendants argue that these references constitute one example, rather than two. (Id.).

5

coming from the call processing system.

Therefore, the term "outcall" is construed as "an

outgoing call from the call processing system."
3.

"placing/place a[n] [first/new/second/third] [out]call" and "outcall is

placed" and "outcall is to be placed"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Requesting a[n] [first/second/third] outcall (as
defined) and outcall (as defined) is requested.
b.

Defendants 'proposed construction: Originating a request for a

[first/new/second/third] call or outcall.
c.

Court's construction: No construction is necessary.

The only point of dispute is whether "placing" means "requesting" or "originating a
request."

(D.I. 216 at 26).

Defendants' use of "originating" adds a limitation to the claim

language that is not supported by the intrinsic record, and "requesting" does not clarify the
meaning of the term "placing."
meaning.

There is no reason not to give "placing" its plain and ordinary

"Placing" is an ordinary word that a juror would have no trouble understanding.

Therefore, no construction is necessary.
4.

"switched network"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Communication network with switches, for
example, a packet switched network and/or a circuit switched network.
b.

Defendants' proposed construction: Circuit switched network.

c.

Court's construction: Communication network with switches, for

example, a packet switched network and/or a circuit switched network.
6

The term "switched network" appears in claims 10 and 16 of the '428 patent.
2 at 2, 20:47 & 3, 21 :7).

(DJ. 171-

Both parties agree that "a network" provides the antecedent basis for

"the switched network," and that "network" and "switched network" should be construed the
same.

(DJ. 247 & 248).

The only dispute is whether the term "switched network" should be

restricted to a "circuit switched network."

(DJ. 216 at 31).

Defendants argue that a person of ordinary skill in the art, as of May 20, 2002, the
effective filing date of the '428 patent, would understand "switched network" to mean a "circuit
switched network."

(DJ. 254 at 71:6-16).

Defendants rely on the 2000 edition of Newton's

Telecom Dictionary for support, which defines "switched network" with a cross-reference to the

definition for "PSTN" (public switched telephone network).

(DJ. 247-1 at 5-6).

CallWave's

expert, Dr. David Lucantoni, recognizes that "PSTN is a circuit switched network, which is one
type of switched network."

(DJ. 217-3 at

51~18).

CallWave argues, however, that the claim

language in the '428 patent precludes "switched network" from being construed as solely a
"circuit switched network."

(DJ. 216 at 30).

CallWave relies on claim 12 of the '428 patent,

which is dependent on claim 10, and states that "the called party communicates with the caller
using Voice over Internet Protocol (VoIP)."

(DJ. 171-2 at 2, 20:51-53).

The '428

specification makes clear that "VoIP communicates information via packet switching," rather
than circuit switching.

(DJ. 171-1at99, 7:15-16).

The '428 specification also states that "the

[Call Management] subsystem 108 is coupled into the PSTN 104 through voice trunk circuits
118 directly interfacing with the Inter Exchange Carrier's (IXC) circuit switched or packet
switched telephony network."

(Id. at 98, 6:12-15).

Thus, the '428 claims and specification

contemplate the use of both circuit and packet switched networks as the "switched network."

7

Defendants argue that the patentee disclaimed call screening over a packet switched
network during the application process, citing the Examiner Interview Summary Record for the
'601 patent application. 4

(D.I. 216 at 31-32).

The patent examiner notes that the '601

application overcomes Norris, a prior art reference, because "Norris does not disclose call
screening over a POTS [plain old telephone service] or wireless device via a switched network,"
but rather "Norris uses the packet switched network."

(D.I. 171-3 at 17).

CallWave points to

the patentee's response to a June 17, 2004 office action, where the patentee explains that "Norris
appears directed to providing a call waiting alert to a subscriber whose telephone line is busy
because a data terminal is accessing the Internet and is not concerned with providing caller
identification information to wireless or POTs telephones."

(Id. at 33).

The patentee further

notes that with regard to claim 1, "Norris does not even discuss providing a caller phone number
for a forwarded call to either or both a wireless phone or a Caller ID enabled POTs phone, or any
type of POTs phone."

(Id. at 34).

In the section entitled "Results oflnterview," the patentee

explains that "[a]greement was reached that [Norris] does not disclose and is not directed to call
screening via a switched network, using a POTs device, or using a wireless device."

(Id. at 32).

CallWave notes that claim 1 references two distinct calls, explaining that the patentee
amended claim 1 to require the "second call" to be directed to "at least one of a POTS telephone
or a wireless phone."

(Id at 23).

Similarly, the patentee amended claim 7 of the '601

application to require the "new call" to be directed to "at least one of a POTS terminal or a
wireless telephone."

(Id. at 25).

CallWave argues that the patentee added limitations

requiring the "second call" and "new call" to be directed to a POTS or wireless phone, but did

4 The '601 patent application gave rise to U.S. Patent No. 7,103, 167("the'167 patent"). (D.I. 171-1 at 87). The
'428 patent is a continuation of the '167 patent. (Id.).

8

not add such limitations to the "first call."

(D.I. 216 at 34).

CallWave maintains that "the

language that was added by amendment, was describ[ing] the network to which the call
processing system was sending the call."

(D.I. 254 at 81: 17-19).

Call Wave further argues

that the added limitation would have been "superfluous" if the patentee intended "switched
network" to mean "circuit switched network."

(D.I. 216 at 34).

CallWave argues that the only

disclaimer occurred where the patentee specifically amended the claim language to include the
term "POTS network."

(D.I. 254 at 82:22-25).

The Court also notes that the amendment

added the possibility of the second call being directed to a wireless telephone, which Defendants
admit is not restricted to a circuit switched network.

(Id. at 75:6-11).

Thus, I find that the

'428 claims and specification contemplate the use of both circuit and packet switched networks
for the "switched network," and that the patentee did not disclaim the use of packet switched
networks during the application process.
5.

Therefore, I adopt CallWave's proposed construction.

"bridging the ... [out]call and the ... [out]call" and "causing ... to be

bridged"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Joining the ... [out]call and the ... [out]call
and Causing ... to be joined.
b.

Defendants' proposed construction: Joining the respective voice

paths and signaling information of the first call and the second call [or outcall].
c.

Court's construction: Joining the ... [out]call and the ... [out]call

and Causing ... to be joined.
The only dispute between the parties is over the constructions of the terms "call" and
"outcall," both of which have already been construed above.
9

(D.I. 216 at 37).

The parties

agree that "bridging[ed]" means "joining[ed]."

(Id.).

Therefore, I adopt CallWave's proposed

construction.
6.

"forward[ed]"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Redirect[ed].
b.

Defendants' proposed construction: Redirecting a call directed for

a first destination to a second destination based on a predefined rule.
c.

Court's construction: Redirect[ed].

The parties agree that "forwarding" a call involves "redirecting" the call, but disagree
over additional limitations.

During oral argument, CallWave argued that the primary dispute is

whether redirecting the call must be "based on a pre-defined rule."

(D.I. 254 at 84:23-25).

Defendants, however, conceded that "based on a predefined rule" was "probably not essential" to
their construction.

(Id. at 94:8-12).

Defendants contend that another important issue is that a

"forwarded" call must be redirected "from a first destination to a second destination."
92:2-4).

(Id. at

Redirecting, by definition, involves directing something from one place to another,

and thus this limitation is unnecessary.
Defendants argue that "forwarding" a call and "transferring" a call are distinct concepts.

(Id at 91:23-92:6).

Defendants argue that a call is "forwarded" according to a condition set by

the called party before the call is answered, and a call is "transferred" by the called party after
the call has been answered.

(Id. at 92:5-6, 11-14 & 21).

Claim 3 of the' 188 patent supports

Defendants' definition of "forward," stating that "the first call is forwarded to the call processing
system on at least one of a call forward or ring-no-answer condition, a call-forward-all calls
condition, or of a forward-on-busy condition."

(D.I. 171-2 at 82, 72:41-44).
10

The first option

is referred to as the "call forward" or "ring-no-answer" condition, and all three conditions
involve only unanswered calls.
Call Wave, on the other hand, argues that the patents use "forward" and "transfer"
interchangeably.

(D.I. 216 at 47).

Call Wave cites the' 110 specification, which states: "[t]he

called party can optionally forward the call back to their cell phone or to another phone/phone
line during the call with the called party by pressing an appropriate phone key, such as the '2'
key."

(D.1. 171-1at71, 29:8-11).

CallWave argues that Defendants' proposed construction

would exclude this disclosed embodiment because it occurs during the call and is not based on a
predefined rule.

(D.1. 216 at 42).

Call Wave also cites claims 10 and 16 of the '428 patent,

which refer to "receiving an instruction from the called party to forward the caller to a second
terminal."

(D.I. 171-2 at 2, 20:44-45 & 3, 21 :4-5).

Here, the claims refer to an "instruction"

provided by the called party after receiving the call, rather than a predefined rule.

Thus, the

patents at times use the term "forward" in the same manner as Defendants would use the term
"transfer."

Therefore, I adopt "redirect" as the construction for both terms. 5
7.

"transfer[ring]"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Redirect[ed].

5
While I adopt the same construction for "forward" and "transfer," I note that there are reasonable arguments for
both sides. In my opinion, Defendants are right that the usual understanding of "forward" in the context of
telephones is a rule-based event, while "transfer" is not so limited, and, indeed, usually is a human-initiated event.
Nevertheless, while some claims use the terms in these senses (e.g., '188 patent, els. 3 & 14), others do not. (E.g.,
'428 patent, els. 10 & 16). Defendants argue that claims IO and 16 of the '428 patent can be read to use "forward"
in the rule-based event sense, but I do not think this makes much sense, as the whole point of the invention is for the
call recipient to see who the incoming caller is, so that the call recipient can decide what to do with the call. I also
would note that in at least some of the claims, the constructions of"forward" and "transfer" are going to be further
restricted by other limitations in the claims.

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b.

Defendants' proposed construction: Moving a call from a first

device to a second device identified by the user of the first device.
c.

Court's construction: Redirect[ing].

As discussed above, the term "transfer" means to "redirect" a call.

Defendants argue

that the call must be accepted prior to transferring, relying on claim 19 of the '110 patent, which
recites: "providing at least the following call handling options to the called party: accept the call
on the first communication device; transfer the call to a first alternate destination."
at 82, 51 :25-28).

(D.1. 171-1

This language, however, does not support the premise that the call must be

accepted in order for the called party to "transfer" the call.

Rather, the claim provides a list of

"call handling options," and "accepting" the call and "transferring" the call are two distinct
options on that list.

Claim 21, which is dependent on claim 19, further recites: "providing the

user the option to transfer the call without screening."

(Id. at 82, 51 :37-38).

indicates that the call may be transferred without being answered.

This language

Although Defendants use the

term "device" in their proposed construction, they argue in the briefing that "[t]he term 'transfer'
as used in the [Call Processing] Patents refers to moving a call from a first destination to another
specified destination."

(D.I. 216 at 49).

something from one place to another.
limitation.

As stated above, the term "redirect" implies directing

Thus, it is unnecessary to include Defendants' additional

Therefore, "transfer[ring]" is construed as "redirect[ing]."
8.

"call handling"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Call management.

b.

Defendants' proposed construction: Handling of an incoming call

attempt before establishment of a two-way voice communication.
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c.

Court's construction: No construction is necessary.

CallWave argues that the specification of the '110 patent refers to figure 18 as a "call
handling options dialog box," and also refers to "call handling options" as "call management
options."

(D.I. 171-1at63, 14:2-3 & 67, 21:1-2).

I find that "call management" is broader

than the term "call handling," and does not clarify the term's meaning.

Defendants, on the

other hand, argue that "call handling options" must be presented at the time the called party is
screening the call.

(D.I. 254 at 102:5-8).

Call Wave argues that the '110 specification

discloses numerous examples of call handling taking place after the establishment of a two-way
voice communication.

(D.I. 216 at 54).

For example, the '110 specification provides that "the

called party can provide the instruction to connect the call to another phone before initiating the
conversation with the caller, such as while screening the call, or during the conversation with the
caller, such as after accepting the initial call bridged to the called party by the call processing
system."

(D.I. 171-1 at 69, 25:33-38).

by the intrinsic record.

Thus, Defendants' added limitation is not supported

Additionally, Defendants' proposed construction uses the word

"handling" to construe itself, which is not particularly helpful for purposes of construction.

I

find that the plain and ordinary meaning of "call handling" is clear, and that a juror would not
have trouble understanding this term.
9.

Therefore, no construction is necessary.

"call redirection instruction"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Instruction to redirect a call.

b.

Defendants' proposed construction: An instruction to move a call

from a first device to a second device identified by the user of the first device during the call
screening process.
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c.

Court's construction: No construction is necessary.

The parties agreed during oral argument that "call redirection" involves directing a call
from one place to another.

(D.I. 254 at 109:7-10 & 110:23-25).

Defendants' proposed

construction, however, requires the instruction "to move a call from a first device to a second
device," and the second device must be "identified by the user of the first device during the call
screening process."

Neither of these limitations is supported by the claims or the specification.

CallWave's proposed construction merely rearranges the words of the term, and thus is
unhelpful.

The term is made of ordinary words that a juror would have no trouble

understanding.

Therefore, the term will be given its plain and ordinary meaning.
10.

"causing the first entity call to be selectively connected to one of a

plurality of potential second entity terminal destinations"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: Causing the first entity call to be selectively
connected, at least partly in response to the received instruction, to one of a plurality of terminal
destinations associated with the second entity.
b.

Defendants' proposed construction: Causing a connection to the

one of a plurality of potential terminals selected by the second entity.
c.

Court's construction: Causing the first entity call to be connected

to a selected one of a plurality of potential second entity terminal destinations.
In its briefing, CallWave agreed to amend its proposed construction based on
Defendants' objections, resulting in the following: "Causing the first entity call to be connected
to a selected one of a plurality of potential second entity terminal destinations."
67).

(D.I. 216 at

During oral argument, the parties tentatively agreed to CallWave's amended construction.
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(D .I. 254 at 113: 1-7).

I gave Defendants the opportunity to review the amended construction,

and send a letter saying whether they accept it.

(Id. at 113: 17-20).

letter stating that it agreed to CallWave's revised proposal.

Defendant Google filed a

(D.I. 245).

Therefore, I adopt

CallWave's amended proposed construction.
11.

"subscriber specified rule" and "subscriber instruction"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: A rule or instruction specified by a subscriber.
b.

Defendants' proposed construction: A phone service subscriber's

specified call handling rule, stored in the call processing system's database.
c.

Court's construction: No construction is necessary.

These terms are made of ordinary words that a juror would have no trouble
understanding.

Defendants propose a limitation not required by the intrinsic record.

Therefore, no construction is necessary.
12.

"[a/the] network"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: [A/The] communication network.
b.

Defendants 'proposed construction: Circuit switched network.

c.

Court's construction: Communication network with switches, for

example, a packet switched network and/or a circuit switched network.
The parties agree that "network" and "switched network" should be construed the same.
(D.1. 247 at 2 & 248 at 1).

The Court has already addressed Defendants' argument that the

patentee of the '167 patent disclaimed the use of packet switched networks in the section on
"switched network."

The Court agrees with CallWave that "switched network" and "network"
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are not limited to circuit switched networks.

Therefore, I adopt the same construction for

"[a/the] network" as for "switched network."
13.

"call processing system"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: A system for processing a call or information

relating to a call.
b.

Defendants 'proposed construction: A system having a central

server that answers an incoming call and serves as the interface between the PSTN and the
Internet.
c.

Court's construction: A system having one or more servers that is

capable of screening incoming phone calls.
The parties agree that it is "clear that the central processing system may comprise
multiple servers."

(D.I. 216 at 80).

construction creates ambiguity.

Thus, Defendants' use of "central server" in its proposed

Additionally, Defendants' proposed construction requires the

"call processing system" to serve as "the interface between the PSTN and the Internet," which is
a limitation imported from a preferred embodiment that would exclude disclosed embodiments.
(Id. at 78-79).

meaning.

CallWave's proposed construction is too broad, and does not clarify the term's

Therefore, I construe "call processing system" to mean "a system having one or more

servers that is capable of screening incoming phone calls."
14.

"substantially real time"
a.

Plaintiff's proposed construction: No construction is necessary.

If the Court determines construction is necessary: "almost real time."

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b.

Defendants' proposed construction: Transmitting speech data

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almost simultaneously as that data is being recorded.
c.

Court's construction: No construction is necessary.

CallWave argues that the patentees in the '428 and '588 patents acted as lexicographer,
providing that "[w]ith streaming, a client application executing on the called party's computer
can start playing the transmitted speech data in substantially or almost real-time."
at 96, 2:37--40 & 171-2 at 98, 2:37--40).

I find the distinction between "substantially" and

"almost" to be unhelpful for purposes of construction.
is over the meaning of "real time."

(D.1. 171-1

Defendants argue that the actual dispute

(D.1. 254 at 122:14-17).

Defendants argue that in order

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for the transmission of speech to be in "substantially real time" the speech must be recorded
before being transmitted.

(Id. at 124:8-11).

majority of which do not require recording.
would have no trouble understanding.
IV.

This, however, is not supported by the claims, a
The term is made of ordinary words that a juror

Therefore, no construction is necessary.

CONCLUSION

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Within five days the parties shall submit a proposed order consistent with this
Memorandum Opinion suitable for submission to the jury.

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