High Point Sarl v. Sprint Nextel Corporation et al
Filing
882
MEMORANDUM AND ORDER denying 851 Motion for Reconsideration of Memorandum and Order 851 . Signed by District Judge Carlos Murguia on 11/16/2012. (mm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HIGH POINT SARL,
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Plaintiff and Counterclaim-Defendant, )
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v.
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SPRINT NEXTEL CORPORATION, et al.,
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Defendants and Counterclaimants.
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)
__________________________________________)
Case No. 09-02269-CM
MEMORANDUM AND ORDER
On August 3, 2012, the court issued a memorandum and order resolving each party’s
objections to the Special Master’s report and recommendation on claim construction (Doc. 843). High
Point seeks reconsideration of several portions of that order (Doc. 851). A motion for reconsideration
is appropriate when there is an intervening change in law, new evidence previously unavailable, or a
need to correct clear error or prevent manifest injustice. Servants of the Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). Because none of these circumstances exist in this case, the court denies
High Point’s motion.
I.
First Means
High Point first seeks reconsideration of the court’s construction for “first means” in claim 10
of the U.S. Patent No. 5,195,090 (“the ‘090 Patent”). As explained in its August 3, 2012 order, this
term is a means-plus-function (“MPF”) term. Construction of a MPF term involves two steps, and
these steps must occur in a particular order. Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d
1324, 1332 (Fed. Cir. 2006). First, the function must be identified. Id. Second, the structure in the
specification that accomplishes the claimed function must be identified. Id.
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Throughout the claim construction process—which has spanned two years, hundreds of pages
of briefing, a technology tutorial, and two days of argument—High Point urged the court to adopt the
following function:
Transmitting packets carrying the incoming traffic of individual calls on
the connected at least one link in statistically-multiplexed form, and
receiving packets carrying outgoing voice call traffic of the individual
calls on the connected at least one link in statistically-multiplexed form
for radio transmission of the outgoing traffic to the radio telephones.
(See, e.g., Doc. 685 at 51; see also 361-1 at 8.) The court did.
Given this claimed function, High Point argued that DS1 interface 242, channel elements 245,
and cluster controller 244, including controller 393, was the corresponding structure. The court
disagreed because High Point conceded that the channel elements and the cluster controller did not
perform the claimed function. Therefore, the court limited the corresponding structure to DS1
interface 242.
High Point seeks reconsideration of this construction. Specifically, High Point argues that
reconsideration is warranted because the court adopted the wrong function and, based on this wrong
function, identified the wrong corresponding structure. To correct this error, High Point offers—for
the first time—the following construction:
Function:
(1) transmitting packets carrying the incoming traffic of individual calls
on the connected at least one link in statistically-multiplexed form; (2)
receiving packets carrying the outgoing voice call traffic of the
individual calls on the connected at least one link in statisticallymultiplexed form for radio transmission of the outgoing traffic to the
radio telephones; (3) conveying the outgoing and the incoming call
traffic of individual calls to and from at least one radio; (4) separately
packetizing the incoming call traffic of the individual calls received
from the channel elements; and (5) depacketizing and distributing the
outgoing call traffic of the individual calls to destination channel
elements
Structure:
DS1 interface 242, channel elements, and cluster controller 244,
including controller 393, programmed to wrap incoming call traffic
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within a designated format and to deformat the outgoing packets and
distribute the contents to the channel elements
Based on High Point’s argument, the court declines to reconsider the construction for “first
means” for several reasons. First, this argument does not fit into the categories that warrant
reconsideration. It is not based on evidence previously unavailable or intervening law. Indeed, the
most recent principal case relied on by High Point is from 2007. This argument also does not suggest
clear error or manifest injustice. Specifically, High Point successfully persuaded this court to adopt its
proposed function. High Point might not like the corresponding structure for this function (although
High Point concedes the court correctly identified the structure that performs this function). 1 But
High Point cannot request relief from a function it repeatedly urged this court to adopt and the
structure that performs that function.
Second, this argument does not address the concerns outlined in the court’s August 3, 2012
order. In construing this term, the court was concerned that both parties were urging the court to
identify structure that both parties conceded did not perform the claimed function. So the court
indicated that it may reconsider its construction if either party could address this issue. In other
words, the court was suggesting it may reconsider its construction if either party provided case law or
analysis indicating that the party’s original construction was correct. It was not inviting the parties to
submit an entirely new construction and restart a claim construction process that has spanned nearly
two years.
Third, a motion for reconsideration is not an opportunity to present new arguments, which is
precisely what High Point is attempting to do. High Point argues—among other things—that its
current construction is the logical extension of its original construction because its current
1
In its brief, High Point suggests the court was concerned about adopting a construction of “first means” for claim 10 that is different from the construction for “first means” in claims 8, 15, and 22.
The court did not have that precise concern. Instead, the court commented in its original order that it “is unaware of case law that adopts different corresponding structure for identical functions in
the same patent.” (Doc. 843 at 20.)
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construction includes High Point’s original corresponding structure. But this approach ignores that
construction of MPF terms “must occur in a particular order.” JVW Enters. v. Interact Accessories,
Inc., 424 F.3d 1324, 1330 (Fed. Cir. 2005). Therefore, by offering a new function, the court must
entirely restart the claim construction process for this term.2 Not only would High Point gain an unfair
advantage if the court granted reconsideration based on this approach, but this result would also
impose an unfair detriment on Sprint. For all of these reasons, the court will not reconsider its
construction of this term.
II.
Second Means
High Point’s arguments for reconsideration of “second means” in claims 8, 15, and 22 of the
‘090 Patent are nearly identical to the arguments discussed and rejected above. Accordingly, for
substantially the same reasons, the court will not reconsider its constructions of these terms.
III.
Means for Controlling [Incoming]
High Point also seeks reconsideration of the court’s construction of “means for controlling
[incoming].” This MPF term appears in claim 8 of the ‘090 Patent. High Point argues that
reconsideration is warranted because the court wrongly concluded that there was no corresponding
structure for the claimed function.
A primary dispute in determining the claimed function was the meaning of “their.” Sprint
argued that “their” referred to “packets.” High Point argued that “their” referred to “call traffic
segments” and consistently attacked Sprint’s construction as excluding from the scope of the claim all
disclosed embodiments:
High Point explaining that Sprint’s construction “would exclude all disclosed
embodiments . . . .” (Doc. 646 at 16.)
2
The court cannot start with corresponding structure and work backwards to identify the claimed function.
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High Point’s expert testifying that if “their” is construed as referring to packets,
then the claim would not cover any embodiment disclosed in the patent. (8/18/2011
Hearing Tr. at 888.)
High Point arguing that Sprint’s construction of “their” should be rejected because
it “would not read on any disclosed embodiments.” (Doc. 685 at 61–62.)
High Point asserting that Sprint was “deliberately misconstru[ing] the word ‘their’
in a manner that is inconsistent with the teachings of the specification, in a
transparent attempt to invalid[ate] this claim.” (Doc. 694 at 29.)
High Point arguing that “adopting [Sprint’s] construction would exclude from the
scope of the claim all embodiments taught in the patents.” (Doc. 755 at 13.)
Based on this argument, the court carefully examined the case law explaining that a
construction that excludes the disclosed embodiments is rarely correct. (Doc. 843 at 22–23.) Despite
this cautionary language, the court agreed with Sprint and concluded that “their” was referring to
“packets” because “the only plural noun (or antecedent) in the claim that ‘their’ could be referring to
is ‘packets carrying the incoming traffic.’” (Id. at 22.)3 The court noted that “[i]t is undisputed that
this result excludes all disclosed embodiments,” so the court’s construction indicated that there was no
corresponding structure. (Id. at 23.)
High Point argues that the court erred when it concluded that the parties did not dispute that
there was no corresponding structure when “their” was construed as “packets” because Sprint had, in
fact, identified structure. High Point is correct that—in the court’s original order—a more precise
statement would have been that High Point does not dispute that this claimed function excludes all
disclosed embodiments. Or the court could have stated that both parties presented evidence that
construing “their” to refer to “packets” would exclude all disclosed embodiments. (See 8/18/2011
Hearing Tr. at 888 (High Point’s expert explaining that this claimed function would exclude all
3
Although High Point does not specifically seek reconsideration of the claimed function or the meaning given to “their,”
High Point notes that “‘traffic’ is a noun, like ‘sheep,’ that denotes both the singular and plural form of the word.” (Doc.
852 at 22.) High Point never argued to this court that “their” was referring to “traffic.” Instead, High Point argued that
“their” referred to “call traffic segments,” which is a term that does not appear in the claim. (See Doc. 755 at 11–12
(arguing that “the word ‘their’ clearly refers to the call traffic segments being transmitted”). Regardless, “traffic” is a
noncount noun. As such, it is generally treated as a singular noun and used with singular pronouns.
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disclosed embodiments); id. at 906–07 (Sprint’s expert explaining that this claimed function would
exclude all disclosed embodiments).) To the extent the court’s original order is imprecise, the court
makes these corrections.
Nonetheless, High Point is currently arguing against a position it advanced during original
briefing. High Point repeatedly argued that accepting Sprint’s construction of “their” excluded all
disclosed embodiments. The court agreed. Now, High Point is advancing a clearly inconsistent
position—namely, adopting Sprint’s construction of “their” does not exclude all disclosed
embodiments. Granting reconsideration given this history would allow High Point to successfully
assert an inconsistent position and create the perception—if not the reality—that High Point originally
misled the court.
High Point additionally argues that “packets” and “traffic segments” are interchangeable terms
because “packets” and “frames” are interchangeable, “frames” and “traffic frames” are
interchangeable, and “traffic frames” and “traffic segments” are interchangeable. This argument
suggests that the parties and the court spent significant time resolving a dispute over the meaning of
“their” that did not matter. Not only does this result seem unlikely, but it is also based on an
argument that High Point did not specifically present during original briefing.
High Point’s final argument is that the court should reconsider this construction because
“their” was a drafting mistake. This argument was never made in the original briefing, and the court
noted as much in its August 3, 2012 order. (See Doc. 843 at 23 (“High Point does not argue that
‘their’ was a drafting mistake . . . .”).) A motion for reconsideration is not a vehicle to present a new
argument. Matosantos Commer. Corp. v. Applebee’s Int’l Inc., 245 F.3d 1203, 1209 n.2 (10th Cir.
2001). Indeed, if both parties were allowed to present new arguments in a motion for reconsideration,
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this case would quickly become unwieldy and, potentially, interminable. For all of these reasons, the
court denies reconsideration of the construction for this claim term.
IT IS THEREFORE ORDERED that High Point’s Motion for Reconsideration of
Memorandum and Order Regarding Claim Construction (Doc. 851) is denied.
Dated this 16th day of November, 2012, at Kansas City, Kansas.
__s/ Carlos Murguia_____________________
CARLOS MURGUIA
United States District Judge
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