Ironburg Inventions Ltd. v. Collective Minds Gaming Co. Ltd.
Filing
55
OPINION AND CLAIMS CONSTRUCTION ORDER regarding eight disputed claim terms in U.S. Patent Nos. 8,641,525, 9,089,770, 9,289,688, 9,352,229, and 9,308,450. Signed by Judge Thomas W. Thrash, Jr. on 6/14/18. (jkl)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IRONBURG INVENTIONS LTD.,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:16-CV-4110-TWT
COLLECTIVE MINDS GAMING CO.
LTD., a Canadian Limited Company,
Defendant.
OPINION AND ORDER
This is a patent infringement action. It is before the Court for a Claims
Construction Order regarding eight disputed claim terms in U.S. Patent Nos.
8,641,525 (“the ‘525 Patent”), 9,089,770 (“the ‘770 patent”), 9,289,688 (“the ‘688
Patent”), 9,352,229 (“the ‘229 Patent”), and 9,308,450 (“the ‘450 Patent”).
I. Background
The Plaintiff, Ironburg Inventions LTD., is a British company that
manufactures and sells custom video game equipment and accessories through
its American partner Scuf Gaming International, LLC, which is based in
Georgia. It is seeking to enforce its rights under a series of patents for a video
game controller. In particular, Ironburg’s patents describe controllers which
have been modified from the standard gaming controller in two ways: through
the addition of controls onto the back of the controller, and through the added
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ability to adjust the throw of a trigger control. The Defendant, Collective Minds
Gaming Co. Ltd., is a Canadian company that also manufactures and sells video
game equipment, including video game controllers. Collective Minds now seeks
construction of a number of terms in Ironburg’s patents.
II. Legal Standard
The construction of claims in a patent case is a matter of law for the
Court.1 In construing patent claims, the Court looks first to the intrinsic
evidence. The intrinsic evidence consists of the patent itself, the claim terms,
the specification (or written description), and the patent prosecution history, if
in evidence.2 However, not all intrinsic evidence is equal.3 First among intrinsic
evidence is the claim language.4 A “bedrock principle” of patent law is that the
claims of the patent define the patentee’s invention.5 Thus, the Court’s focus
must “begin and remain centered on the language of the claims themselves, for
it is that language that the patentee chose to use to particularly point out and
distinctly claim the subject matter which the patentee regards as his
1
Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).
2
Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1346 (Fed.
Cir. 2004).
3
Cir. 1998).
4
Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1344 (Fed.
Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305
(Fed. Cir. 1999).
5
banc).
Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en
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invention.”6 When reading claim language, terms 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 at the time of the invention.7
As a result, an objective baseline from which to begin claims construction
is to determine how a person of ordinary skill in the relevant art would
understand the terms.8 Although “the claims of the patent, not its specifications,
measure the invention,”9 the person of ordinary skill in the art is deemed to read
the claim terms in the context of the entire patent, including the specification,
rather than solely in the context of the particular claim in which the disputed
term appears.10 For instance, the patentee may act as his own lexicographer
and set forth a special definition for a claim term.11
Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1370 (Fed.
Cir. 2005) (quoting Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d
1323, 1331 (Fed. Cir. 2001)); see also Markman v. Westview Instruments, Inc.,
6
52 F.3d 967, 980 (Fed. Cir. 1995) (“The written description part of the specification itself does not delimit the right to exclude. That is the function and purpose
of claims.”).
7
Phillips, 415 F.3d at 1313-14.
8
Id. at 1313.
9
Smith v. Snow, 294 U.S. 1, 11 (1935).
10
Phillips, 415 F.3d at 1313.
11
Id. at 1316.
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Claims are part of a “fully integrated written instrument” and, therefore,
“must be read in view of the specification, of which they are a part.”12 In fact,
the specification is “the single best guide to the meaning of a disputed term” and
is often dispositive.13 “It is therefore entirely appropriate for a court, when
conducting claim construction, to rely heavily on the written description for
guidance as to the meaning of the claims.”14 Nevertheless, the Court must be
careful not to read a limitation into a claim from the specification.15 In
particular, the Court cannot limit the invention to the specific examples or
preferred embodiments found in the specification.16 In addition to the specification, the prosecution history may be used to determine if the patentee limited
the scope of the claims during the patent prosecution.17 The prosecution history
helps to demonstrate how the patentee and the Patent and Trademark Office
12
Id. at 1315.
13
Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1582 (Fed. Cir. 1996)).
14
Id. at 1317.
15
Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir.
2004).
Phillips, 415 F.3d at 1323; see also Resonate Inc. v. Alteon
Websystems, Inc., 338 F.3d 1360, 1364-65 (Fed. Cir. 2003) (“[A] particular
16
embodiment appearing in the written description may not be read into a claim
when the claim language is broader than the embodiment.”).
17
Cir. 1995).
Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.
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(“PTO”) understood the patent.18 However, because the prosecution history
represents the ongoing negotiations between the PTO and the patentee, rather
than a final product, it is not as useful as the specification for claim construction
purposes.19
Extrinsic evidence – such as expert and inventor testimony, dictionaries,
and learned treatises – is only considered when the claim language remains
genuinely ambiguous after considering all of the patent’s intrinsic evidence.20
Although less reliable than the patent and prosecution history in determining
construction of claim terms, extrinsic evidence may be used to help the Court
understand the technology or educate itself about the invention.21 In particular,
because technical dictionaries collect accepted meanings for terms in various
scientific and technical fields, they can be useful in claim construction by
providing a better understanding of the underlying technology and the way in
which one skilled in the art might use the claim terms.22 But extrinsic evidence,
18
Phillips, 415 F.3d at 1317.
19
Id.
20
Tegal Corp. v. Tokyo Electron America, Inc., 257 F.3d 1331, 1342
(Fed. Cir. 2001).
21
Phillips, 415 F.3d at 1317; Vitronics Corp., 90 F.3d at 1584.
22
Phillips, 415 F.3d at 1318.
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including dictionary definitions, cannot be used to vary or contradict the terms
of the patent claims.23
III. Discussion
A.
Locations on the Controller
1.
“top edge” and “front” - ‘525 Patent, Claims 5 and 17
The parties first dispute the meaning of the terms “top edge” and “front”
in dependent Claim 5 of the ‘525 Patent, and “front” as used in dependent Claim
17 of the ‘525 Patent. Ironburg contends that no construction is necessary
because “top edge” and “front” are terms with ordinary meanings that are easily
understood in the context of the patent. Collective Minds contends that “top
edge” should be construed as the “uppermost edge of the controller (i.e., the edge
furthest from the user when the controller is held horizontally),” and that “front”
should be construed to mean the “front face of the controller (if a curved surface,
the measurement uses the tangent of the center point of the front face).”
Here, there is no reason to depart from the plain and ordinary meaning
of “top edge” and “front.” Both of these terms are clearly recited in the ‘525
Patent as referring to particular faces of the controller. While it perhaps may
have been easier to label each face with generic terms that do not carry with
them directional baggage (e.g., A, B, C, etc.), that does not mean that a person
Tegal Corp., 257 F.3d at 1342; see also Vitronics Corp., 90 F.3d at
1584 n.6 (courts are free to consult dictionaries “so long as the dictionary
definition does not contradict any definition found in or ascertained by a reading
of the patent documents”); Phillips, 415 F.3d at 1322-23.
23
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of ordinary skill in the art would be unable to understand what “top edge” and
“front” mean in the context of the entire patent. Rather, a person of ordinary
skill in the art would easily understand what was meant by “top edge” and
“front” simply by looking to the rest of the patent. Claim 1 describes the
controller as comprising four faces: “a front, a back, a top edge, and a bottom
edge, wherein the back of the controller is opposite the front of the controller
and the top edge is opposite the bottom edge.”24 Further, Claim 1 goes on to
describe that the front of the controller has a control, and that the controller is
shaped “such that the user’s thumb is positioned to operate the front control.”25
This language alone provides enough context such that a person of ordinary skill
in the art would be able to orient himself determine which face is which.
Collective Minds’ proposed constructions, meanwhile, would unnecessarily limit both of these terms. For instance, while the “top edge” may be the
“uppermost” edge, or may include the “uppermost” edge, it may also encompass
more than just the “uppermost” part, such as when a controller has a curved
“top edge.” In such a situation, the clear intent of the patent is to refer to the
entire curved face as the “top edge,” but Collective Minds’ definition would only
consider the “uppermost” portion of this curved edge to be the “top edge.”
24
‘525 Patent, at 7 [Doc. 1-1].
25
Id.
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Further, in the event the front face is a curved surface, Collective Minds
wants to go so far as to specifically define the front face as the tangent of its
center point. But Collective Minds comes up with this definition out of whole
cloth. While it is true that one could not mathematically determine whether the
top edge was exactly perpendicular to a curved front without choosing a tangent,
nothing in the patent language requires exact mathematical perpendicularity.
Instead, it merely requires that the top edge be “substantially perpendicular” to
the front. And even if exact perpendicularity was required, nothing in the patent
suggests that the tangent must necessarily be the center point of the front face.
Rather than using Collective Minds’ wholly novel construction of “front,” the
Court finds that its plain and ordinary meaning is both sufficient and more
appropriate here.
2.
“located at/on the back of the controller” - ‘525 and ‘770
Patents
The parties next dispute the meaning of the terms referencing the
location of the back controls. Claims 1 and 20 of the ‘525 Patent refer to the back
controls as being “located on the back of the controller,” while Claim 1 of the ‘770
Patent refers to the back controls as being “located at the back of the controller.”
Ironburg argues the plain meaning is sufficient here as well, while Collective
Minds would like these terms to be construed to say that the rear controls are
those which are “positioned to be engaged by the user at the back of the
controller.”
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Once again, however, Collective Minds’ construction is an unjustified
rewriting of the claim language. Collective Minds claims that its construction
is more true to the descriptions of the specification. While it may be true that
the specification often uses language that describes its position as something
able to be controlled by the user, the fact remains that the patentee chose to
claim the positional relationship between the controls and the back of the
controller, and not the relationship between the controls and the user. The plain
language contained in the claim language is not confusing or ambiguous, and
there is no reason to completely redefine the claim language.
3.
“Medial portion” -‘770 Patent, Claims 4 and 5
The parties next dispute the meaning of the term “medial portion” as used
in Claims 4 and 5 of the ‘770 Patent. Those claims read in relevant part as
follows:
Claim 4: A controller “wherein the first distance is between the top
edge and the medial portion and the second distance is between
the top edge and the medial portion.”
Claim 5: A controller “wherein the medial portion is closer to the
top edge than a distal end of each of the first handle and the
second handle.”
Collective Minds would define “medial portion” in Claim 4 as “the lowest edge
of the controller (i.e., the edge closest to the user when the controller is held
horizontally) between the handles.” Ironburg, meanwhile, argues the ordinary
language of the patent is sufficient. The Court agrees with Ironburg as to Claim
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4. The patent itself defines what the medial portion is in Claim 5, and Collective
Minds’ definition does not clarify the term any further.
As for Claim 5, Collective Minds would have the Court construe the
phrase to read “the medial portion is closer to the top edge than the medial
portion is to a distal end of each of the first handle and the second handle.”
Ironburg once again argues that the plain language is sufficient. Ultimately, the
dispute centers around some ambiguity in the claim language which could lead
to one of two interpretations. Either (1) the medial portion is closer to the top
edge than the distal ends are to the top edge, or (2) the medial portion is closer
to the top edge than the medial portion is to the distal ends.
Collective Minds argues that the second interpretation is the correct one,
and that the Court should construe the claim so as to make that clear. In
particular, Collective Minds points to Claim 3, on which Claim 5 depends. Claim
3 defines the bottom edge of the controller as including “a first convex portion
that defines the first handle; a second convex portion that defines the second
handle; and a medial portion between the first convex portion and the second
convex portion.” In order for there to be two convex handles, Collective Minds
argues that the medial portion must necessarily be closer to the top edge than
the ends of the handles are to the top edge; otherwise, the handles would be
concave. Thus, according to Collective Minds, Claim 3's requirement for two
convex handles means that the first interpretation would render the claim
language redundant.
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Further, Collective Minds points to the ‘770 Patent’s Figure 2 as
supporting the second interpretation. According to Collective Minds, Figure 2
illustrates a controller in which the distance between the top edge and medial
portion is shorter than the distance between the medial portion and the handle
ends. Collective Minds then annotated Figure 2 to show this relationship:
Ann. ‘770 Patent Fig. 2 from Def.’s Opening Claim
Construction Brief, at 15 [Doc. 38].
Because Figure 2 shows a controller in which the medial portion is closer to the
top edge than it is to the distal ends of the handles, Collective Minds argues that
this must be the correct interpretation of Claim 5.
The Court finds that Collective Minds’ proposed construction is best
suited to the entire language of the patent, and is what a person of reasonable
skill in the art would have understood the medial portion to be. As the Federal
Circuit has stated, “interpretations that render some portion of the claim
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language superfluous are disfavored.”26 Ironburg’s proposed construction would
merely be a rephrasing of Claim 3's statement that the controller includes
convex handles.
In addition, Ironburg’s proposed construction would make differentiating
between the medial portion and the handles themselves very difficult. According
to that construction, any point on the bottom edge that is closer to the top edge
than the distal end of the handles is part of the medial portion. But as Figure
2 shows, when the handles are curved, every measurable point on the curve is
closer to the top edge than the distal end is; that is what makes the end of the
handle distal. Under Ironburg’s proposed construction, the only part of the
controller that would be part of the handle would be the distal end itself.
Collective Minds’ proposed construction, meanwhile, provides a clear
differentiation between the handles and the medial portion. As soon as a portion
of the bottom edge is closer to the top edge than it is to the distal end of the
handles, that is where the medial portion begins and a handle ends. It also
encompasses the preferred embodiments, as noted above in Figure 2.
Ironburg responds by arguing that Collective Minds’ method of measuring
the distances between the medial portion and the distal ends is incorrect, and
26
Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396, 1410
(Fed. Cir. 2004).
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that it should have done so along a vertical axis, rather than a diagonal one, as
shown below.27
But this argument suffers from a lack of support in the patent language.
Nowhere in the patent is there any indication of what method of measuring
distance should be used. The most logical approach, then, would be to measure
the shortest distance between the two points on a straight line, which is exactly
what Collective Minds did in its annotations to Figure 2. Thus, the Court
construes Claim 5 to read as “wherein the medial portion is closer to the top
edge than the medial portion is to a distal end of each of the first handle and the
second handle.”
4.
“Front end of the controller” - ‘525 Patent, Claim 13
The parties next dispute the meaning of “front end of the controller” as
used in Claim 13 of the ‘525 Patent. Claim 1 of the ‘525 Patent describes a
27
[Doc. 42].
Ann. Figure 1 from Pl.’s Opposition Claim Construction Br., at 16
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controller having a “front,” a “back,” a “top edge,” and a “bottom edge.” The front
of the controller contains the buttons and controls engaged by the user’s thumbs,
the top edge of the controller contains the triggers and buttons usually engaged
by the user’s index or middle fingers, and the back contains the controls engaged
by the user’s middle or ring fingers. Claim 13 describes the back controls as
“converg[ing] towards the front end of the controller with respect to one
another.”28
Collective Minds argues that because Claim 13 is dependent on Claim 1,
which defines the “front” of the controller, the Court should construe “front end”
to mean “front of the controller (as defined by Claim 1).” However, this
construction would unnecessarily limit Claim 13. While “front” has clearly been
defined by Claim 1, the “front” of the controller is not necessarily the same as
the “front end.” Indeed, the parties agree that “front” as used here is the same
as it is used in Claim 1. The dispute is fundamentally about the meaning of
“end.” Under Collective Minds’ proposed construction, “end” would merely be
superfluous, and would make little sense in the context of the entire patent.
That being said, leaving “end” as is would also be confusing, as the end of the
28
Ironburg originally requested construction of “converge,” but
eventually agreed with Collective Minds that the plain and ordinary meaning
should control. The parties now only dispute what “front end” of the controller
means. Compare Pl.’s Opening Claim Construction Br., at 11 with Pl.’s
Opposition Claim Construction Br., at 25.
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front face could mean any of the four general sides of the controller, not just the
top or bottom.
Despite the inadequacy of both parties’ proposed constructions, however,
the specification provides some guidance. It describes the paddles as
“converg[ing] towards the top edge with respect to each other” in at least one of
the embodiments.29 Thus, it seems clear that the inventor intended Claim 13 to
describe paddles that converged toward the top edge. Of course, as Collective
Minds points out, it is black letter patent law that “[c]ourts cannot rewrite claim
language.”30 Because Claim 13 is dependent on Claim 1, “front” must mean the
front face of the controller as defined in Claim 1; it cannot mean “top edge,”
which is a different face of the controller altogether. The “end” must be some
particular place on the front face. Given the language in the specification
indicating a convergence towards the “top edge,” the construction that makes
the most sense is to read “front end” as the “corner or edge of the front face
closest to the top edge.”
29
‘525 Patent at 3:54-56.
30
Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379,
1383 (Fed. Cir. 2008).
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B.
“Surface disposed proximate an outer surface” - ‘688 Patent,
Claims 1 and 30
The parties next dispute the use of the phrase “surface disposed
proximate an outer surface” as it is used in Claims 1 and 30 of the ‘688 Patent.
The relevant portions of those claims read as follows:
Claim 1: “A games controller comprising. . . [a] first additional
control comprising a first elongate member displaceable by the
user to activate a control function, wherein the first elongate
member comprises a first surface disposed proximate an outer
surface of the case . . .”
Claim 30: A controller actuator comprising “an elongate member
. . . compris[ing] a first surface for being disposed proximate an
outer surface of the base of the games controller . . .”
Ironburg argues that the plain and ordinary meaning of this language should
control. Collective Minds argues that the language is confusing and should be
construed to read as follows:
Claim 1: “A games controller comprising. . . [a] first additional
control comprising a first elongate member displaceable by the
user to activate a control function, wherein the first elongate
member comprises a first surface disposed proximate an outer
surface of the case along the length of the first surface . . .”
Claim 30: A controller actuator comprising “an elongate member
. . . compris[ing] a first surface for being disposed proximate an
outer surface of the base of the games controller along the length
of the first surface. . .”
Essentially, Collective Minds is concerned that the existing claim language
allows for ambiguity such that an elongate member which is proximate to the
outer surface of the game controller at only one discreet point could be
considered protected when that was not the patentee’s intention.
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Collective Minds’ point is well taken. The claim language describes the
first surface of the elongate member being proximate the outer surface of the
controller case. It is clear that the patent contemplates the entirety of the first
surface being proximate to the case, not simply a portion of it. Every one of the
drawings contained in the patent shows back paddles that run along the length
of the controller, rather than stick out from it. Indeed, this is part of the function
of the controls; if they stuck out from the controller, they would be much more
difficult to use comfortably.
For this reason, the Court finds that Collective Minds’ proposed
construction does not add a limitation to the claim language. Rather, it is
helpful in clarifying what is already the manifest intention contained in the
patent, namely, that the elongate members run along the back of the case. This
construction does not mean that the elongate members must be exactly parallel,
nor that their relationship to the outer surface of the controller necessarily
needs to be consistent. That relationship between the first surface and the back
of the controller can change (e.g., by curving), as long as the first surface is
“proximate” the outer surface along its length. What the line is between
proximate and not-proximate is a question for the jury. Thus, the Court
construes Claims 1 and 30 of the ‘688 patent as describing a “first surface
proximate an outer surface of the [case or base of the games controller] along the
length of the first surface.”
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C.
“Engaging surface” - ‘688 Patent, Claim 24
The next language the parties dispute comes from Claim 24 of the ‘688
Patent, which reads in relevant part: a controller “wherein a switch mechanism
is mounted to a rear panel of the case wherein the switch mechanism comprises
an engaging surface, the engaging surface being disposed in an aperture in an
outer surface of the rear panel and arranged flush with the outer surface of the
rear panel.” Ironburg argues that the plain and ordinary meaning of the term
“engaging surface” should control, while Collective Minds argues it should be
construed to read as a “surface contacted to engage switch.” Collective Minds
expressly says that the reason it wants this construction is to make clear that
it is not infringing.31 That is not a sufficient reason to re-construe a claim. The
Court does not believe “surface contacted to engage switch” adds any more
clarity than “engaging surface.” The plain and ordinary meaning here should
control.
D.
“Command initiation point” - ‘450 Patent, Claim 1
The parties next dispute the construction of “command initiation point”
as used in Claim 1 of the ‘450 patent. The ‘450 patent covers a game controller
that has a “trigger” control located on the top of it. It also describes a particular
feature of the claimed controller that allows the user to tighten or loosen a
screw, thereby adjusting the throw of the controller. This means a user can
31
Def.’s Opening Claim Construction Br., at 19.
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adjust how much the trigger must be pushed in order to initiate a command in
the game, giving the user the ability to change the sensitivity of the trigger
depending on what best fits the game being played. For example, in a car racing
game in which the trigger controls the throttle, a user may want a longer throw
to be able to ease on or off the gas. By contrast, in a first person shooter game
in which the trigger controls the gun’s trigger in the game, a user may desire to
have a short throw to be able to quickly take a shot. Put another way, a longer
throw may be more desirable for game commands that occur on a spectrum (e.g.,
a throttle), whereas a shorter throw may be desirable for binary commands (e.g.,
shoot or don’t shoot).
The controller claimed by the ‘450 patent allows the user to adjust that
function to his desired “command initiation point.” Claim 1 specifically describes
the game controller as comprising “a screw . . . [that is] configured to contact the
strike plate to adjustably define a command initiation point; and wherein the
command initiation point defines one end of a range of motion of the actuator
body.” The parties dispute the meaning of the command initiation point.
Collective Minds would have the Court construe the command initiation point
to read as a “point in the throw of the actuator body at which a command is
initiated.” In other words, the point at which the game being played recognized
a command. Ironburg argues that the plain and ordinary meaning of the claim
language is sufficient.
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The Court agrees with Ironburg. Collective Minds’ interpretation of the
patent language ignores the actual language itself. Claim 1 defines the
command initiation point as “one end of a range of motion” determined by the
position of the adjustable screw, and Claim 2 further defines it as “a start
position.” Under this language, therefore, the command initiation point is not
the point at which the game registers a command, which could be at different
points along the throw depending on the game being played. Rather, it is the
point at which the user begins to engage the trigger control. Collective Minds’
proposed construction finds no support in the language of the patent itself, and
the Court finds that the plain and ordinary meaning of the language is sufficient
and should control.
IV. Conclusion
For the reasons set forth above, the Court construes the disputed terms
as follows:
Term
Construction
1. Top edge - ‘525 Patent
Plain and ordinary
2. Front - ‘525 Patent
Plain and ordinary
3. Located at/on the back of the controller - ‘525 and ‘770 Patents
Plain and ordinary
4. Medial portion - ‘770 Patent
Claim 4: plain and ordinary;
Claim 5: “wherein the medial portion is closer to the top edge than
the medial portion is to a distal end
of each of the first handle and the
second handle.”
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5. Front end - ‘525 Patent
“corner or edge of the front face closest to the top edge.”
6. Surface disposed proximate an
outer surface - ‘688 Patent
Claim 1: “first surface proximate an
outer surface of the case along the
length of the first surface”
Claim 30: first surface proximate an
outer surface of the base of the
games controller along the length of
the first surface
7. Engaging surface - ‘688 Patent
Plain and ordinary
8. Command initiation point - ‘450
Patent
Plain and ordinary
SO ORDERED, this 14 day of June, 2018.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
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