S.I.SV.EL. Societa Italiana Per Lo Sviluppo Dellelettronica S.p.A. v. Rhapsody International Inc.

Filing 85

MEMORANDUM ORDER re Claim Construction. Signed by Judge Christopher J. Burke on 8/10/2020. (dlb)

Case 1:18-cv-00069-CJB Document 85 Filed 08/10/20 Page 1 of 14 PageID #: 2576

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
S.I.SV.EL. SOCIETA ITALIANA PER LO )
SVILUPPO DELL’ELETTRONICA,
)
S.P.A.,
)
)
Plaintiff,
)
)
v.
)
)
RHAPSODY INTERNATIONAL INC.,
)
)
Defendant.
)
)

Civil Action No. 18-69-CJB

MEMORANDUM ORDER
In this patent infringement action filed by Societa Italiana per lo Sviluppo dell’Elettronica
S.p.A. (“Plaintiff”) against Defendant Rhapsody International Inc. (“Defendant”), presently
before the Court is a matter of claim construction. The Court resolves the claim construction
disputes in the manner set out below.
I.

BACKGROUND
A.

The Parties and the Proceedings

Plaintiff is a technology corporation organized under the laws of Italy, and it owns
various United States patents. (D.I. 1 at ¶ 2) It now asserts two such patents in this case; at issue
in this claim construction opinion is one of them: United States Patent No. 8,490,123 (the “'123
patent”). (Id. at ¶ 54) Defendant is a corporation organized under the laws of Delaware with a
principal place of business in Seattle, Washington. (D.I. 35 at ¶ 3)
Plaintiff filed this action in January 2018. (D.I. 1) This case was referred to the Court by
United States District Judge Maryellen Noreika in September 2018 for all purposes, up to and
including summary judgment and Daubert motions. (Docket Item, Sept. 24, 2018)

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Subsequently, in September 2019, the parties consented to the Court’s jurisdiction to conduct all
proceedings in the case. (D.I. 45)
The parties filed a joint claim construction brief on June 24, 2020; the brief listed seven
terms/term sets (“terms”) as being in dispute. (D.I. 77) Subsequently, the parties narrowed the
number of disputed terms to four (all relating to the '123 patent), (D.I. 78; D.I. 79), and then
further reduced the number of disputed terms to three, (D.I. 81). The Court conducted a
Markman hearing by videoconference on July 22, 2020. (D.I. 83 (hereinafter, “Tr.”))
B.

The Patent in-Suit

The Court has previously described the '123 patent (entitled “Method and Device for
Generating a User Profile on the Basis of Playlists”) in its March 2019 Memorandum Opinion,
wherein it denied Defendant’s motion for summary judgment premised on patent ineligibility.
(D.I. 26 at 2-4) The Court incorporates by reference the facts set out in that March 2019
decision. To the extent that other facts regarding the patent are relevant to the terms addressed
below, the Court will discuss such facts herein.
II.

STANDARD OF REVIEW
It is well-understood that “[a] claim in a patent provides the metes and bounds of the right

which the patent confers on the patentee to exclude others from making, using, or selling the
protected invention.” Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257
(Fed. Cir. 1989). Claim construction is a generally a question of law, although subsidiary fact
finding is sometimes necessary. Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 837-38
(2015).
The Court should typically assign claim terms their “‘ordinary and customary
meaning[,]’” which is “the meaning that the term[s] would have to a person of ordinary skill in

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the art in question at the time of the invention, i.e., as of the effective filing date of the patent
application.” Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations
omitted). However, when determining the ordinary meaning of claim terms, the Court should
not extract and isolate those terms from the context of the patent; rather it should endeavor to
reflect their “meaning to the ordinary artisan after reading the entire patent.” Id. at 1321; see
also Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314, 1320 (Fed. Cir.
2016).
In proceeding with claim construction, the Court should look first and foremost to the
language of the claims themselves, because “[i]t 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, 415 F.3d at 1312 (internal quotation marks and citations omitted). For example, the
context in which a term is used in a claim may be “highly instructive.” Id. at 1314. In addition,
“[o]ther claims of the patent in question, both asserted and unasserted, can . . . be valuable” in
discerning the meaning of a particular claim term. Id. This is “[b]ecause claim terms are
normally used consistently throughout the patent, [and so] the usage of a term in one claim can
often illuminate the meaning of the same term in other claims.” Id. Moreover, “[d]ifferences
among claims can also be a useful guide[,]” as when “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 1314-15.
In addition to the words of the claims, the Court should look to other intrinsic evidence.
For example, the Court should analyze the patent specification, which “may reveal a special
definition given to a claim term . . . that differs from the meaning [that term] would otherwise
possess” or may reveal an intentional disclaimer of claim scope. Id. at 1316. Even if the

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specification does not contain such revelations, it “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.” Id. at 1315 (internal quotation marks and citation omitted). That said, however,
the specification “is not a substitute for, nor can it be used to rewrite, the chosen claim
language.” SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). And
a court should also consider the patent’s prosecution history, if it is in evidence, because it “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[.]”
Phillips, 415 F.3d at 1317.
Extrinsic evidence, “including expert and inventor testimony, dictionaries, and learned
treatises[,]” can also “shed useful light on the relevant art[.]” Id. (internal quotation marks and
citations omitted). Overall, while extrinsic evidence may be useful, it is “less significant than the
intrinsic record in determining the legally operative meaning of claim language.” Id. (internal
quotation marks and citations omitted); accord Markman v. Westview Instruments, Inc., 52 F.3d
967, 981 (Fed. Cir. 1995).
In utilizing these resources during claim construction, courts should keep in mind that
“[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).
III.

DISCUSSION
As noted above, the parties ultimately presented three disputed terms for construction.

They are addressed in turn below.

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A.

“stored on a/the media device”

The first term, “stored on a/the media device,” appears in claims 1 and 11. Claim 1
recites:
1. A method of generating a user profile for a given user from at
least one first playlist including a first sequence of content and
being associated with the given user and stored on a media device,
said method comprising:
automatically searching for the at least one first playlist among a
plurality of playlists, wherein the plurality of playlists includes at
least one of a second playlist and a third playlist, wherein the
second playlist has a second sequence of content and is associated
with a different user and the third playlist has a third sequence of
content and is associated with the given user, and each playlist of
the plurality of playlists including at least one identifying
characteristic of content stored on the media device;
analyzing the at least one first playlist and automatically deriving
from the at least one analyzed first playlist at least one playlist
feature expressing at least one property of the at least one first
playlist, the at least one playlist feature comprising an occurrence
frequency or at least a content relationship of the plurality of
playlists; and
automatically generating a user profile for the given user based on
the analyzed at least one first playlist and the derived at least one
playlist feature;
wherein at least one of the said searching, analyzing, and
generating comprises use of computerized hardware including a
processing element.
('123 patent, col. 8:31-55 (emphasis added)) Claim 11 is a claim to a “media device for
generating a user profile” as opposed to a method for generating such a user profile; that said, as
relating to the term at issue, it recites very similar language to that in claim 1. (Id., col. 9:3910:17) 1

1

The term at issue is used twice in claim 11 in a similar manner to how it is used in
claim 1, with the exception that in the preamble of claim 11, the term is “stored on the media
device” instead of “stored on a media device[.]” ('123 patent, col. 9:39-42 (emphasis added))
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The parties’ proposed constructions are as follows:
Term
“stored on a/the
media device”

Plaintiff’s Proposal
No construction necessary.

Defendant’s Proposal
“located on a computer-readable
medium in the user’s media device”

(D.I. 77 at 35) In the briefing, the parties raised three potential disputes as to this term, which
relate to: (1) Defendant’s view that the content must be located on a media device; (2)
Defendant’s view that the content must be stored on a computer-readable medium on the device;
and (3) Defendant’s view that the device must be the user’s device. (Id. at 36-39; see also Tr. at
16-17)
As to the first two issues, it is not clear to the Court that the parties actually have a live
dispute. With regard to Defendant’s position that the word “located” should be used in any
construction of this term, during the Markman hearing, Defendant’s counsel agreed that
Defendant simply views “located” as a synonym for “stored.” (Tr. at 53) While Defendant’s
counsel suggested that there could possibly be future disputes over the scope of the word
“stored,” (id.), no such disputes have been clearly raised at this stage. And as for Defendant’s
proposed addition of “computer-readable medium,” the Court understands that it is premised on
Defendant’s view that a media device could not practice the method of claim 1 or read on the
various limitations of claim 11 unless it included a computer-readable medium. (Tr. at 51-53)
Yet after listening to the back-and-forth at the Markman hearing, the Court is not convinced that
there is now an actual dispute on this score—that is, that there is a real disagreement over
whether a computer-readable medium is necessarily a part of the requisite media device. (See id.
at 31-32, 52) The Court does not typically construe a term in a certain way unless prompted to
do so by a clear, relevant dispute over the term’s meaning. See O2 Micro Int’l Ltd. v. Beyond

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Innovation Tech. Co., 521 F.3d 1351, 1360-63 (Fed. Cir. 2008). For this reason, the Court
declines (for now) to add this verbiage to any construction of the term.
The third issue, however, relates to a clear dispute between the parties: i.e., whether (as
Defendant argues) when the claims require that certain content be “stored on the/a media device”
this is a reference only to the user’s media device. For the three primary reasons set out below,
the Court concludes that the claims include no such requirement.
First, the claim language provides some support to Plaintiff’s contrary position. In claim
1, when the claim makes reference to certain playlists that contain content, the claim refers to
those playlists as being “associated with the given user” or being “associated with a different
user[.]” ('123 patent, col. 8:33, 8:39-41) In other words, there the claim’s text explicitly links the
playlist with the user (or with “a different user”). In contrast, when the claim refers to “a” media
device or “the” media device, it does not explicitly link that device to the user in a similar way
(i.e., it does not refer to the device as “the user’s media device”). (Id., col. 8:34, 8:43) The point
is that when the patentee wanted to denote that certain aspects of the claims must be associated
with a particular user, or must be closely linked to a particular user, the patentee knew how to do
so (and did in fact do so). (D.I. 77 at 35; Tr. at 55-58) But the patentee chose not to do this
when describing the “media device.” This is thus one piece of evidence suggesting that the
claims do not require the media device at issue to be the user’s device. (Tr. at 21-22, 57-58)
Second, the Court does not see the logic in one of Defendant’s primary arguments. In
support of its proposal, Defendant rightly noted that the claims and the specification state that
certain playlists utilized by the claimed inventions belong to “the given user” or to a “given
single user” or “to the particular user[.]” (Defendant’s Markman Hearing Presentation at Slide
10 (citing '123 patent, col. 3:47-53, 3:57-63); see also '123 patent, col. 8:33, 8:39-41) From

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there, Defendant argued as follows: (1) we know that the purpose of the claims is to generate a
user profile that is of interest to and helpful to “the given user”; (2) in accomplishing that, the
claims in part utilize content drawn from playlists that are associated with that user; and so
therefore (3) when it comes to the media device where content relating to the user profile is to be
stored, it also stands to reason that this device would be the user’s device. (D.I. 77 at 37-38; Tr.
at 42-43, 54)
Yet in the Court’s view, the logical leap inherent in that argument is not well supported.
That is because although it is true that the claims and the specification do refer to how the
invention makes use of certain playlists associated with the user, they also explain that the
invention makes use of certain playlists that are not associated with that user—i.e., playlists that
instead are associated with “a different user.” For example, the specification states:
Before the method is applied, it is assumed that playlists (i.e., a
second set of playlists) are already obtained and residing on the
media device. However, these (said second set of playlists) may
have been obtained by different users . . . which is the reason for
step 100 where playlists belonging to a given single user (i.e., a
first set of playlists) [are] determined. . . . In step 100, the media
device will search for a first set of playlists among said second set
of playlists. As a result, said first set of playlists belongs only to
the particular user. Said first set of playlists can be isolated as
files in and from one or more specified user directories, i.e. these
files (playlists) are tagged, have a property (of the user) and/or
have other identifying information indicating said particular user
only.
('123 patent, col. 3:47-63 (emphasis added)) Similarly, claim 1 recites how the method at issue
searches for “the at least one first playlist [associated with the given user] among a plurality of
playlists” but where the plurality of playlists also includes a “second playlist” that “is associated
with a different user[.]” (Id., col. 8:31-40) This is all to say that the patent is describing a media
device that contains content associated not only with the given user, but also with people other

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than the given user. And if that is so, then it makes a little less sense to think that the media
device that stores this content must necessarily only belong to or be associated with the given
user.
Third, another of Defendant’s key arguments is a clear example of seeking to limit claim
terms to the contours of a preferred embodiment. In this regard, Defendant relies on a portion of
the specification that recites: “The user profile then relieves him [i.e., the user] of the task of
selecting appropriate content items from a huge amount of content available, e.g. on and from the
Internet, previously stored on his media device, from a computer-readable medium, such as a
CD, a DVD, etc.” (Id., col. 6:39-43 (emphasis added) (quoted in D.I. 77 at 39)) The Court
agrees with Defendant that this is an instance (really the only instance) in which the patent
clearly refers to a media device that is the user’s device. (Tr. at 28) But as Plaintiff points out,
(id. at 27-28), this specification excerpt is simply describing an example of how the invention
could work. Nothing in the claims requires that the media device be the user’s device (as
opposed to the device of a third party that happens to contain content that is in some way
associated with the user). See SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1286
(Fed. Cir. 2005) (“[W]ithout more[,] the court will not limit claim terms to a preferred
embodiment described in the specification.”); Elm 3DS Innovations, LLC v. Samsung Elecs. Co.,
C.A. No. 14-1430-LPS-CJB, 14-1431-LPS-CJB, 14-1432-LPS-CJB, 2020 WL 1850657, at *10
(D. Del. Apr. 13, 2020) (adopting the plain and ordinary meaning of a term and rejecting the
defendants’ proposed construction that “improperly import[ed] a limitation from the

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specification into the claims without evidence of the patentee’s clear and unambiguous intent to
limit claim scope”). 2
For all of these reasons, the Court rejects Defendant’s proposal that the phrase “in the
user’s media device” be worked into a construction for this term. Having thus resolved the one
clear dispute between the parties in Plaintiff’s favor, the Court agrees with Plaintiff that no
construction of the term is necessary. (Tr. at 59-60) Thus, “stored on a/the media device”
should otherwise be afforded its plain and ordinary meaning.
B.

“automatically derive/deriving” and “automatically generate/generating”

The next two terms, “automatically derive/deriving” (collectively, the “automatically
deriving” term) and “automatically generate/generating” (collectively, the “automatically
generating” term) appear in claims 1 and 11. Because Defendant advocates similar constructions
for both terms, and because the parties rely on similar evidence as to both terms, the Court will
address them together. Again, claim 1 (which the parties treat as exemplary) recites in relevant
part:
1. A method of generating a user profile for a given user . . .
comprising:
...
analyzing the at least one first playlist and automatically deriving
from the at least one analyzed first playlist at least one playlist
feature expressing at least one property of the at least one first
playlist, the at least one playlist feature comprising an occurrence
frequency or at least a content relationship of the plurality of
playlists; and

The Court also notes that claim 9 of the '123 patent includes an exemplary list of
media devices. ('123 patent, col. 9:23-25) One such listed media device is a “jukebox[.]” (Id.)
The Court does not naturally think of a “jukebox” as a device that necessarily (or even typically)
is one that belongs to its user. (Tr. at 50-51) This is in turn a further point suggesting that
Plaintiff’s position is the correct one.
2

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automatically generating a user profile for the given user based on
the analyzed at least one first playlist and the derived at least one
playlist feature;
wherein at least one of the said searching, analyzing, and
generating comprises use of computerized hardware including a
processing element.
('123 patent, col. 8:31-55 (emphasis added)) 3 The parties’ proposed constructions are as follows:
Term
“automatically
deriving”
“automatically
generating”

Plaintiff’s Proposal
No construction
necessary.
No construction
necessary.

Defendant’s Proposal
“obtaining by means of computer code”
“creating by means of computer code”

(D.I. 77 at 40, 45)
The key dispute here is as to Defendant’s position that “automatically deriving” (a part
of claim 1’s “analyzing” step) and “automatically generating” (a part of claim 1’s “automatically
generating” step) both must be accomplished via the use of computer code. 4 At first blush, this
suggestion does not seem far-fetched or unreasonable. After all, the patent specification does not
appear to disclose any examples of these functions being performed without the use of computer
code. (D.I. 77 at 43, 47) Plaintiff’s counsel even conceded as much. (Tr. at 72, 80-81) And at
this stage, the Court is not actually sure it understands how a media device would accomplish

3

Claim 11 is a claim to a media device for generating a user profile for a given
user, and it has a limitation for “an analyzing element” and “a generating element” that are
worded similarly to claim 1’s “analyzing” and “automatically generating” steps. ('123 patent,
col. 10:8-17) Claim 11 does not contain a “wherein” clause like claim 1, and the relevant terms
in claim 11 are “automatically derive” and “automatically generate[.]” (Id.) Neither party has
suggested that any differences in the language of claim 1 and claim 11 are meaningful from a
claim construction perspective.
4

At oral argument, Defendant’s counsel agreed that the Court need not address its
proposal to substitute “obtaining” and “creating” for “deriving” and “generating,” respectively,
as those proposed changes do not get to the heart of the parties’ claim construction dispute. (Tr.
at 77-78) Thus, below the Court will not further discuss those aspects of Defendant’s proposed
constructions.
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“automatically deriving” and “automatically generating” without the use of computer code. (Tr.
at 67-70)
But with all of that said, the Court still sides with Plaintiff. It does so for two reasons.
Most significantly, the Court’s conclusion is driven by the plain text of claim 1, which
appears to require this outcome. See Pragmatus AV, LLC v. Yahoo! Inc., Civil Action No. 11902-LPS-CJB, 2014 WL 1961980, at *13 n.9 (D. Del. May 15, 2014) (declining to construe the
claim to read on an embodiment that did not require simultaneous display, because “the claims as
written require[d] simultaneous display”); see also Ecolab, Inc. v. FMC Corp., 569 F.3d. 1335,
1344 (Fed. Cir. 2009) (“It is likewise well-settled that courts generally may not re-draft claims;
we must construe the claims as written.”). Claim 1’s final “wherein” clause recites, “wherein at
least one of the said searching, analyzing, and generating comprises use of computerized
hardware including a processing element.” ('123 patent, col. 8:53-55 (emphasis added)) This “at
least one of” phraseology clearly indicates that while all three of the listed steps (“searching,
analyzing, and generating”) could be accomplished via the use of a computer
processor/hardware, the claim is only requiring that one of the steps be accomplished in that
manner (and thus, that only one of the steps must be accomplished via the use of computer code).
And so it necessarily follows that the claim explicitly allows for one or two of the steps to be
accomplished without the use of computer code. Indeed, were Defendant’s construction to be
adopted, the effect would be to excise the claim term “at least one of” and replace it with the
term “all three of”—i.e., to render this portion of the claim a nullity. (D.I. 77 at 44; Tr. at 76
(Defendant’s counsel conceding that adopting its proposed construction would be, in effect
“drawing a red line through the words ‘at least one of’ and replacing it with the words ‘all three
of’”)) This is disfavored. See Fontem Ventures, B.V. v. NJOY, Inc., CV 14-1645-GW(MRWx),

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2015 WL 12766460, at *5 (C.D. Cal. Jan. 29, 2015) (rejecting a proposed claim construction that
would have the effect of striking out certain claim language); see also Bicon, Inc. v. Straumann
Co., 441 F.3d 945, 950 (Fed. Cir. 2006) “[C]laims are interpreted with an eye toward giving
effect to all terms in the claim.”).
Moreover, the text of claim 17 also bolsters Plaintiff’s position. That claim, which in
turn depends on claim 11, recites “[t]he media device of claim 11, wherein the searching
element, the analyzing element, and the generating element are embodied in computerized
hardware including a processing element.” ('123 patent, col. 10:36-39 (emphasis added)) Thus,
claim 17 clearly requires that all three described elements be accomplished via the use of
computer hardware and a computer processor. And the principle of claim differentiation would
therefore suggest that independent claim 11 does not require all three steps to be computerized in
this way (and thus that its “automatically derive” or “automatically generate” requirements,
which are associated with the “analyzing element” and “generating element” in the claim, could
be accomplished without use of computer code). (D.I. 77 at 42, 46); Comark Commc’ns, Inc. v.
Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998). 5
Having clearly resolved this dispute in Plaintiff’s favor, the Court does not see a need to
offer a construction for these terms. Accordingly, the Court finds that no construction is

5

The Court understands that Defendant may argue that in light of the resolution of
this claim construction dispute, the claims are not enabled. (D.I. 77 at 43-44 (citing Automotive
Techs. Int’l, Inc. v. BMW of N. Am., Inc., 510 F.3d 1274, 1285 (Fed. Cir. 2007)); Tr. at 79) But
enablement is an issue more properly taken up later in the case. See Hill-Rom Servs., Inc. v.
Stryker Corp., 755 F.3d 1367, 1374 (Fed. Cir. 2014) (cautioning “not to allow claim construction
to morph into a mini-trial on validity”); Waters Corp. v. Agilent Techs. Inc., C.A. No. 18-1450
(MN), 2019 WL 6255181, at *4 (D. Del. Nov. 22, 2019); TQ Beta LLC v. Dish Network Corp.,
C.A. No. 14-CV-848-LPS-CJB, 2016 WL 356024, at *5 n.5 (D. Del. Jan. 28, 2016).
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necessary and that “automatically derive/deriving” and “automatically generate/generating”
should otherwise be afforded their plain and ordinary meaning.
IV.

CONCLUSION
For the foregoing reasons, the Court orders as follows:
1. “stored on a/the media device” should be afforded its plain and ordinary meaning
2. “automatically derive/deriving” should be afforded its plain and ordinary meaning
3. “automatically generate/generating” should be afforded its plain and ordinary
meaning

Dated: August 10, 2020

____________________________________
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

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