Audio Evolution Diagnostics, Inc. v. AMD Global Telemedicine Inc.
Filing
77
MEMORANDUM OPINION re claim construction. Signed by Judge Leonard P. Stark on 5/22/18. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUDIO EVOLUTION DIAGNOSTICS,
INC. ,
Plaintiff,
C.A. No. 16-1 280-LPS
V.
AMD GLOBAL TELEMEDICINE, INC. ,
Defendant.
Timothy Devlin, DEVLIN LAW FIRM LLC, Wilmington, DE
Peter J. Corcoran, Ill, CORCORAN IP LAW, PLLC, Texarkana, TX
Attorneys for Plaintiff Audio Evolution Diagnostics, Inc.
Richard A. Barkasy, Daniel M. Pereira, SCHNADER HARRISON SEGAL & LEWIS LLP,
Wilmington, DE
Daniel J. Bourque, Esq. , BOURQUE & ASSOCIATES , P.A. , Manchester, NH
Arnold Rosenblatt, COOK, LITTLE, ROSENBLATT & MANSON, PLLC, Manchester, NH
Attorneys for Defendant AMD Global Telemedicine, Inc.
MEMORANDUM OPINION
May 22, 2018
Wilmington, Delaware
ST ARK, U.S. District Judge:
Plaintiff Audio Evolution Diagnostics, Inc. ("Plaintiff' or "AED") filed suit against
Defendant AMD Global Telemedicine, Inc. ("Defendant" or "AMD"), alleging infringement of
U.S . Patent Nos. 8,920,343 and 8,870,791. The patents generally describe and claim a system
and apparatus for acquiring, processing, and transmitting physiological sounds and auditory
signals for use in telemedicine.
Presently before the Court is the issue of claim construction. The parties submitted
technology tutorials (see D.I. 50, 51) and briefs (see D.I. 52, 53 , 60, 62). The Court held a claim
construction hearing on March 26, 2018. (See D.I. 76 ("Tr.")) 1
I.
LEGAL ST AND ARDS
The ultimate question of the proper construction of a patent is a question oflaw. See
Teva Pharm. USA, Inc. v. Sandoz, Inc. , 135 S. Ct. 831, 837 (2015) (citing Markman v. Westview
Instruments, Inc. , 517 U.S. 370, 388-91 (1996)). "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) (internal quotation marks omitted).
"[T]here is no magic formula or catechism for conducting claim construction." Id. at 1324.
Instead, the court is free to attach the appropriate weight to appropriate sources "in light of the
statutes and policies that inform patent law." Id.
"[T]he words of a claim are generally given their ordinary and customary meaning ...
1
In response to Plaintiffs request to present live testimony from the inventor of the patents-insuit, the Court granted both parties permission to present testimony at the claim construction
hearing. (See D.I. 64, 65) At the hearing, Plaintiff stated that it no longer intended to call a
witness and would instead rely on portions of deposition testimony cited in its briefing. (Tr. at 3)
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[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 citations and quotation marks omitted). "[T]he ordinary meaning of a
claim term is its meaning to the ordinary artisan after reading the entire patent." Id. at 1321
(internal quotation marks omitted). The patent 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." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
While "the claims themselves provide substantial guidance as to the meaning of particular
claim terms," the context of the surrounding words of the claim must also be considered.
Phillips, 415 F.3d at 1314. Furthermore, " [o]ther claims of the patent in question, both asserted
and unasserted, can also be valuable sources of enlightenment ... [b ]ecause claim terms are
normally used consistently throughout the patent .. . ." Id. (internal citation omitted).
It is likewise true that "[d]ifferences among claims can also be a useful guide .... For
example, the presence of a dependent claim that adds a particular limitation gives rise to a
presumption that the limitation in question is not present in the independent claim." Id. at 131415 (internal citation omitted). This "presumption is especially strong when the limitation in
dispute is the only meaningful difference between an independent and dependent claim, and one
party is urging that the limitation in the dependent claim should be read into the independent
claim." SunRace Roots Enter. Co., Ltd. v. SRAM Corp. , 336 F.3d 1298, 1303 (Fed. Cir. 2003).
It is also possible that "the specification may reveal a special definition given to a claim
term by the patentee that differs from the meaning it would otherwise possess. In such cases, the
inventor's lexicography governs." Phillips, 415 F.3d at 1316. It bears emphasis that "[e]ven
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when the specification describes only a single embodiment, the claims of the patent will not be
read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope
using words or expressions of manifest exclusion or restriction." Hill-Rom Servs., Inc. v. Stryker
Corp. , 755 F.3d 1367, 1372 (Fed. Cir. 2014) (quoting Liebel-Flarsheim Co. v. Medrad, Inc., 358
F.3d 898, 906 (Fed. Cir. 2004)) (internal quotation marks omitted).
In addition to the specification, a court "should also consider the patent's prosecution
history, if it is in evidence." Markman v. Westview Instruments, Inc. , 52 F.3d 967, 980 (Fed. Cir.
1995), aff'd, 517 U.S. 370 (1996). The prosecution history, which is "intrinsic evidence,"
"consists of the complete record of the proceedings before the PTO [Patent and Trademark
Office] and includes the prior art cited during the examination of the patent." Phillips, 415 F.3d
at 1317. " [T]he prosecution history can often inform the meaning of the claim language by
demonstrating how the inventor understood the invention and whether the inventor limited the
invention in the course of prosecution, making the claim scope narrower than it would otherwise
be." Id.
In some cases, "the district court will need to look beyond the patent's intrinsic evidence
and to consult extrinsic evidence in order to understand, for example, the background science or
the meaning of a term in the relevant art during the relevant time period." Teva, 135 S. Ct. at
841. Extrinsic evidence "consists of all evidence external to the patent and prosecution history,
including expert and inventor testimony, dictionaries, and learned treatises." Markman, 52 F.3d
at 980. For instance, technical dictionaries can assist the court in determining the meaning of a
term to those of skill in the relevant art because such dictionaries "endeavor to collect the
accepted meanings of terms used in various fields of science and technology." Phillips, 415 F.3d
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at 1318. In addition, expert testimony can be useful "to ensure that the court's understanding of
the technical aspects of the patent is consistent with that of a person of skill in the art, or to
establish that a particular term in the patent or the prior art has a particular meaning in the
pertinent field. " Id. Nonetheless, courts must not lose sight of the fact that "expert reports and
testimony [are] generated at the time of and for the purpose of litigation and thus can suffer from
bias that is not present in intrinsic evidence." Id. Overall, while extrinsic evidence "may be
useful" to the court, it is "less reliable" than intrinsic evidence, and its consideration "is unlikely
to result in a reliable interpretation of patent claim scope unless considered in the context of the
intrinsic evidence." Id. at 1318-19. Where the intrinsic record unambiguously describes the
scope of the patented invention, reliance on any extrinsic evidence is improper. See Pitney
Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed. Cir. 1999) (citing Vitronics , 90
F.3d at 1583).
Finally, " [t]he construction that stays true to the claim language and most naturally aligns
with the patent's description of the invention will be, in the end, the correct construction."
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 '! Trade Comm 'n, 505 F.3d 1351 , 1358 (Fed. Cir. 2007)
(quoting Modine Mfg. Co. v. U S Int '! Trade Comm 'n, 75 F.3d 1545, 1550 (Fed. Cir. 1996)).
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II.
CONSTRUCTION OF DISPUTED TERMS 2
A.
"Physiological sounds" 3
Plaintiff
plain and ordinary meaning, "acoustic signals generated by human organs"
Defendant
"Human organ sounds that are of interest to a medical professional such that they are desired
to be captured (acquired) and analyzed/processed (and generally transmitted to a remote
location) in connection with medical diagnosis and/or treatment"
Court
"sounds generated by human organs that are intended to be captured for medical diagnosis"
For its proposed construction, Plaintiff points to dependent claim 33 of the ' 343 patent,
which defines physiological sounds as "sounds generated by an organ in a frequency range up to
20,000 Hz inclusive." According to Plaintiff, Defendant's construction adds unnecessary,
restrictive limitations to the claims that make them confusing to a jury. (D.I. 62 at 5)
Defendant contends that the breadth of Plaintiff's construction is unsupported, as the file
history makes clear that the term is "intended to be construed as not just any sound a human body
may make, but those sounds inextricably linked to and necessary for the medical diagnosis and
treatment that is being sought." (D.I. 52 at 8) Specifically, Defendant contends that
"physiological sounds" do not include the sounds associated with "the technician or nurse
2
In its responsive claim construction brief, AMD stated that it no longer disputes AED ' s
construction of two terms - "measured frequency and measured energy," recited in claims 7 and
28 of the ' 343 patent, and "qualitative energy," recited in claims 13 and 38 of the ' 343 patent and
claim 24 of the '791 patent. (D .I. 60 at 2 n.1) At the claim construction hearing, the parties
agreed that no construction was necessary for the terms "first apparatus" and "second apparatus."
(Tr. at 29-30) The Court will adopt all of the agreed-upon constructions.
3
This term appears in claims 1, 6, 7, 10, 11 , 13, 15, 19, 28, 29, 32, 33 , 34, 35, 39, 40, and 43 of
the ' 343 patent and claims 1, 3, 8, 17, 22, 24, and 25 of the ' 791 patent.
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speaking to the remote doctor through a microphone," which are the sounds widely available in
simple video conferencing. (D.I. 60 at 4) Instead, "physiological sounds" as used in the patents
consist only of sounds "collected and analyzed by the software for medical purposes that [are]
pertinent to the underlying patent claims." (Jd.)4
In the Court's view, a person of ordinary skill in the art ("POSA") would not read the
term in the manner proposed by either side. The Court agrees with Defendant that "physiological
sounds" as used in the patent relates only to sounds intended to be analyzed for medical
purposes, and does not include (for example) speech between local and remote doctors. See ' 791
pat. at 4:3-5 ("[O]rgans in the human body emit characteristic physiologic signals when they are
functioning in the absence of pathology."); see id. at 4:40-43 ("[T]his disclosure relates to a
system for recording and analyzing physiologic sounds to provide the clinician with information
relating to functional status of the organ being examined."). Consistent with this conclusion,
multiple dependent claims of the ' 343 patent define physiological signals as "sounds generated
by an organ." '343 patent at els. 6, 19, 24, 33, 35.
Plaintiff conceded at the claim construction hearing that its definition was not meant to
capture "something unrelated to medical diagnosis" and that "there is no intent otherwise than for
in a telemedicine context." (Tr. at 12) Thus, the Court's construction encompasses sounds
intended for medical diagnosis, but does not otherwise capture speech. For example, as the
parties recognized, "the larynx is an organ" and, thus, sounds from the larynx could be intended
4
Defendant also contends that Plaintiff "disavowed any other type of voice or sound system,
sound pickup and transmission that is not related to the function of an organ." (Tr. at 15-16) But
Defendant falls far short of identifying a clear and unambiguous disclaimer or disavowal of claim
scope.
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for medical diagnosis, and thus, those sounds would be within the scope of the claims. (Id. at 20,
22) However, to the extent the larynx sounds are "just simply transmitt[ ed] . .. for nondiagnostic
purposes, ... that is not included in the claim." (Id. at 20) As Plaintiff stated, "the intent of the
invention was not to pick up speech." (Id. at 23)
B.
"sensor" 5
Plaintiff
plain and ordinary meaning, "transducer"
Defendant
"a sound pick up device, including a diaphragm that is designed to vibrate in response to
picked up sounds. The sensor is designed to be placed ON a patient to pick up physiologic
sounds from one or more patient internal organs which are converted into electrical signals for
further analysis and processing by a processing unit"
Court
"a transducer designed to detect physiological sounds"
Plaintiff contends a "sensor" is a transducer. Plaintiff points to the '343 patent' s
recitation that the "system includes a transducer 1, such as an analogue condenser microphone,
which can be placed at various sites around the patient to listen to sounds emitted by different
organs." (D.I. 53 at 12) Plaintiff also cites to an IEEE dictionary which, in defining transducer,
recites that "[n]early all transducers are sensors of some kind." (D.I. 62 at 9) Moreover, Plaintiff
contends Defendant' s proposal is both redundant - as it defines the sensor in terms of a
diaphragm, a component which is already recited in the claims - and incorrect - as it requires the
sensor to be placed "ON a patient," which improperly narrows claim scope. (Id. at 8-9)
Defendant counters that the diaphragm is "a necessary component in deciphering the
5
This term appears in claims 1, 10, 11 , 15, 23 , 26, 29, 39, 40, 48, 49, 50, and 52 of the '343
patent and claims 1, 8, 17, and 22 of the ' 791 patent.
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claim term as it relates to this technology" and, further, the construction of "sensor" must reflect
the requirement of placement of the sensor on the human body. (D.I. 52 at 16) To Defendant, "a
sensor is not simply anything that picks up sound or changes its energy in some way or converts
energy from one form to another." (Id.) Instead, according to Defendant, the construction must
limit a sensor to "medically relevant, physiologic sounds." (D.I. 60 at 6)
In the Court' s view, the specification uses "sensor" and "transducer" interchangeably.
See '343 patent at 10: 1 (" [T]he sensors 1 are affixed to any part of the body surface according to
the discretion of the clinician.") (emphasis added); id. at 6:20-23 ("This system includes a
transducer 1 ... which can be placed at various sites around the patient to listen to sounds
emitted by different organs.") (emphasis added); id. at Abstract ("The system includes a plurality
of transducers placed on the body surface at the operator' s discretion."); id. at 2:3-5 ("The system
disclosed contains a modifiable number of independent transducers to record physiologic sounds
at any particular location, which the operator desires.").
The Court further agrees that construing "sensor" to include a diaphragm and to be placed
on a patient is redundant, as the claims themselves specify these requirements (for those claims
for which they are, in fact, requirements). See, e.g., id. at claim 1 ("a sensor comprising a
diaphragm, wherein said sensor is configured to be positioned on a body surface, ... "); id. at
claim 10 ("each sensor of said plurality of sensors comprises a corresponding diaphragm ... ");
id. at 3:64-66 ("[T]he system includes a plurality of transducers, such as microphones embedded
in small rubber tubes coupled to a thin plastic diaphragm(s) . .. ."); id. at Abstract ("The system
includes a plurality of transducers placed on the body surface ... "). The only scenario in which
the sensor is not positioned on a patient is in the context of a "test transducer," which is
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employed to "record[] sounds from sources that might corrupt the signal being recorded from the
organ of interest." Id. at 7:65-67; see also id. at 7:64-65 ("This test transducer 1 may be affixed
to body surface or exposed to the ambient environment."). However, consistent with the Court' s
construction of "physiological sounds," the Court agrees with Defendant that the "sensor" is
limited to detecting medically relevant sounds. In the context of sensors being used to detect
human organ sounds, at least one sensor must be affixed to the patient' s body. See '343 patent at
els. 15, 39 ("An apparatus for acquiring and processing physiological sounds comprising: a
plurality of sensors ... , wherein at least one sensor is configured to be positioned on a body
surface ... ") (emphasis added). By omitting "on a patient" from the construction of "sensor,"
the Court is not eliminating this limitation; if a claim requires at least one sensor (or transducer)
be placed on the body, that limitation must still be met.
C.
"characterization/characterized" 6
Plaintiff
plain and ordinary meaning, "representation/represented"
Defendant
"the visualization and display, on a display device (i.e. computer monitor) of captured data
after processing"
Court
''representation/represented"
Plaintiff contends the term "characterization/characterized" should be given its plain and
ordinary meaning, "representation/represented." (D.I. 53 at 13) Defendant argues, instead, the
characterization of a signal must also "reflect[] the method or manner in which the captured and
processed data is actually displayed upon the display device." (D.I. 52 at 18-19) To Defendant,
6
This term appears in claim 8 of the ' 343 patent and claim 1 of the ' 791 patent.
9
then, the construction of "characterization" must be tied to the display (id. at 19) and must reflect
that what is being "characterized" is "the captured data after processing" (D.I. 60 at 6). Plaintiff
counters that Defendant's construction "improperly import[s] limitations from the specification."
(D .I. 62 at 10)
The Court agrees with Defendant that the "characterization" is tied to a display device,
but the claims already recite this requirement, making Defendant's construction unnecessary.
See '343 patent at cl. 1, 29 ("[S]aid display device further is configured to display a
characterization of said processed signal."); see also Tr. at 43-44 (Defendant's counsel
acknowledging that calling out requirement of display device "would be unnecessary"). The
Court also agrees with Defendant that the characterized data is always captured data - but this is
not due to the term "characterization." It is because the claims specifically require that what is
"characterized" is processed data. See, e.g., '343 patent at cl. 29 (" said display device further is
configured to display a characterization of said processed signal") ( emphasis added). While the
Court' s construction by no means eliminates this requirement, the Court concludes it is
unnecessary (and would be redundant) to include it in its construction.
III.
CONCLUSION
The Court will construe the disputed terms as explained above. An appropriate Order
follows.
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