Skyhook Wireless, Inc. v. GOOGLE, INC.

Filing 49

Preliminary Claim Construction Briefs by Skyhook Wireless, Inc.. (Lu, Samuel)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

SKYHOOK WIRELESS, INC.,
Plaintiff and
Counterclaim-Defendant,

Case No. 1:10-cv-11571-RWZ

v.
GOOGLE INC.,
Defendant and
Counterclaimant.

SKYHOOK WIRELESS, INC.'S OPENING CLAIM CONSTRUCTION BRIEF

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TABLE OF CONTENTS
Page
I. 

INTRODUCTION ............................................................................................................1 

II. 

OVERVIEW OF THE TECHNOLOGY ..........................................................................2 

III. 

RELEVANT CLAIM CONSTRUCTION PRINCIPLES ................................................3 
A. 
B. 

Limitations From The Specification Must Not Be Imported Into The
Claims ...................................................................................................................3 

C. 

Only Claims That Are Insolubly Ambiguous Are Indefinite................................4 

D. 
IV. 

Claim Terms Should Be Given Their Ordinary And Accustomed
Meaning ................................................................................................................3 

Extrinsic Evidence Carries Less Significance Than The Intrinsic
Evidence................................................................................................................4 

DISPUTED TERMS IN MULTIPLE PATENTS ............................................................5 
A. 
B. 

V. 

"target area" ('245/1; '694/1, 2; '988/1) .................................................................5 
"calculated locations" ('245/1,2), "calculated position information"
('694/1; '988/1), "calculated positions of the Wi-Fi access points"
('988/3), and "recorded location information" ('897/1,3)......................................7 

DISPUTED TERMS IN THE '245 PATENT...................................................................9 
A. 
B. 

"providing a reference database of calculated locations of Wi-Fi access
points in a target area" ..........................................................................................9 

C. 

"in response to a user application request to determine a location of a
user-device having a Wi-Fi radio" ......................................................................10 

D. 

"said chosen algorithm being suited for the number of identified Wi-Fi
access points"......................................................................................................11 

E. 

"a simple signal strength weighted average model" ...........................................12 

F. 
VI. 

"a user-device having a Wi-Fi radio"....................................................................9 

"a triangulation technique" .................................................................................14 

DISPUTED TERMS IN BOTH THE '694 AND THE '988 PATENTS.........................15 
A. 

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"substantially all Wi-Fi access points" ...............................................................15 

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Page
B. 
C. 

"arterial bias" ......................................................................................................18 

D. 
VII. 

"reference symmetry" .........................................................................................16 

"avoid arterial bias" and "avoids arterial bias" ...................................................18 

DISPUTED TERMS IN THE '694 PATENT.................................................................20 
A. 

"recording multiple readings of the Wi-Fi access point at different
locations around the Wi-Fi access point so that the multiple readings
avoid arterial bias in the calculated position information of the Wi-Fi
access point" .......................................................................................................20 

B. 

"wherein the database records for substantially all Wi-Fi access points
in the target area provide reference symmetry within the target area" ...............21 

VIII.  DISPUTED TERMS IN THE '988 PATENT.................................................................22 
A. 

"recording multiple readings of the Wi-Fi access point at different
locations around the Wi-Fi access point so that the multiple readings
have reference symmetry relative to other Wi-Fi access points in the
target area and so that the calculation of the position of the Wi-Fi
access point avoids arterial bias in the calculated position information" ...........22 

B. 

"Logic" Conveys Sufficient Structure To Avoid Means-Plus-Function.............25 
1. 

There Is A Strong Presumption Against Interpreting A
Limitation As A Means-Plus-Function Clause When The
Limitation Does Not Include The Term "Means"...................................25 

2. 

The "Logic" Limitations Recite Sufficient Structure..............................26 
(a) 

The Ordinary Definition Of "Logic" Conveys Structure ............26 

(b) 

The Surrounding Claim Language Imparts Additional
Structure......................................................................................28 

C. 
D. 

"computer-implemented logic to add records to the database for newlydiscovered Wi-Fi access points" .........................................................................29 

E. 

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"logic" .................................................................................................................28 

"logic to recalculate position information for Wi-Fi access points
previously stored in the database to utilize position information for the
newly-discovered readings of previously stored Wi-Fi access points" ..............29 

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Page
F. 
G. 

"logic to determine a weighted centroid position for all position
information reported for an access point"...........................................................30 

H. 

"logic to identify position information that exceeds a statistically-based
deviation threshold amount away from the centroid position" ...........................31 

I. 

"the clustering logic . . . excludes such deviating position information
from the database and from influencing the calculated position of the
Wi-Fi access points" ...........................................................................................31 

J. 

"computer implemented logic to add records to the database for newlydiscovered Wi-Fi access points" .........................................................................32 

K. 
IX. 

"computer-implemented clustering logic to identify position
information based on error prone GPS information"..........................................29 

"a weighted centroid position"............................................................................32 

DISPUTED TERMS IN THE '897 PATENT.................................................................32 
A. 

B. 

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"using the recorded location information for each of the observed WiFi
access points in conjunction with predefined rules to determine whether
an observed WiFi access point should be included or excluded from a
set of WiFi access points"...................................................................................34 

C. 

X. 

"a WiFi-enabled device communicating with WiFi access points within
range of the WiFi-enabled device so that observed WiFi access points
identify themselves"............................................................................................32 

"rules to determine a reference point and to compare the recorded
location information for each of the observed WiFi access points to the
reference point"...................................................................................................35 

CONCLUSION...............................................................................................................36 

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TABLE OF AUTHORITIES
Page(s)
Cases 
3Com Corp. v. D-Link Sys., Inc.,
473 F. Supp. 2d 1001 (N.D. Cal. 2007) ..................................................................... 27
Aloft Media, LLC v. Adobe Sys. Inc.,
570 F. Supp. 2d 887 (E.D. Tex. 2008)....................................................................... 27
Apex Inc. v. Raritan Computer, Inc.,
325 F.3d 1364 (Fed. Cir. 2003).................................................................................. 26
Brown v. 3M,
265 F.3d 1349 (Fed. Cir. 2001).................................................................................... 3
CCS Fitness, Inc. v. Brunswick Corp.,
288 F.3d 1359 (Fed. Cir. 2002).................................................................................. 26
Diagnostic Group, LLC v. Benson Med. Instruments Co.,
No. CIV.02-777 JNE/JGL, 2005 WL 715935 (D. Minn. Mar. 28, 2005) ........... 27, 28
Ekchian v. Home Depot, Inc.,
104 F.3d 1299 (Fed. Cir. 1997).......................................................................... 3, 8, 21
Free Motion Fitness, Inc. v. Cybex Int'l, Inc.,
423 F.3d 1343 (Fed. Cir. 2005).................................................................................... 5
Funai Elec. Co., Ltd. v. Daewoo Electronics Corp.,
616 F.3d 1357 (Fed. Cir. 2010).................................................................................... 8
Gemstar-TV Guide Int'l, Inc. v. Int'l Trade Comm'n,
383 F.3d 1352 (Fed. Cir. 2004).................................................................................... 4
Greenberg v. Ethicon Endo-Surgery, Inc.,
91 F.3d 1580 (Fed. Cir. 1996).................................................................................... 25
Haemonetics Corp. v. Baxter Healthcare Corp.,
607 F.3d 776 (Fed. Cir. 2010)...................................................................................... 4
Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
381 F.3d 1111 (Fed. Cir. 2004).................................................................................... 6
Invitrogen Corp. v. Biocrest Mfg., L.P.,
327 F.3d 1364 (Fed. Cir. 2003).................................................................................. 19

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Page(s)
Lighting World, Inc. v. Birchwood Lighting, Inc.,
382 F.3d 1354 (Fed. Cir. 2004)...................................................................... 25, 26, 27
Linear Tech. Corp. v. Impala Linear Corp.,
379 F.3d 1311 (Fed. Cir. 2004).................................................................................. 27
Orion IP, LLC v. Staples, Inc.,
406 F. Supp. 2d 717 (E.D. Tex. 2005)....................................................................... 20
Orthokinetics, Inc. v. Safety Travel Chairs, Inc.,
806 F.2d 1565 (Fed. Cir. 1986).................................................................................. 12
Personalized Media Commc'ns, LLC v. Int'l Trade Comm'n,
161 F.3d 696 (Fed. Cir. 1998).................................................................................... 28
Phillips v. AWH Corp.,
415 F.3d 1303 (Fed. Cir. 2005) (en banc)........................................................... passim
Prima Tek II, LLC v. Polypap, S.A.R.L.,
318 F.3d 1143 (Fed. Cir. 2003).................................................................................... 3
Renishaw PLC v. Marposs Societa' per Azioni,
158 F.3d 1243 (Fed. Cir. 1998).............................................................................. 9, 15
Rowe Int'l Corp. v. Ecast, Inc.,
586 F. Supp. 2d 924 (N.D. Ill. 2008) ......................................................................... 27
SRI Int'l v. Matsushita Elec. Corp. of Am.,
775 F.2d 1107 (Fed. Cir. 1985) (en banc).................................................................... 4
Stumbo v. Eastman Outdoors, Inc.,
508 F.3d 1358 (Fed. Cir. 2007).................................................................................... 5
Teleflex, Inc. v. Ficosa N. Am. Corp.,
299 F.3d 1313 (Fed. Cir. 2002).............................................................................. 3, 17
Texas Digital Sys. Inc. v. Telegenix Inc.,
308 F.3d 1193 (Fed. Cir. 2002).................................................................................... 3
Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576 (Fed. Cir. 1996).......................................................................... 5, 15, 17
Wellman, Inc. v. Eastman Chem. Co.,
642 F.3d 1355 (Fed. Cir. 2011).................................................................................. 24
Young v. Lumenis, Inc.,
492 F.3d 1336 (Fed. Cir. 2007)...................................................................... 12, 17, 19

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Page(s)
Statutes 
35 U.S.C. § 112............................................................................................................... passim
Other Authorities 
Compact Oxford English Dictionary (2d ed. 1991)........................................................... 6, 11
John R. Vacca, Wireless Data Demystified (2003)................................................................ 15
McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989) ......................... 27
Merriam-Webster's Collegiate Dictionary (10th ed. 2001)................................................... 19
The American Heritage College Dictionary (3rd ed. 1997) ............................................ 27, 35
The American Heritage Science Dictionary (2005)............................................................... 14
The Cassell Dictionary and Thesaurus (1999) ...................................................................... 23
The IEEE Standard Dictionary of Electrical and Electronics Terms (6th ed., 1996) ........... 33
Webster's Third New International Dictionary Unabridged (2002)................................ 13, 35
Wiley Electrical and Electronics Engineering Dictionary (2004)................................... 27, 28

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I.

INTRODUCTION
Founded in 2003, Skyhook Wireless, Inc. ("Skyhook") pioneered Wi-Fi positioning

systems for mobile devices and, today, provides location-based services to tens of millions of
users. Skyhook owns nineteen patents that protect its innovative ideas. This action seeks to stop
Google Inc.'s ("Defendant's") ongoing infringement of four of these patents: U.S. Patent Nos.
7,305,245 (the "'245 patent") (Ex. 1); 7,433,694 (the "'694 patent") (Ex. 2); 7,414,988 (the "'988
patent") (Ex. 3); and 7,474,897 (the "'897 patent") (Ex. 4) (collectively, the "patents in suit").
Defendant first asserts that a number of claim terms are indefinite. However, as
discussed below, all of these claim terms can be construed using the intrinsic evidence identified
by Skyhook. Indeed, Defendant offers up "alternative" claim constructions for some of these
claim terms, contradicting the notion that Defendant can establish by clear and convincing
evidence that these terms are "insolubly ambiguous" and "not amenable to construction."
In addition, as a matter of fairness, it should be noted that Defendant did not inform
Skyhook of its intention to file a motion for summary judgment rather than a claim construction
brief until 8:53 A.M. this morning. Thus, Skyhook's brief remains styled as an Opening Claim
Construction Brief, focused on the parties' claim construction disputes as disclosed by Defendant
(with some discussion of indefiniteness arguments for which Defendant provided more
disclosure than a cursory statement that the claim term "does not apprise one skilled in the art of
the bounds of the claim"). Skyhook will file a formal Opposition to Defendant's summary
judgment motion with its Responsive Claim Construction Brief.
Defendant also contends that it does not infringe the patents in suit. But a review of
Defendant's proposed claim constructions reveals that Defendant's non-infringement contentions
are based on inserting as many extraneous and unsupported limitations into Skyhook's claims as

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possible. These claim constructions ignore the Federal Circuit's repeated warnings against rewriting the plain and ordinary meaning of claim terms and confining claims to only the preferred
embodiments disclosed in the patent specification.
In contrast, Skyhook proposes claim constructions based largely on the plain and
ordinary meaning of the claim terms. Skyhook refers to the patent specification and other
intrinsic evidence to confirm the plain and ordinary meaning of the claim terms, or, where
necessary, to add clarity to the disputed claim terms without altering their scope or meaning.
II.

OVERVIEW OF THE TECHNOLOGY
Despite its small size, Skyhook is an industry leader in location-based services for mobile

devices, which permit such devices to determine their current geographic position. All locationbased services rely on radio signals coming from known reference points to mathematically
calculate a user's position relative to these reference points.
As described in the Background section of the patents in suit, two common approaches
for determining location in mobile devices are Global Positioning System (GPS) and cellular
tower triangulation. However, these approaches suffer from shortcomings that result in mobile
consumers receiving slow and often inaccurate location information. For example, GPS systems
can take a very long time to acquire a location fix and they do not work well indoors. Cellular
tower triangulation is notoriously inaccurate. As a result, location-based applications and
services for mobile devices were niche products until Skyhook's Wi-Fi positioning technology
came along.
Skyhook pioneered using the hundreds of millions of Wi-Fi access points located
throughout populated areas to provide fast and accurate location information. Skyhook has
compiled a massive reference database of the known locations of over 250 million Wi-Fi access

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points. To build this database, Skyhook deployed drivers to survey streets in tens of thousands
of cities, towns and other populated areas worldwide, identifying Wi-Fi access points and
determining their geographic locations. In addition, Skyhook's database is continually improved
with data that is gathered from user devices. Using this database, Skyhook's Wi-Fi Positioning
System is able to quickly determine the location of a Wi-Fi enabled device. Under the right
conditions, Skyhook is able to determine the location of a user device to within 10 to 20 meters.
III.

RELEVANT CLAIM CONSTRUCTION PRINCIPLES
A.

Claim Terms Should Be Given Their Ordinary And Accustomed Meaning

"The terms used in the claims bear a 'heavy presumption' that they mean what they say
and have the ordinary meaning that would be attributed to those words by persons skilled in the
relevant art." Tex. Digital Sys. Inc. v. Telegenix Inc., 308 F.3d 1193, 1202 (Fed. Cir. 2002). As
the Federal Circuit emphasized, "claim terms take on their ordinary and accustomed meanings
unless the patentee demonstrated an intent to deviate from the ordinary and accustomed meaning
of a claim term by redefining the term or by characterizing the invention in the intrinsic record
using words or expressions of manifest exclusion or restriction, representing a clear disavowal of
claim scope." Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002).
Terms that "are not technical terms of art" simply "do not require elaborate interpretation."
Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001).
B.

Limitations From The Specification Must Not Be Imported Into The Claims

The Federal Circuit has repeatedly "cautioned against limiting the claimed invention to
preferred embodiments or specific examples in the specification." Ekchian v. Home Depot, Inc.,
104 F.3d 1299, 1303 (Fed. Cir. 1997); see also Prima Tek II, LLC v. Polypap, S.A.R.L., 318 F.3d
1143, 1149-52 (Fed. Cir. 2003) (refusing to read limitation into claim because patentee did not
"unambiguously limit[] the scope of the claimed invention" in written description); Teleflex, 299

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F.3d at 1328 (refusing to limit claim based on single preferred embodiment because "record is
devoid of clear statements of scope" disavowing ordinary meaning of term).
"Even 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.'" Gemstar-TV
Guide Int'l, Inc. v. Int'l Trade Comm'n, 383 F.3d 1352, 1366 (Fed. Cir. 2004). The reason for
this is the following: "Specifications teach. Claims claim." SRI Int'l v. Matsushita Elec. Corp.
of Am., 775 F.2d 1107, 1121 n.14 (Fed. Cir. 1985) (en banc).
C.

Only Claims That Are Insolubly Ambiguous Are Indefinite

"[B]ecause claim construction frequently poses difficult questions over which reasonable
minds may disagree, proof of indefiniteness must meet 'an exacting standard.'" Haemonetics
Corp. v. Baxter Healthcare Corp., 607 F.3d 776, 783 (Fed. Cir. 2010). "A claim is not indefinite
merely because parties disagree concerning its construction. An accused infringer must thus
demonstrate by clear and convincing evidence that one of ordinary skill in the relevant art could
not discern the boundaries of the claim based on the claim language, the specification, the
prosecution history, and the knowledge in the relevant art." Id. "Only claims 'not amenable to
construction' or 'insolubly ambiguous' are indefinite." Id.
D.

Extrinsic Evidence Carries Less Significance Than The Intrinsic Evidence1

All evidence external to the patent and prosecution history is considered "extrinsic"
evidence. Phillips v. AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir. 2005) (en banc). The Federal
Circuit has repeatedly confirmed that extrinsic evidence is less significant than the patent and

1

Skyhook offers a number of dictionary definitions and a few treatises to support its
claim constructions. This extrinsic evidence is not offered to override the intrinsic evidence, but
rather to provide additional evidence consistent with the intrinsic record.

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prosecution history in determining "the legally operative meaning of claim language." Phillips,
415 F.3d at 1317. Indeed, "[i]n those cases where the public record unambiguously describes the
scope of the patented invention, reliance on any extrinsic evidence is improper." Vitronics Corp.
v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996).
While Courts may rely on dictionary definitions in construing claim terms, they "must
ensure that any reliance on dictionaries accords with the intrinsic evidence: the claims
themselves, the specification, and the prosecution history." Free Motion Fitness, Inc. v. Cybex
Int'l, Inc., 423 F.3d 1343, 1348 (Fed. Cir. 2005). Thus, the Court's "task is to scrutinize the
intrinsic evidence in order to determine the most appropriate definition." Id. at 1349. On the
other hand, expert "opinion testimony on claim construction should be treated with the utmost
caution, for it is no better than opinion testimony on the meaning of statutory terms." Vitronics
Corp., 90 F.3d at 1585.
IV.

DISPUTED TERMS IN MULTIPLE PATENTS
A.

"target area" ('245/1; '694/1, 2; '988/1)

Skyhook's Proposed Construction
A targeted geographic area.

Defendant's Proposed Construction
A pre-identified geographic region throughout which a
shortest route is planned along all drivable roads.

Both Skyhook and Defendant recognize that an "area" refers to a geographic area or
region. (Though it is unclear why Defendant insists upon substituting "region" for "area.") The
only remaining dispute is the meaning of the modifier "target."
"When construing claims, a court must begin by 'look[ing] to the words of the claims
themselves . . . to define the scope of the patented invention.'" Stumbo v. Eastman Outdoors,
Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007). The words used in a claim "are generally given their
ordinary and customary meaning." Phillips, 415 F.3d at 1312. Where, as here, "the ordinary
meaning of claim language as understood by a person of skill in the art [is] readily apparent even

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to lay judges, . . . claim construction . . . involves little more than the application of the widely
accepted meaning of commonly understood words." Id. at 1314.
Skyhook's construction is supported by a straightforward reading of the term target.
"Target" simply means "[t]o mark out or identify (a place . . .) as a target." Ex. 5 (Compact
Oxford English Dictionary (2d ed. 1991)) at 2011, subpage 642. Skyhook's proposal accurately
construes the claim language because an area that is targeted is, by definition, a target area. This
language is readily apparent – no further elaboration of the term is required.
Defendant's awkward, long-winded construction departs from the plain and ordinary
meaning and impermissibly ignores the Federal Circuit's mandate that "a court may not read a
limitation into a claim from the specification." Innova/Pure Water, Inc. v. Safari Water
Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004). Defendant attempts to impose
arbitrary and confusing limitations into its claim construction. Nothing in the claim language
suggests that a "target area" be "pre-identified" (whatever that means). Nor does the claim
language require a target area to contain a "shortest route planned along all drivable roads."
Defendant is blatantly attempting to import limitations from the patent specification into
its definition of "target area," specifically, the requirements of the Chinese Postman routing
algorithm. See Ex. 1 ('245), 8:27-54, and identical disclosures in '694 and '988 patents. While
the patent describes "routing algorithms," plural, that may be used to "avoid arterial bias," the
Chinese Postman algorithm is only one possible routing algorithm. Id. 8:24-27. Indeed, the
Chinese Postman algorithm is described as "an optimized routing algorithm . . . [that is used] to
calculate the most efficient driving route for covering every single street in a target area." Id.
7:27-30. Thus, the intrinsic evidence describes the Chinese Postman algorithm as a preferred
embodiment of the invention, id. 8:36-39, and there is no evidence that the claims are limited

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only to this preferred embodiment.
B.

"calculated locations" ('245/1,2), "calculated position information" ('694/1;
'988/1), "calculated positions of the Wi-Fi access points" ('988/3), and
"recorded location information" ('897/1,3)

Skyhook's Proposed Construction
Estimated physical location(s) of Wi-Fi
access points calculated using characteristics
of signals transmitted by such Wi-Fi access
points.
and
Estimated physical position(s) of the
observed Wi-Fi access points calculated
using characteristics of their transmitted
signals.

Defendant's Proposed Construction
The physical location (i.e., latitude and longitude)
attributed to each Wi-Fi access point determined
mathematically from readings recorded along a
shortest planned route throughout all drivable
roads in the target area (i.e., by following the
Chinese Postman routing algorithm). The
"calculated position information" cannot be based
on randomly, or non-systematically, collected
readings of Wi-Fi access points.

For the convenience of the Court, Skyhook addresses these claim terms as a group, even
though there are minor variations in the claim language. As described below, Skyhook's claim
constructions are supported by the plain meaning of the claim language and the patent specifications.
Skyhook's claim construction imposes the following requirements on
"calculated/recorded" "locations/positions:" the locations are (1) estimated (2) physical
(3) locations of observed Wi-Fi access points (4) calculated using characteristics of signals
transmitted by such access points.2, 3 Skyhook's claim construction is consistent with the plain
and ordinary meaning of the claim language which, on its face, requires that (3) the locations or
positions of the observed Wi-Fi access points be (4) calculated.
The patent specification provides additional clarity to the claim terms, including the fact
that the locations of the Wi-Fi access points are (2) "the actual physical location of the access
points." Ex. 1 ('245), 8:58-63, and identical disclosures in '694, '988 and '897 (incorporating '988
2

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The inclusion of the word "observed" in this construction is explained in Section VI.A.

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by reference). The patent specification also clarifies that (4) the calculating is performed using
scanning data comprising "the radio characteristics of [an] access point signal along with the
GPS location of the scanning vehicle." Id. 7:46-49. And, finally, because the location
information is calculated rather than measured, such location data can only be (1) an estimation
of location information. Id. 8:64-66 ("[i]n order to produce the most accurate calculated location
for a particular access points [sic]") and Ex. (2) ('694) Figure 4 (showing that calculated
locations of Wi-Fi access points do not exactly match physical locations).
Defendant's claim construction dramatically departs from the simplicity of the language
being construed. Again, in an obvious attempt to narrow the scope of Skyhook's claims,
Defendant adds a legion of limitations that are not otherwise part of the claim language,
including: (1) "i.e., latitude and longitude," (2) "determined mathematically," (3) "from readings
recorded along a shortest planned route throughout all drivable roads in the target area," (4) "i.e.,
by following the Chinese Postman routing algorithm," and (5) "cannot be based on randomly, or
non-systematically, collected readings of Wi-Fi access points." The Federal Circuit consistently
forbids the importation of illustrative details from the specification into the claims under the
pretense of claim construction. See Ekchian, 104 F.3d at 1303.
Furthermore, Defendant's use of words such as "attributed," "mathematically," "planned,"
"randomly," and "non-systematically" add ambiguity to the claim terms that would require
further construction. Such constructions have consistently been rejected by the courts. See, e.g.,
Funai Elec. Co., Ltd. v. Daewoo Elecs. Corp., 616 F.3d 1357, 1366 (Fed. Cir. 2010)
(emphasizing that the criterion in evaluating whether a claim construction is appropriate is

3

While the '897 patent refers to "recorded location information" rather than "calculated
location information," it is clear from the specification that the location information that is
recorded is "the calculated location for each access point." Ex. 4 ('897, 7:31-34).

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"whether the explanation aids the court and the jury in understanding the term as it is used in the
claimed invention").
V.

DISPUTED TERMS IN THE '245 PATENT
A.

"a user-device having a Wi-Fi radio"

Skyhook's Proposed Construction
Does not need to be construed. But if construed:
A user device having a Wi-Fi radio.

Defendant's Proposed Construction
An end user or consumer device having a
Wi-Fi radio.

The phrase "a user-device having a Wi-Fi radio" does not need further construction.
Defendant admits as much because its proposed claim construction includes these exact words.
But Defendant attempts to narrow the plain and ordinary meaning of this plain and ordinary
claim language by adding limitations without any basis for doing so.
For example, the term "consumer" does not appear anywhere in specification or the
claims of the patent, and is thus wholly unsupported by the intrinsic evidence. Additionally,
limiting the word "user" to mean "end user" would impermissibly "add a narrowing modifier
before an otherwise general term that stands unmodified in a claim." Renishaw PLC v. Marposs
Societa' per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998). The claim drafters did not modify the
noun "user" with the adjective "end," and Defendant cannot now rewrite the claims to do so.
B.

"providing a reference database of calculated locations of Wi-Fi access points
in a target area"

Skyhook's Proposed Construction
Does not need to be construed. But if
construed:
Providing a database of calculated
locations of Wi-Fi access points in a target
area. The database is used to locate a user
device having a Wi-Fi radio.

Defendant's Proposed Construction
A database that contains calculated locations for
all the Wi-Fi access points collected in the preidentified target area by scanning a shortest
planned route along all drivable roads. The
database does not include information about WiFi access points gathered using random or enduser based collection methods.

The parties have already proposed constructions for the terms "calculated locations,"

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"Wi-Fi access points," and "target area." The remaining words in this claim term are
straightforward and do not require further construction. But should the Court find an express
construction to be necessary, it should adopt Skyhook's proposed construction. This construction
is supported by the surrounding claim language, that makes it clear that the "reference database"
is used to "locat[e] a user-device having a Wi-Fi radio." Ex. 1 ('245), 14:4-5.
Defendant's construction should be rejected because it again attempts to restrict the scope
of the claim, without any justification. Nothing in the claim language mentions or requires
Defendant's proposed new limitations that (1) "all the Wi-Fi access points collected" be included
in the reference database, (2) the target area be "pre-identified" by "scanning a shortest planned
route along all drivable roads," or (3) the database "not include information about Wi-Fi access
points gathered using random or end-user based collection methods." Defendant's citations to
preferred embodiment in the patent specification are unavailing.
C.

"in response to a user application request to determine a location of a userdevice having a Wi-Fi radio"

Skyhook's Proposed Construction
In response to a request made by an
application running on a user-device having
a Wi-Fi radio to determine the location of
the user-device.

Defendant's Proposed Construction
In response to a request made by an end-user
facing application, i.e., not by the operating
system, to determine the location of an end userdevice using a Wi-Fi radio.

Skyhook's proposed claim construction is based on the plain and ordinary meaning of the
claim language, but uses the patent specification to clarify what is meant by "a user application:"
Typically there is an application . . . that utilizes location readings to
provide some value to an end user . . . . This location application makes a
request of the positioning software for the location of the device at that
particular moment.
Ex. 1 ('245), 6:12-16. It is obvious from the specification that "a user application" is simply an
application that runs on a user-device.
In contrast, Defendant attempts to limit "a user application" to "an end-user facing

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application, i.e., not by the operating system." Nothing in the patent restricts "a user application"
to what Defendant calls "end-user facing applications." (Indeed, the phrase "end-user facing" is
not even mentioned in the patent.) Moreover, by substituting further technical terms such as
"end-user facing" and "operating system" into the claim language, Defendant's construction does
nothing to provide clarity or understanding to the Court or jury, thus undermining the purpose of
claim construction.
D.

"said chosen algorithm being suited for the number of identified Wi-Fi
access points"

Defendant's Proposed
Construction
Does not need to be construed. But if construed:
Indefinite under
The chosen location-determination algorithm is suited for the 35 U.S.C. § 112, ¶ 2.
number of Wi-Fi access points that are identified.
Skyhook's Proposed Construction

This phrase does not need construction because it is straightforward and unambiguous.
"Suited" has a widely-understood definition of "[t]o be fitted or adapted to." Ex. 5 (Compact
Oxford English Dictionary (2d ed. 1991)) at 1956-57, subpage 149. The intrinsic evidence
supports this definition. It clearly states that "[d]ifferent algorithms perform better under
different scenarios," and that the algorithm decision is "based on," or "driven by," the number of
identified access points. Ex. 1 ('245), 5:45-48, 7:11-13. In other words, the chosen locationdetermination algorithm is suited for or selected based on the number of Wi-Fi access points that
are identified.
In spite of this clear meaning, Defendant contends the phrase is indefinite because it
"fails to apprise the person of ordinary skill in the art which algorithm(s) is (are) 'suited' for a
particular number of identified access points." This contention misstates the relevant inquiry.
The claims need not identify exactly which algorithms are suited for each number of identified
access points, only that the algorithm is suited for or selected based on the number of identified

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access points. For example, when a patent claimed a structure that was "so dimensioned as to be
insertable through the space between the doorframe of an automobile and one of the seats
thereof," the Federal Circuit explained: "The patent law does not require that all possible lengths
corresponding to the spaces in hundreds of different automobiles be listed in the patent, let alone
that they be listed in the claims." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d
1565, 1575-76 (Fed. Cir. 1986).
Because this claim element can be construed using the plain and ordinary meaning of the
claim language, which is confirmed by the patent specification, Defendant cannot meet its heavy
burden of showing by clear and convincing evidence that the claim is "insolubly ambiguous" or
"not amenable to construction." Young v. Lumenis, Inc., 492 F.3d 1336, 1346-47 (Fed. Cir.
2007).
E.

"a simple signal strength weighted average model"

Skyhook's Proposed Construction
An algorithm that includes taking a
simple average of the calculated
locations of identified Wi-Fi access
points weighted according to a function
of their received signal strengths.

Defendant's Proposed Construction
A calculated average of signal strength measurements
resulting from the multiplication of each measurement
by a numeric or algebraic factor to weight stronger
signal readings more than weaker signals. Used to
determine the location of a user device.

Skyhook proposes the Court construe this claim term as (1) "an algorithm that includes"
(2) "taking a simple average of" (3) "the calculated locations of identified Wi-Fi access points"
(4) "weighted according to a function of their received signal strengths."
Skyhook's proposed claim construction is supported by both the plain meaning of the
claim language as well as by the patent specification. Elements (1) and (3) of Skyhook's claim
construction come directly from independent claim 1, from which this claim depends. The
"plurality of location determination algorithms" recited in independent claim 1 is further limited
by dependent claim 6 to a "simple signal strength model." Thus, (1) a "model" must be an

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"algorithm." The basis for element (3) and part of element (4) can be found in independent claim
1 as well, which recites that the algorithms (3) "us[e] the calculated locations for the identified
Wi-Fi access points" and (4) "[use] the signal strengths of said received messages." Ex. 1 ('245),
14:24-27. The basis for element (2), "simple averaging," and the remainder of element (4),
"weighted according to a function of their received signal strengths" come from the plain and
ordinary meaning of the claim language: "simple signal strength weighted average."
Consulting the patent specification confirms the meaning of a "simple signal strength
weighted average." The patent specification teaches that "[t]he client software compares the list
of observed access points [and their locations from the reference database] along with their
calculated signal strengths to weight the location of user to determine precise location of the
device user." Id. 6:65-7:3.
Additionally, a "weighted average model" has a well-known meaning. Webster's Third
New International Dictionary Unabridged 2593 (2002) defines "weighted average" as "an
average of the values of a set of items to each of which is accorded a weight indicative of its
frequency or relative importance." Ex. 6. This is consistent with Skyhook's claim construction
in which (2) an average of (3) the calculated locations of identified Wi-Fi access points ("a set of
items") is (4) weighted according to a function of their received signal strengths ("accorded a
weight indicative of its . . . relative importance").
Defendant's proposed claim construction should be rejected because it makes no sense.
Skyhook's definition weights the position information of reference Wi-Fi access points by a
function of their received signal strengths to calculate a user position. By the way of an
example, two received Wi-Fi access points, a first located at (1,1) with a signal strength
weighting of 1 and a second located at (5,5) with a signal strength weighting of 20, would result

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in a simple weighted average calculated position of the user at (4.8, 4.8). This is because,
although two signal strengths from two Wi-Fi access points are received, the location of the
second Wi-Fi access point (which has a higher signal strength weighting and is presumably
located closer to user) is weighted by 20 while the location of the first Wi-Fi access point is
weighted by 1 before a simple average is taken. Defendant's definition, however, is a "calculated
average of signal strength measurements" (weighted by numeric or algebraic factors) – not
position information.
Defendant's proposed construction should also be rejected because it increases ambiguity.
The words "measurement," "numeric," and "algebraic" in Defendant's proposed construction do
not add clarity to the claim language, which is contrary to the central purpose of claim
construction. Moreover, these terms appear nowhere in the specification.
F.

"a triangulation technique"

Skyhook's Proposed Construction
An algorithm that includes (1) estimating
the distances from the user device to at
least two identified Wi-Fi access points
using their received signal strengths and
(2) determining a location based on the
estimated distances.

Defendant's Proposed Construction
Calculating the physical location of a user device
by using the strength of signals received from two
or more Wi-Fi access points whose locations have
been calculated, by the formation of triangles
having the user device and each such Wi-Fi
access point as the vertices.

Skyhook and Defendant agree that a triangulation algorithm calculates the location of a
user device based on the received signal strength of at least two Wi-Fi access points. However,
Defendant argues that this calculation requires the formation of triangles. The extrinsic evidence
is conflicting on this point. Defendant will undoubtedly cite to definitions of triangulation that
require the formation of triangles. But Skyhook's definitions make clear that while some
applications of triangulation rely on the formation of triangles, such reliance is not universal.
See Ex. 7 (The American Heritage Science Dictionary (2005)) at 640 ("A method of determining
the relative positions of points in space by measuring the distances, and sometimes angles,

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between those points and other reference points whose positions are known. Triangulation often
involves the use of trigonometry."); see also Ex. 8 (John R. Vacca, Wireless Data Demystified
(2003)) at 73-74 (describing "triangulation" as "calculating a[n object's] position by measuring
its distance from two or more known points," without mentioning formation of triangles).
Thus, there are two competing meanings for "triangulation:" the general case (not
requiring angles and triangles) and the specific case (requiring angles and triangles). Skyhook's
broader definition should be chosen. See Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d
1243, 1250 ("[I]f a[] . . . claim recites a general structure . . . without limiting that structure to a
specific subset of structures . . ., we will generally construe the claim to cover all known types of
that structure that are supported by the patent disclosure.") (emphasis added).
Furthermore, the intrinsic evidence is dispositive on this point. The type of triangulation
that Defendant argues for is not disclosed in the patent specification. The embodiments that are
disclosed in the patent specification do not measure angles. Instead, the "client positioning
software . . . calculates the location of the computing device using characteristics" that include
"the strengths of the signal reaching the client device." Ex. 1 ('245), 5:58-64. The signal
strength is used to estimate distance, id. 9:29-31, which is then used to calculate location, id.
9:35-39. Thus, the preferred embodiment is not covered by Defendant's proposed construction.
Skyhook's broader construction should be adopted because an interpretation of claim language
that excludes the preferred embodiment "is rarely, if ever, correct." Vitronics, 90 F.3d at 1583.
VI.

DISPUTED TERMS IN BOTH THE '694 AND THE '988 PATENTS
A.

"substantially all Wi-Fi access points"

Skyhook's Proposed Construction
Substantially all observed Wi-Fi access
points.

Defendant's Proposed Construction
All but an insignificant number of Wi-Fi access
points in the target area.

Skyhook's construction adopts the meaning of the term "substantially all" as reflected in

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the patent specification. The patent specification shows that the number of Wi-Fi access points
that can be recorded in the database is limited by the capabilities of the devices used to collect
Wi-Fi signals. See, e.g., Ex. 2 ('694), 6:63-65 ("These vehicles are equipped with scanning
devices [202] designed to record the locations and characteristics of 802.11 signals while
traversing the coverage area.").4 These devices can only detect Wi-Fi signals within range. Id.
7:1-2. It is clear that the Wi-Fi access points referred to in the claims are those that are capable
of being "observed" by the device used to collect Wi-Fi signals. Id. 7:63-66 (". . . ensuring that
all observable access points are detected and mapped by the system." (emphasis added)).
Defendant's construction neither comports with the intrinsic evidence, nor does it do
anything to elucidate the meaning of the claim language. First, Defendant's construction seems
to require that "substantially all Wi-Fi access points" must include Wi-Fi access points that are
within a "target area" but, for whatever reason, are not observable. As described above, this is
directly contradicted by the patent specification. Second, Defendant's construction merely
substitutes one phrase, "substantially all," for another, "all but an insignificant number," that is
more ambiguous, thus defeating the purpose of claim construction.
B.

"reference symmetry"

Skyhook's Proposed Construction
From the perspective of a user whose location is
being calculated, the calculated positions of
observed Wi-Fi access points in range of the user
tend to be distributed around the user with reduced
arterial bias.

Defendant's Proposed Construction
Indefinite under 35 U.S.C. § 112, ¶ 2.
The balanced or symmetrical distribution
of numerous access points on all sides of
the user device and within range of the
user device's WiFi radio.

Skyhook's proposed construction for "reference symmetry" has the following elements:
(1) "[f]rom the perspective of a user whose location is being calculated," (2) "the calculated

4

The '988 patent includes a nearly identical specification to the '694 patent. For brevity,
Skyhook has not included corresponding citations to the '988 patent.

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positions of observed Wi-Fi access points in range of the user" (3) "tend to be distributed around
the user" (4) "with reduced arterial bias."
The plain and ordinary meaning of "reference symmetry" does not shed sufficient light on
the meaning of this claim term. Thus, the patent specification must be consulted. See Vitronics
Corp., 90 F.3d at 1582 (noting that the specification "is the single best guide to the meaning of a
disputed term"). Here, the inventors have provided a definition for the term "reference
symmetry" in the section of the patent titled "Reference Symmetry." See Teleflex, Inc., 299 F.3d
at 1325 ("[A]n inventor may choose to be his own lexicographer. . . .'").
Per the section of the patent specification defining "reference symmetry," this term refers
to (1) "the distribution of reference points around the end user" that are used "to calculate the
[end user] device's current location." Ex. 2 ('694), 9:4-7, 9:14. (2) These reference points are
"access point locations . . . within the range [604] of the device's 802.11 radio." Id. 9:18-20.
(3) As shown by the comparison of Figure 5 (no reference symmetry) with Figure 6 (reference
symmetry) and the accompanying text, the access points tend to be distributed around the user.
Id. 9:3-23. (4) The resulting location calculation has reduced "arterial bias." Id. 9:7-13.
Defendant's proposed alternative construction is flawed for at least two reasons. First, it
will not help the Court or the jury to understand the term "reference symmetry." It is unclear
what is meant by "balanced," "symmetrical," "numerous," and "all sides." Second, Defendant's
proposed construction would improperly add limitations that are not otherwise part of the claim:
(1) "balanced," (2) "numerous," and (3) "on all sides."
Defendant also argues that this claim term is indefinite, but has proffered a construction
for it. A claim is indefinite only if the claim is "insolubly ambiguous" or "not amenable to
construction." See Young, 492 F.3d at 1346-47. This is not the case here because the claim term

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can be properly construed as Skyhook proposes, and even Defendant has offered a competing
claim construction.
C.

"arterial bias"

Skyhook's Proposed Construction
The deviation of the calculated
position information for a Wi-Fi
access point towards heavily
trafficked roads and away from the
actual geographic location of the
access point.

Defendant's Proposed Construction
The deviation of the calculated position information
for a Wi-Fi access point toward heavily trafficked
roads and away from the actual geographic location of
the access point due to the tendency of random
scanning to result in a greater number of scans from
heavily trafficked roads.

The first half of Defendant's claim construction is the same as Skyhook's claim
construction. However, the remainder of Defendant's proposed construction impermissibly
narrows the scope of the claim. Arterial bias is illustrated in Figure 3 of the '694 patent and
occurs when Wi-Fi access point location data is collected in such a way that the scanning
coverage "shows a bias to the main roads, or arteries at the expense of the smaller and
surrounding roads." Ex. 2 ('694, 7:25-27). As a result, the location for a Wi-Fi access point will
be calculated to be near the main artery "rather than close to the access point itself." Id. 7:44-46.
Nothing in the claim language requires "arterial bias" to be "due to the tendency of
random scanning to result in a greater number of scans from heavily trafficked roads." The
patent specification does identify random scanning as one possible cause of arterial bias, but
neither the patent specification nor the claim language excludes other possible causes, such as
incomplete or unbalanced systematic scanning.
D.

"avoid arterial bias" and "avoids arterial bias"

Skyhook's Proposed Construction
Reduce(s) the effects of arterial bias.

Defendant's Proposed Construction
Indefinite under 35 U.S.C. § 112, ¶ 2
Eliminates arterial bias.

The parties have proposed constructions for "arterial bias." Thus the only additional

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words to construe for this claim term are "avoid" and "avoids." Skyhook proposed constructions
are consistent with the ordinary meaning of the word "avoid," which is "to prevent the . . .
effectiveness of." Ex. 9 (Merriam-Webster's Collegiate Dictionary (10th ed. 2001)) at 80. They
are also consistent with the patent specifications, which indicate that the claimed inventions
"reduce[] location bias." See, e.g., Ex. 2 ('694), 9:20-22 ("The resulting position calculation
[603] has reduced location bias and is more accurate as a result.").
Defendant argues that these terms are indefinite in violation of 35 U.S.C. § 112, ¶ 2
because they do not apprise one skilled in the art of the bounds of the claim. Defendant will no
doubt argue that these terms require some specific metric, e.g., reduces arterial bias by 65%, in
order to meet the requirements of § 112, ¶ 2. But no such numerical metric is required. The
claim simply requires that, when multiple readings of the Wi-Fi access point are recorded at
different locations around the Wi-Fi access point, the arterial bias is less than the arterial bias
when multiple readings of the Wi-Fi access point are not recorded at different locations around
the Wi-Fi access point. In other words, when the claimed technique is practiced, arterial bias is
reduced compared to when the claimed technique is not practiced. See Invitrogen Corp. v.
Biocrest Mfg., L.P., 327 F.3d 1364, 1370-72 (Fed. Cir. 2003) (because intrinsic evidence
provided no "specific improvement measure," the term "improved competence" was correctly
construed as "generally increased" competence).
Furthermore, these claim terms are not indefinite because Defendant has proffered a
construction for them, i.e., "eliminates arterial bias." A claim is indefinite only if the claim is
"insolubly ambiguous" or "not amenable to construction." Young, 492 F.3d at 1346-47. This is
not the case here because the claim term can be properly construed as Skyhook proposes, and
even Defendant has offered a competing claim construction.

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VII.

DISPUTED TERMS IN THE '694 PATENT
A.

"recording multiple readings of the Wi-Fi access point at different locations
around the Wi-Fi access point so that the multiple readings avoid arterial
bias in the calculated position information of the Wi-Fi access point"

Skyhook's Proposed Construction
Multiple scans of a Wi-Fi access
point are recorded. The scans are
taken at different locations around
the Wi-Fi access point. The multiple
readings avoid arterial bias in the
calculated position information of the
Wi-Fi access point.

Defendant's Proposed Construction
Indefinite under 35 U.S.C. § 112, ¶ 2.
Storing Wi-Fi access point signals received while scanning
along a shortest planned route along each drivable road
throughout each target area, e.g., Chinese Postman and not
using random scanning or collection methods to avoid the
tendency of random scanning to result in a greater number of
scans of the Wi-Fi access point from heavily trafficked roads.

Skyhook's construction reflects the straightforward nature of this claim phrase. It breaks
up the claim phrase into three separate sentences to make it easier to understand, while hewing
closely to the claim language. This is all that is needed outside of the claim terms for which the
parties have already proposed constructions, e.g., arterial bias. As such, no further construction
is needed. See Orion IP, LLC v. Staples, Inc., 406 F. Supp. 2d 717, 738 (E.D. Tex. 2005)
("[A]lthough every word used in a claim has a meaning, not every word requires construction.").
Defendant's proposed construction far overreaches, inserting every possible limitation
from the specification into its construction to narrow the scope of Skyhook's claim and distorting
otherwise easily understandable claim language. The sheer number of new limitations crammed
into Defendant's construction is remarkable: (1) "storing," (2) "signals received," (3) "while
scanning along a shortest planned route," (4) "along each drivable road," (5) "throughout each
target area," (6) "e.g., Chinese Postman," (7) "not using random scanning or collection methods,"
and (8) "to avoid the tendency of random scanning to result in a greater number of scans of the
Wi-Fi access point from heavily trafficked roads." In support of its construction Defendant
provides citations to preferred embodiments in the specification. But the Federal Circuit has
consistently stressed that claims are not limited to preferred embodiments described in the

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specification. See Ekchian, 104 F.3d at 1303.
Defendant also argues that this claim phrase is indefinite in violation of 35 U.S.C. § 112,
¶ 2 because it impermissibly recites a method step in an apparatus claim. But in the context of
the surrounding claim language, it is clear that this phrase does not require a step to be
performed. The full clause recites "wherein said calculated position information is obtained
from recording multiple readings of the Wi-Fi access point at different locations around the WiFi access point so that the multiple readings avoid arterial bias in the calculated position
information of the Wi-Fi access point." (emphasis added). Thus, "recording multiple readings . .
." simply identifies from where the calculated position information is obtained. It is a description
of the position information – not a method step. Defendant's indefiniteness argument fails.
B.

"wherein the database records for substantially all Wi-Fi access points in the
target area provide reference symmetry within the target area"
Skyhook's Proposed Construction

Wherein the database records for substantially all Wi-Fi access points
in the target area are distributed such that when the database records
are used to calculate a user's location, the calculated positions of the
observed Wi-Fi access points in range of the user tend to be
distributed around the user with reduced levels of arterial bias.

Defendant's Proposed
Construction
Indefinite under
35 U.S.C. § 112, ¶ 2

The first part of Skyhook's construction "wherein the database records for substantially
all Wi-Fi access points in the target area" comes straight from the claim language. Because
"reference symmetry" is a term with a less readily apparent meaning than "substantially all" or
"target area," to add clarity, Skyhook proposes a construction that applies its previously
explained definition of "reference symmetry" to the term at issue here. Thus, the database
records "are distributed such that when the database records are used to calculate a user's
location, the calculated positions of the observed Wi-Fi access points in range of the user tend to
be distributed around the user with reduced levels of arterial bias." This construction follows

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directly from Skyhook's construction of "reference symmetry."
Defendant does not offer its own construction. Instead, it rests on its argument that this
term is indefinite because it fails to apprise a person of ordinary skill in the art as to what it
means to "provide reference symmetry within the target area." But Defendant cannot prove that
this claim term is "insolubly ambiguous" as required to carry its burden. Phillips, 415 F.3d at
1314. Skyhook's interpretation is obvious from the patent specification, which describes an
embodiment of the invention that "not only gathers more access points uniformly across a target
area but the resulting data produces more accurate calculations of access point locations," Ex. 2
('694), 8:9-11. Other portions of the patent specification describe how "there are numerous
access point locations [602] on all sides of the user [601] within the range of the device's 802.11
radio," id. 9:18-20; and how "[t]he resulting position calculation [603] has reduced location bias
and is more accurate as a result," id. 9:20-22.
VIII. DISPUTED TERMS IN THE '988 PATENT
A.

"recording multiple readings of the Wi-Fi access point at different locations
around the Wi-Fi access point so that the multiple readings have reference
symmetry relative to other Wi-Fi access points in the target area and so that
the calculation of the position of the Wi-Fi access point avoids arterial bias in
the calculated position information"

Skyhook's Proposed Construction
Multiple scans of a Wi-Fi access
point are recorded. The scans are
taken at different locations around
the Wi-Fi access point.
This results in the following: (a) the
multiple readings produce a
calculated position of the Wi-Fi
access point having reference
symmetry relative to other Wi-Fi
access points in the target area and
(b) the calculated position of the WiFi access point reduces the effects of
arterial bias.

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Defendant's Proposed Construction
Indefinite under 35 U.S.C. § 112, ¶ 2.
Systematically driving each road in the target area using
a predesigned Chinese Postman scanning route so as to
collect multiple readings of the Wi-Fi access point at
different locations around the Wi-Fi access point so that
the multiple readings have reference symmetry relative
to other Wi-Fi access points in the target area.
Storing Wi-Fi access point signals received while
scanning along a shortest planned route along each
drivable road throughout each target area, e.g., Chinese
Postman, and not using random scanning or collection
methods.

- 22 -

Skyhook's construction restructures this long and dense claim term into several sentences,
to make it easier to follow. The resulting claim construction requires the following elements:
(1) recording multiple scans of a Wi-Fi access point (2) at different locations around the Wi-Fi
access point. These multiple scans result in (3) a calculated position of the Wi-Fi access point
that has reference symmetry relative to other Wi-Fi points in the target area. Because of the
reference symmetry, (4) the calculated position reduces the effects of arterial bias when it is used
to calculate the location of a user device.
Elements (1) and (2) come straight from the claim language ("recording multiple readings
of the Wi-Fi access point at different locations around the Wi-Fi access point").
Skyhook's construction then clarifies what is meant by the phrase "the multiple readings
have reference symmetry relative to other Wi-Fi access points in the target area." Although the
claim term states that the readings have reference symmetry relative to other Wi-Fi access points,
the specification refers to multiple readings "provid[ing] reference symmetry among the
reference points." Ex. 3 ('988), 2:55-56. The specification also explains that that, in one aspect
of the disclosed invention, "more access points [are gathered] uniformly across a target area," Id.
8:56-59, 9:4-21, confirming that the multiple readings produce reference symmetry relative to
other Wi-Fi access points. Thus, the specification provides sufficient context to interpret "have"
to mean "produce." This is consistent with the general dictionary definition of "have," which is
"to produce." Ex. 10 (The Cassell Dictionary and Thesaurus (1999)) at 510-11. Thus, the
multiple scans produce a calculated position of the Wi-Fi access point having reference
symmetry relative to other Wi-Fi access points in the target area.
Skyhook's construction also clarifies what is meant by the phrase "so that the calculation
of the position of the Wi-Fi access point avoids arterial bias in the calculated position

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information." This limitation states that the more accurately calculated position reduces the
effects of arterial bias when the calculated position is later used to calculate the location of a user
device. This is consistent with the patent specification. See, e.g., Ex. 3 ('988), 8:28-30 ("Another
approach is to develop routing algorithms that include every single street in the target area so as
to avoid arterial bias in the resulting collection of data thus producing a more reliable positioning
system for the end users.").
Defendant's proposed constructions for this claim phrase is similar to its construction of
"recording . . . " in Section VII.A., and suffer from the same defects. For the reasons described
above in Section VII.A., Defendant's transparent efforts to import multiple extraneous limitations
from preferred embodiments into the claim language should be rejected. Defendant also argues
that this claim phrase is indefinite in violation of 35 U.S.C. § 112, ¶ 2 because it impermissibly
recites a method step in an apparatus claim. For the reasons stated in Section VII.A., this phrase
does not recite a method step. Therefore, this argument fails as well.
Defendant further argues that this claim is indefinite for failing to apprise a person skilled
in the art what it means for "multiple readings of the Wi-Fi access point at different locations
around the Wi-Fi access point" to "have reference symmetry relative to other Wi-Fi access points
in the target area." But "[c]laims need not be plain on their face in order to avoid condemnation
for indefiniteness; rather, claims must only be amenable to construction." Wellman, Inc. v.
Eastman Chem. Co., 642 F.3d 1355, 1366 (Fed. Cir. 2011). Claims are found indefinite "only if
reasonable efforts at claim construction prove futile". Id. Here, the claim language is amenable
to construction, and indeed, even Defendant has proffered a claim construction.
Finally, Defendant argues that this claim phrase is indefinite because it "fails to provide
any measure of when [']recording multiple readings . . . around the Wi-Fi access point . . . so that

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the calculation of the position of the Wi-Fi access point avoids arterial bias['] is achieved." But
as described above in Section VI.D., no such measure is required. The claim simply requires
that, when multiple readings of the Wi-Fi access point are recorded at different locations around
the Wi-Fi access point, the arterial bias is less than the arterial bias when multiple readings of the
Wi-Fi access point are not recorded at different locations around the Wi-Fi access point. In other
words, when the claimed technique is practiced, arterial bias is reduced compared to when the
claimed technique is not practiced.
B.

"Logic" Conveys Sufficient Structure To Avoid Means-Plus-Function

Defendant argues that the "logic" limitations are "means-plus-function" terms subject to
35 U.S.C. § 112, ¶ 6. Defendant's position ignores well-settled law, the intrinsic evidence, and
the ordinary meaning of the word "logic."5
1.

There Is A Strong Presumption Against Interpreting A Limitation As
A Means-Plus-Function Clause When The Limitation Does Not
Include The Term "Means"

"Claim drafters conventionally use the preface 'means for' (or 'step for') when they intend
to invoke section 112(6), and there is therefore seldom any confusion about whether section
112(6) applies to a particular element." Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580,
1583 (Fed. Cir. 1996). Because "the term 'means,' particularly as used in the phrase 'means for,'
is part of the classic template for functional claim elements and has come to be closely associated
with means-plus-function claiming," Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d
1354, 1358 (Fed. Cir. 2004) (quotations and citation omitted), it is highly unlikely that a patentee
who intended to invoke § 112, ¶ 6 would exclude the word "means" from the claim language.

5

If the Court were to find one or more of these claim terms to constitute means plus
function claim terms, Skyhook identifies corresponding structures for such claim terms at
Exhibit 15.

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Courts give force to the patentee's election to avoid application of § 112, ¶ 6 by invoking
a presumption that the paragraph does not apply when the word "means" is absent from the claim
language. See CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1369 (Fed. Cir. 2002) ("[A]
claim term that does not use 'means' will trigger the rebuttable presumption that § 112 ¶ 6 does
not apply."). In order to rebut this presumption, Defendant must "demonstrate[] that the claim
term fails to 'recite sufficiently definite structure' or else recites a 'function without reciting
sufficient structure for performing that function.'" Id. at 1369 (emphasis added)).
The burden of overcoming this presumption is high. See Lighting World, 382 F.3d at
1358 ("Our cases make clear . . . that the presumption flowing from the absence of the term
'means' is a strong one that is not readily overcome."). One reason is that the Federal Circuit has
set the bar low for a term to recite "sufficient" structure. If a claim term "connotes some
structure. . . . [in] the understanding of one of ordinary skill in the art, the presumption that
§ 112, ¶ 6 does not apply is determinative." Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364,
1373 (Fed. Cir. 2003) (emphasis added). As a result, the presumption against the application of
§ 112, ¶ 6 can only be overcome if a claim uses a term that suggests no structure and is effectively
a synonym for "means for," such as the word "element." See Lighting World, 382 F.3d at 1360.
2.

The "Logic" Limitations Recite Sufficient Structure

It is clear that none of the "logic" limitations use the word "means." The absence of the
word "means" creates a strong presumption that § 112, ¶ 6 does not apply.
(a)

The Ordinary Definition Of "Logic" Conveys Structure

Defendant cannot meet its burden of rebutting the presumption against means-plusfunction interpretation, because "logic" would immediately bring to mind a class of structures to
avoid invocation of § 112, ¶ 6. For example, one of ordinary skill would immediately recognize
that "logic" extends to computer instructions designed to carry out a specified task. See Ex. 11

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(The American Heritage College Dictionary (3rd ed. 1997)) at 797 (defining "logic" as "[t]he
nonarithmetic operations performed by a computer, such as sorting, that involve yes-no
decisions"); Ex. 12 (Wiley Electrical and Electronics Engineering Dictionary (2004)) at 432
("The functions performed by a computer which involve operations such as mathematical
computations and true/false comparisons."). "Logic" also conveys the circuitry by which
computer instructions may be carried out. See Ex. 12 at 432 ("The circuits in a computer which
enable the performance of logic functions or operations, such as AND, OR, and NOT."); Ex. 13
(McGraw-Hill Dictionary of Scientific and Technical Terms (4th ed. 1989)) at 1101 ("General
term for the various types of gates, flip-flops, and other on/off circuits used to perform problemsolving functions in a digital computer.").
"Logic" is obviously not a "nonce word" or "simply a substitute for the term 'means for.'"
Lighting World, 382 F.3d at 1360. It is thus clear that, even in isolation, the word "logic"
conveys sufficient structure to avoid invocation of § 112, ¶ 6. Unsurprisingly then, there is a
multitude of judicial opinions holding that terms such as "logic" and related terms such as
"circuit," and "computer code" convey sufficient structure to avoid application of § 112, ¶ 6
when the claim language does not include the word "means." See, e.g., 3Com Corp. v. D-Link
Sys., Inc., 473 F. Supp. 2d 1001, 1016-17 (N.D. Cal. 2007) ("logic"); Diagnostic Group, LLC v.
Benson Med. Instruments Co., No. CIV.02-777 JNE/JGL, 2005 WL 715935, at *10 (D. Minn.
Mar. 28, 2005) ("pre-programmed logic"); Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d
1311, 1319-21 (Fed. Cir. 2004) ("circuit" and "circuitry"); Apex, 325 F.3d at 1373-75 ("interface
circuit"); Aloft Media, LLC v. Adobe Sys. Inc., 570 F. Supp. 2d 887, 897-98 (E.D. Tex. 2008)
("computer code"); Rowe Int'l Corp. v. Ecast, Inc., 586 F. Supp. 2d 924, 944-45 (N.D. Ill. 2008)
("instructions").

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(b)

The Surrounding Claim Language Imparts Additional
Structure

The word "logic" conveys an even more definite structure when read in light of the rest of
the claim language. Each instance of logic must be "computer-implemented,"6 meaning it must
be implemented with a machine that can be fairly characterized as a computer. This limitation
makes "logic" even more structurally definite. See Personalized Media Commc'ns, LLC v. Int'l
Trade Comm'n, 161 F.3d 696, 705 (Fed. Cir. 1998) (adjectival qualification "digital" "further
narrows the scope of those structures covered by the claim and makes the term more definite").
C.

"logic"

Skyhook proposes that this term be construed as "software and/or hardware." "Logic,"
based on its ordinary meaning, can be either software or hardware. Ex. 12 (Wiley Electrical and
Electronics Dictionary (2004)) at 432 (defining logic as both "[t]he functions performed by a
computer which involve operations such as mathematical computations and true/false
comparisons" and "[t]he circuits in a computer which enable the performance of logic functions
or operations, such as AND, OR, and NOT"); see also Diagnostic Group, 2005 WL 715935, at
*10 ("[T]he ordinary meaning of 'pre-programmed logic' is computer source code (software)
programmed into a device and/or computer circuitry (hardware) for performing a specified
function.").
The patent specification and claims similarly encourage a broad reading of "logic" to
encompass both hardware and software. The patent claims a "Wi-Fi location server," Ex. 3
('988), 14:14, and the specification explains that the operations performed by the logic all occur

6

Even the "logic to recalculate position information for Wi-Fi access points . . ." in claim
1 of the '988 patent must be "computer-implemented," because the full clause reads "computerimplemented logic . . . including logic to recalculate . . . ." The "logic to recalculate" is a subpart of computer-implemented logic, and as a result must itself be computer-implemented.

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within a "Central Network Server." Id. 11:47-13:31. Because a server is a combination of
hardware and software, the "logic" within the server is not constrained to mean only hardware or
only software.
D.

"computer-implemented logic to add records to the database for newlydiscovered Wi-Fi access points"

Skyhook has already proposed a construction for the term "logic." And the "records"
added to the database simply contain data for newly-discovered Wi-Fi access points. The
appropriate construction is thus "computer-implemented software and/or hardware to add data
records to the database for newly-discovered Wi-Fi access points."
E.

"logic to recalculate position information for Wi-Fi access points previously
stored in the database to utilize position information for the newlydiscovered readings of previously stored Wi-Fi access points"

Skyhook's proposed construction is as follows:
Software and/or hardware to recalculate position information for Wi-Fi access
points previously stored in the database. This recalculation utilizes new position
information for such Wi-Fi access points calculated using scans taken after the
previously stored Wi-Fi access points were stored.
This construction is consistent with the plain meaning of the claim term: logic (i.e.,
hardware and/or software) is used to recalculate position information for Wi-Fi access points
previously stored in the database (i.e., existing access points). The specification clarifies the
remainder of the claim language: "[E]xisting access points are repositioned based on any new
data recorded by the scanners." Ex. 3 ('988), 12:33-34. Thus, the "recalculation" utilizes
position information based on new data recorded by the scanners (i.e., scans taken after the
previously stored Wi-Fi access points were stored).
F.

"computer-implemented clustering logic to identify position information
based on error prone GPS information"

Skyhook's proposed construction is as follows:

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Computer-implemented software and/or hardware to identify when position
information for a Wi-Fi access point based on GPS readings is likely to be
erroneous. The software and/or hardware identifies position information that is
not located within a certain threshold distance of other position information for
the Wi-Fi access point.
Defendant argues this claim term is indefinite because it "fails to apprise the person of
ordinary skill in the art what constitutes "error prone GPS information." But Defendant cannot
bear its burden of demonstrating "by clear and convincing evidence" that the claim term is
"insolubly ambiguous" because the term's meaning is immediately obvious, requiring only
"application of the widely accepted meaning of commonly understood words." See Phillips, 415
F.3d at 1314. "Error prone GPS information" simply means GPS information that is error prone.
"Error prone" means likely to be erroneous or imprecise. This is confirmed by the patent
specification. See Ex. 3 ('988), 12:1-4 ("the GPS receiver may record erroneous . . . records").
The only term further requiring construction is "clustering." In the specification,
"clustering" refers to a class of techniques that can be used identify GPS readings that are error
prone. See id. 12:6-7, 12:15-17. The specification's example of a clustering technique involves
identifying outlier position information, e.g., position information that is not located within a
certain threshold distance of other position information. Id. 12:7-17.
G.

"logic to determine a weighted centroid position for all position information
reported for an access point"

Skyhook's proposed construction is as follows:
Software and/or hardware to determine a weighted centroid position for a WiFi access point. The weighted centroid position is determined using all
position information reported for that Wi-Fi access point.
The term weighted centroid position is defined elsewhere as a weighted average position.
Section VIII.K. Skyhook's construction expands what is otherwise a long and dense claim
element and makes clear, based on the plain and ordinary meaning, that the weighted centroid

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position is determined using all position information reported for that Wi-Fi access point.
H.

"logic to identify position information that exceeds a statistically-based
deviation threshold amount away from the centroid position"

Skyhook's proposed construction is as follows:
Software and/or hardware to identify position information whose distance
from the centroid position exceeds a certain threshold distance. This threshold
distance is based on the distribution of the position information used to
calculate the centroid position.
This claim element recites the following elements: (1) logic (i.e., hardware and/or
software) (2) to identify position information (3) that exceeds a statistically-based deviation
threshold amount away from a centroid position. The first two elements are in the claim itself.
Skyhook's claim construction defines element (3): Position information that "exceeds a
statistically-based deviation threshold amount away from the centroid position." This language
refers to a distance that is based on the statistical distribution of the position information that is
used to calculate the centroid position. See Ex. 3 ('988), 12:12-17 ("the system first calculates
the weighted centroid for the access point using all reported data. . . . [then] uses a definable
threshold based on [the distribution of the reported locations] to filter out access points that are in
error"). Position information that deviates from (i.e., is father away from) the centroid position
by more than the threshold is identified so that it can be filtered out. Id. 12:17-19 ("Once these
error records are marked, the centroid is recalculated with the remaining location records . . . .").
I.

"the clustering logic . . . excludes such deviating position information from
the database and from influencing the calculated position of the Wi-Fi access
points"

Skyhook's proposed construction is as follows:
The software and/or hardware excludes such deviating position information
from being stored in the database of WiFi access points. Such deviating
position information is not used to determine the calculated positions of the
Wi-Fi access points.

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For purposes of clarity, this claim construction simply breaks the function of the
logic into two sentences.
J.

"computer implemented logic to add records to the database for newlydiscovered Wi-Fi access points"

In light of the definition of the term "logic" above, no further construction is necessary.
K.

"a weighted centroid position"

Skyhook's Proposed Construction
A position determined by weighted averaging of
position information.

Defendant's Proposed Construction
A position determined by weighted
averaging of recorded positions.

The parties agree that a "weighted centroid position" is "a position determined by
weighted averaging." The only question is whether the "weighted averaging" is of "position
information" (Skyhook's construction) or "recorded positions" (Defendant's construction).
Skyhook's claim construction is based on the remainder of the claim language, which
states that "a weighted centroid position" is determined "for all position information reported for
an access point." Skyhook's claim construction is confirmed by the patent specification, which
uses the same language. Ex. 3 ('988), 4:51-52 ("a weighted centroid position for all position
information reported for an access point").
Defendant's claim construction, however, is unsupported by the claim language or the
patent specification. The modifier "recorded" appears nowhere in the claim language. And the
phrase "recorded position(s)" appears nowhere in the '988 patent at all.
IX.

DISPUTED TERMS IN THE '897 PATENT
A.

"a WiFi-enabled device communicating with WiFi access points within range
of the WiFi-enabled device so that observed WiFi access points identify
themselves"

Skyhook's Proposed Construction
A user device having a Wi-Fi radio
communicates with Wi-Fi access points
within range of the user device.

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Defendant's Proposed Construction
A user device having a Wi-Fi radio actively
searching for Wi-Fi access points by
transmitting a signal to all Wi-Fi access points

- 32 -

Communications received by the user device within range and receiving a response that
include an identifier (e.g., a MAC address) for includes a unique identifier (e.g., a MAC
observed Wi-Fi access points.
address) from each such Wi-Fi access point.
The dispute between the parties with respect to this claim term is whether it encompasses
both active and passive scanning. Skyhook's claim construction encompasses both active and
passive scanning, while Defendant's proposed construction attempts to limit this phrase to active
scanning only. But there is nothing in the claim language (or the patent specification) that
supports Defendant's proposed construction.
As an initial matter, the patent discloses that data may be collected from Wi-Fi access
points either actively or passively. For example, the specification describes how "[t]he client
device monitors the broadcast signal or requests its transmission via a probe request." Ex. 4
('897), 6:52-53. Monitoring a broadcast signal refers to passive data collection while requesting
transmission of a broadcast signal refers to active data collection. The specification also
describes how "[t]he client positioning software receives signal beacons or probe responses from
the 802.11 access points in range . . . ." Id. 6:56-58. Receiving signal beacons refers to passive
data collection while receiving probe responses refers to active data collection. In both cases,
identification information for the Wi-Fi access points would be received by the Wi-Fi enabled
device. Thus, there is nothing in the specification that limits data collection to active scanning.
Skyhook's claim construction is also consistent with the dictionary definition of
"communicating." For example, The IEEE Standard Dictionary of Electrical and Electronics
Terms 182 (6th ed. 1996), defines "communication" to mean "The transmission of information
from one point to another by means of electromagnetic waves" or "The flow of information from
one point, known as the source, to another, the receive." Ex. 14. Thus, "communicating" does
not require two way communication. In other words, the Wi-Fi enabled device does not need to
transmit to as well as receive information from the Wi-Fi access points. Instead, communicating

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encompasses the Wi-Fi enabled device (the "receive") passively monitoring the transmissions
broadcast by Wi-Fi access points (the "source") within range.
Skyhook's proposed construction does not define "communicating with" because
Skyhook believes that its meaning is readily apparent even to lay persons. However, if needed,
Skyhook would propose a definition of "receiving information from, transmitting information to,
or both receiving information from and transmitting information to."
Finally, Defendant's proposed claim construction has the following extraneous limitations
that are not present in Skyhook's proposed claim construction: (1) "actively searching," (2) "by
transmitting a signal," (3) "to all Wi-Fi access points," (4) "receiving a response," (5) including a
"unique identifier," and (6) "from each such Wi-Fi access point." Defendant's construction
should also be rejected for once again trying to narrow the scope of the claim language by adding
limitations from the preferred embodiments.
B.

"using the recorded location information for each of the observed WiFi
access points in conjunction with predefined rules to determine whether an
observed WiFi access point should be included or excluded from a set of
WiFi access points"
Skyhook's Proposed Construction

Does not need to be construed. But if construed:
Predefined rules are used to determine whether each observed
WiFi access point should be included or excluded from a set of
WiFi access points that is to be used to calculate location. The
predefined rules consider recorded location information for each
of the observed WiFi access points.

Defendant's Proposed
Construction
Indefinite under
35 U.S.C. § 112, ¶ 2

The parties have proposed constructions for the terms "recorded location information"
and "WiFi access points." The remaining words in this phrase are straightforward and do not
require further construction. But should the Court find an express construction to be necessary,
Skyhook proposes an alternative construction that breaks up the claim phrase into two separate

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sentences to make it easier to understand, while hewing closely to the claim language.
Defendant does not propose a construction for this phrase. Defendant instead argues that
the claim language is indefinite because the language fails to apprise the person of ordinary skill
in the art what constitutes the claimed "predefined rules." But the phrase "predefined rules" has
a plain and ordinary meaning that is readily apparent even to laymen. As such, construing the
terms "involves little more than the application of the widely accepted meaning of commonly
understood words." Phillips, 415 F.3d at 1314.
Webster's Third New International Dictionary Unabridged 1785 (2002) defines
"predefine" to mean "to define or determine in advance." Ex. 6. The American Heritage College
Dictionary 1192 (3rd ed. 1997) defines "rule" to mean "a standard method or procedure for
solving a class of problems." Ex. 11. Taken together, "predefined rules" is commonly
understood to mean determining in advance a method for solving a class of problems, in this
case, determining whether a WiFi access point should be included or excluded from a set used to
calculate location.
C.

"rules to determine a reference point and to compare the recorded location
information for each of the observed WiFi access points to the reference
point"
Skyhook's Proposed Construction

Does not need to be construed. But if construed:
Rules that (1) first determine a reference point and (2) then
compare the recorded location information for each of the observed
WiFi access points to the reference point.

Defendant's Proposed
Construction
Indefinite under
35 U.S.C. § 112, ¶ 2

This phrase is readily understood from the context of its use in the claims. To the extent
the Court feels further guidance is necessary, Skyhook's proposed construction merely adds
structure to this long, but otherwise easily understandable phrase in the claim.
Defendant does not propose a construction for this phrase. Defendant instead argues that

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the claim language is indefinite. For the reasons set forth in Section IX.B. with respect to
"predefined rules" and their plain and ordinary meaning, Defendant's argument fails.
X.

CONCLUSION
For the reasons stated above, Skyhook respectfully requests that the Court find the claim

terms not indefinite, adopt Skyhook's constructions, and reject those offered by Defendant.

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Respectfully submitted,
SKYHOOK WIRELESS, INC.,
By their attorneys
/s/ Samuel K. Lu________________
Samuel K. Lu (pro hac vice)
IRELL & MANELLA LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
[phone]
[e-mail]
Of counsel:
Thomas F. Maffei (BBO 313220)
Douglas R. Tillberg (BBO 661573)
GRIESINGER, TIGHE & MAFFEI, LLP
176 Federal Street
Boston, Massachusetts 02110
[phone]
[e-mail]
[e-mail]
Morgan Chu (pro hac vice)
John C. Hueston (pro hac vice)
Samuel K. Lu (pro hac vice)
Glenn K. Vanzura (pro hac vice)
S. Albert Wang (pro hac vice)
Lina F. Somait (pro hac vice)
IRELL & MANELLA LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067-4276
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Dated: September 14, 2011

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Certificate of Service
I, Samuel K. Lu, hereby certify that this document filed through the ECF system will be
sent electronically to the registered participants as identified on the Notice of Electronic Filing
(NEF) on September 14, 2011.

/s/ Samuel K. Lu
Samuel K. Lu

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