SimpleAir, Inc. v. Microsoft Corporation et al
Filing
379
MEMORANDUM OPINION AND order - Before the Court are Plaintiff SimpleAir, Inc.s Opening Claim Construction Brief (Dkt. No. 302), Defendants Responsive Claim Construction Brief (Dkt. No. 329), and Plaintiffs Reply (Dkt. No. 359). The Court construes contextual graphics to be graphics relating to the context of the preprocessed data that has been received. The Court finds that predefined format needs no further construction. Signed by Judge Rodney Gilstrap on 5/20/13. (ehs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
SIMPLEAIR, INC.
vs.
MICROSOFT CORP., ET AL.
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CASE NO. 2:11-CV-0416-JRG
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff SimpleAir, Inc.’s Opening Claim Construction Brief (Dkt.
No. 302), Defendants’ Responsive Claim Construction Brief (Dkt. No. 329), and Plaintiff’s
Reply (Dkt. No. 359).
The Court held a hearing on April 26, 2013.
I.
BACKGROUND AND THE PATENTS-IN-SUIT
Plaintiff SimpleAir, Inc. (“SimpleAir”) brings this action against nine defendant groups:
Microsoft Corp.; Google Inc. and Motorola Mobility LLC; Nokia Inc.; Samsung Electronics
Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC;
Sony Mobile Communications (USA) Inc. f/k/a Sony Ericsson Mobile Communications (USA),
Inc.; Ericsson Inc.; Futurewei Technologies, Inc. (d/b/a Huawei Technologies (USA)) and
Huawei Technologies Co., Ltd.; HTC America, Inc., and HTC Corporation; and LG Electronics
Mobilecomm U.S.A., Inc. (collectively “Defendants”). The action alleges infringement of U.S.
Pat. No. 6,021,433 (the “‘433 Patent”) and U.S. Pat. No. 7,035,914 (the “‘914 Patent”)
(collectively, the “patents-in-suit”). The ‘914 Patent is based on a continuation application of the
1
‘433 Patent.1 Both patents assert a priority claim to multiple provisional applications filed in
1996. Both patents have been subject to reexaminations. Claims 1 and 69 of both patents are
asserted.
A prior Eastern District of Texas case involved the two patents-in-suit (and two
additional patents). A claim construction order was issued in that case on September 2, 2011.
SimpleAir Inc., v. Apple, Inc., et al., 2:09-cv-289-CE (Magistrate Judge Everingham) (referred
to herein as the AWS Order). The parties currently dispute ten groupings of claim terms. Several
of the claim disputes raise indefiniteness issues under 35 U.S.C. §112. Many of the claim terms
in dispute were addressed in the AWS Order.
In general, the ‘433 Patent and the ‘914 Patent relate to methods of processing and
transmitting internet-based content and real time modifications (e.g., breaking news alerts,
financial news, e-mail notifications, sports scores, weather alerts, etc.) to remote computing
devices. AWS Order at 1. The ‘433 Patent Abstract explains the invention as follows:
A system and method for data communication connecting on-line networks with
on-line and off-line computers. The present system provides for broadcast of up to
the minute notification centric data thereby providing an instant call to action for
users who are provided with the ability to instantaneously retrieve further detailed
information. Information sources transmit data to a central broadcast server,
which preprocesses the data for wireless broadcast. The notification centric
portions of data are wirelessly broadcast to wireless receiving devices that are
attached to computing devices. Upon receipt of the data at the computing device,
the user is notified through different multimedia alerts that there is an incoming
message. Wirelessly broadcasted URL's, associated with the data, are embedded
in data packets and provide an automated wired or wireless connection back to the
information source for obtaining detailed data.
‘433 Abstract.
1
The patents have substantially identical specifications. Citations to the specification will be as ‘XXX
col:lines.
2
II.
LEGAL PRINCIPLES
A.
Claim Construction Principles
“A claim in a patent provides the metes and bounds of the right which the patent confers
on the patentee to exclude others from making, using or selling the protected invention.” Burke,
Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999). Claim construction
is an issue of law for the court to decide. Markman v. Westview Instruments, Inc., 52 F.3d 967,
970-71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996).
To ascertain the meaning of claims, the court looks to three primary sources: the claims,
the specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must
contain a written description of the invention that enables one of ordinary skill in the art to make
and use the invention. Id. A patent’s claims must be read in view of the specification, of which
they are a part. Id. For claim construction purposes, the description may act as a sort of
dictionary, which explains the invention and may define terms used in the claims. Id. “One
purpose for examining the specification is to determine if the patentee has limited the scope of
the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
Nonetheless, it is the function of the claims, not the specification, to set forth the limits of
the patentee’s invention. Otherwise, there would be no need for claims. SRI Int’l v. Matsushita
Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
lexicographer, but any special definition given to a word must be clearly set forth in the
specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992).
Although the specification may indicate that certain embodiments are preferred, particular
embodiments appearing in the specification will not be read into the claims when the claim
language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
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34 F.3d 1048, 1054 (Fed. Cir. 1994).
This court’s claim construction decision must be informed by the Federal Circuit’s
decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips,
the court set forth several guideposts that courts should follow when construing claims. In
particular, the court reiterated that “the claims of a patent define the invention to which the
patentee is entitled the right to exclude.”
415 F.3d at 1312 (emphasis added) (quoting
Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir.
2004)). To that end, the words used in a claim are generally given their ordinary and customary
meaning. Id. The ordinary and customary meaning of a claim term “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. This principle of patent law
flows naturally from the recognition that inventors are usually persons who are skilled in the
field of the invention and that patents are addressed to and intended to be read by others skilled
in the particular art. Id.
Despite the importance of claim terms, Phillips made clear that “the person of ordinary
skill in the art is deemed to read the claim term not only in the context of the particular claim in
which the disputed term appears, but in the context of the entire patent, including the
specification.” Id. Although the claims themselves may provide guidance as to the meaning of
particular terms, those terms are part of “a fully integrated written instrument.” Id. at 1315
(quoting Markman, 52 F.3d at 978). Thus, the Phillips court emphasized the specification as
being the primary basis for construing the claims. Id. at 1314-17. As the Supreme Court stated
long ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive
portions of the specification to aid in solving the doubt or in ascertaining the true intent and
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meaning of the language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878). In
addressing the role of the specification, the Phillips court quoted with approval its earlier
observations from Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
1998):
Ultimately, the interpretation to be given a term can only be determined and
confirmed with a full understanding of what the inventors actually invented and
intended to envelop with the claim. The construction that stays true to the claim
language and most naturally aligns with the patent’s description of the invention
will be, in the end, the correct construction.
Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important role the
specification plays in the claim construction process.
The prosecution history also continues to play an important role in claim interpretation.
Like the specification, the prosecution history helps to demonstrate how the inventor and the
Patent and Trademark Office (“PTO”) understood the patent. Id. at 1317. Because the file
history, however, “represents an ongoing negotiation between the PTO and the applicant,” it may
lack the clarity of the specification and thus be less useful in claim construction proceedings. Id.
Nevertheless, the prosecution history is intrinsic evidence that is relevant to the determination of
how the inventor understood the invention and whether the inventor limited the invention during
prosecution by narrowing the scope of the claims. Id.
Phillips rejected any claim construction approach that sacrificed the intrinsic record in
favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court
condemned the suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
dictionaries or otherwise) before resorting to the specification for certain limited purposes.
Phillips, 415 F.3d at 1319-24. The approach suggested by Texas Digital—the assignment of a
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limited role to the specification—was rejected as inconsistent with decisions holding the
specification to be the best guide to the meaning of a disputed term. Id. at 1320-21. According
to Phillips, reliance on dictionary definitions at the expense of the specification had the effect of
“focus[ing] the inquiry on the abstract meaning of words rather than on the meaning of claim
terms within the context of the patent.” Id. at 1321. Phillips emphasized that the patent system
is based on the proposition that the claims cover only the invented subject matter. Id. What is
described in the claims flows from the statutory requirement imposed on the patentee to describe
and particularly claim what he or she has invented. Id. The definitions found in dictionaries,
however, often flow from the editors’ objective of assembling all of the possible definitions for a
word. Id. at 1321-22.
Phillips does not preclude all uses of dictionaries in claim construction proceedings.
Instead, the court assigned dictionaries a role subordinate to the intrinsic record. In doing so, the
court emphasized that claim construction issues are not resolved by any magic formula. The
court did not impose any particular sequence of steps for a court to follow when it considers
disputed claim language. Id. at 1323-25. Rather, Phillips held that a court must attach the
appropriate weight to the intrinsic sources offered in support of a proposed claim construction,
bearing in mind the general rule that the claims measure the scope of the patent grant.
B.
Claim Indefiniteness
Patent claims must particularly point out and distinctly claim the subject matter regarded
as the invention. 35 U.S.C. § 112, ¶ 2. Whether a claim meets this definiteness requirement is a
matter of law.
Young v. Lumenis, Inc., 492 F.3d 1336, 1344 (Fed. Cir. 2007).
A party
challenging the definiteness of a claim must show it is invalid by clear and convincing evidence.
Id. at 1345.
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“Only claims ‘not amenable to construction’ or ‘insolubly ambiguous’ are indefinite.”
Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1250 (Fed. Cir. 2008) (quoting
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005)). That is, the
“standard [for finding indefiniteness] is met where an accused infringer shows by clear and
convincing evidence that a skilled artisan could not discern the boundaries of the claim based on
the claim language, the specification, and the prosecution history, as well as her knowledge of
the relevant art area.” Halliburton, 514 F.3d at 1249-50. The ultimate issue is whether someone
working in the relevant technical field could understand the bounds of a claim. Haemonetics
Corp. v. Baxter Healthcare Corp., 607 F.3d 776, 783 (Fed. Cir. 2010).
In determining whether that standard is met, i.e., whether the claims at issue are
sufficiently precise to permit a potential competitor to determine whether or not
he is infringing, we have not held that a claim is indefinite merely because it
poses a difficult issue of claim construction. We engage in claim construction
every day, and cases frequently present close questions of claim construction on
which expert witnesses, trial courts, and even the judges of this court may
disagree. Under a broad concept of indefiniteness, all but the clearest claim
construction issues could be regarded as giving rise to invalidating indefiniteness
in the claims at issue. But we have not adopted that approach to the law of
indefiniteness. We have not insisted that claims be plain on their face in order to
avoid condemnation for indefiniteness; rather, what we have asked is that the
claims be amenable to construction, however difficult that task may be. If a claim
is insolubly ambiguous, and no narrowing construction can properly be adopted,
we have held the claim indefinite. If the meaning of the claim is discernible, even
though the task may be formidable and the conclusion may be one over which
reasonable persons will disagree, we have held the claim sufficiently clear to
avoid invalidity on indefiniteness grounds. . . . By finding claims indefinite only if
reasonable efforts at claim construction prove futile, we accord respect to the
statutory presumption of patent validity . . . and we protect the inventive
contribution of patentees, even when the drafting of their patents has been less
than ideal.
Exxon Research & Eng’g Co. v. U.S., 265 F.3d 1371, 1375 (Fed. Cir. 2001) (citations and
internal quotation marks omitted).
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C.
Construing Claim Terms that Have Previously Been Construed by This or
Other Courts
As indicated above, it is worth noting that this is not the first opportunity for this Court to
construe the patents-in-suit. See AWS Order. Although the disputes in this case present many of
the same issues that have already been resolved in the case mentioned above, the Court still
carefully considered all of the parties’ arguments (both the new and repetitive arguments) in
construing the claims in this case. See Burns, Morriss & Stewart Ltd. P’ship v. Masonite Int’l
Corp., 401 F. Supp. 2d 692, 697 (E.D. Tex. 2005) (describing that although a previous
construction may be instructive and provide the basis of the analysis, particularly when there are
new parties and those parties have presented new arguments, the previous construction is not
binding on the court). As indicated by Burns, however, the previous constructions in those
cases, and particularly from those in this District, are instructive and will at times provide part of
the basis for the analysis. See id.
IV.
CONSTRUCTION OF DISPUTED TERMS
A. “whether said computing devices are online or offline from a data channel
associated with each device” (‘914 Claim 1)
The parties propose a construction for portions of the term in question and for the entire
term.2
“data channel”
Plaintiff’s Proposed Construction
one or more communication channels or
paths for accessing or viewing a category
or subcategory of information that is
provided by an information source over a
communications network
Defendants’ Proposed Construction
any path between the remote computing
device and the Internet (or some other
online service) through which information
can flow to or from the remote computing
device and that does not include the path
2
Defendants also seek construction of “offline from a data channel associated with each device” to mean “not
connected to the Internet (or some other online service) via ‘a data channel associated with each device.’” As
Defendants’ construction is repeated in their construction of the phrase as a whole, the Court shall address such
dispute in context of the entire phrase.
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between the remote computing device and
the attached receiver
Microsoft’s Compromise Construction:
any communication path between the
remote computing device and the Internet
(or some other online service) that does not
include the attached receiver
Whole term: “whether said computing devices are online or offline from a data channel
associated with each device”
Plaintiff’s Proposed Construction
whether the remote computing devices are
or are not connected via the Internet or
another online service to a data channel
associated with each computing device at
the time the preprocessed data is received
by the receivers
Additional clarification:
A device is not online to an associated data
channel merely because it is able to receive
data transmissions (directly or indirectly)
from the central broadcast server.
Defendants’ Proposed Construction
whether said devices are or are not
connected to the Internet (or some other
online service) via “a data channel
associated with each device”
Microsoft’s Compromise Construction:
whether the remote computing device are
or are not connected to the Internet (or
another online service) via a data channel
associated with each computing device at
the time the preprocessed data is received
by the receivers
Additional clarification:
[Defendants: not necessary]
Microsoft’s Compromise Proposal:
A device is online to an associated data
channel if it is able to receive data
transmissions through the data channel and
is offline from an associated data channel if
it is unable to receive data transmissions
through the data channel.
There are several disputes between the parties with regard to these terms. First, the
parties dispute whether the “data channel” may merely be the first connection point to the
Internet (the first hop) that is used to access the Internet (Defendants) or whether the “data
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channel” is the path to an information source (SimpleAir). Defendants also assert that the data
channel cannot include the path through the receiver. The parties also dispute whether the
standard Internet connection must be disconnected when receiving “pushed” data. For example
if the data channel can be a web broadcasting channel (SimpleAir’s position), the parties dispute
whether the claim allows being connected to the Internet with a single connection (an always
connected Internet connection for example) in which the user is just disconnected from one web
broadcasting channel but is still pushed data from that channel through the Internet connection
which is on. This dispute is manifested in the parties’ “to” / “via” language as to whether the
computing devices “are or are not connected to the Internet” (Defendants) verses “are or are not
connected via the Internet to a data channel.”
“data channel”
1. Parties’ Positions
SimpleAir cites to its expert declaration to assert that a “data channel” invokes a
television channel metaphor. SimpleAir asserts that Internet broadcasting of information is one
of the specific fields of the invention and that the AWS Order recognized this. Dkt. 302 at 22-23
(citing ‘433 Abstract). SimpleAir objects to Defendants’ construction of “data channel” as
ignoring the specific sense that the term was known in the field of the invention. SimpleAir
further asserts that Defendants’ construction ignores the claim language which states the “data
channel” is “associated with each device.”
Dkt. 302 at 25, n. 17.
SimpleAir objects to
Defendants’ construction for merely reducing the invention to whether or not a device is
connected to the Internet. SimpleAir asserts that this is the exact same result that the AWS
defendants sought, a result which was rejected in the AWS Order. Dkt. 302 at 25-26 (citing AWS
Order at 34).
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Defendants assert that their construction clarifies that a “data channel” cannot encompass
the alternative broadcast path between the remote computing device and the attached receiver.
Dkt. 329 at 4. Defendants first note that “data channel” was never used in the specification and
that, as agreed by the parties, the single use of “channel” refers to an unrelated kind of channel.
Dkt. 329 at 5.
Defendants assert because “data channel” is not defined or used in the
specification, the Court should look to the context of the alleged invention to determine the
construction.
Defendants assert that the specification provides for two paths to the remote
computing device, one path on the left of Figure 1 (such as through connection 24) and a second
alternative path on the right of Figure 1 (such as through receiver 32). Defendants assert that the
data channel corresponds to the data path on the left side of Figure 1. Defendants assert that this
path is the standard internet connection that in 1996 could typically be “online” or “offline” by
using dial-up modems. Dkt. 329 at 5-6. Defendants assert that the crux of the invention is that
information can be received through receiver 32 through the always-available alternative path
even when the remote computing device is “offline” through connection 24. Dkt. 329 at 6-7.
Defendants assert that the second alternative route cannot be part of the recited “data channel”
because the claims require the computer to receive data even when the “data channel” is offline.
Defendants object to equating “data channel” to a webcasting channel. Defendants assert
that “internet broadcasting” or “webcasting” is never mentioned in the specification. Defendants
further cite to SimpleAir’s expert’s admission that “data channel” being used in the context of
“internet broadcasting” did not begin until after the patent filings. Dkt. 329 at 8. Defendants
also assert that the term “data channel” was first added to the claims eight years after the priority
data. Defendants assert that the disagreement of the experts and the variety of meanings in the
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extrinsic evidence renders the term ambiguous and indefinite under 35 USC §112. Dkt. 329 at 89.
In reply, SimpleAir asserts that Defendants’ construction of “data channel” is simply a
path that leads to the Internet. SimpleAir asserts that Defendants replace the claimed “from a
data channel” with “via.” SimpleAir asserts that Defendants are attempting to construe “data
channel” as merely the initial hop from the device to the Internet. Dkt. 359 at 1. SimpleAir
asserts that a data channel is a particular destination. SimpleAir also asserts that the AWS
construction found that “a” may mean “one or more” and thus the device may be associated with
more than one channel. SimpleAir asserts that the device may be online to one channel but not
to another channel. Dkt. 359 at 2.
SimpleAir asserts that Defendants’ construction of “data channel” renders the
surrounding claim language superfluous. SimpleAir asserts that because the parties agree that
“online or offline” refers to a device’s Internet connection, the “from a data channel” language
cannot simply refer, again, to whether a device is connected to the Internet. Dkt. 359 at 2.
SimpleAir asserts that Defendants’ proposal reduces the claim to “whether a device is or is not
connected to the Internet through a connection to the Internet.” Dkt. 359 at 2. SimpleAir
similarly asserts that Defendants’ construction of “data channel” renders superfluous the claimed
“associated with each device” language. In addition, SimpleAir asserts that it expressly affirmed
the SimpleAir construction in the reexamination record. Dkt. 359 at 4.
As to Defendants’ contention that the data channel’s path cannot include the “receiver,”
SimpleAir asserts that the ‘914 claims do not recite a “receiver.” In addition, SimpleAir asserts
that there is no disclaimer that precludes the “data channel” path from running through the
receiver. Dkt. 359 at 5-6.
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2. Analysis
The AWS Order explains how, in the context of the specification, a data channel is not
merely a network connection or path between the computing device and the Internet:
The specification explains that “on-line services and other information sources,
provide data feeds, including real time data feeds” to the central broadcast server
regarding, for example, “news, sports, and financial stories.” ‘433 Patent at 7:4454. “[A] user can register and subscribe to receive broadcasts” of these data feeds
from the central broadcast server, which maintains a “subscriber database...to
determine which subscribers receive which types of content.” Id. at 8:20-25. The
specification explains that the user is able to specify “preferences at information
category or specific content levels” and can even select “subcategories of
information within a particular information category.” Id. at 21:21-32. Thus, when
data for a particular feed is available, it is “broadcast to the preferred viewer”
application on the user’s remote computing device. Id. at 26-15-17.
AWS Order at 33. The information sources 12 may include a variety of categories of information
such as news feeds, email feeds, premium service feeds and graphic feeds. ‘433 Figure 1`, 6:2830. The patents are also directed toward the broadcasting of these feeds. ‘433 Abstract, 5:53-55.
In this context, data channel is not limited as Defendants seek. Rather, access to the content
within the information sources 12 is what is important. Thus, within the patents, the connection
24 provides the remote computer 14 access to the information sources 12. ‘433 30:55-31:14.
The connection 24 is not limited to a connection to the Internet but rather it is a “connection 24
back to the information source 12 to obtain more detailed information.” ‘433 30:62-63. Thus, in
use, the connection is provided to “automatically establish a link back to the information source
12.” ‘433 31:2-3. As such, the specification supports SimpleAir’s construction and is not merely
limited to the first path or connection between the remote computer and the Internet as advocated
by Defendants.
In addition, the claims themselves also provide support for SimpleAir’s
positions. As described below, with regard to the construction of the whole phrase at issue,
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Defendants’ construction is further contradicted when placed in the context of the entire phrase.
The Court adopts SimpleAir’s construction, which matches the AWS construction.
The Court construes “data channel” as “one or more communication channels or paths
for accessing or viewing a category or subcategory of information that is provided by an
information source over a communications network.”
“whether said computing devices are online or offline from a data channel associated with
each device”
1. Parties’ Positions
SimpleAir asserts that “offline” means “not connected to the Internet or some other online service” and “online” means “connected to the Internet or some other on-line service”
quoting the specification passage:
Another advantage of the present invention is that a remote computer 14 can
receive information instantly even while it is off-line (i.e. not connected to the
Internet or some other on-line service.)
Dkt. 302 at 22 (quoting ‘433 6:61-64).
SimpleAir asserts that a device is not “online” to an
associated data channel merely because it can receive data transmissions (directly or indirectly)
from the central broadcast server. SimpleAir asserts that the AWS Court correctly found that
such interpretation would not make sense. SimpleAir quotes the AWS Court as stating that the
mere ability to receive transmissions from the central broadcast server cannot mean the device is
“online” because that would “render the ‘instantaneous notification’ of both online and offline
devices nonsensical.” AWS Order at 37.
As to “on-line” and “off-line,” Defendants cite SimpleAir’s brief to note that SimpleAir
agrees the terms mean “connected to the Internet or some other online service” and “not
connected to the Internet or some other on-line service” respectively. Defendants assert that
SimpleAir however changes its construction from “not connected to” to “not connected via.”
14
Dkt. 329 at 9-10. Defendants assert this change conflicts with the specification quote noted by
SimpleAir above. Dkt. 329 at 10 (citing ‘914 5:65-6:14, 7:6-7, 31:34-38).
Defendants assert
that SimpleAir’s construction confusingly suggests that the user can use the Internet to connect
to the data channel and that the data channel may also be a path involving the receiver. Dkt. 329
at 10. Defendants assert that SimpleAir’s construction requires the computing device to be
connected to the Internet to receive notifications, in contrast to the specification embodiments in
which notifications are received when not connected to the Internet. Dkt. 329 at 10 (citing ‘914
7:4-13). Defendants assert that requiring the remote computing devices to be connected to the
Internet is wholly inconsistent with the specification and cannot be correct.
Defendants object to SimpleAir’s “explanatory sentence” within the construction.
Defendants state that this sentence is not always correct because under SimpleAir’s construction,
Internet traffic and notification traffic both flow through the same path (the Internet connection).
In such case, a remote computing device would not receive notification unless it was online.
Defendants assert that SimpleAir’s construction collapses both paths into a single connection so
SimpleAir manufactures on “offline” condition with the explanatory sentence even when there is
only one path (Internet connection) that is on-line and connected. Dkt. 329 at 12. Defendants
assert that its construction affirms a core advantage of the patent: that data may be received by
receivers whether or not the computing device is online or offline. Dkt. 329 at 12.
In reply, SimpleAir asserts that merely importing the verbatim definition of “online or
offline” would have rendered the claim confusing. Dkt. 359 at 6. SimpleAir asserts the prior
Court’s use of “via” properly reflects that “online/offline” refers to the device’s Internet
connection and “from a data channel” refers to what that connection is being used to do (access a
data channel). SimpleAir asserts that the clarification language is necessary to explain that a
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connection to the central broadcast server (which sends notifications), is not the same as being
online to a data channel. Dkt. 359 at 7. SimpleAir also asserts that Defendants’ construction
provides the same meaning to three sub-phrases that are found within the term at issue: “online
or offline,” “online or offline from a data channel,” and “online or offline from a data channel
associated with each device.”
2. Analysis
The specification provides a statement as to the meaning of “online” and “offline.”
Another advantage of the present invention is that a remote computer 14 can
receive information instantly even while it is off-line (i.e. not connected to the
Internet or some other on-line service.)
‘433 6:61-64).
The parties acknowledge the importance of this passage but interpret the
consequences differently.
Under Defendants’ positions, the data channel and the initial
connection (first hop) to the Internet are one and the same. Under such a construction, when
“online and offline” is combined with the additional subsequent claim language of “from a data
channel associated with each device,” no additional meaningful limitation is provided by the
additional language.
More particularly, Defendants construe online and offline to mean
connected or not to the Internet and Defendants construe the data channel to merely be the
device’s connection to the Internet.
Defendants’ constructions thus render the additional
language redundant.
Phillips counsels the importance of the claim language. Here, the claim language itself
and the interaction of different portions of the claim language can provide significant guidance.
The term in question includes both “online or offline” and “from a data channel associated with
each device.” As described above, the specification teaches that a data channel is the path to the
information source which contains the content.
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It is in this context that the specification
language at ‘433 6:61-64 must be considered. Combining the two concepts, the claim language
makes clear that what is claimed is that an Internet connection is or is not made to the data
channel. It is not merely a connection to the Internet that is being claimed but a connection with
the data channel (the path to the content of the information source). The AWS construction
accords recognition to the interplay of the claimed words and the resulting effect. Meaning is
provided to the combination of “online and offline” and “from a data channel associated with
each device.” As to the “clarifying sentence”, the specification is clear that data may be received
from the central broadcast server independent of a direct connection to the information sources
12. ‘433 5:20-7:3. The clarifying sentence ensures the understanding of this concept within the
construction. The Court adopts the AWS construction.
The Court construes “whether said computing devices are online or offline from a data
channel associated with each device” to mean “whether the remote computing devices are or
are not connected via the Internet or another online service to a data channel associated
with each computing device at the time the preprocessed data is received by the receivers.”
A device is not online to an associated data channel merely because it is able to receive data
transmissions (directly or indirectly) from the central broadcast server.
B. “receivers” (‘433 Claim 1; ‘914 Claim 1)
Plaintiff’s Proposed Construction
no construction necessary
Defendants’ Proposed Construction
a device attached to the remote computing
device for receiving said preprocessed data
even when said remote computing device is
not connected to the Internet (or some other
online service)
17
The primary dispute between the parties is whether the receiver and the remote
computing device need to be in separate or different machines and whether the receiver receives
data “even when said remote computing device is not connected to the Internet.”
1. Parties’ Positions
SimpleAir asserts that the ordinary meaning of a receiver does not match Defendants’
construction and that there is no disclaimer in the specification disavowing the full scope of the
ordinary meaning of “receiver.” SimpleAir asserts that Defendants’ “a device attached to the
remote computing device” is thus not supported. SimpleAir asserts that the specification states
“the present invention may be implemented on other computer systems and configurations,
including but not limited to Macintosh or Unix computers, televisions, telephones, appliances
and so forth.” ‘433 at 7:30-36. SimpleAir asserts that this passage supports configuring the
computing device and receiver in the same device or product. SimpleAir asserts that it agrees
that “the receiver and the remote computing device are separate structures and one is not a
‘subcomponent’ of the other.” Dkt. 359 at 9. SimpleAir asserts that the actual dispute is whether
the two structures must be in entirely different machines.
SimpleAir asserts there is no
disclaimer requiring such different machines. Dkt. 359 at 9.
Defendants assert that the claims themselves require the receiver and the computing
device to be separate, as the claim states “transmitting preprocessed data to receivers
communicating with said devices.” Dkt. 329 at 13. Defendants assert that the patentee explicitly
chose such language as opposed to “transmitting preprocessed data to said devices.” Defendants
cite to the specification which states “wireless receiving devices which are attached to computing
devices” and “wireless receiving devices which are attached to personal computers.” ‘914
Abstract and 2:62-66. Defendants also cite to Figure 1.
18
Defendants assert that SimpleAir’s position is not supported by the claim language.
Defendants assert that the specification citation provided by SimpleAir refers to alternative
embodiments for the computing device 14, not the receiver 32. Defendants assert that the
specification consistently refers to separate devices.
Defendants assert that SimpleAir’s
construction excludes the preferred embodiment because the receiver could not receive
information if the receiver is in the computing device and the computing device is offline. Dkt.
329 at 16. Defendants assert that the language “even when said remote computing device is not
connected to the Internet” is central to the claimed invention. Defendants assert that such
language clarifies that the receiver may receive data whether the remote computing device is
online or offline. Dkt. 329 at 15.
2. Analysis
The parties do not assert that “receiver” is ambiguous or that the term does not have an
ordinary meaning known to one in the art. The parties do not dispute that the “receiver” and the
“remote computing device” as presented in the claims are separate devices. Defendants have
pointed to passages in the specification that indicate that the devices in the disclosed
embodiments are in different structures. Defendants assert that the claimed receiver must thus be
limited to the disclosed embodiment. However, Defendants have not pointed to a disclaimer or
disavowal that the separate devices must be formed in entirely different structures. See Phillips,
415 F.3d at 1316 (claim scope may be limited by a disclaimer or disavowal).
Moreover, the
specification refers to the wireless receiver 32 interacting with a receive card in the remote
computing device or through the use of the computer serial port. ‘433 7:27-30. The next
sentence in the specification then describes that “the invention” is not limited to the “particular
configuration discussed above” and the specification then states that the invention may be
implemented in other configurations such as televisions, telephones, appliances and so forth.
19
‘433 7:30-35 (“Rather, the present invention may be implemented on other computing systems
and configurations, including but not limited to Macintosh or Unix computers, televisions,
telephones, appliances and so forth.”) Thus, the specification itself implies that configurations
other than the illustrated remote computing device and wireless receiver are contemplated. As
such, not only is there no disavowal requiring the limitations sought by Defendants, the
specification provides support for rejecting Defendants’ limitations.
Moreover, the claims themselves describe the relationship between the receiver and the
remote computing devices. The claims state the receivers “communicating with said computing
devices [said devices]. ‘433 Claim 1 [‘914 Claim 1].
As to the connection to the Internet language, some claims themselves provide for what
must be “online” and “offline.” In particular, other claim language relating to the computer
devices explicitly references the limitations as to the computer devices being online or offline
from the data channel. ‘914 Claim 1 (“whether said computing devices are online or offline from
a data channel”).
Thus, the claims themselves counsel against incorporating Defendants’
limitation within the otherwise understandable plain meaning of “receiver.”
The Court finds that “receiver” needs no construction.
C. Remote Computing Device Terms3 (‘433 Claim 1; ‘914 Claim 1)
Plaintiff’s Proposed Construction
no construction necessary
Defendant’s Proposed Construction
a consumer electronics device such as a
computer, television, telephone, or
appliance.
The underlying dispute between the parties has some overlap with the issues with regard
to “receivers.” In addition, the parties dispute whether the device is limited to a consumer
3
The parties agree that “remote computing devices,” “remote devices,” “selected remote devices,”
“devices,” and “computing devices” should be treated similarly, and that the term “remote computing
device” shall represent all of these terms. Dkt. 363 at 1.
20
electronics device. At the claim construction oral argument, Defendants also emphasized that
the remote computing device could not be subcomponent such as a microprocessor.
1. Parties’ Positions
SimpleAir objects to Defendants’ construction as being an attempt to construe the term in
a manner that would preclude SimpleAir from identifying separate components in items such as
smartphones as being the “remote computing device.” For example, SimpleAir asserts the
remote computing device may be the phone CPU and the receiver, which is the radio and Wi-Fi
receiving circuitry. Dkt. 302 at 20. SimpleAir asserts that it is undisputed that the ordinary
meaning of “remote computing device” is broader than Defendants’ construction. SimpleAir
also asserts that it is well known that a device may be a subcomponent within another device.
SimpleAir also asserts that there is no reason to substitute “consumer electronics” for “remote
computing.” SimpleAir asserts that there is nothing in the specification that precludes the remote
computing device and the receiver from being subcomponents of the same device. SimpleAir
asserts that the specification quote 7:30-36 supports a reading that the “other configurations”
may be televisions, telephones and appliances and such devices are not “computer systems” (thus
supporting a computer system being a subcomponent of such configurations).
Defendants assert the specification teaches that the “remote computing device” is a
device, not a sub-component of another device. Defendants cite to the disclosure of a personal
computer and the alternative “Macintosh or Unix computers, televisions, telephones, appliances
and so forth.” ‘433 at 7:35-36. Defendants assert that the specification discloses the “remote
computing device” as having sub-components (processor, memory, and disk), not the computing
device being a sub-component itself: “The user computer 14 of the present invention includes a
microprocessor connected to a system bus and supported by a read only memory (ROM) and
random access memory (RAM).” ‘433 7:4-7. Defendants further assert that the claims include
21
limitations that indicate a microprocessor alone would not be the remote computing device. In
particular, Defendants note that ‘433 claim 1 includes a data channel associated with the remote
computing device and includes the concept of a remote computer device being “online” to the
Internet. Defendants assert that a microprocessor alone is incapable of making such connections.
Defendants also point to the limitations of ‘433 claim 12 which requires a user to “click on said
computing device”; ‘914 claim 26 which requires “providing an alert panel on a display of each
of said devices”; and ‘433 claim 69 which requires “displaying contextual graphics on said
computing device.”
2. Analysis
As described above with regard to “receiver,” the passage at ‘433 7:30-35 is broader than
Defendants interpret it. The passage makes no limitation that the “remote computing device”
need be limited to a consumer electronics device. Rather, the specification citation in question
references the invention being encompassed in a “Unix computer.” Defendants have provided no
evidence that Unix computers are limited to consumer devices. Defendants have not pointed to
any disclaimer or disavowal that limits the term to consumer devices or to the particular devices
listed in the passage.
The specification provides a very broad reference to a remote computing device: “The
user computer 14 of the present invention includes a microprocessor connected to a system bus
and supported by read only memory (ROM) and random access memory (RAM) which are also
coupled to the system bus.” ‘433 7:4-7. As noted, “the present invention is not limited to the
particular configuration discussed above.”
‘433 7:31-32.
Thus, the computing device as
described in the specification is described in the simple terms of a processor and memory, which
may be configured differently. There is no disavowal or disclaimer in the specification stating
that the various computing components must be formed in separate structures.
22
It would seem
natural that integration could be another “configuration” of the various computer components.
Further, the passage describes the availability of alternative “configurations” after a description
of the computer 14 and receiver 32. 7:4-36. Thus, those alternative configurations are not merely
limited to alternative configurations of the computer but other configurations for the computer
and receiver. As to the other elements of claim 1, Defendants’ arguments are arguments focused
on infringement, not the meaning of “remote computing device.” As to the dependent claims,
the fact that the dependent claims call out additional features such as a clicking function or a
display does not support the proposition that such elements must be read into the independent
claims. Such logic contradicts the very purpose of dependent claims. Defendants have not
pointed to evidence in the intrinsic record supporting the incorporation of the specification
embodiments sought in Defendants’ construction.
The Court finds that “remote computing device” needs no construction.
D. “whether said remote computing devices are on or off” (‘433 Claim 1)
Plaintiff’s Proposed Construction
no construction necessary
Defendant’s Proposed Construction
whether said remote computing devices are
powered on or powered off.
The parties’ dispute focuses on whether the construction should explicitly reference
“powered” on or off.
1. Parties’ Positions
SimpleAir asserts that the AWS Order rejected SimpleAir’s assertion that “on” or “off”
was shorthand for “online” and “offline.” SimpleAir asserts that it accepts the prior Court ruling
and agrees with the AWS Order that no construction is needed. SimpleAir asserts that “on” or
“off” may include “powered on and off” but is not so limited. Dkt. 302 at 26. SimpleAir asserts
that Defendants are merely adding limitations (“powered”) to the existing claim language. At
23
the claim construction hearing SimpleAir acknowledged that the term related to the powered
status but expressed concerning that Defendants’ construction required the act of powering.
Defendants assert that the AWS Order stated “the patentees intended the words ‘on or off’
to mean powered ‘on or off.’” AWS Order at 31. Defendants assert that SimpleAir’s statement
that “on or off” is not limited to “powered on or off” contradicts the intrinsic record. SimpleAir
cites to the ‘914 Patent prosecution in which the May reference was distinguished on the basis
that the remote computing device does not need “to be turned on” to receive a notification. Dkt.
329 at 26.
2. Analysis
The AWS Order provides a discussion as to the Examiner’s rejection based on the May
reference. AWS Order at 30-31. The applicants attempted to distinguish the reference based on
argument that “[t]he claimed invention does not require the remote computing device to be
turned on upon receipt of preprocessed data, whereas May does require the remote device to be
turned on upon receipt of preprocessed data.” ‘914 Amendment Dated 12/12/2002 at 15. The
AWS Court’s conclusion was that such prosecution history shows that “these statements make
clear that the patentee used the term ‘on or off’ consistent with the ordinary meaning of ‘on’ and
‘off’ – that is, powered on or off.” AWS Order at 31. The AWS Court’s analysis applies to the
parties’ current dispute.
This Court finds such conclusion still applicable.
Moreover,
reexamination statements made after the AWS Order are consistent with such a conclusion. In
the ‘433 Reexamination, the patentees stated in their Declaration of Prior Inventorship with
regard to the notification received by the computing devices:
That notification would occur whether the computing device was on or off
because the receiver card had its own power source (batteries). In other words,
the receiver did not rely upon the power from the remote computing device and
24
therefore the receiver was able be on [sic] to receive messages and notify the
computing device of their receipt even when the computing device was off.
‘433 Reexamination, Declaration of Prior Inventorship Dated February 1, 2013 at 38. During
oral argument, SimpleAir provided no explanation as to anything else the claim term could
mean.
However, through SimpleAir’s “no construction,” SimpleAir apparently intends to
provide some other meaning to the term. The AWS Order found that the ordinary meaning of on
and off included the powered on and off concept, thus no further construction was required.
However, given the dispute presented by the parties in the pending action, the Court shall
adjudicate the competing constructions. See O2 Micro Intern. v. Beyond Innovation Technology,
521 F. 3d 1351, 1361-62 (Fed. Cir. 2008).
The Court construes “whether said computing devices are on or off” to mean “whether
said computing devices are powered on or powered off.”
E. “information source” (‘433 Claim 1; ‘914 Claim 1)
Plaintiff’s Proposed Construction
one or more content or on-line service
providers that provide data to the central
broadcast server, such as an online source
of news, weather, sports, financial
information, games, personal messages or
e-mails.
Defendants’ Proposed Construction
the Internet or one more content or online
service providers that provide data to the
central broadcast server, such as an online
source of news, weather, sports, financial
information, games, personal messages or
e-mails.
The parties’ dispute focuses on whether the proper construction should include the
“Internet” as an information source or whether the Internet is merely the network where sources
may be found, not a source itself.
1. Parties’ Positions
SimpleAir asserts that Defendants add “the Internet” to the beginning of the AWS Court’s
construction. SimpleAir asserts that Defendants’ construction would be improper as it would be
satisfied by merely pointing to the Internet rather than a content provider or service provider on
25
the Internet. SimpleAir asserts that the specification teaches that information sources are located
on the Internet rather than a source being the Internet itself. SimpleAir points to the specification
passage “extending the reach of existing information sources, such as Internet and on-line
services.” ‘433 3:17-22. SimpleAir also points to Figure 2 which includes “Internet on-line
services & information providers.” SimpleAir indicates that these passages use Internet as a
modifier as to the source, not that the source itself is the Internet. Dkt. 302 at 4. SimpleAir also
points to the citations which provide that notifications include Internet addresses that allow the
remote computing device to connect to the relevant information source. Dkt. 302 at 4-5 (citing
‘433 3:32-36, 30:64-31:3). Additionally, SimpleAir points to Figure 12 which references “the
information source on the Internet,” and the ‘914 dependent claim 9, which describes the
“information source” as something located on the network at “an Internet address.” SimpleAir
thus asserts that the Internet is not an information source, but rather the communication network
or medium over which data may be transmitted. SimpleAir cites to ‘433 1:53-56 as stating that
the Internet provides “a linkage of interconnected computer systems which can share information
almost instantaneously” and ‘433 8:64-9:1 which states “the information to be transmitted over
another medium, such as the Internet.
Defendants assert that the prior Court did not address this dispute. Defendants assert
their construction is supported in the specification: “[as] is illustrated in FIG. 1, information
sources 12, such as the Internet, on-line services and other information sources” and “such as
news headlines from information sources 12, such as Internet, on-line services and other
information providers.” ‘914 7:54-55, 31:24-27. Defendants assert that these passages teach that
the Internet may also be an information source. Defendants assert that although the specification
sometimes refers to content providers as an information source, the specification does not restrict
26
the term to only “content providers” as the passages cited above demonstrate. Dkt. 329 at 17-18.
Defendants also point to the legend in the information sources 12 block of Figure 2 which reads
“INTERNET ON-LINE SERVICES & INFORMATION PROVIDERS.” Finally, Defendants
cite to the ‘914 prosecution in which the patentee stated that “some other on-line services” are
“some other service that is online (i.e. a service that is not the Internet but is like it), such as
AOL or CompuServe.” Dkt. 329 at 18 (quoting Ex. 7 at 9-10).
2. Analysis
The specification uses the term “Internet” in somewhat differing manners.
Thus,
passages such as at ‘433 1:53-56 and ‘433 8:64-9:1 (and others cited by SimpleAir) reference the
Internet in the context of the physical medium, wires or “linkage of interconnected computer
systems.” This is a meaning that emphasizes the context of the hardware itself. Elsewhere, the
specification uses the term Internet more as a description of an information source: “information
sources 12, such as the Internet, on-line services and other information sources” (‘433 7:43-45)
and “such as news headlines from information sources 12, such as Internet, on-line services and
other information providers” (‘433 at 30:58-60). However, in the context of the intrinsic record
as a whole, it is clear that passages at ‘433 7:43-45 and 30:58-60 are not equating the physical
medium itself to being an information source of data. To clarify, the network by itself is not
information, but rather the content on the network is the information. Thus, in context of ‘433
30:58-60, “news headlines” is content found on the Internet. The physical medium of the
Internet, absent content, is not a source of “news headlines.”
The term in question is
“information source.” To include “Internet” in the term “information source” and then allow an
interpretation of “Internet” to extend to a mere network connection (without any access to a
source of information), would eviscerate the meaning of “information source.”
The Court construes “information source” to mean “one or more content or online
27
service providers that provide data to the central broadcast server, such as an online
source of news, weather, sports, financial information, games, personal messages, or emails.”
F. “parsing said data with parsers corresponding to said [central broadcast server] /
[servers]” (‘914 Claim 1; ‘433 Claim 1)
Plaintiff’s Proposed Construction
“parsing said data with parsers”:
using computer software to break or divide
data received from an information source
into components whose content or format
can be analyzed, processed, or acted upon
Note: In SimpleAir’s Reply at 10, n. 8
SimpleAir proposed:
Defendant’s Proposed Construction
breaking up or dividing information
received from an information source using
filters that each respectively correspond to
the type of information that was received
(examples of parsers include stock quote
parser, weather parser, lotto parser and mail
parser)”.
using multiple computer software
programs, routines, or functions to break or
divide data received from an information
source into components whose content or
format can be analyzed, processed or acted
upon.
To address Defendants’ assertions that the claims require “parsers” plural, SimpleAir has
proposed modifying the AWS construction by adding to the beginning of the construction “using
multiple computer software programs, routines or functions.” The remaining disputes focus on
whether “parsers” are limited to “filters” and whether the parsers correspond to the server or to
the type of information.
1. Parties’ Position
SimpleAir objects to Defendants’ replacement of the term “parsers” with “filters.”
SimpleAir asserts that the ordinary meaning of “parsers” is not “filters.” Dkt. 302 at 6-7.
SimpleAir also asserts that the use of an example in the specification does not limit “parsers” to
“filters.” SimpleAir objects to Defendants’ inclusion of the phrase “that each respectively
28
corresponds to the type of information that was received.” SimpleAir asserts that Defendants’
construction conflicts with the claim language that requires “parsers corresponding to said
servers [central broadcast server].” Thus, SimpleAir asserts the correspondence of the parsers is
to the servers, not to the type of information received. SimpleAir also asserts that Defendants’
construction limits the term to a preferred embodiment in the specification (“stock quote parser,
weather parser, lotto parser and mail parser”). SimpleAir asserts that the relevant passage in the
specification that recites such embodiments explicitly states “the present invention is not limited
to the information sources or parsers described herein.” ‘433 8:10-11. SimpleAir further asserts
that the prior Court’s use of “into components whose content or format can be analyzed,
processed or acted upon” more accurately reflects the ordinary meaning. Dkt. 302 at 9 (citing
dictionary definitions).
As to the correspondence of the parser to the information, Defendants assert that the full
quote at ‘433 8:10-14 states: “The present invention is not limited to the information sources or
parsers described herein. Rather, any type of information source and corresponding parser may
be used.” Defendants assert that the “corresponding parser” language makes clear that parsers
correspond to the type of information. Dkt. 329 at 22-23.
Defendants also assert that the intrinsic record teaches that parsers are “filters.”
Defendants quote ‘914 12:31-34: “the central broadcast server 34, which processes the incoming
data packets by parsing the feeds 16 against specific filters, encoding the data and creating the
desired broadcast feeds.” Defendants also cite to a declaration in the reexamination which stated
that “the ‘651 provisional’s written description refers to parsers as ‘filters’” and “filters that were
used by the AirMedia commercial embodiment to parser.” Dkt. 329 at 24, (quoting Ex. 1 at 5, 9)
29
2. Analysis
The citations in the specification describe parsing with filters, but the use of filters
appears as an embodiment. Caution should be taken to merely limiting claims to a disclosed
embodiment.
See Phillips, 415 F.3d at 1323.
However, Defendants have not pointed to
language indicative that the specification as a whole limits all parsers to filters. Moreover, the
specification explicitly states that “[t]he present invention is not limited to the information
sources or parsers described herein.”
‘433 at 8:10-12.
Moreover, the prosecution history
statement cited by Defendants does not stand for the proposition that “parsers” are limited to
filters. Rather, the prosecution statement referenced by Defendants was in a declaration of prior
invention. In that statement, the inventors were demonstrating prior reduction to practice of the
claimed inventions. To show evidence of prior use of “parsers,” the declaration points to the use
of filters.
‘914 Reexamination, Declaration of Prior Inventorship at 5, 9.
Though such
prosecution history emphasizes that there is support for the concept of parsers in the priority
document and that filters are parsers, the prosecution statement does not stand for the proposition
that “parsers” are limited to “filters.” Phillips guides courts to use caution with the prosecution
history as the prosecution history often lacks clarity. See Phillips, 415 F.3d at 1317. Here, the
prosecution history does not equate to a statement that parsers are limited to filters. When
viewed in the entirety, the intrinsic evidence does not limit parsers to only filters.
As to the “corresponding” concept, Phillips notes that the claim analysis must start with
the claims. ‘914 Claim 1 explicitly states “parsers corresponding to said central broadcast
server” and ‘433 Claim 1 explicitly states “parsers correspond to said servers.”4
The
specification makes clear that these parsers are within what is described as “a block diagram 100
of the software architecture for communications between the information sources and central
4
The “servers” in ‘433 Claim 1 refers to the earlier recited “servers in said central broadcast server.”
30
broadcast server 34.” ‘433 Figure 1, 2, 7:57-59.
These parsers are also clearly described as
components of the central broadcast server 34. ‘433 7:43-8:14. Thus, the specification provides
explicit support for the parsers corresponding to the central broadcast server / the servers.
Though the specification includes an embodiment in which the parsers are matched to the
information source (stock quote, weather, email, etc.), the claim language is explicitly not so
limited. Instead, the claim language requires a correspondence to the central broadcast server /
the servers. Having rejected the Defendants proposed modified “correspondence” language in
favor of the explicitly recited correspondence, the Court finds that no further construction is
needed for the “corresponding to said central broadcast server [to said servers]” limitation.
Based on the rationale presented here and in the AWS Order, the Court maintains the general
concepts of the construction from the AWS Order with the modification to reflect that the claim
term references parsers (plural).
The Court construes “parsing said data with parsers” to mean “using multiple computer
software programs, routines, or functions to break or divide data received from an
information source into components whose content or format can be analyzed, processed or
acted upon.”
G. Gateway Terms
“gateway” (‘433 Claim 1; ‘914 Claim 1)
Plaintiff’s Proposed Construction
no separate construction for “gateway”
required.
Defendants’ Proposed Construction
hardware or software that connects two or
more different networks
The primary dispute between the parties is whether a gateway must connect two or more
different networks.
31
1. Parties’ Position
SimpleAir asserts that the gateway is software and points to Figure 2 and the text which
describe the “information gateway” 134 as part of the “software architecture” of Figure 2. Dkt.
302 at 13-14 (citing ‘433 Figure 2, 7:57-60). SimpleAir asserts that the claim requires the
“information gateway” to “build data blocks and assign addresses to the data blocks” and that
such functions cannot be done by hardware alone, software is required.
SimpleAir also asserts that the “information gateway” does not connect two or more
different networks. SimpleAir asserts that the claim does not state this and that the preferred
embodiment does not disclose this. SimpleAir asserts that the preferred embodiment as shown in
Figure 2 depicts the information gateway as a component of the central broadcast server.
SimpleAir asserts that the information gateway merely interfaces with components of the central
broadcast server such as the content manager, content budget rules, subscriber database and the
wireless gateway. Dkt. 302 at 14-15.
Defendants cite to several technical dictionaries to assert that “gateway” has a specific
meaning in the art that corresponds to hardware or software that connects different networks.
Dkt. 329 at 29.
Defendants assert that this conforms to Figures 2 and 4 which illustrate the
connection between the information gateway and the wireless gateway. Defendants assert that
the gateways operate as connection points between the networks, also citing to Figures 12, 13
and 15. Defendants assert the specification describes the gateways as transforming the data in a
manner which allows the data to transfer between different networks. Dkt. 329 at 28-29 (citing
‘914 11:32-41). Defendants assert that the information gateway is not a component of the central
broadcast server but its own server, thus rebutting SimpleAir’s argument that the gateways may
all be in one server. Defendants point to the reexamination in which the patentee stated: “It is
the second server…that serves as the ‘information server’.” Dkt. 329 at 29-30 (quoting ‘914
32
Reexamination Interview Agenda Dated 10/21/12 at 2). Defendants further assert that even if
the gateways were in the same server, the information gateway still connects to the wireless
gateway, thus connecting different networks.
As to the reexamination statement cited by Defendants, SimpleAir asserts that the
patentees merely pointed out that the information gateway was supported in the provisional
application because SimpleAir cited to one of the servers in the central broadcast server of
Figure 1 as being an example information gateway. With regard to the dictionary definitions,
SimpleAir cites to one of Defendants’ dictionaries in which alternative definitions include a
definition that describes connecting systems that may have the same communication protocol
and a definition that describes machines and programs that provide address translation. Dkt. 329
Ex. 16 at 295-96 (IBM Dictionary of Computing).
2. Analysis
Though the parties debate the scope of the extrinsic evidence, the specification provides
an understanding as to the use of the term in the patents-in-suit. Figure 2 and the associated
description clearly include the information gateway 134 and wireless gateway 136 within what is
described as “a block diagram 100 of the software architecture for communications between the
information sources and central broadcast server 34.” ‘433 Figure 2, 7:57-59.
As noted in
Figure 4, the information gateway “builds data block and assigns real and virtual capcodes to a
data block as required based on information in the subscriber database” and the wireless gateway
“performs packetization compression, encryption, etc. to prepare data block for transmission
over the wireless broadcast network.” ‘433 Figure 4; See also ‘433 Figure 15. Similarly, with
regard to Figure 12, the information gateway 134 “attaches URL tag to the message.” ‘433
Figure 4. These tasks are described in the context of being performed within the network of
33
servers 33 of the central broadcast server 34. ‘433 Figures 1 and 2, 7:43-9:14. Though the
“wireless gateway 136” is described as preparing “data blocks for transmission over a wireless
broadcast network,” the communications between the information gateway and other portions of
the software architecture 100 of Figure 2 and communications between the information gateway
and wireless gateway are not described in the context of connecting two different networks.
Rather, such connections are described in the context of software components of the central
broadcast server. Thus, though Defendants point to extrinsic evidence for the proposition that
“gateway” as known in the art may connect different networks, the intrinsic record demonstrates
that within the patents, the term “gateway” is used in a broader context that includes connections
between different software components. A construction which excludes a disclosed embodiment
is rarely proper. SanDisk Corp. v. Memorex Products, Inc., 415 F.3d 1278, 1285 (Fed. Cir.
2005). As such, the term “gateway” should not be so limited. It is noted that though the AWS
Order did not construe “gateway” as a separate construction, the findings herein are consistent
with the AWS Order which described a “transmission gateway” in the context of software.
Consistent with the discussion herein, the term “gateway” shall be construed within the context
of the larger “information gateway” and “transmission gateway” terms below.
“an information gateway for building data blocks and assigning addresses to said
data blocks” (‘433 Claim 1; ‘914 Claim 1)
Plaintiff’s Proposed Construction
one or more software programs (or a
portion of a program) that build data blocks
and assign addresses to the data blocks
Defendants’ Proposed Construction
gateway that builds data blocks and
determines addresses for the data blocks
based on the type of information in the data
blocks
Having resolved the underlying meaning of “gateway,” the primary disputes left between
the parties are whether information gateway “assigns” or “determines” addresses and whether the
information gateway’s actions are based upon the type of information of the data blocks.
34
1. Parties’ Position
SimpleAir asserts that Defendants change the claimed “assigning” to “determining.”
SimpleAir asserts that the words have a different meaning and that the words were not used
interchangeably in the specification. SimpleAir asserts that “determining” was used elsewhere in
the specification for determining how data is handled, indicating that when the patentees wanted
to use “determine,” they did so. Dkt. 302 at 15. SimpleAir also asserts that Defendants’
inclusion of “based on the type of information in the data blocks” is contrary to the claim
language which just calls out building and assigning, not what the building and assigning must
be based on. Dkt. 302 at 15-16. Further, SimpleAir asserts that Defendants’ construction does
not match the embodiment in the specification because the citations Defendants provide teach
that the addresses are assigned based on information in a subscriber database. Dkt. 359 at 13.
Defendants assert that its construction explains what is actually done. Defendants assert
that its construction reflects what the specification teaches: (1) that the information gateway
determines address (‘914 22:27-31); (2) based on the type of information in the data block (‘914
11:32-36); (3) assigns the addresses based on the information in the database (‘914 22:27-31)
and (4) builds the data blocks based on the information (‘914 22:27-31). Defendants assert that
without first determining the addresses, there is nothing to assign and that the determination must
be based on something. Dkt. 329 at 30. Defendants assert that their construction thus explains to
the jury what the phrase means.
2. Analysis
Phillips counsels the importance of the actual claim language as a starting point for the
claim construction analysis. Here, the claim term in question is “assigns.” There appears to be
no dispute that “assigns” and “determines” have non-identical meanings. Defendants are correct
35
that the specification in one passage states “data blocks are built in the information gateway 134
and all applicable real and virtual addresses are determined based on the type of information in
the data block and user subscription data from the subscriber database 130.” ‘433 21:67-22:4.
However, the specification also notes that the information gateway “assigns real and virtual
capcodes” and “attaches URL tags.” ‘433 Figure 4 and Figure 12.
In this context, the
information gateway is described as processing address information in a manner other than just
“determining.”
Moreover, the claim language in question is “assigns.”
Defendants have
acknowledged that “determining” is another step in the process separate from assigning. Dkt 329
at 30. The method claims in question do not include this separate determining step.
Defendants have not pointed to any disavowal in the specification mandating that the
information gateway determine addresses in addition to the claimed “assigning.” That the
specification may describe additional steps in the disclosed embodiment does not mandate
adding additional steps to the claimed steps.
Similarly, Defendants have not pointed to any disavowal in the specification mandating
that the information gateway determine addresses based on the type of information in the data
block.
Moreover, even the disclosed embodiment in the specification describes the
determination of addresses including a basis in addition to the type of information. In particular,
the specification describes an embodiment in which “the information gateway 134 (step 115)
which resolves its logical destination address to a physical wireless address based on information
in the subscriber database (step 117).” ‘433 11:20-23; See ‘433 22:1-4. With that frame of
reference, dependent claim 2 recites “building data blocks and assigning addresses to said data
block based on information in a subscriber database.” Defendants’ construction would exclude
36
such embodiments. In the context of the specification, the claim language itself most accurately
describes the term in dispute.
The Court construes “an information gateway for building data blocks and assigning
addresses to said data blocks” to mean “one or more software programs (or a portion of a
program) that build data blocks and assign addresses to the data blocks.”
“a transmission gateway for preparing said data blocks for transmission to receivers”
Plaintiff’s Proposed Construction
one or more software programs (or a
portion of a program) that prepare the data
blocks for their transmission to receivers
and interface with other resources used to
transmit the preprocessed data
Defendants’ Proposed Construction
Indefinite
Alternatively:
a gateway that performs compressing,
encrypting, packetizing, and forward error
correction on the data blocks.
The parties dispute whether this term is definite and, in the alternative, whether the
“transmission gateway” should include the particular functions of the disclosed wireless gateway
136.
1. Parties’ Position
SimpleAir asserts that inclusion of “software” was proper in the prior ASW construction
because a type of transmission gateway (the wireless gateway 136) is part of the “software
architecture” of Figure 2. ‘433 Figure 2, 7:57-60. SimpleAir further asserts that the actual
words of the claim describe what the transmission gateway is used for: “preparing said data
blocks for transmission to receivers.” SimpleAir asserts this language is unambiguous and needs
no further construction.
SimpleAir asserts that indefiniteness is not shown merely by stating the term is not used
in the specification. Rather, SimpleAir asserts that Defendants must “demonstrate by clear and
convincing evidence that one of ordinary skill in the relevant art could not discern the boundaries
37
of the claim.” Dkt. 359 at 13 (quoting Haemonetics Corp. v. Baxter, 607 F.3d 776, 783 (Fed.
Cir. 2010). SimpleAir asserts that Defendants’ alternative construction seeks to import the
preferred embodiment functions of the wireless gateway (packetizing, compressing, encrypting
and error correction). Dkt. 302 at 18. SimpleAir asserts that the claim merely requires preparing
blocks for transmission and that the claim should be entitled to its full scope, not limited to the
preferred embodiment.
Defendants assert that “transmission gateway” is never used in the specification, which at
most refers to “wireless gateway.” Defendants assert that unless one construes transmission
gateway to be the specific wireless gateway embodiment, there is no disclosure as to the term so
the term is indefinite. Defendants assert that the dispute as to including the wireless gateway
specific functions was not considered in AWS.
Defendants assert that the packetizing,
compressing, encrypting, and error correction steps are the only steps disclosed in the
specification for preparing blocks for transmission. Dkt. 329 at 32 (citing ‘914 9:63-10:2, 11:3640, Figs. 4, 15). Defendants assert that the SimpleAir construction merely parrots the claim
language and provides no help to the jury.
2. Analysis
“Only claims ‘not amenable to construction’ or ‘insolubly ambiguous’ are indefinite.”
Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1250 (Fed. Cir. 2008) (quoting
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005)). That is, the
“standard [for finding indefiniteness] is met where an accused infringer shows by clear and
convincing evidence that a skilled artisan could not discern the boundaries of the claim based on
the claim language, the specification, and the prosecution history, as well as her knowledge of
the relevant art area.” Halliburton, 514 F.3d at 1249-50. SimpleAir has proposed a construction
38
for a term that the AWS Court and even AWS Defendants found sufficiently definite to construe.
Moreover, in light of the specification, it is clear that the wireless gateway is an embodiment of a
transmission gateway that prepares data blocks for transmission to receivers. ‘433 Figures 2, 4,
and 15 and associated text. Defendants seek to incorporate the particular details as to how the
gateway prepares data for transmission. However, Defendants have not pointed to language of
disavowal or other importance of the particular mechanisms of the preparation. The claim
language merely recites preparing the data blocks for transmission, not particular specific ways
for preparation. For these reasons and the rational presented in the AWS Order at 24-26, the
Court adopts the AWS construction.
The Court construes “a transmission gateway for preparing said data blocks for
transmission to receivers” to mean “one or more software programs (or a portion of a
program) that prepare the data blocks for their transmission to receivers and interface
with other resources used to transmit the preprocessed data.”
H. “central broadcast server” (‘433 Claim 1; ‘914 Claim 1)
Plaintiff’s Proposed Construction
one or more servers that are configured to
receive data from a plurality of information
sources and process the data prior to its
transmission to one or more selected
remote computing devices
Defendants’ Proposed Construction
one or more servers that receive data
transmitted by a plurality of information
sources and process the data prior to its
transmission to one or more selected
remote computing device
The parties’ dispute whether the server must be configured to receive data or must
actually receive data.5 Defendants also assert that “transmitted by a plurality of information
sources” more closely tracks the claim language.
5
At the claim construction hearing, the parties announced agreement as to the term “server” to mean “one
or more pieces of computer equipment and the software running on the equipment used to provide
services for one or more other computers or computing devices.”
39
1. Parties’ Position
SimpleAir asserts that its construction matches the AWS Order and that Defendants are
changing, without justification, the “are configured to receive data from a plurality of
information sources” language of the prior construction to “receive data transmitted by a
plurality of information sources.”
Defendants assert that the issue in dispute was not raised to the AWS Court since, in AWS,
the parties focused on the meaning of “central.” Defendants assert that the server must actually
receive data from the information sources. Defendants assert that SimpleAir’s construction reads
out of the claims the requirement that the server receive information and only requires a server to
be “configured to” do so.
Dkt. 329 at 34-35.
Defendants assert this issue is similar to
SimpleAir’s attempt to limit “content manager” to software that “can” determine how data is
handles instead of “actually determine.”
Dkt. 329 at 35 (citing AWS Order at 23, n.5).
Defendants assert the specification discloses a server that actually receives data from multiple
sources, not just one that is “configured” to do so. Defendants assert the specification does not
teach simply “configuring” the servers. Dkt. 329 at 35.
2. Analysis
The disputed term is “central broadcast server.” The claim term is found in the claimed
step of “transmitting data from an information source to a central broadcast server.” Thus, the
surrounding claim limitations describe what is necessary as to the transmission of data:
“transmitting data from an information source to a central broadcast server.”
Defendants’
construction of the server structure provides needless redundancy as to the other claim language.
Transmitting data is a limitation of the claimed step itself.
40
The Court construes “central broadcast server” to mean “one or more servers that are
configured to receive data a plurality of information sources and process the data prior to
its transmission to one or more selected remote computing device.”
I.
“a content manager for determining how said data is handled” (‘433 Claim 1)
Plaintiff’s Proposed Construction
one or more software programs (or a
portion of a program) that determine how
different types of information received
from an information source are handled or
processed
Defendants’ Proposed Construction
Term is governed by 35 USC § 112 ¶ 6.
function: determining how said data is
handled:
corresponding structure: one or more
servers programmed to determine priorities
for different types of information, decide
which pieces of information will be
transmitted and which will be rejected,
apply scheduling rules, determine what
format the information should be sent in,
determine what compression method to
use, and determine who should receive the
information.
The parties’ dispute focuses on whether the term is a means plus function term or not.
1. Parties’ Positions
SimpleAir asserts the context of the claim language demonstrates that “content manager”
is software as it must be something that can make “determinations.” SimpleAir also cites to the
Figure 2 “software architecture” which includes the content manager. ‘433 Fig. 2, 7:57-60.
SimpleAir quotes the passage “the content manager 114 determines how different types of
information are handled.” ‘433 8:26-27.
SimpleAir asserts that the term is not a means plus function term because the absence of
the word “means” creates a strong presumption against the term being construed as means plus
function “that is not readily overcome.” Dkt. 302 at 10 (citing Flo Healthcare Solutions, LLC v.
41
Kappos, 697 F.3d 1367, 1373-4 (Fed. Cir. 2012)). SimpleAir asserts that to overcome the
presumption, the element must be devoid of anything that can be construed as structure. Id.
SimpleAir asserts that the AWS Court recognized that “content manager” was structure within
the central broadcast server, namely one or more software programs. AWS Order at 23-24.
SimpleAir asserts that the standard is not whether a term is generally understood in the art, but
rather, whether the term “essentially is devoid of anything that can be construed as structure.”
Dkt. 359 at 12 (quoting Flo Healthcare, 697 F.3d at 1374). SimpleAir also cites to three Eastern
District of Texas cases that have found “software” recites sufficiently definite structure to avoid
application of §112.6
SimpleAir asserts that the specification merely provides a preferred
embodiment that lists out seven determinations made by the content manager. ‘433 8:27-47.
SimpleAir asserts that Defendants’ construction imports six of these determinations. SimpleAir
asserts it is incorrect to limit the claims to specific embodiments. Further, SimpleAir asserts that
even if the claim term were a means plus function limitation, it is improper to import functional
limitations that are not recited in the claim. Dkt. 302 at 12 (citing Wenger Mfg., Inc. v. Coating
Mach. Sys., Inc., 239 F.3d 1225, 1233 (Fed. Cir. 2001). SimpleAir asserts that the structure that
Defendants seek to add is only necessary to perform the various un-claimed functions that the
preferred embodiment discloses.
Defendants assert that it is black letter law that the term “means” is not required for a
limitation to be a means plus function limitation. Dkt. 329 at 36 (citing MIT v. Abacus Software,
462 F.3d 1344, 1353 (Fed. Cir. 2006)). Defendants assert that the presumption is overcome
because “content manager” has no generally understood structure. Defendants point to the
reexamination proceeding in which the patentee stated that “content manager” was a “coined”
6
Aloft Media, LLC v. Adobe Sys., 570 F.Supp. 2d 887, 898 (E.D. Tex. 2008); JuxtaComm-Texas Software
v. Axway, Inc., 2011 U.S. Dist. LEXIS 1415156 (E.D. Tex. Dec. 7, 2011); Corelogic Info. Solutions, Inc.
v. Fiserv. Inc., 2012 U.S. Dist. LEXIS 135386, 24-25 (E.D. Tex. 2012).
42
term. Dkt. 329 at 36 (citing Ex. 18 at 8). Defendants assert that a term without a generally
meaning should be construed as a means plus function term. Defendants assert that “software” is
a generic term without sufficient structure necessary to avoid a means plus function construction,
similar to terms such as “mechanism,” “element” and “device” which “typically do not connote
sufficiently definite structure.” Dkt. 329 at 37 (quoting MIT, 462 F.3d at 1354).
Defendants further assert that when the means plus function element is a computer or
software running a computer, the element is limited to the algorithms disclosed in the
specification for performing the function. Dkt. 329 at 37 (citing WMS Gaming, Inc. v. Int’l
Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). Defendants assert that the specification
discloses “one or more servers” as performing the function for determining how data is handled:
“the content manager 114 located in the central broadcast server 34”. ‘433 8:4-5. Defendants
then cite the passage:
The content manager 114 determines how different types of information are
handled. In particular, it [1] specifies priorities for different types of information,
and [2] decides which pieces of information will be transmitted and which will be
rejected. It also [3] applies scheduling rules 132 to determine when messages
should be scheduled to be transmitted to the user. In addition, the content
manager 114 is responsible for [4] determining what format the information
should be sent in, what [5] compression method to use, and [6] who information
should be sent to.
‘433 8:26-35 (bracketed numbering added). Defendants assert that the corresponding structure
must include the algorithm steps as reflected in Defendants’ construction. Defendants assert that
construing the term as a means plus function term is the only way to provide necessary structure
for “content manager.”7
7
At the oral argument Defendants cited to Functional Media L.L.C. v. Google Inc., 708 F.3d 1310, 1321–
22 (Fed. Cir. 2013) for the proposition that software cannot be sufficient structure. However, Functional
Media was a case in which “means” language was utilized and a case in which (in contrast to the
disclosure at ‘433 8:26-35) there was no explanation of the functions the software performed.
43
2. Analysis
The AWS Court did not consider whether the “content manager” was a means plus
function term as none of the parties advocated such a construction. The claim language, which
does not use the term “means,” creates a presumption that the limitation is not a means plus
function term.
Flo Healthcare, 697 F.3d at 1373-74.
Moreover, as described in the
specification, the content manager is part of the “software architecture” for communications.
‘433 Figure 2, 7:57-60. Further the content manager is “located in the central broadcast server
34.” ‘433 8:4-5. The specification describes the content manager as “the content manager 114
determines how different types of information are handled” (‘433 8:26-27) and then describes a
number of particular ways the content manager handles the information (‘433 8:27-47). Such
disclosures are consistent with an interpretation that the content manager is software. Thus, in
light of the specification, it is clear that the content manager is software. Here, the recitation of
software with a description of the software’s operation provides sufficient structural meaning
such that the means plus function requirements of §112 ¶ 6 do not apply. Aloft Media, LLC v.
Adobe Sys., 570 F.Supp. 2d 887, 898 (E.D. Tex. 2008). The term cannot be stated to be devoid
of structure and Defendants have not overcome their burden. The rationale of the AWS Order
still applies even in view of Defendants new arguments.
The Court construes “content manager” as “one or more software programs (or a
portion of a program) that determine how different types of information received from an
information source are handled or processed.”
J. “contextual graphics” and “predefined format” (‘433 Claim 69; ‘914 Claim 69)
“contextual graphics”
Plaintiff’s Proposed Construction
graphics relating to the context of the
Defendant’s Proposed Construction
Indefinite
44
preprocessed data that has been received.
“predefined format”
Plaintiff’s Proposed Construction
No construction necessary.
Defendant’s Proposed Construction
Indefinite
1. Parties’ Positions
Defendants assert that the terms are indefinite.
Defendants assert that “contextual
graphics” is not used anywhere in the specification. Defendants assert that “contextual graphics”
implies that some graphics are “contextual” and some are not, yet the specification does not
provide guidance as to how to make such a distinction. Dkt. 329 at 33. Defendants assert that
SimpleAir’s construction of “relating to” does not cure the deficiencies in “contextual graphics.”
As to “predefined format,” Defendants assert that the term is also not used in the
specification and there is no frame of reference for what is meant by “predefined.” Defendants
assert that it is unclear whether the format needs to be defined in the sense of a file format
(JPEG, GIF, BMP, etc.) or merely defined prior to some known event. Thus, Defendants assert
that it is unclear as to whether predefined format refers to the file type or some pre-arrangement
established by the programmer or user. Defendants assert the term is indefinite because the
bounds of the term cannot be discerned. Dkt. 329 at 33-34.
SimpleAir contends that Defendants submitted no evidence to support their position and
merely made attorney argument. SimpleAir asserts the surrounding claim language provides
meaning to the terms. SimpleAir asserts that in claim 69, contextual graphics relate to the
context of the data that has been received, and “predefined format” refers to a previously defined
format in which the data will be displayed. SimpleAir asserts that claim 70 provides an example
45
in which the “predefined format is a scoreboard” and in this case the “contextual graphics”
would relate to a sports game. Dkt. 359 at 14.
2. Analysis
“Only claims ‘not amenable to construction’ or ‘insolubly ambiguous’ are indefinite.”
Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1250 (Fed. Cir. 2008) (quoting
Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005)). That is, the
“standard [for finding indefiniteness] is met where an accused infringer shows by clear and
convincing evidence that a skilled artisan could not discern the boundaries of the claim based on
the claim language, the specification, and the prosecution history, as well as her knowledge of
the relevant art area.” Halliburton, 514 F.3d at 1249-50.
SimpleAir has provided a reasonable interpretation of the claim such that the claim is
amenable to a non-ambiguous construction. As to “contextual graphics,” graphics which provide
context to the information are shown. For example, the “football viewer” of Figure 24(b)
provides a graphical football context and the “newspaper viewer” of Figure 24(c) provides a
graphical newspaper context. Similarly, the various viewers of Figures 24(a)-24(d) provide the
graphics in a predefined format. In light of the specification examples, the term “predefined
format” requires no further construction as the formats displayed are merely displayed in a
predefined manner. The specification is in conformance with claim 69 of each patent and claim
70 which depends from 69 (claim 70 of each patent describes the predefined format as “a
scoreboard”). In light of the specification and claims, the terms are not insolubly ambiguous.
The Court construes “contextual graphics” to be “graphics relating to the context of the
preprocessed data that has been received.” The Court finds that “predefined format” needs no
further construction.
46
So Ordered and Signed on this
May 20, 2013
47
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