TVnGO LTD. (BVI) v. LG ELECTRONICS, INC. et al

Filing 82

OPINION. Signed by Judge Renee Marie Bumb on 4/16/2020. (dmr)

Case 1:18-cv-10238-RMB-KMW Document 82 Filed 04/17/20 Page 1 of 17 PageID: 2341

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

TVnGO LTD. (BVI),
Plaintiff,

Civil No. 18-10238 (RMB/KMW)

v.

OPINION

LG ELECTRONICS, INC. and
LG ELECTRONICS U.S.A., INC.,
Defendants.

APPEARANCES:
EYET LAW LLC
By: Matthew T. Eyet, Esq.
7 Livingston Avenue, Suite 1105
New Brunswick, New Jersey 08901
and
DUNLAP BENNETT & LUDWIG PPLC
By: Charles E. Cantine, Esq.
Joseph Diamante, Esq.
349 Fifth Avenue
New York, New York 10036
Counsel for Plaintiff
WALSH PIZZI O’REILLY FALANGA LLP
By: Liza M. Walsh, Esq.
Selina M. Ellis, Esq.
One Riverfront Plaza
1037 Raymond Boulevard, Suite 600
Newark, New Jersey 07102
and
MORGAN, LEWIS & BOCKIUS LLP
By: Natalie Bennett, Esq.
Collin W. Park, Esq.
Eric Kraeutler, Esq.
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Ghee J. Lee, Esq.
1111 Pennsylvania Avenue, NW
Washington, D.C. 20004-2541
Counsel for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
In this patent infringement suit, Plaintiff TVnGO Ltd.
(BVI) asserts that Defendants LG Electronics, Inc. and LG
Electronics U.S.A., Inc. (collectively, “LG”), are infringing
five of TVnGO’s patents 1 which claim methods and devices that
make televisions “smart”-- i.e., able to display both television
content and internet streaming content.

Presently before the

Court is the issue of indefiniteness, which LG raised in
connection with the Court’s claim construction inquiry.

The

Court has carefully considered the parties’ pre-hearing
submissions and post-hearing briefs, the parties’ presentations
made at the claim construction hearing held on January 8, 2020,
as well as supplemental briefing which this Court ordered on
March 6, 2020.

For the reasons stated herein, the Court holds

that ‘220 Patent claims 1, 9, 10, 13, 17, and 20; ‘945 Patent
claims 1, 4, 8, 9, 12, 15, 19, 21; ‘696 Patent claims 1, 9, 10,
13, 17 and 20; ‘339 Patent claims 1, 4-7, 12-15 and 18; and ‘621

1

The Patents-in-Suit are U.S. Patent Nos. 8,132,220;
9,124,945; 9,392,339; 9,407,969; and 9,794,621, respectively,
the ‘220 Patent, the ‘945 Patent, the ‘339 Patent, the ‘969
Patent and the ‘621 Patent. Each of the ‘945, ‘339, and ‘969
patents are continuations of the ‘220 Patent. The ‘621 Patent
is a continuation of the ‘969 Patent.
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Patent claims 1, 4, 9, 11 are indefinite, and therefore not
amenable to construction. 2
I.
According to TVnGO, the main inventive feature of its
technology to which the Patents-in-Suit are addressed is the
generation and display of “overlays” which appear on a user’s
(i.e., a person’s) television screen, thereby creating a userfriendly mechanism through which a user can simultaneously view
broadcast TV content and Internet content. [Transcript p. 53,
60]

Thus, for example, in Figures 7a, 7b and 7c of the Patents-

in-Suit, which depict a television set (item 40), items 42
through 45 are overlays, or icons 3, containing Internet content,
and item 41 is broadcast TV content:

2

In light of this holding, the Court need not reach, and
therefore does not reach, the issue of whether the terms
“combiner unit” and “combiner circuit”, as used in ‘220 Patent
claims 1, 13, and 17; ‘945 Patent claims 1-10, 12, and 18; ‘339
Patent claims 1-17, 19, 20; and ‘969 Patent claims 1, 13, and 17
are indefinite. [See TVnGO’s Post-Hearing Brief, Dkt No. 75, p.
3]
3

At the claim construction hearing, TVnGO explained, by
way of example, that the icon could take the form of a commonly
recognized logo, such as the Netflix logo. [Transcript p. 60,
95, 100]
3

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According to the specifications, if a user wishes to view
the content represented by a particular overlay-- for example,
item 42-- she may use a particular key on her remote control to
select the desired overlay, which will result in the display of
a secondary window, item 45.

Engaging the same key for a second

time will enlarge the secondary window to occupy substantially
the whole area of the television screen, as shown in Figure 7c.
Engaging the same key for a third time will cause the television
screen display to revert to the situation shown in Figure 7a.
[‘220 Patent, 7:25-50; ‘945 Patent, 7:35-60; ‘339 Patent, 7:2850; ‘969 Patent, 7:35-60; ‘621 Patent, 7:43-65].

The parties

dispute whether the Patents-in-Suit “particularly . . . and

4

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distinctly” disclose, 35 U.S.C. § 112(b), how the patented
technology functions to produce items 42 through 45.
The claim terms primarily at issue are “overlay activation
criterion” and “overlay activation signal.” 4

Copies of the

Patents-in-Suit are attached to this Opinion as Exhibits A
through E. 5
II.
Patent claims must “particularly point[] out and distinctly
claim[] the subject matter” of the invention. 35 U.S.C. §
112(b).

If a claim does not do so, it is invalid as indefinite.

Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 902
(2014).

“[A] patent claim is indefinite if, when ‘read in light

of the specification delineating the patent, and the prosecution
history, the claim fails to inform, with reasonable certainty,
those skilled in the art 6 about the scope of the invention.’”

4

The term “special overlay activation signal” appears in
the ‘954 and ‘621 Patents, however the parties make no separate,
independent arguments with respect to the word “special.” Thus,
the parties’ arguments, and the Court’s analysis, applies
equally to both “overlay activation signal” and “special overlay
activation signal.”
5

See also Docket Entries 1-1 (‘220 Patent), 1-2 (‘945
Patent), 1-3 (‘339 Patent), 1-4 (‘969 Patent), and 1-5 (‘621
Patent).
6

The parties have stipulated on the record that, for the
purposes of the issues addressed herein, the parties’ differing
formulations of a person skilled in the art (“POSA”) have no
material impact on claim construction. [Transcript, p. 16-17]

5

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BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360, 1365 (Fed.
Cir. 2017) (quoting Nautilus).

“‘The internal coherence and

context assessment of the patent, and whether it conveys claim
meaning with reasonable certainty, are questions of law.’”
United Access Techs., LLC v. AT & T Corp., 757 F. App’x 960, 969
(Fed. Cir. 2019) (quoting Teva Pharm. USA, Inc. v. Sandoz, Inc.,
789 F.3d 1335, 1342 (Fed. Cir. 2015)).
Likewise, claim construction is an issue of law, Markman v.
Westview Instruments, Inc., 517 U.S. 370 (1996), and “[a]
determination that a patent claim is invalid for failure to meet
the definiteness requirement of 35 U.S.C. § 112, ¶ 2 is a
conclusion that is drawn from the court’s performance of its
duty as the construer of patent claims.”

Fisher-Price, Inc. v.

Graco Children’s Prod., Inc., 154 F. App’x 903, 906 (Fed. Cir.
2005) (internal citation and quotation omitted); see also,
Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1377
(Fed. Cir. 2015) (“In the face of an allegation of
indefiniteness, general principles of claim construction
apply.”). 7

7

TVnGO asserts that the Court should defer its
indefiniteness ruling “until TVnGO has had an opportunity to
take fact discovery.” [Post-hearing brief, Dkt No. 75, p. 3;
Supplemental brief, Dkt. 81, p. 9-10] The Court concludes,
however, that discovery in this particular case would not be
helpful to the Court’s legal inquiry given the nature of the
claims’ indefiniteness. As discussed herein, the claims, as
written, contain inherent, irreconcilable inconsistencies. Even
if, as LG hypothesized at the claim construction hearing,
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III.
In conducting the indefiniteness inquiry, the Court
considers: the language of the claims; the specifications; and
the prosecution histories of the Patents-in-Suit.
875 F.3d at 1365 (quoting Nautilus).

BASF Corp,

Section A considers the

claims and the specifications of the Patents-in-Suit.

Section B

addresses the prosecution histories.
A.
As LG has persuasively demonstrated, the use of the terms
“overlay activation criterion” and “overlay activation signal”-neither of which are terms of art, nor defined by the
specifications 8-- create irreconcilable inconsistencies into the
Patents-in-Suit.

These inconsistencies manifest not only when a

POSA views each Patent-in-Suit individually (“intra-patent
inconsistencies”), but as well as when a POSA attempts to
understand the terms across the span of the Patents-in-Suit

discovery were to reveal that persons skilled in the art at LG
subjectively understood what TVnGO’s patents claimed
[Transcript, p. 66-67], that evidence could not overcome the
legal conclusion that the claims, as drafted, and read in light
of the specification and prosecution history, do not inform a
POSA, with a reasonable amount of certainty, the scope of the
invention.
8

TVnGO does not disagree with these findings. Contrast
Phillips, 415 F.3d at 1315 (“the specification is always highly
relevant to the claim construction analysis. Usually, it is
dispositive; it is the single best guide to the meaning of a
disputed term.”) (internal citation and quotation omitted).
7

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(“inter-patent inconsistencies”).

Consequently, these

inconsistencies render each Patent-in-Suit indefinite.
Intra-Patent Inconsistencies
Three intra-patent inconsistencies exist: (1) the ‘220 and
‘969 Patents both have the same inconsistency; (2) the ‘945 and
‘621 Patents both have another inconsistency; (3) and the ‘339
Patent has yet another inconsistency.
First, independent claims 1 and 13 of each of the ‘220 and
‘969 Patents use the term “overlay activation criterion” in a
manner that is inconsistent with the use of that same term in
dependent claims 9 and 20, and the specifications of both
patents.

In claims 1 and 13, “overlay activation criterion”

must necessarily come from the Internet because the claim states
that “overlay activation criterion” is a component of the
“overlay-enabling digital data” which data, the claim explicitly
states, is provided “over the Internet.” [‘220 Patent, 8:61-9:7,
10:25-40; ‘969 Patent, 9:7-20, 10:36-50]

However, claims 9 and

20, as well as the specifications, state that “user command
information” may be a component of “overlay activation
criterion” and that such information is provided at the user’s
premises and not over the Internet. [‘220 Patent, 7:2-6, claim
3, claim 15; ‘969 Patent, 7:10-15, claims 3 and 15]

Thus, the

intrinsic evidence presents a POSA with irreconcilably
inconsistent information: the ‘220 and ‘969 Patents indicate

8

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that “overlay activation criterion” comes from the Internet and
simultaneously not from the Internet-- i.e., from the user’s
premises.

To state it more to the point, the Patents fail to

inform a POSA of the invention’s scope with reasonable
certainty.
Second, the claims of the ‘945 and ‘621 Patents are
internally inconsistent with their own specifications.

The

claims in which “overlay activation signal” appear refer to a
signal that causes overlays stored in memory to be displayed.
[See, e.g., ‘945 Patent, claim 1 at 9:23-26, claim 12 at 10:3538; ‘621 Patent, claim 1 at 9:21-24]

However, the

specifications of both patents use “activate” to refer only to
the pressing of a remote control key corresponding to a
displayed overlay thereby “activating” the overlay to display
the IP content to which the overlay corresponds. [‘945 Patent,
7:16-34, 45-49; ‘621 Patent, 7:25-42, 52-57]

Thus, a POSA

looking at either the ‘945 Patent or the ‘621 Patent cannot know
what happens upon receipt of an overlay activation signal
because the patents teach two different results.

A POSA is left

to wonder, or in other words, is confused: does the overlay
activation signal result in the display of a stored overlay, or
does it result in the display of IP content?

The patents

provide no guidance as to how a POSA could confidently choose
between the two possibilities. See Media Rights Techs., Inc. v.

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Capital One Fin. Corp., 800 F.3d 1366, 1371 (Fed. Cir. 2015)
(explaining that indefiniteness results when “no informed and
confident choice is available among the contending
definitions.”).
Third, and similarly, the ‘339 Patent’s use of the term
“overlay activation criterion” is inconsistent with the meaning
of “activating” an overlay in its own specification.

Claim 1 of

the ‘339 Patent states that an overlay activation criterion
causes the display of overlays 9, whereas the ‘339 Patent’s
specification, like the specifications of the ‘945 and ‘621
Patents, indicates that activating an overlay results in the
display of IP content. [‘339 Patent, 7:11-27]
TVnGO’s attempts to give clarity to the scope of the
inventions are unpersuasive.

Rather than reconcile

inconsistencies, or provide clear answers to the Court’s
questions-- neither of which TVnGO has been able to do, despite
several opportunities to do so-- TVnGO asks the Court to reject
LG’s arguments because they are merely “attorney argument”
“unsupported by admissible evidence.” [Supplemental Brief, Dkt.
81, p. 2]

LG’s arguments, however, are supported by the Patents

themselves, which, of course, are admissible evidence.

9

The

As discussed infra, this use of overlay activation
criterion in the ‘339 Patent is irreconcilably inconsistent with
the ‘621 Patent insofar as the ‘621 Patent teaches that an
overlay activation signal-- not criterion-- causes the display
of overlays.
10

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Court has endeavored to construe the claims, most of which TVnGO
contends needs no construction because their meaning is plain.
Try as it might, the Court has been unable to do so.

Having

considered the claims, specifications, and prosecution histories
of the Patents-in-Suit, as set forth supra (and infra), the
Court cannot construe the claims with any confidence.

See also,

United Access Techs., 757 F. App’x at 969 (“The internal
coherence and context assessment of the patent, and whether it
conveys claim meaning with reasonable certainty, are questions
of law.”).
Inter-Patent Inconsistencies
As this Court’s above discussion of the ‘339 and ‘621
Patents has previewed, “overlay activation criterion” and
“overlay activation signal” are used interchangeably between the
‘339 Patent and the ‘621 Patent to achieve the same result:
display of an overlay. [See ‘339 Patent, claim 1, line 8-10;
‘621 Patent, claim 1, lines 21-24]

However, the specifications

provide different meanings for these two words.

“Criterion,”

according to the specifications, means condition, such as time
and channel information [see, e.g., ‘339 Patent 3:61-67; ‘621
Patent 4:26-28], whereas “signal” means a selection or
indication from the user [see, e.g. ‘339 Patent 4:64-67; ‘621
Patent 5:8-12].

According to the specifications, and as TVnGO

states in its brief, the “criterion” comes from the Internet,

11

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whereas the “signal” comes from the user via the remote control.
[Dkt. No. 75, p. 8, 10, 14]

The simultaneous use of two

different words with different meanings to achieve the same
result-- display of an overlay-- produces an irreconcilable
inconsistency within the Patents-in-Suit which cannot inform a
POSA, with reasonable certainty, the scope of the invention.
Because “no informed and confident choice is available among the
contending definitions,” Media Rights Techs., Inc., 800 F.3d at
1371, the claim terms are indefinite. Contrast Phillips v. AWH
Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc) (“Because
claim terms are normally used consistently throughout the
patent, the usage of a term in one claim can often illuminate
the meaning of the same term in other claims.”).
Similarly, in the ‘220 Patent, for example, when the
overlay activation criterion is met, the result is the
generation of an overlay. [‘220 Patent, claim 1, lines 9-11; see
also ‘969 Patent, claim 1, lines 21-24]

In contrast, however,

in the ‘339 Patent, the result of the overlay activation
criterion being met is the display of an overlay. [‘339 Patent,
claim 1, lines 8-10]

TVnGO maintains this is exactly as it

should be-- that “when we say ‘generate’ [an overlay] what we
mean is display.” [Transcript, p. 56; see also p. 98, 108 (using
“display” and “generate” interchangeably); Dkt. 75, p. 13 (“When
the claim language describes displaying the overlay, it is

12

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referring to generating the overlay.”); Dkt. No. 78, p. 2
(“‘generating’ . . . means generating ‘display screens’”)]
However, TVnGO cannot point to anything in the claim language,
or anywhere else, from which a POSA could discern why two
different words 10 are used to denote the same result.

Instead,

TVnGO insists, without any intrinsic evidentiary support, that
two different words have the same meaning. 11

This inherent

inconsistency injects even more uncertainty into the Patents-inSuit.
Confronted with these irreconcilable inconsistencies, TVnGO
mischaracterizes LG’s argument.

According to TVnGO, “LG’s

indefiniteness arguments as to overlay activation criterion and

10

The verb “generate” means to create or produce or bring
into existence, whereas the verb “display” means to show or
reveal something already in existence. Merriam-Webster
Unabridged Dictionary. This Court is mindful of the Federal
Circuit’s guidance that “‘a general-usage dictionary cannot
overcome art-specific evidence of the meaning of a claim term.’”
Phillips, 415 F.3d at 1322 (internal citation and quotation
omitted). This Court’s use of a general-usage dictionary in
this circumstance is merely to illustrate the absence of any
art-specific evidence to inform the words’ meanings. See id. at
1322-23 (“judges . . . may [] rely on dictionary definitions
when construing claim terms, so long as the dictionary
definition does not contradict any definition found in or
ascertained by a reading of the patent documents.”) (internal
citation and quotation omitted).
11

TVnGO asserts that “LG’s entire ‘generate’ versus
‘display’ argument is nothing more than its characterization of
the claims, divorced from the actual claim language.” (Dkt. 78,
p. 3)(italics in the brief). However, the failing argument is
TVnGO’s insistence that “generate” and “display” mean the same
thing.
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overlay activation signal are premised solely on the proposition
that claim terms must have the same meaning across all patents.”
[Dkt. No. 75, p. 3 (italics in the brief)]
however, is not so broad.

LG’s argument,

LG asserts, and this Court agrees,

the reason the claim terms are indefinite is not simply because
the terms are used differently.

Rather, the terms are

indefinite because the different uses cannot be reconciled in a
manner that informs a POSA, to a reasonable degree of certainty,
of the meaning of claim terms.
Moreover, in an attempt to fill in the blanks of the
Patents-in-Suit, TVnGO presents the testimony of its expert, Dr.
Sprenger.

In explaining to the Court what a POSA would

understand, however, Dr. Sprenger actually creates more blanks.
With respect to “overlay activation criteria,” Dr. Sprenger
explains,
[i]n the most basic situation where there is no other
information from the user regarding preferences for IP
content, or specific times or channels to view content
(e.g., all times and all channels are available), the
TV-Internet Integration Box checks its own timetable
stored in memory (see, e.g., ‘220 Patent at 4:28-32),
determines whether the overlay activation criteria is
met (e.g., confirming that the user is watching Channel
3 at 7:00 PM which would match the overlay activation
criteria embedded in OEDD [the overlay enabling digital
data] 2), and the TV-Internet Integration Box combines
the overlay-enabling digital data with the TV video
signal received at the first input, outputting the
combined video signal to the TV set.
(Dkt. 75-2, Sprenger Suppl. Decl. ¶ 12)

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First, nothing in the Patents-in-Suit discusses at all a
situation where “there is no other information from the user
regarding preferences for IP content.”

Indeed, Dr. Sprenger’s

citation to the ‘220 Patent specification provides no support
for his statements; 4:28-32 of the ‘220 Patent explains what
happens when a user / subscriber does provide information
concerning “what type of IP data is to be displayed and when.”
[‘220 Patent 4:31-32].
Second, Dr. Sprenger’s explanation introduces an entirely
new concept that also has no support anywhere in the Patents-inSuit: different types of “overlay enabling digital data”
(“OEDD”)-- e.g., “OEDD 1”; “OEDD 2” and “OEDD 3.” (Dkt. 75-2,
Sprenger Suppl. Decl. ¶ 10-12, emphasis added)

The fact that

Dr. Sprenger, in attempting to explain what the Patents-in-Suit
disclose, must create a new embodiment of the patented
technology, using entirely new terms, clearly illustrates that
the specifications do not inform a POSA with a reasonable
certainty as to what the Patents-in-Suit claim.
B.
Lastly, the prosecution histories do not save the disputed
claims from indefiniteness.

The histories provide nothing more

than what limited information is disclosed by the
specifications: “overlay activation criterion” can include
timing and channel information, and an overlay activation signal

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is received from a user. [See Dkt. 75, p. 5, 10]

As discussed

above, this information alone does not allow a POSA to reconcile
the claims’ inconsistencies.
Moreover, the Court is unpersuaded by TVnGO’s argument that
the patent examiners must not have found the terms indefinite
because if they had, they would not have granted the Patents.
First, whether an individual patent examiner, or examiners,
understood what the claim terms meant is not the standard for
indefiniteness.

Second, the argument is tantamount to a

statement of the basic statutory principle that a patent is
presumed valid, 35 U.S.C. § 282.

This principle is already

captured by the allocation of the burden of proof to LG (as the
party seeking to invalidate the patents), id., and the standard
of proof by clear and convincing evidence, which this Court has
employed.
(2011).

Microsoft Corp. v. I4I Ltd. P’ship, 564 U.S. 91, 95
The presumption alone cannot rebut the intrinsic

evidence demonstrating that the disputed claim terms are
indefinite.
Sonix Tech. Co. v. Publications Int’l, Ltd., 844 F.3d 1370
(Fed. Cir. 2017), upon which TVnGO relies, does not stand for
the proposition that a patent examiner’s knowing allowance of
claims by itself defeats a conclusion of indefiniteness.

In

Sonix, the Court reversed the District Court’s indefiniteness
holding because “the intrinsic evidence provided guidance as to

16

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the scope of the claims.”

844 F.3d at 1377.

In this case, as

explained, the intrinsic evidence provides no such guidance.
the contrary, it provides confusion.

To

Indeed, Sonix expressly

states that “application [of the disputed claim terms] by the
examiner and an expert do not, on their own, establish”
definiteness. 844 F.3d at 1380 (emphasis added).
In the Court’s final analysis, a review of the claim terms,
the specifications, and the prosecution histories leave the
Court with unresolved inconsistencies as well as unanswered
questions.
IV.
Because the Court cannot construe the claims, they are
indefinite.

Accordingly, for the above reasons, the Court holds

that ‘220 Patent claims 1, 9, 10, 13, 17, and 20; ‘945 Patent
claims 1, 4, 8, 9, 12, 15, 19, 21; ‘696 Patent claims 1, 9, 10,
13, 17 and 20; ‘339 Patent claims 1, 4-7, 12-15 and 18; and ‘621
Patent claims 1, 4, 9, 11 are indefinite, and therefore not
amenable to construction.

Dated:

An Order accompanies this Opinion.

April 16, 2020

__s/ Renée Marie Bumb____
Renée Marie Bumb, U.S.D.J.

17