Motorola Mobility, Inc. v. Apple, Inc.

Filing 158

NOTICE by Apple, Inc., Motorola Mobility, Inc. of Filing Supplemental Authority on Claim Construction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Giuliano, Douglas)

Exhibit 5

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Only the Westlaw citation is currently available.
United States District Court,
D. Delaware.
BIGBAND NETWORKS, INC., Plaintiff,
v.
IMAGINE COMMUNICATIONS, INC., Defendant.
Civ. No. 07–351–LPS.
March 24, 2011.
Peter P. Chen, Esquire of Latham & Watkins LLP,
Menlo Park, CA, James L. Day, Esquire of Latham
& Watkins LLP, San Francisco, CA, Jack B. Blumenfeld, Esquire, Karen Jacobs Louden, Esquire,
and Jeremy A. Tigan, Esquire, of Morris, Nichols,
Arsht & Tunnell LLP, Wilmington, DE, for
Plaintiff.
John W. Thornburgh, Esquire, Thomas Millikan,
Esquire and Frank J. Albert, Esquire, of Fish &
Richardson P.C, San Diego, CA, Douglas E. McCann, Esquire, of Fish & Richardson P.C, Wilmington, DE, for Defendant.
MEMORANDUM OPINION
STARK, District Judge.
*1 This is a patent infringement case brought
by Plaintiff BigBand Networks, Inc. (“BigBand”)
against Defendant Imagine Communications, Inc.
(“Imagine”). BigBand asserts that Imagine infringed upon four patents: U.S. Patent Nos.
6,999,477 (the '477 Patent), 6,937,619 (the '619
Patent), 7,058,087 (the '087 Patent), and 7,395,321
(the '321 Patent). The parties briefed their respective positions on claim construction, and the Court
conducted Markman hearings on the disputed claim
terms on October 13, 2009, before now retired
Judge Joseph J. Farnan, Jr. (see Transcript of October 13, 2009 Markman hearing) (D.I.145)
(hereinafter “Markman I Tr.”), and again on February 4, 2011, before the undersigned (see Transcript

of February 4, 2011 Markman hearing (D.I.255)
(hereinafter “Markman II Tr.”). This Memorandum
Opinion provides constructions of the disputed
terms.
BACKGROUND
All four patents-in-suit relate to increasing
video data transmitted over existing infrastructures.
(D.I. 118 at 2) Specifically, the patents-in-suit relate to two technologies. The '477 Patent relates to
a type of video technology called switched digital
video (“SDV”). (Id.) The '619, '087, and '321 patents all relate to video compression. (Id.)
The '477 Patent, or the switched digital video
patent, allows a cable television operator to offer
more channel choices over an existing distribution
infrastructure. (Id. at 3) Switched digital video
technology allows an operator to send to a neighborhood only the channels that are being watched
in that neighborhood instead of having to send all
of the available channels, as had previously been
required. (Id. at 4) This allows a cable operator to
offer more channels than can fit the bandwidth of
the system at one time because the odds of all the
channels being watched at once in a single neighborhood is very slim. (Id.)
The '619, '087, and '321 Patents (collectively
“the rate shaping patents”) relate to what is known
as rate shaping or prioritized bit rate conversion.
That technology relates to a method of selectively
compressing video streams so that more data or
channels can be transmitted across a single cable. (
Id. at 6) Such compression allows a cable television
provider to offer increased channel options over an
existing cable system. (Id.)
Thus, the essence of all four patents is to increase the amount of data that can be offered
without having to change the physical infrastructure
of system. (See Markman I Tr. at 12) Such technology has become increasingly important as cable
television providers have wanted to provide their

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customers with more channels and services, including high definition video.
LEGAL STANDARDS
“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). Construing the
claims of a patent presents a question of law. See
Markman v. Westview Instruments, Inc., 52 F.3d
967, 977–78 (Fed.Cir.1995), aff'd, 517 U.S. 370,
388–90, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996).
“[T]here is no magic formula or catechism for conducting claim construction.” Phillips, 415 F.3d 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.
*2 “[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
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 also must 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 1314–15 (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. 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 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.”
Liebel–Flarsheim Co. v. Medrad, Inc., 358 F.3d
898, 906 (Fed.Cir.2004) (internal quotation marks
omitted), aff'd, 481 F.3d 1371 (Fed.Cir.2007).
In addition to the specification, a court “should
also consider the patent's prosecution history, if it is
in evidence.” Markman, 52 F.3d at 980. 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.
*3 A court also may rely on “extrinsic evidence,” which “consists of all evidence external to

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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 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 ordinary 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.
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'l Trade Comm'n, 505 F.3d 1351, 1358
(Fed.Cir.2007). If possible, claims should be construed to uphold validity. See In re Yamamoto, 740
FN1
F.2d 1569, 1571 (Fed.Cir.1984).
FN1. The parties stipulated to the meaning
of several terms that had previously been
in dispute. The phrases “bandwidth limited
media,” “bandwidth limited medium,”
“limited bandwidth media,” and “available
bandwidth” are accorded their ordinary

meaning, “with the understanding that the
term ‘bandwidth’ as used in those claims is
not limited to a specific frequency spectrum or frequency range.” (D.I. 126 at 1)
Additionally, the parties agreed that the
phrase “dependencies of the selected basic
media data units” shall mean “which other
basic media data units, if any, the selected
basic media data units depend upon and
which other basic media data units, if any,
depend upon the selected basic media data
units.” (Id.)
Moreover, at the February 4, 2011 Markman hearing, the parties agreed that they
were amenable to the following constructions offered by the Court in an attempt to harmonize and resolve the
parties' competing proposals: (i) the term
“selecting basic media data units to be
modified, in response to the modification
priority of each basic media data unit”
(as used in Claim 1 of both the '087 and '
321 Patents) shall mean “choosing which
basic media data units to modify, in response to their modification priorities;”
and (ii) the term “selecting basic media
data units to be modified, in response to
the modification priority” (as used in
Claim 1 of the '619 Patent) shall mean
“choosing which basic media data units
to modify, in response to their modification priorities.” (See Markman II Tr. at
67–69) The Court agrees that such language is supported by the claim language and intrinsic evidence, and will
therefore construe the terms in such
manner.
CONSTRUCTION OF THE DISPUTED TERMS
I. '477 Patent Terms
A. End–User/End Users
The terms “end-user” and “end-users” are used
extensively throughout the ' 477 Patent and will be

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construed in the same manner as one another. The
main dispute between the parties is whether the
term “end-user” refers to just hardware or software,
or instead refers to a person or persons using hardware or software.
BigBand contends that “end-user” should be
construed as “hardware or software for requesting
and receiving service conveying packets.” (D.I. 118
at 10) BigBand argues that the language of the specification requires such a finding because it refers
to “end-users, such as set top boxes and the like.” (
Id. (citing '477 Patent, col. 1 line 47)) BigBand also
looks to language from the patent requiring that
“end-users” be “coupled” to the system and be able
to send and receive information. (Id. at 10–12)
Imagine, however, argues that “end-user”
should be construed to mean “person or persons using hardware and/or software.” (D.I. 116 at 28)
FN2
Imagine contends that its construction takes
the ordinary meaning of the term into account and
also recognizes that the specification distinguishes
between “end-user” and “end-user equipment.”
(D.I. 127 at 30–33)
FN2. While Imagine originally countered
that “end-user” is a readily understood
term and should be given its ordinary
meaning (see D.I. 116 at 28; see Markman
II Tr. at 23), Imagine later withdrew this
proposal (see Markman II Tr. at 24).
*4 In evaluating the term “end-user,” the Court
looks at the entirety of its uses throughout the '477
Patent. The patent is long and has numerous references to “end-user,” some of which seem inconsistent. Based on the various uses of the term
throughout the patent, the Court concludes that a
combination of BigBand's and Imagine's proposed
constructions is appropriate.
BigBand's construction is supported by an example of an “end-user” provided in the specification. In particular, the specification provides a specific example of an “end-user” as a “set top box.” ('

477 Patent, col. 1 lines 46–47) (“Each service
group includes a plurality of end-users, such as set
top boxes and the like ....”) A set top box fits well
within BigBand's proposed construction as hardware, as opposed to a person. Also, throughout the
asserted claims, the '477 Patent calls for the
“end-users [to be] coupled to the system via a bandwidth limited medium.” (E.g., '477 Patent, col. 27
lines 16–17 (Claim 1)) This language seems to require the “end-user” to be literally, and physically,
connected to the system through a medium that has
bandwidth or the ability to transmit data. (See D.I.
118 at 11–12; D.I. 130 at 1) Such a connection is
not possible by a person, but is possible by hardware or software. (See id.)
In addition, the claims require that an
“end-user” be able to receive information, and the
specification further describes the “end-user” also
sending data. (See D.I. 118 at 10–11 & n. 4; D .I.
130 at 3; Markman I Tr. at 20; Markman II Tr. at
21–22) Specifically, the specification calls for an
“end-user” to be able to send “data over MPEG
transport ... in the up stream direction.” ('477 Patent, col. 20 lines 47–48) As BigBand argues, the
ability to use such a process to send data as described is limited to mechanical devices and not humans, requiring that an “end-user” be hardware or
software.
On the other hand, as Imagine emphasizes, another portion of the specification uses the terms
“end-user” and “end-user equipment.” Imagine argues that because both terms are used, “end-user”
cannot refer to equipment, but instead must refer to
a person or persons using equipment. (D.I. 127 at
31; see also Markman II Tr. at 25) Generally, different terms are presumed to have different meanings. See Helmsderfer v. Bobrick Washroom Equip.
., Inc., 527 F.3d 1379, 1382 (Fed.Cir.2008). While
the presence in the patent of the term “end-user
equipment” is helpful to Imagine, its weight is limited, as the term appears only in the detailed description of preferred embodiments, a section of the
specification in which the term “end-user” is not

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mentioned. Thus, the overall relationship between
“end-user equipment” and “end-user” as used in the
'477 Patent is ambiguous.
The '477 Patent also refers to information being
“displayed” to an “end-user.” Specifically, Imagine
emphasizes the following portion of the specification: “[i]f the service can be provided to the enduser, step 418 is followed by steps 422 and 414 of
providing the service to the service group of the
end-user and displaying the service to the end user,
during at least one session.” ('477 Patent, col. 25
lines 7–10) (emphasis added) To Imagine, this
statement only makes sense in the context of displaying to a person, because there is no value in
displaying information to software or hardware.
(D.I. 127 at 31; see Markman II Tr. at 25–26) The
Court agrees with Imagine that this statement in the
specification supports a construction of “end-user”
FN3
which would include people.
FN3. Imagine further noted that other
claims of the '477 Patent refer to “end-user
behavior
pattern,”
suggesting
that
“end-user” must be construed to include
people, because people, not machines, exhibit behavior patterns. (See Markman I Tr.
at 11; Markman II Tr. at 26) (citing to
Claims 4, 24 & 41 of the '477 Patent)
*5 In sum, both parties have demonstrated that
the '477 Patent is not entirely consistent in how it
uses the term “end-user.” Sometimes the patent
uses “end-user” to refer to hardware and software,
while sometimes the same term is used to refer to
people using such hardware or software. Accordingly, the Court will construe the term “ enduser/end-users” to mean “hardware and/or software
for requesting and receiving service conveying
packets, or a person(s) using hardware and/or software.”
B. Router
The next term to be construed is “router.”
Claim 1 is representative of the ' 477 Patent's use of
the term “router”: “a router, operative to receive

service conveying packets and to provide to each
group of end-users group associated service conveying packets.” ('477 Patent, col. 27 lines 18–20
(Claim 1))
BigBand argues that “router” does not require
construction because it is essentially defined by the
claim language. (See D .I. 118 at 15; D.I. 130 at
5–6; Markman II Tr. at 28–29) In the alternative,
BigBand argues that “router” should be construed
to mean “component or components that can be
configured to receive service conveying packets
and to provide each group of end-users group associated service conveying packets.” (D.I. 118 at 15;
D.I. 130 at 5–6; Markman II Tr. at 29)
Imagine, however, submits that “router” should
be construed to mean “a device that interconnects
networks and routes packets to selected groups of
users.” (D.I. 116 at 20) Imagine opposes BigBand's
construction on the grounds that it would have the
effect of reading the term “router” out of the claim.
(Id. at 25)
The Court concludes that it must construe the
term “router.” The parties do not agree on its meaning, and their dispute appears to be material. See
O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
Ltd., 521 F.3d 1351, 1361 (Fed.Cir.2008) (stating
sometimes “the ‘ordinary’ meaning of a term does
not resolve the parties' dispute, and claim construction requires the court to determine what claim
scope is appropriate in the context of the patentsin-suit”). Also, in light of the complex technology
involved here, claim construction is appropriate to
help the jury understand the meaning of the patent
claims it will be asked to consider. See AFG Indus.,
Inc. v. Cardinal IG Co., Inc., 239 F.3d 1239, 1247
(Fed.Cir.2001) (“It is critical for trial courts to set
forth an express construction of the material claim
terms in dispute, in part because the claim construction becomes the basis of the jury instructions,
should the case go to trial. It is also the necessary
foundation of meaningful appellate review.”)
(internal citation omitted). Three components of the
term “router” must be evaluated: the physical

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nature, the location within the system described by
the patent, and the actions taken.

of it.” (Markman II Tr. at 41–42)
FN5. As BigBand points out:

The first component of the term “router” is its
physical nature, or what it constitutes. BigBand argues that a “router” is a “component or components,” while Imagine argues that it is “a device.”
BigBand contends that the patent does not contain
any limitations on the physical nature of a “router”
that would limit it to “a” single device. Moreover,
at the most recent Markman hearing, Imagine conceded that there is no meaningful distinction
between using the word “device” as opposed to
“component,” nor is Defendant opposed to using
either such word in the singular or plural. (See Marhnan II Tr. at 37, 41) In the Court's view, the patent
does not limit “router” to a single device or discrete
piece of hardware. For these reasons, the Court
concludes that the first constituent element of the
term “router” is “a component or components.”
*6 The second issue is the location of the
“router” within the overall system, specifically
whether it must be located to connect different networks. BigBand argues that Imagine improperly
seeks to limit “router” to a device that
“interconnects networks,” yet there is no requirement of multiple networks in the claim language,
the patent specification, or the file history. (See D.I.
118 at 16–17; D.I. 130 at 5) Imagine counters that,
while admittedly it is a “less important” point, Imagine's construction as a device that “interconnects
networks” is appropriate, for that is what the
“router” does. (Markman I Tr. at 65, 69–70; D.I.
127 at 24–25; see also Markman II Tr. at 33–34,
FN4
41–42)
Nowhere in the patent is there a clear
disavowal of the use of a “router” within a single
FN5
network.
Consequently, the Court will not construe “router” to be limited to a router that interconnects multiple networks.
FN4. For example, Imagine noted: “We
think the interconnecting networks is correct and supported by the patent which
talks about networks throughout, but that is
much less important than the routing piece

For example, Figure 10a illustrates one
embodiment of the patented invention.
The figure includes a “Broadband Multimedia Router” that has input lines coming in on the left and output lines on the
right with no suggestion that there are
different networks on one side or the
other. Indeed, the “router” in this figure
is a component in a single network, not
an interface between multiple networks.
(D.I. 118 at 16–17)
The third issue is the function of a “router.” A
“router,” as asserted by BigBand, “can be configured to receive service conveying packets and to
provide to each group of end-users group associated
service conveying packets.” (D.L 118 at 15; D.I.
130 at 4) Imagine states that a “router” “routes
packets to selected groups of users.” (D.I. 116 at
20–21; D.I. 127 at 21)
Although greatly contested, the parties' proposed constructions are not particularly divergent,
in that both state that a “router” routes certain information—“packets.” (Markman II Tr. at 42, 46)
BigBand contends that Imagine's construction improperly suggests that all information that comes to
a “router” must be distributed to an end-user. (D.I.
118 at 17) BigBand therefore argues that its alternate construction would be appropriate, for its proposed language is taken almost directly from Claim
FN6
1.
(Markman II Tr. at 29) The Court agrees and
will thus adopt BigBand's broader construction of
the third “router” component.
FN6. Claim 1, for example, refers to “a
router, operative to receive service conveying packets and to provide to each group of
end-users group associated service conveying packets ....“ ('477 Patent, col. 27 lines
18–20)

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In sum, the Court construes the term “ router”
to mean “one or more components that can be configured to receive service conveying packets and to
provide each group of end-users group associated
service conveying packets.”
C. Session Manager
The final disputed term from the '477 Patent is
“session manager.” The term “session manager” appears in Claim 1 and then is claimed with essentially the same framework throughout the relevant
claims. Claim 1 states:
[A] session manager, coupled to the router, said
session manager providing routing instructions to
said router, for dynamically selecting group of
associated service conveying packets out of the
received service conveying packets ...
('477 Patent, col. 27 lines 21–25 (Claim 1))
BigBand initially argued that no construction is
needed for this term because its ordinary meaning
is clear from the context of its use in the claims. Alternatively, BigBand's proposed construction is
“hardware and/or software that handles requests
from a variety of media sources, such as application
servers, end-users, and additional modules.” (D.I.
118 at 18–20; Markman II Tr. at 42–44) Imagine
counters that ordinary meaning is not applicable. (D
.I. 127 at 27) Instead, Imagine contends that its proposed construction “hardware and/or software that
instructs the router which group of users should receive which session” properly accounts for the specification and the claim language. (Id at 28–29)
*7 The Court concludes that “session manager”
must be construed. The parties have a material dispute as to its meaning. See O2 Micro, 521 F.3d at
1361. This is illustrated by the fact that both parties
looked to experts to define the term and these experts reached different conclusions. (See D.I. 120;
D.I. 128)
The Court finds BigBand's proposed construction appropriately broad in light of the claim lan-

guage and specification. By contrast, Imagine's proposal is too limiting. As BigBand points out,
providing instructions to the router is only one of
many tasks that the specification explicitly provides
for the “session manager” to perform. (See, e.g., '
477 Patent, col. 10 lines 46–48; id. col. 11 lines
7–14; D.I. 118 at 19–20) However, the Court agrees
with Imagine that BigBand's construction is made
too vague by its incorporation of the word
“handles.” (See D.I. 127 at 29; Markman II Tr. at
45) Thus, the Court will substitute the phrase
“makes decisions about” into BigBand's construction.
Thus, the Court construes “session manager” to
mean “hardware and/or software that makes decisions about requests from a variety of media
sources, such as application servers, end-users, and
additional modules.”
II. Rate Shaping/Prioritized Bit Rate Conversion
Patents
The rate shaping patents, the '619, '087, and '
321 Patents, are all closely related to each other.
The specifications for the three patents largely
overlap. The parties present two claim construction
disputes relating to the rate shaping patents.
A. Multiplexing
The term “multiplexing” is used in Claim 1 of
each of the three rate shaping patents. ('619 Patent,
col. 18 line 9; '087 Patent, col. 18 line 5; ' 321 Patent, col. 16 line 9) The term is used in a similar
fashion in all three patents. An example of its use is
“multiplexing the modified selected basic media
data units and non-selected basic media data units
to provide the multiplexed sequence.” ('087 Patent,
col. 18 lines 5–7)
BigBand contends that the term multiplexing
does not need construction and should be interpreted based on its ordinary meaning. (Markman II
Tr. at 50) Again, the Court concludes that construction is required to resolve the parties' disputes.
In the alternative, BigBand proposes that multi-

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plexing be construed to mean “creating an output
based on multiple inputs.” Imagine proposes
“combining two or more signals into a single aggregate signal.” Hence, the parties present two disputes: whether the term must deal with “signals” as
opposed to an “input” and “output,” and whether
there must be aggregation of the signals/inputs. (
See D.I. 116 at 11–15; D.I. 118 at 25–26; D.I. 127
at 9–14; D.I. 130 at 9–15) On both disputes, Imagine advocates a narrower scope: that multiplexing
be limited just to “signals” and that it require aggregation of such signals.
In the Court's view, the limitations sought by
Imagine are not located within the patent. Although
there are portions of the specification (including
figures) that use the concept of “signals,” that limitation is not carried over into the claim language.
FN7
Generally, limitations in the specification are
not to be read into the claim. See Golight, Inc. v.
Wal–Mart Stores, Inc., 355 F.3d 1327, 1331
(Fed.Cir.2004). As for whether there must be aggregation of multiple signals, Imagine's position is
counter to the claim language, which includes the
step of “receiving at least one basic media data unit
sequence.” ('321 Patent, col. 15 lines 61–63)
FN8
(emphasis added)
FN7. Imagine is not necessarily “wedded”
to the word “signals.” (Markman II Tr. at
60, 63)
FN8. For example, Claim 1 of the '321 Patent provides:
1. Computer implemented method for
generating a multiplexed sequence, the
method comprising the steps of:
receiving at least one basic media data
unit sequence;
....
('321 Patent, col. 15 lines 61–63)
*8 Both parties also cite to technical dictionar-

ies; however, within the dictionaries there is no
consistent approach to whether the data involved in
multiplexing must be a signal and whether aggregation is required. For example, in The Authoritative
Dictionary of IEEE Standards Terms, which both
parties cited, there are three definitions, only one of
which uses aggregation and signals (the other two
refer to “channels”). (D.I. 117 at Ex. I at 716
(2000))
The Court will adopt BigBand's construction of
multiplexing, which properly captures the context
of the term, but does not import limitations into it
that are not required by the claim language. Thus,
the Court will construct “ multiplexing” to mean
“creating an output based on multiple inputs.”
B. Basic media data blocks
The term “basic media data blocks” appears
only once in the rate shaping patents, in Claim 1 of
the '619 Patent. The claim states: “determining
modification priorities for a plurality of basic media
data blocks out of the received basic media data
units.” ('619 Patent, col. 17 lines 61–63 (Claim 1))
BigBand contends that “basic media data blocks”
has an identical meaning to “basic media data
units,” a term that is used throughout the patents.
FN9
(D.I. 118 at 30)
Imagine counters that the term
is indefinite, or alternatively could be construed to
mean “macroblocks.” (D.I. 116 at 15)
FN9. BigBand acknowledges that while
the phrase “basic media data blocks” appears in Claim 1 of the '619 Patent, it does
not appear in any other claim, the patent
specification, file history, or in either of
the two other rate shaping patents. (D.I.
118 at 30)
“[D]ifferent claim terms are presumed to have
different meanings.”
Helmsderfer, 527 F.3d at
1382 (emphasis added); see also Bancorp Servs.,
L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367,
1373 (Fed.Cir.2004) (“[T]he use of both terms in
close proximity in the same claim gives rise to an
inference that a different meaning should be as-

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signed to each.”); Ethicon Endo–Surgery v. United
States Surgical Corp., 93 F.3d 1572, 1580
(Fed.Cir.1996) (“If the terms ‘pusher assembly’ and
‘pusher bar’ described a single element, one would
expect the claim to consistently refer to this element as either a ‘pusher bar’ or a ‘pusher assembly,’ but not both, especially not within the
same clause.”) (emphasis added). This presumption
is particularly strong here, as the two different
terms appear in the same claim phrase. (See '619
Patent, col. 17 lines 58–63 (Claim 1)) (“A method
for generating a multiplexed sequence, the method
comprising the steps of ... determining modification
priorities for a plurality of basic media data blocks
out of the received basic media data units” )
(emphasis added)
Nonetheless, the Court finds several factors
overcome the presumption that the one stray reference to “basic media data blocks” means something
different than the multiple references to “basic media data units.”
First, there is the structure of the claims. As
BigBand explained, “in every other independent
claim of [the '619 Patent] and of virtually all the independent claims of all three rate shaping patents,
there is a step of the equivalent of determining the
modification priorities ... of basic media data units
of the input stream of basic media data units. That's
the way it's phrased in virtually every other independent claim. This is the only place where there's
a reference to modification priorities of basic media
data blocks.” (Markman I Tr. at 45–46) Contrary to
Imagine's argument that the claim would “make no
sense if the two terms have the same meaning”
(D.I. 116 at 15), BigBand's construction is entirely
sensible. Indeed, BigBand's construction simply
aligns the structure of Claim 1 of the '619 Patent
with other claims in the other two rate shaping patents.
*9 Second, the specification of the '619 Patent
also supports BigBand's proposed construction.
Here, again, BigBand's explanation is persuasive:

[T]he term “basic media data units” in other
claims and in the specification is used in the same
way that “basic media data blocks” is used in
claim 1 of the '619 Patent. The other independent
claims, claims 56 and 110, are structurally similar, but the corresponding claim limitation refers
to basic media data “units” rather than basic media data “blocks.” Further, the patent specification describes the claim using almost identical
language, but refers to basic media data “units”
rather than basic media data “blocks,” suggesting
that both words refer to the same thing.
(D.I. 130 at 18; see also Markman I Tr. at
46–48)
Next is BigBand's expert's declaration, which
states, “[t]he Rate Shaping Patents are meant to operate in general on ‘basic media data units' and a
‘basic media data unit sequence.’ “ (D.I. 120 ¶¶ 23,
25) This supports the conclusion that one having
ordinary skill in the art would recognize the one use
of “basic media data blocks” to merely be a variation on “basic media data units.”
Additionally, common sense is in BigBand's
favor. It appears that Claim 1 of the '619 Patent is
not a model of precise and careful claim drafting.
But, the Federal Circuit has recognized that “it is
not unknown for different words to be used to express similar concepts, even though it may be poor
drafting practice.” Bancorp Servs., 359 F.3d at
1373. Here, the drafting appears to be at least sufficiently clear to permit a person of ordinary skill in
the art to understand the two terms to share the
FN10
same meaning.
FN10. The Court recognizes that Imagine
contends that Claim 1 of the '619 Patent
should be declared invalid for indefiniteness. (D.I. 127 at 15) The Court does not
have before it a case-dispositive motion regarding validity, nor the full record that
would accompany any such motion. The
Court does not mean today's decision to
pre-judge any subsequent assessment of

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validity issues.
Finally, it is also the case that the patent
provides no support for Imagine's alternative construction, to construe “block” to mean
“macroblock.” As BigBand points out, Imagine's
proposed construction is not supported by the specification and “creates problems with dependent
claims, such as claim 52, which explicitly discloses
that a macroblock is just one possible basic media
data unit.” (D.I. 130 at 19)
Thus the Court will construe “basic media data
blocks” to mean “basic media data units.”
CONCLUSION
An Order, consistent with this Memorandum
Opinion resolving the parties' claim construction
disputes, will be entered.
ORDER
At Wilmington, this 24th day of March 2011:
For the reasons set forth in the Memorandum
Opinion issued this same date,
IT IS HEREBY ORDERED that the following
claim terms and/or phrases as used in U.S. Patent
Nos. 6,999,477, 6,937,619, 7,058,087, and
7,395,321 are construed as follows:
1. The term “selecting basic media data units
to be modified, in response to the modification
priority of each basic media data unit” (as used
in Claim 1 of the '087 Patent and Claim 1 of the '
321 Patent) means “choosing which basic media
data units to modify, in response to their modification priorities.”

Claims 1, 2, 3, 4, 7, 18, 19, 24, and 26 of the '477
Patent) means “hardware and/or software for requesting and receiving service conveying packets,
or a person(s) using hardware and/or software.”
4. The term “router” (as used in Claims 1, 2,
3, 4, and 7 of the '477 Patent) means “one or more
components that can be configured to receive service conveying packets and to provide each group
of end-users group associated service conveying
packets.”
5. The term “session manager” (as used in
Claims 1, 2, 3, and 4 of the '477 Patent) means
“hardware and/or software that makes decisions
about requests from a variety of media sources,
such as application servers, end-users, and additional modules.”
6. The term “multiplexing” (as used in Claim
1 of the '619 Patent; Claim 1 of the '087 Patent; and
Claim 1 of the '321 Patent) means “creating an output based on multiple inputs.”
7. The term “basic media data blocks” (as
used in Claim 1 of the '619 Patent) means “basic
media data units.”
D.Del.,2011.
BigBand Networks, Inc. v. Imagine Communications, Inc.
Slip Copy, 2011 WL 1113275 (D.Del.), 2011 Markman 1113275
END OF DOCUMENT

*10 2. The term “selecting basic media data
units to be modified, in response to the modification priority” (as used in Claim 1 of the '619 Patent) means “choosing which basic media data units
to modify, in response to their modification priorities.”
3. The term “end-user/end-users” (as used in

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.