Cyber Acoustics, LLC v. Belkin International, Inc.

Filing 78

Opinion and Order - The disputed terms "top" and "bottom" are given their plain and ordinary meanings. The Court construes the disputed term "flap" to mean "a flat piece of material that has at least one side attac hed to the portfolio." The Court construes the disputed term "to engage said flap" to mean "to physically connect the top with the flap." The phrase "X-shaped configuration" in Claim 1(c) is not invalid as indefinit e or in violation of 35 U.S.C. § 112(b). Finally, the Court declines to address Belkin's written description challenge under 35 U.S.C. § 112(a) at this time and will wait to see whether that issue is raised either pretrial in a motion for summary judgment or at trial in a motion for judgment as a matter of law. Signed on 3/24/2014 by Judge Michael H. Simon. (mja) Modified on 3/24/2014 (mja).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CYBER ACOUSTICS, LLC,

Case No. 3:13-cv-01144-SI

Plaintiff,
OPINION AND ORDER
v.
BELKIN INTERNATIONAL, INC.,
Defendant.
Rudolph A. Telscher, Jr., Kara R. Fussner, David A. Nester, and Greg W. Meyer, DICKEY &
PIERCE, P.L.C., 7700 Bonhomme Avenue, Suite 400, St. Louis, MO 63105; Susan D. Pitchford,
CHERNOFF VILHAUER LLP, 601 S.W. Second Avenue, Suite 1600, Portland, OR 97204. Of
Attorneys for Plaintiff.
David P. Enzminger, David P. Dalke, and Jenna W. Logoluso, WINSTON & STRAWN LLP,
333 S. Grand Avenue, 38th Floor, Los Angeles, CA 90071; Jon P. Stride, TONKON TORP LLP,
1600 Pioneer Tower, 888 S.W. Fifth Avenue, Suite 1600, Portland, OR 97204. Of Attorneys for
Defendant.
Michael H. Simon, District Judge.
This is an action by Plaintiff Cyber Acoustics, LLC (“Cyber”) against Defendant Belkin
International, Inc. (“Belkin”) alleging infringement of U.S. Patent No. 8,281,924 (the
“’924 Patent”). Cyber alleges that protective covers sold by Belkin for electronic tablets (for
example, an Apple iPad®) infringe one or more claims of the ’924 Patent. On March 10, 2014,
the Court held a claim construction hearing. Based on the parties’ briefs, other papers filed in the
claim construction proceeding, and the argument of counsel, the Court construes the disputed
terms below.
PAGE 1 – OPINION AND ORDER

STANDARDS
A. Claim Construction
Patent infringement analysis involves two steps. First, the court construes the asserted
claims. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc),
aff’d, 517 U.S. 370 (1996). Second, the fact finder determines whether the accused product or
method infringes the asserted claim as construed. Id. The first step, claim construction, is a
matter of law. See Markman, 517 U.S. at 372; Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
1576, 1582 (Fed. Cir. 1996). “It is a ‘bedrock principle’ of patent law that ‘the claims of a patent
define the invention to which the patentee is entitled the right to exclude.’” Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, Inc. v.
Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). Patent claims must
precisely define the relevant invention and thereby serve to put both the public and competitors
on notice of the claimed invention. See Phillips, 415 F.3d at 1312.
In interpreting a patent claim during the claim construction process, there are “numerous
sources that [a district court] may properly utilize for guidance.” Vitronics, 90 F.3d at 1582.
Some types of evidence are “more valuable than others.” Phillips, 415 F.3d at 1324. The relevant
sources of evidence include both intrinsic evidence and extrinsic evidence. Vitronics, 90 F.3d
at 1582. A court begins claim construction with consideration of intrinsic evidence in the record,
consisting of the claim terms, the patent specification, and the patent prosecution history.
Phillips, 415 F.3d at 1313. Where the intrinsic evidence alone fails to resolve a claim
construction dispute, a court may consider extrinsic evidence. Vitronics, 90 F.3d at 1583.
Extrinsic evidence “consists of all evidence external to the patent and prosecution history,
including expert and inventor testimony, dictionaries, and learned treatises.” Markman, 52 F.3d
at 980.
PAGE 2 – OPINION AND ORDER

Intrinsic evidence is the court’s starting point because it is “the most significant source of
the legally operative meaning of disputed claim language.” Vitronics, 90 F.3d at 1582. The first
type of intrinsic evidence is “the words of the claims themselves, both asserted and nonasserted.”
Id. The words of a claim are “generally given their ordinary and customary meaning.” Phillips,
415 F.3d at 1312 (citation and quotation marks omitted). A claim term’s “ordinary and
customary meaning” is the “meaning that the term would have to a person of ordinary skill in the
art in question at the time of the invention, i.e., as of the effective filing date of the patent
application.” Id. at 1313.
There is a “heavy presumption” that a claim term carries its “ordinary and customary
meaning.” Elbex Video, Ltd. v. Sensormatic Elecs. Corp., 508 F.3d 1366, 1371 (Fed. Cir. 2007).
There are two exceptions to this general rule: (1) “when a patentee sets out a definition and acts
as his own lexicographer;” or (2) “when the patentee disavows the full scope of a claim term
either in the specification or during prosecution.” Thorner v. Sony Computer Entm’t Am. LLC,
669 F.3d 1362, 1365 (Fed. Cir. 2012); see also Hormone Research Found., Inc. v. Genentech,
Inc., 904 F.2d 1558, 1563 (Fed. Cir. 1990) (“It is a well-established axiom in patent law that a
patentee is free to be his or her own lexicographer and thus may use terms in a manner contrary
to or inconsistent with one or more of their ordinary meanings.” (citation omitted)).
In some cases, the “ordinary meaning of claim language” may be “readily apparent to lay
judges,” in which case, “claim construction . . . involves little more than the application of the
widely accepted meaning of commonly understood words.” Phillips, 415 F.3d at 1314. In such
cases, commonplace terms or those that a juror can easily use without further direction from the
court “do not need to be construed because they are neither unfamiliar to the jury, confusing to
the jury, nor affected by the specification or prosecution history.” Bd. of Trs. of Leland Stanford

PAGE 3 – OPINION AND ORDER

Junior Univ. v. Roche Molecular Sys., Inc., 528 F. Supp. 2d 967, 976 (N.D. Cal. 2007). In those
circumstances, it is enough to hold that the ordinary and customary meaning controls. Finjan,
Inc. v. Secure Computing Corp., 626 F.3d 1197, 1206-07 (Fed. Cir. 2010) (holding that the
district court “was not obligated to provide additional guidance to the jury” beyond directing the
jury to apply the “ordinary meaning” of a claim term).
“[T]he context in which a term is used in the asserted claim can be highly instructive.”
Phillips, 415 F.3d at 1314. For example, it is improper for a court to interpret a claim term in a
manner that renders subsequent claim terms superfluous. See Stubmo v. Eastman Outdoors, Inc.,
508 F.3d 1358, 1362 (Fed. Cir. 2007); Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364,
1372 (Fed. Cir. 2005) (“A claim construction that gives meaning to all the terms of the claim is
preferred over one that does not do so.”). The doctrine of claim differentiation further provides
that the limitations in each claim are presumed to be distinct from one another, although simply
“describing claim elements or limitations in different words does not invariably change the scope
of the claim.” Inpro II Licensing, S.A.R.L. v. T-Mobile USA, Inc., 450 F.3d 1350, 1354 (Fed.
Cir. 2006).
The second type of intrinsic evidence is the patent specification. A court does not
determine the ordinary meaning of a disputed term “in a vacuum.” Medrad, Inc. v. MRI Devices
Corp., 401 F.3d 1313, 1319 (Fed. Cir. 2005). The claims “must be read in view of the
specification, of which they are a part.” Markman, 52 F.3d at 979. “[T]he specification is always
highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best
guide to the meaning of a disputed term.” Vitronics, 90 F.3d at 1582. The purpose of a patent’s
specification is to “teach and enable those of skill in the art to make and use the invention and to
provide a best mode for doing so.” Phillips, 415 F.3d at 1323. A specification may limit or

PAGE 4 – OPINION AND ORDER

disavow the scope of a claim, however, when a patentee makes a “clear and unmistakable
disclaimer” deviating from the ordinary meaning. Thorner, 669 F.3d at 1366-67. For example,
where a specification makes clear that an invention does not include a particular feature, “that
feature is deemed to be outside the reach of the claims of the patent, even though the language of
the claims, read without reference to the specification, might be considered broad enough to
encompass the feature in question.” Thorner, 669 F.3d at 1366 (quoting SciMed Life Sys., Inc. v.
Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed. Cir. 2001)).
The Federal Circuit has repeatedly warned, however, that “although the specification
often describes very specific embodiments of the invention,” the claims should not necessarily be
confined to those embodiments. Phillip, 415 F.3d at 1323; Intel Corp. v. U.S. Int’l Trade
Comm’n, 946 F.2d 821, 836 (Fed. Cir. 1991) (holding that “[w]here a specification does not
require a limitation, that limitation should not be read from the specification into the claims”
(citation, quotation, and emphasis omitted); see also Amhil Enters., Ltd. v. Wawa, Inc., 81 F.3d
1554, 1559 (Fed. Cir. 1996) (holding that “[a] preferred embodiment . . . is just that, and the
scope of a patentee’s claims is not necessarily or automatically limited to the preferred
embodiment”). Ultimately, there is “no magic formula or catechism for conducting claim
construction.” Phillips, 415 F.3d at 1324. The court must “read the specification in light of its
purposes in order to determine whether the patentee is setting out specific examples of the
invention to accomplish those goals, or whether the patentee instead intends for the claims and
the embodiments in the specification to be strictly coextensive.” Decisioning.com, Inc. v.
Federated Dept. Stores, Inc., 527 F.3d 1300, 1308 (Fed. Cir. 2008) (quoting Phillips, 415 F.3d
at 1323).

PAGE 5 – OPINION AND ORDER

The third type of intrinsic evidence is the prosecution history of a patent (or the “file
wrapper”), if it is in evidence. Markman, 52 F.3d at 980; see also Graham v. John Deere Co.,
383 U.S. 1, 33 (1966) (“[A]n invention is construed not only in light of the claims, but also with
reference to the file wrapper or prosecution history in the Patent Office.”). The patent history
with the U.S. Patent and Trademark Office (“PTO”) “contains the complete proceedings . . .,
including any express representations made by the applicant regarding the scope of the claims.”
Vitronics, 90 F.3d at 1582. Because the prosecution represents an “ongoing negotiation between
the PTO and the applicant, rather than the final product of that negotiation, it often lacks the
clarity of the specification and thus is less useful for claim construction purposes.” Phillips, 415
F.3d at 1317. The prosecution history, however, can inform the meaning of a claim term where a
patentee makes “a clear and unmistakable disavowal of scope during prosecution.” Creative
Integrated Sys., Inc. v. Nintendo of Am., Inc., 526 F. App’x 927, 934 (Fed. Cir. 2013). “A
patentee could do so, for example, by clearly characterizing the invention in a way to try to
overcome rejections based on prior art.” Computer Docking Station Corp. v. Dell, Inc., 519 F.3d
1366, 1374 (Fed. Cir. 2008); see also Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed.
Cir. 2005) (“The purpose of consulting the prosecution history in construing a claim is to exclude
any interpretation that was disclaimed during prosecution.” (citation and quotation marks
omitted)). If the alleged disavowal of the claim scope is ambiguous, it will not limit the scope of
the claim. Creative Integrated Sys., Inc., 526 F. App’x at 934.
Generally an “analysis of the intrinsic evidence alone will resolve any ambiguity in a
disputed claim term.” Vitronics, 90 F.3d at 1583. Where that is the case, “it is improper to rely
on extrinsic evidence.” Id. Where the ordinary and customary meaning of a claim term is not
apparent based on the intrinsic evidence, courts are authorized to consult extrinsic evidence.

PAGE 6 – OPINION AND ORDER

Markman, 52 F.3d at 980. Relevant extrinsic evidence includes “expert and inventor testimony,
dictionaries, and learned treatises.” Id. at 980. Judges may “rely on dictionary definitions when
construing claims, ‘so long as the dictionary definition does not contradict any definition found
in or ascertained by a reading of the patent documents.’” Meyer Intellectual Props. Ltd. v.
Bodum, Inc., 690 F.3d 1354, 1368 (Fed. Cir. 2012) (quoting Phillips, 415 F.3d at 1322). Indeed,
“heavy reliance on the dictionary divorced from the intrinsic evidence risks transforming the
meaning of the claim term to the artisan into a meaning of the term in the abstract, out of its
particular context, which is the specification.” Phillips, 415 F.3d at 1321. Thus, a patentee is not
“entitled to a claim construction divorced from the context of the written description and
prosecution history.” Nystrom v. Trex Co., Inc., 424 F.3d 1136, 1144-45 (Fed. Cir. 2005).
Extrinsic evidence, therefore, is “less reliable than the patent and its prosecution history in
determining how to read claim terms,” and its consideration is within the court’s sound
discretion. Phillips, 415 F.3d at 1318-19.
B. Indefiniteness
A patent must contain claims “particularly pointing out and distinctly claiming the
subject matter which the inventor or a joint inventor regards as his invention.” 35 U.S.C.
§ 112(b). “Because claims delineate the patentee’s right to exclude, the patent statute requires
that the scope of the claims be sufficiently definite to inform the public of the bounds of the
protected invention, i.e., what subject matter is covered by the exclusive rights of the patent.”
Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008).
Indefiniteness is a legal issue for the court to resolve. Biosig Instruments, Inc. v. Nautilus,
Inc., 715 F.3d 891, 897 (Fed. Cir. 2013). A claim is indefinite only when it is “not amenable to
construction” or is “insolubly ambiguous.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d
1342, 1347 (Fed. Cir. 2005) (citation and quotation marks omitted). The mere “reduction of the
PAGE 7 – OPINION AND ORDER

meaning of a claim into words is not dispositive of whether the term is definite.” Star Scientific,
Inc. v. R.J. Reynolds Tobacco Co. (“Star Scientific I ”), 537 F.3d 1357, 1371 (Fed. Cir. 2008)
(citations omitted). If claim construction results in a definition “that does not provide sufficient
particularity and clarity to inform skilled artisans of the bounds of the claim, the claim is
insolubly ambiguous and invalid for indefiniteness.” Id. On the other hand, “[a]bsolute clarity is
not required to find a claim term definite.” Star Scientific, Inc. v. R.J. Reynolds Tobacco Co.
(“Star Scientific II”), 655 F.3d 1364, 1373 (Fed. Cir. 2011). A claim is sufficiently definite to
satisfy the statute if “one skilled in the art would understand the bounds of the claim when read
in light of the specification.” Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375
(Fed. Cir. 2001). “[C]lose questions of indefiniteness in litigation involving issued patents are
properly resolved in favor of the patentee.” Id. at 1380.
General principles of claim construction are applicable to determining “whether allegedly
indefinite claim language is subject to construction.” Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306,
1319 (Fed. Cir. 2008). Thus, the court may consider intrinsic evidence consisting of the claim
terms, the specification, and the prosecution history. Enzo Biochem, Inc. v. Applera Corp., 599
F.3d 1325, 1332-33 (Fed. Cir. 2010). In addition, the court may also consider extrinsic evidence
when necessary to resolve disputes of indefiniteness. Exxon Research, 265 F.3d at 1376.
BACKGROUND
This case concerns a patent disclosing covers for portable electronic devices, such as the
Apple iPad® or other tablets. Pl.’s Compl., Dkt. 1 at 2 ¶ 8. Plaintiff Cyber alleges that Defendant
Belkin is infringing Cyber’s ’924 Patent. Id. The ’924 Patent is made up of four claims. Pl.’s
Ex. 1 at 6, Dkt. 51-1. Claim 1 is an independent claim with six sub-parts labeled (a) through (f).
Id. Claims 2 through 4 are dependent claims. Id. The ’924 Patent also contains eight figures
illustrating the structure and function of the alleged invention. Id. at figs.1-8.
PAGE 8 – OPINION AND ORDER

A. History of the ’924 Patent
On August 20, 2010, Cyber filed an application for a portfolio-style protective cover that
would hold an electronic tablet device, allow it to stand up, and protect it from damage if struck
or dropped. Pl.’s Ex. 1, Dkt. 51-1 at 1; Pl.’s Ex. 3, Dkt. 51-3 at 8. Shortly thereafter, the PTO
recorded an assignment of the application from Joseph Westrup to Cyber Acoustics, LLC. Pl.’s
Ex. B, Dkt. 1-2 at 1. The U.S. Patent Application 12/860,808 (the “’808 Application”) contained
six claims, which read:
1. A protective cover for electronic devices comprising:
(a) a foldable portfolio having a top and a bottom with corners on said top and
said bottom;
(b) a four-cornered, generally rectangular O-shaped frame secured to the
inside of said bottom;
(c) legs integral with the four corners of said frame oriented radially
outwardly from said frame; and
(d) resilient corner-engaging lugs integral with said legs.
2. The cover of claim 1 wherein said top and said bottom comprise three plies of
(i) a soft inside layer; (ii) a durable outside layer; and (iii) a stiff middle layer.
3. The cover of claim 2 further comprising reversible elastic straps secured to the
corners of said top and said bottom.
4. The cover of claim 3 further comprising an elastic strap secured to the inside of
said top.
5. The cover of claim 4 further comprising a flap on the outside of said bottom.
6. The cover of claim 5 further comprising a hinge integral with said top that permits
said top to be partially opened to an angle of about 90º relative to the remainder of
said top and to engage said flap.
Pl.’s Ex. 3, Dkt. 51-3 at 4. Three months later, Cyber amended Claim 1 of the ’808 Application
as follows:
1. (currently amended) A protective cover for electronic devices comprising:
(a) a foldable portfolio having a top and a bottom with corners on said top and
said bottom;
(b) a four-legged cornered, generally rectangular O-shaped frame secured to
the inside of said bottom;
PAGE 9 – OPINION AND ORDER

(c) the four legs integral with the four corners of said four-legged frame
oriented in an X-shaped configuration relative to each other radially
outwardly from said frame; and
(d) resilient corner-engaging lugs integral with each of said four legs.
Pl.’s Ex. 4, Dkt. 51-4 at 2.1
On July 21, 2011, the PTO Examiner (“Examiner”) rejected all the claims of the
’808 Application. Pl.’s Ex. 5, Dkt. 51-5 at 1-2. The Examiner rejected Claims 1 and 3 through 6
under 35 U.S.C. § 103(a) as being obvious and unpatentable over “Patterson (US 2008/0237432)
in view of Nieves (US 2004/0173482) and Mish (US 2010/149739).” Id. at 3. Regarding
Claim 1, the Examiner found that Patterson disclosed:
[A] protective cover for electronic devices comprising a foldable
portfolio (3) having a top (15) and a bottom (10) with corners on
said top and said bottom; a four-legged frame (6) secured to the
inside of said bottom (10); the four legs of said four-legged frame
oriented in an X-shaped configuration relative to each other
radially outwardly from said frame (see figure 1).
Id. The Examiner concluded that given the prior art, “[i]t would have been obvious to one of
ordinary skill in the art at the time the invention was made to have modified the cover of
Patterson having engaging lugs of Nieves and disposed on the corners as disclosed by Mish.” Id.
at 3-4. The Examiner rejected Claim 5 and found that Patterson “disclosed a flap (26) on the
outside of said bottom (10) (see figure 1).” Id. at 4. Finally, the Examiner rejected Claim 6
(relating to the hinge) because Patterson disclosed “a hinge (18) integral with said top (15) that
permits said top to be partially opened to an angle of about 90º relative to the remainder of said
top and to engage said flap.” Id.

1

During patent prosecution, the PTO requires words that are added to the claims to
appear in underlined font and words that are removed to appear in strike-through font. See 37
C.F.R. § 1.121(c)(2).
PAGE 10 – OPINION AND ORDER

On August 9, 2011, Cyber responded to the July 2011 office action. Pl.’s Ex. 6, Dkt. 51-6
at 1. Cyber argued to the PTO that the cited prior art did not disclose the claimed matter.
Regarding the rejection of Claims 1 and 3 through 6, Cyber argued that Patterson did not
disclose a four-legged frame having its four legs oriented in an X-shape configuration. Id. at 2.
Cyber did not make a specific argument related to the terms “top,” “bottom,” “flap,” or “to
engage said flap.” On September 29, 2011, the PTO sent notification of a final office action
rejecting Claims 1 through 6 as obvious and unpatentable. Pl.’s Ex. 7, Dkt. 51-7 at 1-2.
Cyber next filed an Appeal Brief on October 17, 2011. Pl.’s Ex. 8, Dkt. 51-8 at 1. Cyber
maintained in the appeal its position that Claims 1 and 3 through 6 were improperly rejected on
the basis of Patterson because Patterson failed to disclose the four-legged frame. Pl.’s Ex. 9,
Dkt. 51-9 at 6-7. Moreover, Cyber argued that Claim 5 was improperly rejected because it
included the limitation of a flap on the outside of the bottom of the cover. Regarding Claim 6,
Cyber differentiated Patterson again, arguing that the hinge limitation disclosed in the ’808
Application is not disclosed in either the Patterson specification or drawings. Id.
Thereafter, the Examiner re-opened prosecution of the ’808 Application and issued a
Non-Final Office Action on December 28, 2011. Pl.’s Ex. 10, Dkt. 51-10 at 1-2. The Examiner
rejected the ’808 Application on two separate grounds: (1) indefiniteness pursuant to 35 U.S.C.
§ 112; and (2) obviousness pursuant to 35 U.S.C. § 103(a). Id. at 3-4. The Examiner rejected
Claims 3 through 6 as indefinite for “failing to particularly point out and distinctly claim the
subject matter” of the alleged invention because it was unclear how the elastic straps were
secured to the corners of the top and bottom of the protective cover. Id. at 3-4.
The Examiner also again rejected Claims 1 and 3 through 6 as obvious and “being
unpatentable over Patterson (US 2008/0237432) in view of LeGette (US 2010/0072334).” Id.

PAGE 11 – OPINION AND ORDER

at 4. Further, the Examiner noted that the “X-shaped base portion” of the frame was “a matter of
design” and did “not provide any advantage to the frame” because “the base portion [of the
cover] [could] have an unlimited number of skeletal shapes, so long as there are four corners for
the lugs.” Id. at 5. The Examiner concluded: “It is clear that there is no novelty in an X-shaped
[sic] frame.” Id. Claims 3 through 6 were also rejected on obviousness grounds “as being
unpatentable over Patterson (US 2008/0237432), LeGette (US 2010/0072334) and Moser
(US 2007/0119735) . . ., and further in view of Austin (No. 549,890).” Id. at 6. Specifically, the
Examiner rejected Claim 3 in light of Patterson and Austin’s disclosure of an elastic strap,
Claim 4 in light of Austin’s disclosure of an elastic strap on the inside of the protective cover,
and Claims 5 and 6 in light of Patterson’s disclosure of “a flap (26) on the outside of said
bottom” and “a hinge (18) integral with said top (15) that permits said top to be partially opened
to an angle of about 90º relative to the remainder of said top and to engage said flap.” Id.
On February 24, 2012, Cyber filed an amendment to Claim 3 and provided further
argumentation in response to the December 28, 2011 Non-Final Office Action. Pl.’s Ex. 11,
Dkt. 51-11 at 1-2. Cyber modified Claim 3 to clarify that the elastic straps were “secured to the
corners of said top” and not to the corners of the bottom of the portfolio, thereby addressing the
Examiner’s indefiniteness challenge. Id. at 2-3. Regarding Claims 1 and 3 through 6, Cyber
responded to the Examiner’s obviousness challenge by arguing that the Patterson and LeGette
references did not teach or suggest the X-shaped limitation. Id. at 3-4. In response to the
Examiner’s challenge that the X-shaped configuration was not novel, Cyber argued that the
X-shaped configuration “provides cross-bracing to the frame, thereby imparting greater stability”
that is “lighter in weight than, for example, some planar configuration.” Id. at 4. Cyber did not

PAGE 12 – OPINION AND ORDER

respond to the Examiner’s position that the flap and engagement of the flap in the ’808
Application was obvious in light of Patterson. Id.
On April 12, 2012, the Examiner issued a Final Office Action rejecting Claims 1
through 6 as obvious under 35 U.S.C. § 103(a) in light of Patterson and LeGette, or in view of
Moser or Austin. Pl.’s Ex. 12, Dkt. 51-12 at 3-6. In relevant part, the Examiner rejected that the
X-shaped configuration was a patentable limitation, finding that it was disclosed by Patterson
and “there is no novelty in an X-shaped [sic] frame.” Id. at 5. Regarding Claims 5 and 6, the
Examiner maintained that Patterson further disclosed a flap “on the outside of said bottom” and
the hinge feature in the ’808 Application. Id. at 6. On August 20, 2010, Cyber once again
appealed the Examiner’s rejection of the ’808 Application. Pl.’s Ex. 14, Dkt. 51-14 at 1.
On July 30, 2012, the Examiner and Cyber’s representative spoke by telephone about the
merits of the case. Pl.’s Ex. 15, Dkt. 51-15 at 3. Ultimately, the Examiner agreed to withdraw the
rejection to the claims if the recitations of dependent Claims 5 and 6 were added to independent
Claim 1. Id.
On October 9, 2012, the PTO granted the ’808 Application and issued the ’924 Patent.
’924 Patent, Dkt. 51-1. Cyber filed this lawsuit on July 9, 2013. Dkt. 1.
B. Disputed Terms
The parties disagree as to the construction of four terms used in the ’924 Patent. The
claim terms in dispute are: (1) “top;” (2) “bottom;” (3) “flap;” and (4) “to engage said flap.”
Cyber argues that several of these terms need not be construed, but to the extent the Court wishes
to construe them, Cyber offers its own construction of the disputed terms. In response, Belkin
contends that Cyber’s constructions are not in harmony with the “plain and ordinary meaning” of
the terms and are merely attempts to favor Cyber’s infringement allegations. Belkin also

PAGE 13 – OPINION AND ORDER

challenges the phrase “X-shaped configuration” in Claim 1 as indefinite and in contravention of
35 U.S.C. § 112(b).
DISCUSSION
A. The Patented Invention
The ’924 Patent is directed to a cover for a portable electronic device designed to provide
“unique and useful features that protect such devices from damage and provide support for
operating such devices for a desktop or similar flat surfaces.” Pl.’s Ex. 1, Dkt. 51-1 at 6.
The ’924 Patent reads as follows (with added emphasis in Claim 1 on the disputed terms):
1. A protective cover for electronic devices comprising:
(a) a foldable portfolio having a top and a bottom with corners on said top and
said bottom;
(b) a four-legged frame secured to the inside of said bottom;
(c) the four legs of said four-legged frame oriented in an X-shaped
configuration relative to each other; and [sic]
(d) resilient corner-engaging lugs integral with each of said four legs;
(e) a flap on the outside of said bottom; and
(f) a hinge integral with said top that permits said top to be partially opened to
an angle of about 90º relative to the remainder of said top and to engage
said flap.
2. The cover of claim 1 wherein said top and said bottom comprise three plies of (i)
a soft inside layer; (ii) a durable outside layer; and (iii) a stiff middle layer.
3. The cover of claim 2 further comprising reversible elastic straps secured to the
corners of said top.
4. The cover of claim 3 further comprising an elastic strap secured to the inside of
said top.

PAGE 14 – OPINION AND ORDER

B. Claim Construction
1. Term One: “top”
The term “top” appears in Claims 1 through 4 of the ’924 Patent. The parties propose the
following competing constructions of the term “top”:
Cyber
Plain and ordinary meaning

Belkin
The portion of the folio that contacts the
four-legged frame when the folio is in the
closed position

a. Cyber’s Position
Cyber contends that “top” should be given its plain and ordinary meaning because it is so
well understood that no further construction is required. Beginning with the text of Claim 1(a),
the term top is first mentioned as a part of “a foldable portfolio having a top and a bottom with
corners on said top and said bottom.” ’924 Patent, Dkt. 51-1 at 6. Cyber argues that the use of the
term “top,” and any subsequent limitations used in combination with that term, do not define the
meaning of “top.” Moreover, Cyber argues that to read these limitations into the definition of top
would render later limitations superfluous. See Inpro II Licensing, 450 F.3d at 1354.
Cyber argues that the ’924 Patent specification does not reveal any additional meaning.
Although the specification presents an exemplary cover, Cyber argues that this does not serve to
redefine any claim term within the ’924 Patent. Cyber’s final point is that although the
prosecution history of the ’924 Patent references the exemplary cover, Cyber only did so in a
representation to the Patent Office Board of Appeals because Cyber was required to provide an
explanation of the claimed subject matter. See 37 C.F.R. § 41.37(c)(iii). In sum, Cyber argues
that its choice to use a broad term is not disavowed by any relevant intrinsic evidence.

PAGE 15 – OPINION AND ORDER

b. Belkin’s Position
Belkin proposes an 18-word definition for the term “top” and argues that it should be
defined as: “The portion of the folio that contacts the four-legged frame when the folio is in the
closed position.” Belkin bases its construction largely on the ’924 Patent specification’s
reference that the “foldable portfolio 10” has “a top 10a.” Belkin also relies on Figure 5, which
depicts that when the portfolio is in the closed position, the top 10a is in contact with the fourlegged frame.
c. Claim Construction for “top”
The Court finds that “top” should be given its plain and ordinary meaning and is a term
that is so readily understandable that it need not be subject to further construction. See Lisle
Corp. v. A.J. Mfg. Co., 398 F.3d 1306, 1313-14 (Fed. Cir. 2005) (declining to limit the scope of a
disputed term to a figure depicted within a patent and giving the disputed term its “commonsense meaning”); W.E. Hall Co., Inc. v. Atlanta Corrugating, LLC, 370 F.3d 1343, 1350 (Fed.
Cir. 2004) (holding that “‘single piece’ is sufficiently clear to make even resort to the dictionary
unnecessary”).
Although Belkin seeks to clarify which portion of the portfolio is the top, there are
several errors in Belkin’s definition of the term “top.” With regard to the preferred embodiment
described in the ’924 Patent specification, Belkin concedes its interpretation is meant to “read[]
on the exemplary embodiment of the ’924 Patent.” Def.’s Resp. Br., Dkt. 58 at 12. Belkin’s
definition, however, inaccurately imports, or reads in, limitations from the exemplary
embodiment of the ’924 Patent.
Beginning with the text of the claim, there is no limitation requiring the portfolio to have
specific features when in the closed position. In addition, the ’924 Patent specification makes no
mention of what the “top” must come into contact with when in the closed position. The
PAGE 16 – OPINION AND ORDER

specification references aspects of the top 10a of the portfolio in the closed position once, and
provides that the “[t]op 10a is preferably provided at its corners with reversible elastic straps 40
that may be secured to bottom 10b at corresponding corners to secure cover 1 in a closed or open
position.” ’924 Patent, Dkt. 51-1 at 6. There is no other mention of the concept of a closed
position. Adopting Belkin’s proposed construction violates a basic tenet of claim construction by
reading a limitation into a claim term based on an exemplary embodiment. See Phillips, 415 F.3d
at 1323 (rejecting the argument that if “a patent describes only a single embodiment, the claims
of the patent must be construed as being limited to that embodiment”). There is no portion of the
’924 Patent specification that states that the depictions are meant to be “strictly coextensive,” and
thus Cyber was merely “setting out specific examples of the invention” in order “to teach a
person of ordinary skill in the art how to make and use the invention.” See id.
Belkin also cites to several of Belkin’s accused products for the proposition that Cyber’s
proposed construction is merely an attempt to construe broadly the ’924 Patent for infringement
purposes. The Court has considered the allegedly infringing products solely for the purpose of
establishing the context of the suit at issue, but follows the rule that “claims may not be
construed with reference to the accused device.” Wilson Sporting Goods Co. v. Hillerich &
Bradsby Co., 442 F.3d 1322, 1330 (Fed. Cir. 2006) (citation and quotation marks omitted); see
also SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1118 (Fed. Cir. 1985) (en banc)
(holding that during claim construction, “claims are not construed ‘to cover’ or ‘not to cover’ the
accused device”).
2. Term Two: “bottom”
The term “bottom” appears in Claims 1 and 2 of the ’924 Patent. The parties propose the
following competing constructions of the term “bottom”:

PAGE 17 – OPINION AND ORDER

Cyber
Plain and ordinary meaning

Belkin
The outside portion of the folio to which
each of the legs of the four-legged frame is
secured

a. Cyber’s Position
As with the term “top,” Cyber contends that “bottom” should be given its plain and
ordinary meaning because it is also well understood and requires no further construction. Cyber’s
general point is that the ’924 Patent recites that “the portfolio includes a top and a bottom,
meaning the top is not the bottom, and the bottom is not the top.” Pl.’s Opening Br., Dkt. 50
at 23. Cyber concedes that Claim 1(b) recites a “four-legged frame secured to the inside of said
bottom,” but notes that this further limitation does not define what the bottom is or is not. See
Inpro II Licensing, 450 F.3d at 1354. Cyber argues that unless there is a clear disavowal in claim
scope, Cyber should be entitled to the full scope of the term “bottom.” See Liebel-Flarsheim Co.
v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004). Cyber also argues there is limited reference
to the term “bottom” in the prosecution history of the ’924 Patent.
b. Belkin’s Position
Belkin defines the term “bottom” as: “The outside portion of the folio to which each of
the legs of the four-legged frame is secured.” Belkin’s proposed construction is largely
predicated on the preferred embodiment described in the ’924 Patent specification. Belkin
contends that because the specification describes the “top,” “bottom,” and “flap” as separate
features, the Court should look to those distinguishing features in defining the disputed terms.
The primary concern that Belkin raises is that the term “bottom” of the portfolio should be
defined so it is clear that the bottom of the portfolio cannot also function as the flap.

PAGE 18 – OPINION AND ORDER

c. Claim Construction for “bottom”
The Court construes “bottom” to have its plain and ordinary meaning. The term “bottom”
is sufficiently clear in context that the Court does not believe there is any potential for the term to
confuse the jury if not construed. Courts are not required to construe a term if it could be readily
understood by a layperson. See Finjan, 626 F.3d at 1206-07 (holding that the district court did
not err by not explicitly construing the term “addressed to a client” and relying on its ordinary
meaning); Phillips, 415 F.3d at 1314 (“In some cases, the ordinary meaning of claim language as
understood by a person of skill in the art may be readily apparent even to lay judges, and claim
construction in such cases involves little more than the application of the widely accepted
meaning of commonly understood words.”). Claim 1(a) describes “a foldable portfolio having a
top and a bottom with corners on said top and said bottom.” Based on the ’924 Patent claims, and
the use and orientation of the product as described in the specification, the Court notes it would
be plain to a layperson which portion is the top versus the bottom of the foldable portfolio.
Belkin contends that the Federal Circuit’s decision in O2 Micro International Ltd. v.
Beyond Innovation Technology Co., 521 F.3d 1351 (Fed. Cir. 2008), prohibits, or at least advises
against, the Court in this case from adopting the plain and ordinary meaning of “bottom.” In
O2 Micro, the Court held that “[a] determination that a claim term ‘needs no construction’ or has
the ‘plain and ordinary meaning’ may be inadequate when a term has more than one ‘ordinary
meaning’ or when reliance on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”
521 F.3d at 1361. In that case, the parties agreed that the claim term “only if” had a common
meaning, “but then proceeded to dispute the scope of that claim term.” Id. Here, Belkin’s
arguments about the meaning of the term “bottom” ultimately go to what may or may not
function as the flap, not that the term “bottom” lacks a meaning that would be apparent “to a

PAGE 19 – OPINION AND ORDER

person of ordinary skill in the art after reviewing the intrinsic record at the time of the
invention.” See id. at 1360. In that regard, O2 Micro is inapposite.
The Court rejects Belkin’s construction for several reasons. Belkin’s construction appears
accurately to describe Figure 3 in that only the outside of the bottom 10b is visible. ’924 Patent,
Dkt. 51-1. Further, it is apparent from Figure 3 that the four-legged frame is only attached to the
bottom 10b. Adopting Belkin’s construction, however, would be inconsistent with the claim
terms and specification.
To begin, Belkin’s construction of “bottom” improperly engrafts claim limitations not
present in the ’924 Patent. In particular, Belkin’s construction requires that “each of the legs of
the four-legged frame” be secured to “the folio.” Claim 1(b), however, merely requires that the
frame be “secured to the inside of said bottom.” ’924 Patent, Dkt. 51-1 at 6. Belkin’s proposed
construction also seizes on a feature depicted in Figure 1 of the ’924 Patent and assumes that this
exemplary embodiment is a limitation on the meaning of “bottom.” Figure 1 depicts the portfolio
in an open position, and the frame 20 attached to the bottom 10b by what appears to be
“stitching” around the edges of the frame 20 and legs 22. Id. at fig.1. Belkin argues that the
depicted “stitching” lends support to its proposed construction that the “legs” of the frame are
attached to the “bottom.”
The Court finds that the “stitching” depicted in Figure 1 is an improper basis to define the
term “bottom” as the portion of the folio to which “each of the legs of the four-legged frame”
must be secured. See Phillips, 415 F.3d at 1323; see also MBO Labs., Inc. v. Becton, Dickinson
& Co., 474 F.3d 1323, 1333 (Fed. Cir. 2007) (cautioning that “patent coverage is not necessarily
limited to inventions that look like the ones in the figures” because such an approach would
amount to “import[ing] limitations onto the claim from the specification, which is fraught with

PAGE 20 – OPINION AND ORDER

danger”). Belkin’s construction is based on an interpretation of the exemplary embodiment
depicted in Figure 1 of the ’924 Patent. Yet, the Court cannot rely on such evidence as defining
the scope of the term “bottom” without a clear disavowal of claim scope in the ’924 Patent
specification. See Thorner, 669 F.3d at 1366 (“It is likewise not enough that the only
embodiments, or all of the embodiments, contain a particular limitation.”); see also Home
Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004) (“Absent a clear
disavowal in the specification or the prosecution history, the patentee is entitled to the full scope
of its claim language.”). There is no such disavowal in the ’924 Patent or specifications.
The Court also notes that Belkin’s proposed construction makes some subsequent claim
terms redundant and others more narrow than recited. The doctrine of claim differentiation
provides that “[d]ifferences among claims can also be a useful guide in understanding the
meaning of particular claim terms.” Phillips, 415 F.3d at 1314. The term “bottom” first appears
in Claim 1(a), which describes “a foldable portfolio having a top and a bottom with corners on
said top and said bottom.” ’924 Patent, Dkt. 51-1 at 6. Claim 1(b) discloses a “four-legged frame
secured to the inside of said bottom.” Id. If the Court were to adopt Belkin’s construction,
Claim 1(b) redundantly would read: “a four-legged frame secured to the inside of said outside
portion of the folio to which each of the legs of the four-legged frame is secured.” Belkin’s
proposed construction thus would make the subsequent limitation in Claim 1(b) superfluous,
which is in conflict with the “presumption that the limitation in question is not present in the
independent claim.” Phillips, 415 F.3d at 1315. In short, “[s]uch a construction is disfavored.”
See MEMS Tech. Berhad v. Int’l Trade Comm’n, 447 F. App’x 142, 151 (Fed. Cir. 2011).
The final reason the Court rejects Belkin’s construction of the term “bottom” is because
of the erroneous inclusion of the phrase “outside portion.” Belkin’s construction provides that the

PAGE 21 – OPINION AND ORDER

“bottom” is the “outside portion of the folio,” yet the claims of the ’924 Patent reference both an
“inside of said bottom,” see Claim 1(b), and an “outside of said bottom,” see Claim 1(e).
’924 Patent, Dkt. 51-1 at 6. Belkin’s construction therefore is inconsistent with the text of the
’924 Patent. Belkin’s use of the term “outside” is also inconsistent with the way in which
“outside” is described in the ’924 Patent specification. The terms “inside” and “outside” are put
in context at the very beginning of the ’924 Patent specification, where it states that the “top 10a
and bottom 10b preferably comprise a three-ply lamination of a soft layer 11 such as felt on the
inside of the portfolio that is in contact with the electronic device P, a durable outside layer 12
such as leather, and a stiff middle layer 13 to provide structural support to the top and bottom of
the cover.” ’924 Patent, Dkt. 51-1 at 6 (emphasis added). Based on the text of the claims and
specification, the inside of the portfolio, not the outside, is closer to the electronic device, and as
a result closer to the four-legged frame.
Furthermore, even the outside of the “bottom” is not unequivocally the “outside portion
of folio.” Figure 3 depicts the exemplary bottom 10(b) covered in part by a separate flap 50.
’924 Patent, fig.3, col.2 l.25-29, Dkt. 51-1. Where the flap covers a portion of the bottom, the
flap is in fact on the “outside” of the portfolio, while the area of the bottom that is covered by the
flap might otherwise have been on the “outside.” In this respect, Belkin’s construction is
inconsistent with the preferred embodiment of the ’924 Patent specification. See Accent
Packaging, Inc. v. Leggett & Platt, Inc., 707 F.3d 1318, 1326 (Fed. Cir. 2013) (explaining that “a
claim interpretation that excludes a preferred embodiment from the scope of the claim is rarely,
if ever, correct” (citation and quotation marks omitted)). Thus, “bottom” cannot be defined as the
“outside portion” of the portfolio.

PAGE 22 – OPINION AND ORDER

2. Term Three: “flap”
The term “flap” appears in Claims 1(e) and 1(f) of the ’924 Patent. The parties propose
the following competing constructions of the term “flap”:
Cyber
Plain and ordinary meaning

Belkin
A small piece of material attached to the
folio only on one side

a. Cyber’s Position
Cyber urges the Court to adopt the plain and ordinary meaning of the term “flap” and
argues that nothing in the text of the ’924 Patent claims or the specification provide any sort of
limitation for the term. Cyber also argues that during the ’924 Patent’s prosecution, the limited
arguments relating to the term “flap” were only in response to the Patterson disclosure. Cyber
contested the Examiner’s rejection of Claim 1 of the ’924 Patent on the basis that Patterson
disclosed a flap. Pl.’s Exs. 8-10, Dkts. 51-8, 51-9, 51-10. These arguments to the PTO, Cyber
argues, do not disavow the claim scope or redefine the meaning of “flap.”
To the extent that the Court is willing to rely on any separate dictionary definitions,
Cyber provides several definitions for the Court’s consideration. The definitions of “flap” are as
follows:


Merriam-Webster’s Collegiate Dictionary: “something that is broad, limber, or
flat and usu. thin and that hangs loose or projects freely: as a: piece on a garment
that hangs free.” Pl.’s Ex. 21, Dkt. 51-21 at 3.



American Heritage College Dictionary: “A flat, usu. thin piece attached at one
side.” Pl.’s Ex. 22, Dkt. 51-22 at 3.

Cyber also provides excerpts from Webster’s Third New International Dictionary, Pl.’s
Ex. 23, Dkt. 51-23, Microsoft Encarta College Dictionary, Pl.’s Ex. 24, Dkt. 51-24, and The
American Heritage Dictionary of the English Language, Pl.’s Ex. 25, Dkt. 51-25, without
providing a specific citation to a relevant definition. These varying definitions, Cyber argues,
bolster its position that a single dictionary definition should not serve as the “plain and ordinary
PAGE 23 – OPINION AND ORDER

meaning for a claim term.” Pl.’s Br., Dkt. 50 at 31 n.6. Cyber’s position is that any definition
should be consistent with the general usage of the term flap as “a flat, usually thin piece attached
at one side.”
b. Belkin’s Position
Belkin’s proposed definition of the term “flap” is: “A small piece of material attached to
the folio only on one side.” Belkin relies on the text of Claim 1 and the ’924 Patent specification
to argue that the flap is a separate structure from the bottom of the portfolio. Claim 1(e), for
example, discloses “a flap on the outside of said bottom” and thus indicates that the flap is a
separate structure.
Further, Belkin argues that the ’924 Patent specification describes “flap” in the following
context: the “bottom 10b is preferably provided with a flap 50 designed to capture the outside
edge of top 10a when the same is folded back on itself along crease 16 at an angle θ of about 90º
so as to create an easel or stand for the entire arrangement, best seen in FIG. 8.” ’924 Patent,
col.2 l.25-29, Dkt. 51-1. Figure 8 depicts the “flap” as a structure separate from the bottom 10b
of the portfolio. ’924 Patent, fig.8, Dkt. 51-1.
Belkin also argues that the prosecution history of the ’924 Patent indicates that “flap”
should be construed as a separate structure. Belkin cites to Cyber’s October 17, 2011 Appeal
Brief to the PTO, where Cyber argued:
Claim 5 includes the limitation of a flap on the outside of the
bottom of the cover. The Examiner asserts that clasp 26 shown in
Patterson FIG. 1 meets this. But Patterson does not state what the
attachment point of his clasp 26 is, nor precisely how it is attached,
stating merely that it is interconnected to base 10.
Pl.’s Ex. 9, Dkt. 51-9 at 7. Belkin argues that the “flap” structure was a critical element of the
Examiner’s ultimate grant of the ’924 Patent. See Pl.’s Ex. 15, Dkt. 51-15 at 3 (documenting the

PAGE 24 – OPINION AND ORDER

Examiner agreeing to grant the ’924 Patent claims if dependent Claim 5 in the ‘808 Application
was added to independent Claim 1).
Belkin also argues that common dictionary definitions of “flap” indicate that the flap can
only be attached on one side of the portfolio. Belkin cites:


Webster’s II New College Dictionary: “[a] flat, usu. thin piece attached at only
one side.” Def.’s Am. Ex. 1, Dkt. 62-1.



Oxford Dictionary Online: “a piece of something thin, such as cloth, paper, or
metal, hinged or attached only on one side, that covers an opening or hangs down
from something.” Def.’s Am. Ex. 2, Dkt. 62-1.



Dictionary.com: “something flat and broad that is attached at one side only and
hangs loosely or covers an opening.” Def.’s Am. Ex. 3, Dkt. 62-1.



Free Online Dictionary: “[a] flat, usually thin piece attached at only one side.”
Def.’s Am. Ex. 1, Dkt. 62-1.

Def.’s Am. Exs. 1-4, Dkt. 62-1 (emphasis added). All these definitions, Belkin argues, indicate
that a flap is “a small piece of material attached only on one side.”
Belkin’s construction is based on concerns that Cyber’s interpretation of “flap” may
encompass a construction whereby the “bottom” and “flap” could be the same thing or that the
“flap” could be attached to other elements of the portfolio (such as the top). Such constructions,
Belkin argues, would exclude the preferred embodiment, which is contrary to Federal Circuit
law. See On-Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133, 1138 (Fed.
Cir. 2004) (reasoning that “a claim interpretation that excludes a preferred embodiment from the
scope of the claim ‘is rarely, if ever, correct” (citation and quotation marks omitted)).
c. Claim Construction for “flap”
The Court construes “flap” to mean: “a flat piece of material that has at least one side
attached to the portfolio.” The text of Claim 1(e) discloses a separate structure, the flap, which is
“on the outside of said bottom.” ’924 Patent, Dkt. 51-1 at 6. The specification, similarly,
describes that “the bottom 10b is preferably provided with a flap 50 designed to capture the
PAGE 25 – OPINION AND ORDER

outside edge of top 10a.” Id. Both references in the intrinsic evidence disclose a piece of the
portfolio that is attached and separate from the top, hinge, and bottom. The Court’s construction
is based primarily on the text of Claim 1 and the ’924 Patent specification.
Regarding Cyber’s proposed definition, the Court finds that there is an underlying
ambiguity because of how the disclosed invention functions that makes relying on the plain and
ordinary meaning of “flap” untenable. Because the portfolio itself is foldable into a stand, it is
not readily apparent what portion or portions of the portfolio necessarily function as the bottom
10b versus the flap 50. See ’924 Patent, fig.3-8, Dkt. 51-1. Further, both Belkin and Cyber offer
conflicting arguments relating to whether the plain and ordinary meaning of the term “flap”
would allow the “flap” to connect with other portions of the portfolio on more than one side. For
example, Cyber argues that the plain and ordinary meaning of “flap” could include an item
“attached to the flap at other sides.” Pl.’s Br., Dkt. 50 at 32. In contrast, Belkin argues that a
“flap” can attach to the portfolio on only one side. This conflict means that under O2 Micro, the
Court must resolve the underlying claim construction dispute as a matter of law and not leave the
issue ambiguous for a jury. O2 Micro, 521 F.3d at 1361. Based on the claims and specification,
at least one of the four sides of the flap must be attached to the portfolio in order to allow the
“flap” to function properly.
Cyber argues that Belkin’s proposed restriction that the flap can be attached to the
portfolio on only one side is not supported by the intrinsic evidence in the record. Cyber also
argues that the dictionary definitions of “flap” provided by Belkin do not mandate that the “flap”
be attached to only one side of the portfolio. Cyber further argues that the definitions it provided
do not include the “only” requirement, which supports its position that such a limitation should
not be read into the ’924 Patent claims. Cyber also highlights that several of the online

PAGE 26 – OPINION AND ORDER

dictionaries offered by Belkin are from 2013, after the time the ’924 Patent claims were drafted.
Cyber notes that extrinsic dictionary definitions, if they are used at all, must be from before the
date of the issuance of the patent. See Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d
1294, 1299 (Fed. Cir. 2003). The Court need not address these arguments because there is
enough intrinsic evidence to construe the term “flap.”
Cyber also argues that requiring the “flap” to be attached to the portfolio on only one side
is an improper limitation. According to Cyber, this would create a redundancy with the text of
Claim 1(e) that later requires that the flap is “on the outside of said bottom.” Cyber’s underlying
concern appears to be with potentially interpreting “flap” such that it could not attach, interact, or
contact some other part of the portfolio. The Court’s construction does not run such a risk. This
is best demonstrated by putting the Court’s construction in the context of Claim 1(e) and 1(f).
Each claim would then read:


Claim 1(e): a flat piece of material that has at least one side attached to the
portfolio on the outside of said bottom;



Claim 1(f): a hinge integral with said top that permits said top to be partially
opened to an angle of about 90º relative to the remainder of said top and to engage
said a flat piece of material that has at least one side attached to the portfolio on
the outside of said bottom.

Both applications of the Court’s construction make clear the location of the flap in
relation to other elements of the portfolio—i.e., the “flap” is a separately attached structure.
There also is no risk that the exemplary embodiment, see Figure 8, is in any way precluded by
the Court’s construction. ’924 Patent, fig.8, Dkt. 51-1.
Regarding Belkin’s proposed construction, although the Court finds merit in the
argument that the term “flap” should be construed as a structure separate from the “bottom” of
the portfolio, there is no reason to presuppose that the “flap” disclosed in the ’924 Patent must be
“small.” Presumably, Belkin suggests limiting the size of the flap because of its depiction in
PAGE 27 – OPINION AND ORDER

Figure 3 of the ’924 Patent. Such a limitation is improper, however, because “[p]atent drawings
. . . do not define the precise proportions of the elements and may not be relied on to show
particular sizes if the specification is silent on the issue.” Plantronics, Inc. v. Aliph, Inc., 724
F.3d 1343, 1351 (Fed. Cir. 2013) (citation and quotation marks omitted); see also MPEP § 2125
(“When the reference does not disclose that the drawings are to scale and is silent as to
dimensions, arguments based on measurement of the drawing features are of little value.”).
The Court also rejects the portion of Belkin’s construction that would require the “flap”
to attach to the portfolio on only one side. The term “flap” as used in the ’924 Patent is broad,
and the ’924 Patent claim terms do not contain any indication that the “flap” could not connect
with the portfolio on more than one side. The ’924 Patent specification, similarly, describes how
the “flap” would function to “capture the outside edge of the top when the same is folded back
on itself . . . so as to create an easel or stand for the entire arrangement,” but does not state that
the “flap” can only connect to the portfolio on one side. ’924 Patent, c.2 l.25-29, Dkt. 51-1.
Although the ’924 Patent specification does state that this flap function is “best seen in FIG. 8,”
which depicts a flap that is attached on only one side to the bottom of the portfolio, the Court is
reluctant to engraft depicted features from a preferred embodiment into the claim terms. Id.
at c.2 l.29, fig.8; see also See Thorner, 669 F.3d at 1366 (a limitation in an embodiment alone is
not a clear disavowal of claim scope).
2. Term Four: “to engage said flap”
The phrase “to engage said flap” appears in Claim 1(f) of the ’924 Patent. The parties
propose the following competing constructions of the phrase “to engage said flap”:
Cyber
Plain and ordinary meaning

PAGE 28 – OPINION AND ORDER

Belkin
To use the flap to capture the outside of the
top when the top is folded back on itself at
a 90 degree angle

a. Cyber’s Position
Cyber contends that the phrase “to engage said flap” should be given its plain and
ordinary meaning. The term “engage,” Cyber argues, is a broad, non-limiting word commonly
used in patents. In support of its position, Cyber cites Caddy Products, Inc. v. American Seating
Co., 2008 WL 927569 (D. Minn. Apr. 4, 2008), and 3M Innovative Properties Co. v. Louis M.
Gerson Co., Inc., 2010 WL 4106712 (D. Minn. Oct. 12, 2010), as relevant cases finding a plain
and ordinary meaning of the term “engage.”
In the alternative, Cyber suggests construing “to engage said flap” as “to come or fit
together with the flap.” To support this position, Cyber argues that “engage” must mean to come
into physical contact. See Sollami Co. v. Kennametal Inc., 2006 WL 6211761, at *10 (W.D. Pa.
Aug. 29, 2006) (parties agreeing that “engaging” means to “physically contact”); Am. Seating
Co. v. Freedman Seating Co., 450 F. Supp. 2d 765, 774 (W.D. Mich. 2006) (same). At
minimum, Cyber contends that the type of engagement described need not mirror the exemplary
embodiment or the separate claim limitations within the ’924 Patent.
b. Belkin’s Position
Belkin proposes that “to engage said flap” means: “[t]o use the flap to capture the outside
of the top when the top is folded back on itself at a 90 degree angle.” In support of its
construction, Belkin relies solely on the portion of the ’924 Patent specification that describes “a
flap 50 designed to capture the outside edge of top 10a when the same is folded back on itself
along crease 16 at an angel θ of about 90º so as to create an easel or stand for the entire
arrangement, best seen in FIG. 8.” ’924 Patent, col.2 l.25-29, Dkt. 51-1.

PAGE 29 – OPINION AND ORDER

c. Claim Construction for “to engage said flap”
The Court construes “to engage said flap” to mean “to physically connect the top with the
flap.” The text of Claim 1(e) describes a hinge integral with the top that permits the top to be
“partially opened to an angle of about 90º relative to the remainder of the top and to engage the
flap.” ’924 Patent, Dkt. 51-1. The specification of the patent explains that the configuration
described in Claim 1(e) allows the flap to “capture the outside edge of top 10a . . . so as to create
an easel or stand for the entire arrangement, best seen as FIG. 8.” ’924 Patent, col.2 l.25-29,
fig.8, Dkt. 51-1. Taken in context, it is clear that in order for Claim 1(e) to function, the top must
physically connect with the flap.
The Court rejects Belkin’s proposed construction because it is redundant. See Phillips,
415 F.3d at 1314. Claim 1(e), with Belkin’s construction of the disputed phrase, would read: “a
hinge integral with said top that permits said top to be partially opened to an angle of about 90º
relative to the remainder of said top and to use the flap to capture the outside of the top when the
top is folded back on itself at a 90 degree angle.” This repetition also renders Claim 1(e) virtually
nonsensical. This is reason enough to reject Belkin’s construction. See MEMS Tech., 447 F.
App’x at 151 (rejecting a redundant construction of disputed terms); Becton, Dickinson & Co. v.
Tyco Healthcare Grp., LP, 616 F.3d 1249, 1255 (Fed. Cir. 2010) (“A claim construction that
renders asserted claims facially nonsensical ‘cannot be correct.’” (quoting Schoenhaus v.
Genesco, Inc., 440 F.3d 1354, 1357 (Fed. Cir. 2006)).
Moreover, the Court finds insufficient support for reading one preferred embodiment
from the specification into the text of the ’924 Patent. Belkin’s construction is a paraphrase of a
portion of the specification. See ’924 Patent, c.2 l.25-29, Dkt. 51-1. Because Belkin provides that
“to engage said flap” means “[t]o use the flap to capture the outside edge of the top when the top
is folded back on itself at a 90 degree angle,” the proposed definition is a narrowing construction
PAGE 30 – OPINION AND ORDER

of the phrase “to engage said flap” because it can only occur when one specific scenario is
satisfied. The ’924 Patent specification, however, does not disavow interpretations that do not
squarely fall within Belkin’s construction; therefore, the Court cannot rely on this selected
portion of the specification as a disclaimer of the scope of the ’924 Patent. See Thorner, 669 F.3d
at 1366-67; see Amhil, 81 F.3d at 1559. Belkin’s interpretation is an improper attempt to read a
preferred embodiment into the claims. See Phillips, 415 F.3d at 1316.
B. Indefiniteness
Belkin argues for the first time in its opening claim construction brief that the phrase “Xshaped configuration” in Claim 1(c) fails to satisfy the requirements of 35 U.S.C. § 112(b) and is
indefinite.2 Def.’s Am. Br., Dkt. 63 at 21. Belkin contends that “one skilled in the art would [not]
understand the bounds of the claim when read in light of the specification,” and thus the patent
claim is invalid as indefinite. See Exxon Research, 265 F.3d at 1375. The substance of Belkin’s
argument is that Claim 1(c) discloses: “the four legs of said four-legged frame oriented in an Xshaped configuration relative to each other.” ’924 Patent, Dkt. 51-1. The specification, Belkin
argues, does not disclose an “X-shaped configuration,” but instead, an “O-shaped frame.” ’924
Patent, col.2 l.4-6. Belkin’s conclusion is that “X” and “O” are not essentially the same, and
finding so would frustrate the purpose of the definiteness standard by failing adequately to notify
the public of the patentee’s right to exclude.

2

Although Cyber did not have the benefit of addressing Belkin’s indefiniteness argument
in Cyber’s opening brief, Cyber provided a thorough response brief and oral argument to the
Court. The Court also granted the parties an opportunity to submit supplemental responsive
briefing before the Markman hearing. Dkt. 67. Because there is an insufficient showing by Cyber
of unfair prejudice, the Court declines to exclude Belkin’s indefiniteness challenge under Federal
Rule of Civil Procedure 16.

PAGE 31 – OPINION AND ORDER

Cyber responds that Belkin’s indefiniteness arguments lack merit because the “X-shaped
configuration” phrase is not insolubly ambiguous. Under the standard from Exxon Research,
Cyber contends that so long as “the meaning of the claim is discernible . . . [it is] sufficiently
clear to avoid invalidity on indefiniteness grounds.” 265 F.3d at 1371. Cyber explains that
Claim 1(c) recites the legs of the frame as being in an X-shaped configuration. In contrast, the
shape of the frame is not disclosed in the text of the ’924 Patent claims, but is described in the
specification as follows:
A prominent feature of cover 1 is a generally rectangular O-shaped
frame 20 on the inside of the bottom 10b that provides structural
support. Frame 20 is provided with four legs 22 integral with frame
20 to the four corners of bottom 10b. Legs 22 terminate in four
resilient lugs 24 adapted to capture the four corners of electronic
device P and hold the same securely in place against the bottom
10b.
’924 Patent, col.2 l.4-11, Dkt. 51-1 (emphasis added).
The Court returns to the general principles of claim construction. Praxair, 543 F.3d
at 1319. The claims of the ’924 Patent are afforded a statutory presumption of validity. See 35
U.S.C. § 282. Overcoming this presumption of validity “requires that any facts supporting a
holding of invalidity be proved by clear and convincing evidence.” Intellectual Prop. Dev., Inc.
v. UA-Columbia Cablevision of Westchester, Inc., 336 F.3d 1308, 1319 (Fed. Cir. 2003). In light
of the plain text of Claim 1(c), it is readily apparent that the phrase “X-shaped configuration”
describes the orientation of “the four legs of said four-legged frame,” whereas the reference to an
“O-shaped frame” references the frame to which the four legs are attached. 924 Patent,
Claim 1(c), c.2 l.4-5, Dkt. 51-1 (emphasis added).
Belkin alleges that the ’924 Patent specification creates insoluble ambiguity, yet there is
no direct conflict in describing the shape of the frame generally in the ’924 Patent specification
and then claiming a very specific orientation of the four legs of the four-legged frame in
PAGE 32 – OPINION AND ORDER

Claim 1(c) of the ’924 Patent. Moreover, Belkin has not provided the Court with expert
evidence, although such evidence is not per se required, demonstrating that a person of ordinary
skill in the art would conclude that the phrase “X-shaped configuration” is insolubly ambiguous.
See Elcommerce.com, Inc. v. SAP AG, --- F.3d ---, 2014 WL 685622, at *14 (Fed. Cir. Feb. 24,
2014). Belkin’s arguments before the Court are insufficient to overcome the straightforward
reading of the’924 Patent claims and specification described above.
The parties both reference the patent prosecution history for support of their respective
positions. On April 12, 2012, the Examiner issued a Final Office Action rejecting Claims 1
through 6 as obvious under 35 U.S.C. § 103(a) in light of Patterson and other prior art. Pl.’s
Ex. 12, Dkt. 51-12 at 3-6. In relevant part, the Examiner rejected that the X-shaped configuration
was a patentable limitation, finding that it was disclosed by Patterson and “there is no novelty in
an X-shaped [sic] frame.” Id. at 5. In Cyber’s appeal of that rejection, Cyber maintained its
argument that Patterson did not disclose a four-legged frame, and instead, only disclosed “four
corners of [a] rotatable attachment mechanism.” Pl.’s Ex. 14, Dkt. 51-14 at 4. Shortly after that
exchange, Cyber and the Examiner agreed to issue the ’924 Patent if Claims 5 and 6 were added
to Claim 1.
This exchange bolsters the notion that using the phrase “X-shaped configuration” to
describe the configuration of the “four legs of the four-legged frame” is readily comprehensible.
Cyber’s argument during the prosecution of the ’924 Patent was that the Patterson frame did not
disclose legs in an X-shaped configuration. The Examiner relied on a figure from the Patterson
disclosure and noted that the circled portions of the Patterson frame (6) “can also be considered
as being in an X-shape since it has projected corners as in the applicant’s frame.” Pl.’s Ex. 12,
Dkt. 51-12 at 3-4. Giving Claim 1 of the ’924 Patent the “broadest reasonable interpretation,” see

PAGE 33 – OPINION AND ORDER

MPEP § 2111, the Examiner’s position was that a four-legged frame was obvious in light of the
Patterson prior art and thus not patentable. This exchange does not demonstrate that Claim 1(c)
of the ’924 Patent is not readily understandable.
The only indefiniteness rejection in the ’924 Patent prosecution history reveals that the
Examiner rejected Claims 3 through 6 because it was unclear how the elastic straps were secured
to the corners of the top and bottom of the protective cover. Pl.’s Ex. 10, Dkt. 51-10 at 3-4. After
this indefiniteness challenge, Cyber modified Claim 3 to clarify that the elastic straps were
“secured to the corners of said top.” Pl.’s Ex. 11, Dkt. 51-11 at 1-2.
Belkin also contends that the prosecution history of the ’924 Patent demonstrates that
Cyber abandoned a claim to an “O-shaped” frame in favor of an “X-shaped” frame. Because of
this, Belkin argues, prosecution history estoppel prevents Cyber from arguing that a range of
equivalents to an X-shaped configuration might be infringing products. Yet, Belkin’s argument
conflates the leg and frame structures, which as explained above, are separately identified in the
’924 Patent. In sum, the Court finds that Belkin’s indefiniteness challenge to the ’924 Patent is
without merit.
As a final matter, Belkin appears also to be raising a written description challenge under
35 U.S.C. § 112(a). Belkin’s arguments wander between, and arguably conflate, a challenge
under 35 U.S.C. § 112(b) (indefiniteness) and a challenge under 35 U.S.C. § 112(a) (written
description) without clearly delineating these two distinct issues. The Court declines at this time
to address Belkin’s written description challenge under 35 U.S.C. § 112(a) because such an
inquiry is inappropriate at this stage of the litigation when a court must first construe any
disputed claims in order to “ensure that the scope of the right to exclude, as set forth in the
claims, does not overreach the scope of the inventor’s contribution to the field of art as described

PAGE 34 – OPINION AND ORDER

in the patent specification.” In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303,
1319 (Fed. Cir. 2011) (quoting Reiffin v. Microsoft Corp., 214 F.3d 1342, 1345 (Fed. Cir. 2000)).
Further, a written description challenge is generally “a question of fact but is amenable to
summary judgment in cases where no reasonable fact finder could return a verdict for the nonmoving party.” PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1307 (Fed. Cir. 2008).
We are not yet at the stage of summary judgment, and no such motion is pending. The Court,
therefore, declines to address the written description requirement at this time.
CONCLUSION
The disputed terms “top” and “bottom” are given their plain and ordinary meanings. The
Court construes the disputed term “flap” to mean “a flat piece of material that has at least one
side attached to the portfolio.” The Court construes the disputed term “to engage said flap” to
mean “to physically connect the top with the flap.” The phrase “X-shaped configuration” in
Claim 1(c) is not invalid as indefinite or in violation of 35 U.S.C. § 112(b). Finally, the Court
declines to address Belkin’s “written description” challenge under 35 U.S.C. § 112(a) at this time
and will wait to see whether that issue is raised either pretrial in a motion for summary judgment
or at trial in a motion for judgment as a matter of law.
IT IS SO ORDERED.
DATED this 24th day of March, 2014.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 35 – OPINION AND ORDER