CyWee Group Ltd v. Huawei Technologies Co., Inc. et al
Filing
113
MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Roy S. Payne on 12/6/2018. (ch, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
CYWEE GROUP, LTD.,
Plaintiff,
v.
HUAWEI DEVICE CO. LTD.,
HUAWEI DEVICE (DONGGUAN) CO.
LTD., and HUAWEI DEVICE
USA, INC.,
Defendants.
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Case No. 2:17-cv-00495 WCB-RSP
MEMORANDUM OPINION AND ORDER
On November 2, 2018, the Court held an oral hearing to determine the proper construction
of the disputed claim terms in the U.S. Patent No. 8,441,438 (the “’438 Patent”) and U.S. Patent
No. 8,552,978 (the “’978 Patent”). The Court has considered the parties’ claim construction
briefing (Dkt. Nos. 79, 85, 99, and 103) and arguments.
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Based on the intrinsic and extrinsic
evidence, the Court construes the disputed terms in this Memorandum and Order. See Phillips v.
AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
831 (2015).
1
Citations to the parties’ filings are to the filing’s number in the docket (Dkt. No.) and pin cites are to the page
numbers assigned through ECF.
1
I.
BACKGROUND ...............................................................Error! Bookmark not defined.
II.
LEGAL PRINCIPLES ........................................................................................................ 4
III.
CONSTRUCTION OF AGREED TERMS ........................................................................ 9
IV.
CONSTRUCTION OF DISPUTED TERMS ................................................................... 10
1. “six-axis motion sensor module” .................................................................. 10
2. “signal set” .................................................................................................... 11
3. “global reference frame associated with Earth” ........................................... 18
4. " using the orientation output and the rotation output to generate a
transformed output associated with a fixed reference frame associated with a
display device" .............................................................................................. 24
5. " utilizing a comparison to compare the first signal set with the second signal
set" ................................................................................................................ 27
6. "comparing the second quaternion in relation to the measured angular
velocities ωx, ωy, ωz of the current state at current time T with the measured
axial accelerations Ax, Ay, Az and the predicted axial accelerations Ax', Ay',
Az' also at current time T" ............................................................................ 31
7. " generating the orientation output based on the first signal set, the second
signal set and the rotation output or based on the first signal set and the
second signal set".......................................................................................... 38
V.
CONCLUSION ................................................................................................................. 41
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I.
BACKGROUND
Plaintiff CyWee Group Ltd. (“CyWee”) has asserted the ’438 Patent and ’978 Patent
against Defendants Huawei Device Co. Ltd., Huawei Device (Dongguan) Co. Ltd., and Huawei
Device USA, Inc. (collectively “Huawei”). CyWee has asserted the ’438 Patent and ’978 Patent
before. Specifically, this Court has construed both patents in CyWee Group Ltd. v. Samsung
Electronics Co., Ltd., et al., No. 2:17-cv-00140-WCB-RSP (the “Samsung case”). Six of the seven
terms (all terms but the “signal set” term) now presented for construction in the present action
were construed in a claim construction order in the Samsung case at Dkt. No. 117 (the “Samsung
Claim Construction Order”). The Samsung Claim Construction Order was subject to objections
presented by the Samsung Defendants to Judge Bryson. An order on the objections was issued at
Dkt. No. 153 (the “Samsung Order on Objections”). Other Courts have also addressed issues
related to the terms currently in question including CyWee Group Ltd. v. Apple, Inc., No. 14-cv01853-HSG (N.D. Cal.) and CyWee Group, Ltd. v. Motorola Mobility LLC, No. 17-780-RGA (D.
Del.).
The ’438 Patent and ’978 Patent each teach a “pointing” device that translates its own
movement relative to a first reference frame into a movement pattern in a display plane of a second
display reference frame. Because the display plane is chosen to correspond with a particular
display device, such as a computer screen, an associated processor generating a display signal to
the display device can then “move” an indicator (e.g., a computer icon or cursor) on the display
according to the movement pattern. ’438 Patent Abstract; ’978 Patent Abstract.
This general concept predates the asserted patents. See, e.g., ’438 Patent 2:38–47
(referencing prior art). The patents, however, specifically purport to solve a prior-art problem of
inaccurately calculating the change in angular velocities and accelerations of the device when
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subjected to unexpected movements, particularly in a direction parallel to the force of gravity. See
id. 2:55–3:5. The patents also criticize the prior art for outputting only a two-dimensional
movement pattern. See id. 2:47–55 (“the pointing device of Liberty cannot output deviation angles
readily in [a] 3D reference frame but rather a 2D reference frame only and the output of such
device having 5-axis motion sensors is a planar pattern in [a] 2D reference frame only”).
To address these shortcomings, the ’438 Patent teaches (1) use of various sensors to
measure angular velocities and axial accelerations along three reference axes of the device, and
(2) predicting the axial accelerations along three reference axes from the measured angular
velocities. The claimed device uses the measured angular velocities, measured axial accelerations,
and predicted axial accelerations to calculate a deviation of the yaw, pitch, and roll angles of the
device over time. The claimed device then translates that deviation into a movement pattern within
the display reference frame. See generally ’438 Patent 7:56–9:5.
The ’978 Patent, which is a continuation-in-part of the ’438 Patent, adds magnetism to the
methodology. Specifically, a magnetometer measures magnetism associated with three reference
axes of the first reference frame. The ’978 Patent also teaches predicting the magnetism associated
with each of the three axes and using both the measured and predicted magnetisms—along with
the measured angular velocities, measured axial accelerations, and predicted axial accelerations
already contemplated by the ’438 Patent—to determine deviation of the yaw, pitch, and roll and
translate the resultant angles to a movement pattern in a display reference frame. See generally
’978 Patent 22:9–23:8; see also, e.g., id. Fig.8 items 745, 750, Fig. 11 items 1160, 1165.
II.
LEGAL PRINCIPLES
“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc.,
381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by
considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d
858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d
1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at
861. The general rule—subject to certain specific exceptions discussed infra—is that each claim
term is construed according to its ordinary and accustomed meaning as understood by one of
ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d
at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure
Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption
that claim terms carry their accustomed meaning in the relevant community at the relevant time.”)
(vacated on other grounds).
“The claim construction inquiry. . . begins and ends in all cases with the actual words of
the claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998).
“[I]n all aspects of claim construction, ‘the name of the game is the claim.’” Apple Inc. v. Motorola,
Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed.
Cir. 1998)). A term’s context in the asserted claim can be instructive. Phillips, 415 F.3d at 1314.
Other asserted or unasserted claims can also aid in determining the claim’s meaning, because claim
terms are typically used consistently throughout the patent. Id. Differences among the claim terms
can also assist in understanding a term’s meaning. Id. For example, when a dependent claim adds
a limitation to an independent claim, it is presumed that the independent claim does not include
the limitation. Id. at 1314–15.
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“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id. (quoting
Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he
specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive;
it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp.,
299 F.3d 1313, 1325 (Fed. Cir. 2002). But, “‘[a]lthough the specification may aid the court in
interpreting the meaning of disputed claim language, particular embodiments and examples
appearing in the specification will not generally be read into the claims.’” Comark Commc’ns, Inc.
v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced MicroDevices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is
improper to read limitations from a preferred embodiment described in the specification—even if
it is the only embodiment—into the claims absent a clear indication in the intrinsic record that the
patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
898, 913 (Fed. Cir. 2004).
The prosecution history is another tool to supply the proper context for claim construction
because, like the specification, the prosecution history provides evidence of how the U.S. Patent
and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317.
However, “because the prosecution history represents an ongoing negotiation between the PTO
and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the
specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic
Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution
history may be “unhelpful as an interpretive resource”).
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Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic
record in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at
1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a
court understand the underlying technology and the manner in which one skilled in the art might
use claim terms, but technical dictionaries and treatises may provide definitions that are too broad
or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
testimony may aid a court in understanding the underlying technology and determining the
particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
evidence is “less reliable than the patent and its prosecution history in determining how to read
claim terms.” Id. The Supreme Court recently explained the role of extrinsic evidence in claim
construction:
In some cases, however, the district court will need to look beyond the patent’s
intrinsic evidence and to consult extrinsic evidence in order to understand, for
example, the background science or the meaning of a term in the relevant art during
the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871)
(a patent may be “so interspersed with technical terms and terms of art that the
testimony of scientific witnesses is indispensable to a correct understanding of its
meaning”). In cases where those subsidiary facts are in dispute, courts will need to
make subsidiary factual findings about that extrinsic evidence. These are the
“evidentiary underpinnings” of claim construction that we discussed in Markman,
and this subsidiary fact finding must be reviewed for clear error on appeal.
Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
A. Departing from the Ordinary Meaning of a Claim Term
There are “only two exceptions to [the] general rule” that claim terms are construed
according to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts
as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term either
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in the specification or during prosecution.” 2 Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d
1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362,
1365 (Fed. Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309
(Fed. Cir. 2014) (“[T]he specification and prosecution history only compel departure from the
plain meaning in two instances: lexicography and disavowal.”). The standards for finding
lexicography or disavowal are “exacting.” GE Lighting Solutions, 750 F.3d at 1309.
To act as his own lexicographer, the patentee must “clearly set forth a definition of the
disputed claim term,” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669
F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must appear
“with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.
To disavow or disclaim the full scope of a claim term, the patentee’s statements in the
specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis
Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at
1366 (“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning
of a claim term by including in the specification expressions of manifest exclusion or restriction,
representing a clear disavowal of claim scope.”). “Where an applicant’s statements are amenable
to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M
Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
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Some cases have characterized other principles of claim construction as “exceptions” to the general rule,
such as the statutory requirement that a means-plus-function term is construed to cover the corresponding
structure disclosed in the specification. See, e.g., CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359,
1367 (Fed. Cir. 2002).
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B. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA) 3
Patent claims must particularly point out and distinctly claim the subject matter regarded
as the invention. 35 U.S.C. § 112, ¶ 2. A claim, when viewed in light of the intrinsic evidence,
must “inform those skilled in the art about the scope of the invention with reasonable certainty.”
Nautilus Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). If it does not, the claim
fails § 112, ¶ 2 and is therefore invalid as indefinite. Id. at 2124. Whether a claim is indefinite is
determined from the perspective of one of ordinary skill in the art as of the time the application for
the patent was filed. Id. at 2130. As it is a challenge to the validity of a patent, the failure of any
claim in suit to comply with § 112 must be shown by clear and convincing evidence. Id. at 2130
n.10. “[I]ndefiniteness is a question of law and in effect part of claim construction.” ePlus, Inc. v.
Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012).
III.
CONSTRUCTION OF AGREED TERMS
Prior to the oral hearing, the parties agreed to the following terms:
Term
“reference frame”
Agreed Construction
“a coordinate system having axes that
intersect at an origin”
(’438 Patent claims 1, 4, 14, 15, 19; ’978
Patent claim 10)
“spatial pointer reference frame”
“reference frame associated with the 3D
pointing device, which always has its origin at
the same point in the device and in which the
axes are always fixed with respect to the
device”
“spatial pointer reference frame of a threedimensional (3D) pointing device”
“spatial reference frame of the 3D pointing
device”
(’438 Patent claims 1, 4, 14, 15, 19; ’978
Patent claim 10)
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Because the applications resulting in the ’438 Patent and ’978 Patent were filed before September 16,
2012, the effective date of the AIA, the Court refers to the pre-AIA version of § 112.
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(Dkt. No. 106 at 9).
IV.
CONSTRUCTION OF DISPUTED TERMS
1. “six-axis motion sensor module” (’438 Patent claims 1, 5, 14, 15, 16, 17, 19)
CyWee’s Proposed Construction
This term need not be construed. In the
alternative only, this term may be construed
as:
“a collection of components comprising a
rotation sensor comprising one or more
gyroscopes for collectively generating three
angular velocities and one or more
accelerometers for collectively generating
three axial accelerations where said
gyroscope(s) and accelerometer(s) are
mounted on a common PCB”
Huawei’s Proposed Construction
“a module comprising (i) a rotation sensor
and (ii) one or more accelerometers, said
module not having and using measured
magnetisms and predicted magnetisms”
Huawei presents the same basic dispute that was before this Court in the Samsung case.
Huawei contends that in response to a double patenting rejection in the ’978 Patent, the applicants
characterized the ’438 patent as not using measured and predicted magnetisms. Specifically,
Huawei points to the amendment made in the ’978 Patent claims that added the limitations of a
“nine-axis motion sensor module” that use “a plurality of measured magnetisms…and a plurality
of predicted magnetisms.” Huawei also relies on the accompanying argument in which the
applicants stated that the ’438 Patent “includes the claimed subject matter of a six-axis motion
sensor module without having and using measured magnetisms and predicted magnetisms.” Dkt.
No. 85 at 4-6; Dkt. No. 103 at 1-2.
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Analysis:
Huawei misconstrues the double patenting amendment and arguments in question from the
’978 Patent. The amendment and arguments limit the claims of the ’978 Patent to the magnetism
concepts, thus providing a distinction from the ’438 Patent claims. But while the amendments and
arguments point out that the earlier patent (the ’438 Patent) did not claim magnetism, such
arguments do not state that the ’438 Patent claims were narrowed to only encompass nonmagnetism (i.e. exclude magnetism). The rationale presented in the Samsung Claim Construction
Order and the Samsung Order on Objections still applies. As noted by Judge Bryson:
Nothing in the prosecution history suggests that the applicants meant to
suggest that the application that became the ’438 patent would not read on a device
containing a six-axis sensor simply because that device also contained a three-axis
magnetometer and thus could be characterized as having a nine-axis sensor. No
such disclaimer would have been required to avoid the double patenting issue raised
by the examiner, and even if the language used by the applicants was not as precise
as it might have been, it did not constitute the kind of “clear and unmistakable”
disclaimer that would be necessary to surrender claim scope that is otherwise
supported by plain claim language, as is the case here. See Trivascular, Inc. v.
Samuels, 812 F.3d 1056, 1063–64 (Fed. Cir. 2016); Elbex Video, Ltd. v.
Sensormatic Elecs. Corp., 508 F.3d 1366, 1371–72 (Fed. Cir. 2007). That
conclusion is supported by the language of the asserted claims from the ’438 patent,
which claim an apparatus or method “comprising” the recited components or steps,
a term that means that the “device may contain elements in addition to those
explicitly mentioned in the claim.” In re Skvorecz, 580 F.3d 1262, 1267 (Fed. Cir.
2009).
The Court therefore agrees with Judge Payne that no construction of “sixaxis motion sensor” is necessary. The Court will prohibit Samsung from arguing to
the jury that a device containing the claimed six-axis motion sensor does not
infringe the ’438 claims if it contains any other sensors, such as a three-axis
magnetometer. If it appears there is some risk that the jury will understand the term
to foreclose the presence of a magnetometer, the Court will deal with that risk by
issuing an appropriate instruction.
Samsung Order on Objections at 4-5.
The Court finds that the term “six-axis motion sensor module” needs no further
construction.
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2. “signal set” (’438 Patent claim 1; ’978 Patent claim 10)
CyWee’s Proposed Construction
This term has its plain and ordinary meaning
and need not be construed.
Huawei’s Proposed Construction
“a sensor’s x-axis measurement, y-axis
measurement, and z-axis measurement.”
The parties dispute whether the signal set requires, and is limited to, a three-dimensional
signal set. Huawei’s Sur-Reply also raises another issue, whether the signal is only actual electrical
measurements from a sensor and not calculated values or estimated values.
Positions of the Parties
CyWee contends that this term would be understood by a person of ordinary skill in the
art. Dkt. No. 79 at 19 (citing Dkt. No. 79-6 (“LaViola Decl.”) at ¶¶ 30, 33). CyWee contends that
Huawei’s construction is redundant with other language of ’438 Patent claim 1 (“a first signal set
comprising angular velocities ωx, ωy, ωz” and “a second signal set comprising axial accelerations
Ax, Ay, Az”). As to ’978 Patent claim 10, CyWee contends that the claim does not require that
the first and second signal sets include three values, but instead, merely requires a “first signal set
comprising axial accelerations” and a “second signal set associated with Earth’s magnetism.” Id.
CyWee further contends that because the claims are “comprising” claims, the signal sets could
contain additional information.
Huawei contends that CyWee’s primary argument against Huawei’s construction is that
the Court should leave room for “signal sets” that are not three-dimensional. Huawei contends that
this runs counter to the patents’ basic purpose, which is to record and show movement in threedimensional space. Huawei contends that this would confuse the jury. Dkt. No. 85 at 12.
Huawei contends that its construction arises from the specifications’ treatment of “signal
set,” as the patents uniformly and repeatedly describe a “signal set” as a three-dimensional output
from a single sensor. Dkt. No. 85 at 12-13 (citing ’438 Patent 7:64-66; 8:4-6; 8:46-56; 9:15-19;
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11:36-44; 12:32-35; 12:64-13:4; ’978 Patent 9:65-10:25; 11:15-27; 12:9-10; 15:10-17; 16:27-33;
16:60-17:5; 22:40-44; 24:42-44; 30:50-67; 33:37-47; 34:30-34; 34:43-52; 35:5-10). Huawei
contends that its expert (Dr. Welch) also states that this is how a person of ordinary skill in the art
would understand the term “signal set” in the context of the patents. Dkt. No. 85 at 13 (citing Dkt.
85-2 (“Welch Decl.” at ¶ 63). Huawei contends that CyWee’s argument is contrary to the patents’
entire purpose (to navigate three-dimensional space). Huawei contends that the specifications call
the “present invention” three-dimensional (’438 Patent 1:15-23; ’978 Patent 1:20-27) and that
every reference to “signal set” in the specifications refers to a three-dimensional signal; and all of
the signal set math in the patents is three-dimensional. Dkt. No. 85 at 13 (citing ’438 Patent 12:3213:43; ’978 Patent 22:34-67, 31:4-50).
In reply, CyWee contends that Huawei’s proposed construction ignores that the claim terms
at issue contain the word “comprising,” which allows the “signal sets” to include additional
information beyond the three measurements contained in Huawei’s proposed construction. CyWee
further contends that much of the intrinsic record cited by Huawei include broader, non-restrictive
language. Dkt, No. 99 at 14, n. 14 (citing ’438 patent 7:64-66 (“the first signal set including
angular velocities”); 8:4-6 (“the second signal set including axial accelerations”); 12:32-35
(“which includes the measured angular velocities); 12:64-13:4 (“which includes measured axial
accelerations”) (emphasis added)).
CyWee further contends that Huawei’s own expert (Dr. Welch) could not answer the
question of whether a “signal set” must include exactly the three values espoused by Huawei, or
whether it might include less than those measurements (Dkt. 99-2 (“Welch Tr.”) at 46:18-47:1;
48:6-10) and agreed that “there might be something in addition” to those three values within a
“signal set” (Welch Tr. at 51:6-18). Dkt. No. 99 at 15.
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CyWee further objects to Huawei’s interpretation of Huawei’s construction as presented in
Huawei’s expert (Dr. Welch) declaration. CyWee specifically points out that Dr. Welch stated that
the word “signal” means “actual electrical measurements from a sensor and not calculated values
or estimated values.” Dkt. No. 99 at 15 (citing Welch Decl. ¶ at 63). CyWee contends that one
other court has already held an overly-restrictive construction of “signal set” is improper. CyWee
Grp. Ltd v. Apple Inc., No. 14-CV-01853-HSG, 2015 WL 5258728, at *4 (N.D. Cal. Sept. 9, 2015)
(“Defendant's position depends on an overly rigid construction of the term “signal sets” as ‘raw
data from the signal sets.’”).
In its Sur-Reply Brief, Huawei contends that its construction captures the distinction
between signal sets (reported by sensors) and calculated or predicted values (both generated during
the operation of the claimed fusion algorithm), with “predicted” being used in this context not to
mean “at a time in the future” but to mean “estimated and not directly measured” Dkt. No. 103 at
3-4 (citing Dkt. No. 105 (“LaViola Tr.” at 59:20-60:11; 62:9-19)). Huawei contends that its
proposed construction captures the concept that a signal set is a sensor’s output, inclusive of any
correction done by that sensor. Huawei contends that its construction avoids any ambiguity CyWee
attempted to create during Dr. Welch’s deposition and that CyWee now wishes to propagate to the
jury regarding “corrections.” Id. at 4. Huawei contends that during Dr. Welch’s deposition, the
questioning attorney conflated (1) “correcting” a signal set in the sensor before it is subject to the
processing of the claimed algorithm with (2) “correcting” the output of sensor fusion according to
the claims. Dkt. No. 103 at 4-5 (citing Dkt. No. 103-2 (Welch Deposition) at 54:2-13.) Huawei
states that Dr. LaViola (CyWee’s expert) acknowledged at his deposition that sensors such as
commercial accelerometers, gyroscopes, and magnetometers have the ability to self-correct and/or
calibrate to account for “factory” flaws or known local conditions. Id. (citing LaViola Tr. at 70:1414
72:6). Huawei contends that the application of these low-level corrections does not mean the
corrected data is no longer a “signal set.” Huawei contends that on the other hand, the patents also
use the term “corrected” to refer to the purpose of the claimed invention. Dkt. No. 103 at 4 (citing
’438 patent at 4:20-30 (“According to another aspect of the present invention, … accumulated
errors associated with a fusion of signals from a motions sensor module … may be eliminated or
corrected.”) (emphasis added)). Huawei states that it is not excluding self-correcting sensors as
potential sources of the “signal sets” of the claims, merely differentiating between values used by
the claimed algorithm (signal sets) and values created by the claimed algorithm (the calculated and
predicted values used to correct errors “associated with a fusion of signals”). At the oral hearing,
Huawei acknowledged that there is no dispute that the signal sets come from the sensors. Dkt. No.
110 at 23-25.
Huawei further states that Dr. Welch properly acknowledged that a signal set may contain
more than the three values. Huawei asserts that that despite CyWee’s arguments, there is no
attempt to construe the claims so that the inclusion of timestamps in a sensor’s output would mean
that output is no longer a “signal set.” Dkt. No. 103 at 4.
Analysis
The first issue presented by Huawei focuses on whether a signal set must be defined in
context of three-dimensional data only. As noted by CyWee, ’438 Patent claim 1 already includes
this concept in other limitations (“a first signal set comprising angular velocities ωx, ωy, ωz” and
“a second signal set comprising axial accelerations Ax, Ay, Az”). Such language is indicative that
“signal set” on its own is not as limited as Huawei seeks. As to’978 Patent claim 10, such language
is not included and the claim is drafted more broadly. However, the claim itself still provides
further limitations as to the particular signal sets by stating “generating a first signal set comprising
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axial accelerations associated with movements and rotations of the 3D pointing device in the
spatial reference frame” and “generating a second signal set associated with Earth.” It is further
noted that even in ’978 Patent claim 10, when three axes are required, the claim specifically calls
out such a requirement: “generating an orientation output associated with an orientation of the 3D
pointing device associated with three coordinate axes of a global reference frame associated with
Earth” and “generating a rotation output associated with a rotation of the 3D pointing device
associated with three coordinate axes of a spatial reference frame associated with the 3D pointing
device.”
Thus, the language of the claims defines when three axes are needed and provides
additional language as to what the particular signal sets are. This is indicative that the “signal set”
term itself does not provide the limitations sought by Huawei. Further, Huawei has not pointed to
any lexicography or disclaimer limiting the claim terms as sought by Huawei. Huawei does
contend that the only embodiment of the specification is three-dimensional. However, even a
single embodiment is not necessarily enough to read a limitation into the claim from the
specification. Arlington Indus., Inc. v. Bridgeport Fittings, Inc., 632 F.3d 1246, 1254 (Fed. Cir.
2011) (“[E]ven where a patent describes only a single embodiment, claims will not be read
restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using
words of expressions of manifest exclusion or restriction.”). Further, as noted by CyWee there are
repeated instances of the “signal set” being described more generically. ’438 patent 7:64-66 (“the
first signal set including angular velocities”); 8:4-6 (“the second signal set including axial
accelerations”); 12:32-35 (“first signal set…which includes the measured angular velocities);
12:64-13:4 (“second signal set…which includes measured axial accelerations”) (emphasis
16
added)). In context of the claim language and specification as a whole, the Court finds that the
term is not limited as Huawei seeks.
Huawei’s argument substantially shifts in the Sur-Reply Brief to a discussion of whether
the signal sets are (1) the actual raw measurements of the sensors, (2) corrected measurements
provided from the sensors or (3) corrected measurements provided by the pointing device using
the correction algorithms described in the claims as being applied to the signal sets. It seems both
parties agree that a sensor can have raw data and also provide its own corrections to that data.
Huawei’s construction does raise the possibility of being interpreted to only include the raw data;
a construction that both experts indicate would conflict what one of skill in the art would
understand. Further, the actual claim language is clear that the signal sets may include other data
as the claim terms are followed by language such as “comprising” and “associated”
a rotation sensor for detecting and generating a first signal set comprising angular
velocities ωx, ωy, ωz associated with said movements and rotations of the 3D
pointing device in the spatial pointer reference frame
an accelerometer for detecting and generating a second signal set comprising axial
accelerations Ax, Ay, Az associated with said movements and rotations of the 3D
pointing device in the spatial pointer reference frame
’438 Patent claim 1, and
generating a first signal set comprising axial accelerations associated with
movements and rotations of the 3D pointing device in the spatial reference frame;
generating a second signal set associated with Earth's magnetism
’978 Patent claim 10. In the context of the surrounding claim language it is clear that the signal
sets are not limited to merely the raw data but could be corrected data from a sensor. Further, as to
the other corrections and processing of the claims, the claims describe the signal sets as being used
in such processing, thus clarifying any confusion that Huawei contends could result regarding the
correction limitations explicitly recited in the claims.
17
The Court finds that the term “signal set” needs no further construction.
3. “global reference frame associated with Earth” (’978 Patent claim 10)
CyWee’s Proposed Construction
This term need not be construed. In the
alternative only, this term may be construed
as: “reference frame with axes defined with
respect to the Earth”
Huawei’s Proposed Construction
“reference frame with an origin at a fixed
point on Earth”
In the briefing, Huawei offers an alternative:
“reference frame with an origin fixed relative
to Earth” Dkt. No. 85 at 15-16.
The disputes between the parties center around whether the construction should recite the
frame’s origin versus axes and whether “fixed” should be included in the construction. 4
Positions of the Parties
CyWee contends that the term “global reference frame” or “global frame of reference” is
a commonly used term of art, which refers to a fixed frame, against which the position and
orientation of moving frames can be measured. Id. at 21 (citing LaViola Decl. at ¶ 123).
CyWee also points to this Court’s prior order:
[T]here’s no technical reason why the claimed invention would require any
reference frame to have a specific origin given the ease with which a point in one
frame can be mapped to another frame. Indeed, the ’978 Patent’s use of “frame
4
In the briefing CyWee further raised the concern that Huawei’s use of “on Earth” could be interpreted by
a jury to mean literally on the surface of the Earth (as opposed to some other point such as the center of the
Earth, a point above the Earth, etc.) even though the term only uses “associated with Earth.” Dkt. No. 79 at
20-22. Huawei clearly states that such a meaning is not intended in its construction and offered the use of
“relative to Earth” to clarify. Dkt. No. 85 at 15-16. Further, the oral hearing made clear that Huawei was
not limiting its construction to the surface of the Earth. Dkt. No. 110 at 42-50.
18
associated with” throughout the specification shows the location of the reference
frame’s origin is not important.
Samsung Claim Construction Order at 12.
In response, Huawei notes that the patent describes a 3D pointing device and a 2D display.
Dkt. No. 85 at 15 (citing ’978 Patent 11:48-50, Figure 5). Huawei points to the specification
passage: “[f]or proper interaction with the use of the pointing device, when the user moves the
pointing device, the pointer on the screen is expected to move along with the orientation, direction
and distance travelled by the pointing device.” ’978 Patent 1:56-61 (numbering omitted). Huawei
contends that the ’978 patent claims an improved mechanism for following movement of a
pointing device on a display screen by using three reference frames: the “spatial reference frame”
(which the parties have agreed is fixed to the “3D pointing device”), the “fixed reference frame
associated with a display device” (which the parties agree does not require construction), and the
“global reference frame associated with Earth,” which is the term in dispute. Dkt. No. 85 at 15.
Huawei contends that its construction just requires a reference frame that is fixed relative
to Earth, whether fixed in the center of the Earth, fixed at the Earth’s surface, or fixed in the sky
above the Earth. Id. at 17. Huawei contends that CyWee explicitly agrees when CyWee stated in
its brief that “‘global frame of reference’ is a commonly used term of art, which refers to a fixed
frame, against which the position and orientation of moving frames can be measured. LaViola
Decl. ¶ 123.” Dkt. No.85 at 17 (quoting Dkt. No. 79 at 21).
Huawei contends that the North-East-Down (NED) or East-North-Up (ENU) reference
frames are not relevant because such frames are not fixed. Rather, Huawei contends that such
frames have an origin at the center of the sensor frame as acknowledged by CyWee, and thus move
with the 3D pointing device. Dkt. No. 85 at 17. Huawei contends that such reference frames
19
conflict with the definition of “global reference frame” provided by CyWee and its expert. Further,
Huawei contends that even the reference cited by CyWee distinguishes between the ENU frame
and the “Earth Fixed Frame.” Id.
In reply, CyWee states that “[b]oth parties agree that a global frame must be fixed to the
Earth in some manner.” Dkt. No. 99 at 16. CyWee contends that although the parties agree that
the reference frame must be fixed in some manner to the Earth, Huawei’s construction does not
reference axes at all and allows for a rotating reference frame so long as the origin is fixed. Id. at
17. CyWee contends that a global reference frame is different than a body frame or spatial
reference frame such as that shown in Figures 1 and 2 (below) in which the axes (Xp Yp and Zp)
move with respect to the device as the device is rotated.
Dkt. No. 99 at 17 (depicting ’438 Patent Figures 1, 2). CyWee contends that although Dr. Welch
(Huawei’s expert) agrees that the global frame will not rotate, Huawei’s construction allows for a
rotating frame. Id. (quoting Welch Tr. at 109:20-25 (“I cannot imagine that a person of ordinary
intel[ligence] . . . who is looking at these patents would understand that a global reference frame
as that term is used in the patents would be allowed to rotate, it simply wouldn’t make sense.”))
As to Huawei arguing that North-East-Down (NED) or East-North-Up (ENU) frames
cannot be fixed, CyWee states that while the origin of such a frame begins in the sensor or body
frame, it is a simple matter to fix the origin and axes at a specific time. Dkt. No. 99 at 17-18.
20
In its Sur-Reply, Huawei contends that Dr. Welch explained in his declaration and again at
his deposition that if the origin of this reference frame is allowed to move with the device over
time, then purportedly enabling disclosures will not function. Dkt. No. 103 at 5-6 (citing Welch
Decl. at ¶¶ 73-74, 76-77). Huawei contends that CyWee and Dr. LaViola admit, in paragraph 53
of Dr. LaViola’s supplemental declaration, that to be a “global reference frame associated with
Earth” the reference frame must be fixed “at a specific point in time.” Id.
Huawei contends that an origin that does not move with the pointing device is not fixed to
the pointing device; it is fixed to the (relatively immobile) Earth. Huawei states that at Dr.
LaViola’s deposition, Dr. LaViola stated multiple times that the origin of the global reference
frame had to be fixed such that during the performance of the claimed method it did not move
when the pointing device moved. Id. (citing LaViola Tr. at 114:4-118:9; 120:4-13; 138:1-139:17).
Huawei states that its proposal is consistent with the Samsung Claim Construction Order’s
observation that the “precise location of the origin” of this reference frame is immaterial. Huawei
states that what is material, as both experts agree, is that during the performance of the claimed
methods, the origin not move as the device moves.
As to the “axes defined” with respect to Earth, Huawei contends that CyWee’s own expert
disavowed the correctness of requiring the axes to be defined. Specifically, Huawei points to the
Dr. LaViola statement that “[s]o as long as you have the axes that are consistent with your first
frame” then the axes do not have to be defined relative to the Earth and could instead (for example)
be defined relative to the device. Dkt. No. 103 at 6 (citing LaViola Tr. at 134:11-139:17). Huawei
contends that Dr. LaViola agreed that what matters is that when the pointing device is moving
during a performance of the claimed method, the axes of the global reference frame (like its origin)
do not change because of the movement of the device. Huawei states that this is what Huawei
21
meant when it wrote in its Responsive Claim Construction brief that it agrees that the global
reference frame associated with Earth must have axes “fixed with respect to Earth.” Id.
Analysis
As to the usage of “axes” versus “origin,” the Court finds CyWee’s arguments more
persuasive. Further, at the oral hearing, Huawei acknowledged that Huawei’s primary position was
that at least one of (a) the axes or (b) the origin had to be fixed with respect to the Earth. Dkt. No.
110 at 43 (“you need to have the axes not moving while the device moves, and you need to have
the origin not moving while the device moves … at least one of those origin and the axes have to
be associated with the Earth and fixed”), 47 (“And at least one of those [the location of the origin
and the location of the axes] then has to be associated with the Earth and fixed with respect to the
Earth”). Huawei further stated that it focused on “origin” because Huawei thought there might be
a “possibility” that CyWee would argue to a jury that the origin that move. Id. at 49-50.
In addition, it is noted that the claim itself uses the term explicitly in context of the axes:
“generating an orientation output associated with an orientation of the 3D pointing device
associated with three coordinate axes of a global reference frame associated with Earth”
(emphasis added, disputed claim term underlined). In the context of the claim itself, the
construction of the global reference frame in relation to the axes is more correct and would be
clearer to the jury. Similarly, the claims reference the spatial reference frame in context of the three
coordinate axes, not the origin. In fact, the patent specification makes reference to the axes
consistently throughout the specification without ever referencing the origin. In light of the claims,
specification, and conflicting extrinsic evidence, the Court finds that a construction that uses
“axes” is proper.
22
At the hearing, it became clear that the primary dispute relates to use of the “fixed” term.
More specifically, the dispute focused on what the potential meaning of “fixed” was: fixed at all
times, fixed at some point in time, fixed during one iteration of the claimed method, fixed during
all uses of the claimed method, etc. CyWee agreed that “the global reference frame must be fixed
in some manner. The axes must be fixed in some manner to the Earth, that is correct” and “the fact
that the term itself is ‘global reference frame associated with Earth’ indicates that it’s fixed to the
Earth in some manner.” Dkt. No. 110 at 33. CyWee stated that a reference frame that has at least
one axis set in relation to the Earth may be “associated with Earth.” See id. at 34-37. Further,
CyWee stated that the reference could be reset at various times while a pointing device is used.
Thus, CyWee contends that the reference does not always have to be “fixed” to the same origin or
axes but rather could change at different points in time, and still be associated with the Earth. Id.
at 40-41.
Huawei, in contrast, argued that the key concept is that the global reference does not move
as the pointing device moves. Id. at 43. Further, Huawei argued that though the specification does
not teach that the global reference frame must be fixed, it would be known to one in the art that it
must be fixed to be operable. Id. at 43-46. However, Huawei acknowledged that it does not matter
if the global reference frame moved between uses of the device. Id. at 46-47. Huawei also
acknowledged that by use of “fixed,” Huawei meant during one iteration of the claimed method.
Id. at 47.
As to the “fixed” dispute, the Court finds CyWee’s evidence and arguments more
persuasive. Further, Huawei’s construction inserts into the term the concept of “fixed” which even
Huawei admits is not described in the specification with regard to a global reference frame. Also,
as became clear at the oral hearing, the meaning of “fixed” can vary greatly over at what point in
23
time the frame is fixed to the Earth (fixed at all times, fixed at some point in time, fixed during
one iteration of the claimed method, fixed during all uses of the claimed method, etc.). The term
in question, however, only requires that the global reference frame be “associated” with Earth. In
context of the claims themselves, the specification and the extrinsic evidence, the axes of the frame
being defined with respect to Earth best conveys the concept of a global reference frame associated
with Earth.
The Court construes “global reference frame associated with Earth” to mean
“reference frame with axes defined with respect to Earth.”
4. “using the orientation output and the rotation output to generate a transformed
output associated with a fixed reference frame associated with a display device”
(’978 Patent claim 10)
CyWee’s Proposed Construction
“using the orientation output and rotation
output to generate a transformed output
representing a movement in a fixed reference
frame that is parallel to the screen of the
display device.”
Huawei’s Proposed Construction
“using the orientation output and rotation
output to generate a transformed output
representing a two-dimensional movement in
a fixed reference frame that is parallel to the
screen of the display device.”
The parties dispute whether the movement should be “a movement” or “a two-dimensional
movement.” The dispute between the parties is somewhat similar to issues raised in the Samsung
case.
Positions of the Parties
Huawei contends that its construction comes straight from the specification: “The
transformed output represents a 2-dimensional movement in a display plane in the fixed
reference frame.” ’978 Patent 31:51-32:3 (emphasis added). Huawei also points to other portions
of the specification, contending that two-dimensions is what is described. Dkt. No. 85 at 20 (citing
’978 Patent at 31:56-67, 33:4-11).
24
CyWee contends that Huawei’s construction would cause jury confusion as the language
could be improperly understood by the jury to limit the movement of the pointing device to twodimensional movement (i.e., the transformed output is based upon two-dimensional movement,
instead of the three-dimensional movement that the patent teaches). Dkt. No. 99 at 19. Thus,
CyWee contends that Huawei’s construction could connote that the transformed output would not
permit a two-dimensional depiction of three-dimensional movement. Id. CyWee further contends
that Huawei’s construction rests upon a faulty premise that the “movement” that is represented in
a fixed reference frame must be “two-dimensional.” Id.
In the Sur-Reply, Huawei contends that its construction is not reading out the creation of
two-dimensional representations of three-dimensional movement. Dkt. No. 103 at 7. Huawei
contends that all the parties agree that the “movement” of this claim term is the two-dimensional
movement (on the screen) and not the other “movement” (the movement of the three-dimensional
pointing device) recited in the claim. Id. Huawei contends that the movement of the term in
question is the movement parallel to the screen which is necessarily a two-dimensional movement.
Huawei contends that the “movement” of this term is not the “movement” of the three-dimensional
pointing device but rather the transformed output that is associated with the screen.
At the oral hearing, CyWee further pointed to the embodiment of Figure 6 in which the
display 682 is built-in to the moveable portable electronic device 600 itself. CyWee contends that
in such case, the display itself may move and thus the display frame is not always fixed. See Dkt.
No. 110 at 58-59.
Analysis
Huawei states that its construction is not meant to exclude three-dimensional movement of
the pointing device. Still, the Court recognizes that there could be jury confusion as to the meaning
25
of “two-dimensional” in this claim term. Moreover, the passage cited by Huawei is merely an
embodiment, and Huawei has not pointed to clear language of lexicography or disclaimer. Further,
the specification provides guidance that the reference frame into which the data is being mapped
(e.g., the reference frame of the display) is not required to be two-dimensional by using broader,
more open ended language:
the deviation angles being compensated and accurately outputted in 3D spatial
reference frame may be further mapped onto or translated into another reference
frame such as the abovementioned display frame, for example a reference in twodimension (2D).
’978 Patent 5:41-45. Similarly, the patent describes an embodiment in which the display screen
itself may be handheld and moveable in three-dimensions. See ’978 Patent Figure 6, 13:5-59. Such
an alternative embodiment further counsels against Huawei’s strict limitation to one of the
embodiments of the specification. The construction adopted below conforms to that adopted in the
Samsung Claim Construction Order. The Court’s prior guidance is still applicable, including:
In fact, Defendants’ proposed construction is taken almost verbatim from the
specification. See ’978 Patent at 31:51–32:3 (“The transformed output . . .
represents a 2-dimensional movement in a display plane in the fixed reference
frame.”). Nonetheless, there’s no reason the claim scope should be limited to
representing only two-dimensional movement given that the passage on which
Defendants rely only relates to a particular embodiment. See Liebel-Flarsheim Co.
v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004) (“Even when the specification
describes only a single embodiment, the claims of the patent will not be read
restrictively unless the patentee has demonstrated a clear intention to limit the claim
scope using ‘words or expressions of manifest exclusion or restriction.” (quoting
Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1327 (Fed. Cir. 2002)). In
fact, the specification contemplates that a 2D reference frame may be just one type
of possible display reference frame. See ’978 Patent at 12:48–58 (referring to
mapping the calculated deviation “to a display reference frame such as a 2D
reference frame”).
Samsung Claim Construction Order at 13-14. The Court rejects Huawei’s inclusion of twodimensional.
26
The Court construes “using the orientation output and the rotation output to generate
a transformed output associated with a fixed reference frame associated with a display
device” to mean “using the orientation output and rotation output to generate a transformed
output representing a movement in a fixed reference frame that is parallel to the screen of
the display device.”
5. “utilizing a comparison to compare the first signal set with the second signal set”
(’438 Patent claim 1)
CyWee’s Proposed Construction
Huawei’s Proposed Construction
This term need not be construed. In the
Indefinite
alternative only, this term may be construed
as: “determining or assessing differences
based on a previous state associated with the
first signal set and a measured state associated
with the second signal set while calculating
deviation angles”
The parties dispute whether “to compare the first signal set and the second signal set” is
indefinite because it is not limited to a specific way to compare the sets. The parties did not present
oral arguments regarding this term but rather relied only on the briefing. Dkt. No. 110 at 60, 67.
Positions of the Parties
Huawei’s positions differ somewhat from Samsung’s arguments in the Samsung case as
Huawei does not argue that it would be unknown how to compare the angular velocities to the
axial accelerations. Rather, Huawei states: “Indeed, the specification discloses a number of
different ways of comparing angular velocities with axial accelerations, and one of ordinary skill
in the art would know of myriad others.” Dkt. No. 85 at 23 (citing Welch Decl. at ¶95).
Specifically, Huawei contends two approaches are disclosed in the specification and further states
27
that “a POSITA may employ any one of a variety of methods to ‘compare’ signal sets.” Id. (citing
Welch Decl. at ¶¶94-96).
Huawei contends that the term is indefinite due to the fact that since the items being
compared are disparate sets of information, “any number of ways to ‘compare’ are possible” and
a person of skill in the art is not advised which approach to select. Dkt. No. 85 at 23.
CyWee contends that the mere fact that multiple ways to compare values exists does not
render the term indefinite. Dkt. No. 99 at 2-3. (citing multiple cases finding breadth or the fact that
a specific way a claim term is accomplished is not claimed does not render a claim invalid). CyWee
contends that a particular way to compare is not claimed. CyWee states that the claim merely
requires that the sets are compared. Id. at 4.
CyWee also notes that the specification states that:
The term of “comparison" of the present invention may generally refer to the
calculating and obtaining of the actual deviation angles of the 3D pointing device
110 with respect to the first reference frame or spatial pointing frame XPYPZP
utilizing signals generated by motion sensors while reducing or eliminating noises
associated with said motion sensors;
’438 Patent 2:26-32. CyWee further notes that Judge Bryson also stated that “the term
‘comparison’ is specifically defined in the patent,” citing to this passage. Samsung Order on
Objections at 10. CyWee contends that this supports CyWee’s alternative construction. Dkt. No.
99 at 1-2, 4.
Huawei contends that CyWee takes conflicting positions – on one hand arguing that the
specification defines “comparison,” but on the other hand arguing that one skilled in the art may
use many different ways of “comparing.” Dkt. No. 103 at 8-9. Huawei contends that even with the
definition of “comparison” in the specification, it is the words that follow in the term “to compare
the first signal set with the second signal set” that render the term indefinite. Id. at 9. Huawei notes
28
that the specification definition contrasted the meaning of “comparison” to “mapping,” but even
replacing the “comparison” in the claim with the specification language does not clarify the
subsequent meaning of “to compare” the two sets. Id. at 10.
Huawei quotes Dow Chem. Co. for the statement that “the existence of multiple methods
leading to different results without guidance” in the intrinsic record “renders the claims indefinite.”
Id. at 9 (quoting Dow Chem. Co. v. Nova Chems. Corp., 803 F.3d 620, 634 (Fed. Cir. 2015)).
Huawei contends that there are infinite ways to compare the sets and thus the claims fail to provide
clarity.
Analysis
Huawei acknowledges that the specification teaches a way “to compare” and that one
skilled in the art would understand that there are many ways “to compare.” Dkt. 85 at 23 (citing
Welch Decl. at ¶¶94-96). The claim just requires “to compare” the sets; it does not mandate a
specific method. Huawei’s argument reduces to more of an argument that a particular comparison
method is not claimed, as opposed to a contention that “to compare” renders the term indefinite.
Merely because a claim is drafted broadly and could cover a variety of methods does not
automatically render a claim indefinite. See Ultimax Cement Mfg. Corp. v. CTS Cement Mfg.
Corp., 587 F.3d 1339, 1352 (Fed. Cir. 2009) (finding claim term not indefinite when a formula
contained over 5,000 possible combinations when it sufficiently notified the public of the scope of
the claims.) Here, there is no dispute that the claim requires “to compare” the data. That “to
compare” is not limited to a specific method to compare does not render the term indefinite. As
noted in the Samsung Order on Objections, “comparing the first signal set with the second signal
set…[is] all reasonably definite.” Samsung Order on Objections at 10. This is distinguishable from
the Dow Chem. Co. situation where the claim term in question was "a slope of strain hardening
29
coefficient greater than or equal to 1.3." Dow Chem. Co., 803 F.3d at 631. Because the claim only
covered a specific slope, the existence of different methods to determine the slope producing
different results made it impossible to determine the scope of the claim. Id. at 631-35. Such is not
the case here.
Further, the claim is not as unbounded as Huawei asserts because the surrounding claim
language immediately before and after the claim term provides more detail regarding the
comparing. First, detail is provided by telling what the purpose of the comparing is:
communicating with the six-axis motion sensor module to calculate a resulting
deviation comprising resultant angles in said spatial pointer reference frame by
utilizing a comparison to compare the first signal set with the second signal set
whereby…
(claim term emphasized) and then, secondly, detail as to the comparison is provided after the term:
…by utilizing a comparison to compare the first signal set with the second signal
set whereby said resultant angles in the spatial pointer reference frame of the
resulting deviation of the six-axis motion sensor module of the 3D pointing device
are obtained under said dynamic environments, wherein the comparison utilized
by the processing and transmitting module further comprises an update program
to obtain an updated state based on a previous state associated with said first
signal set and a measured state associated with said second signal set; wherein
the measured state includes a measurement of said second signal set and a
predicted measurement obtained based on the first signal set without using any
derivatives of the first signal set.
’438 Patent claim 1 (emphasis added). Thus, not only does the claim clearly require “to compare
the first signal set with the second signal set,” the surrounding claim language and the specification
provides instruction as to “comparison.” In light of the clear language of the claim and
specification, the claim term is not indefinite.
The Court finds that “utilizing a comparison to compare the first signal set with the
second signal set” is not indefinite.
30
6. “comparing the second quaternion in relation to the measured angular velocities
ωx, ωy, ωz of the current state at current time T with the measured axial
accelerations Ax, Ay, Az and the predicted axial accelerations Ax', Ay', Az' also at
current time T” (’438 Patent claims 14, 19)
CyWee’s Proposed Construction
This term need not be construed. In the
alternative only, this term may be construed
as: “utilizing the second quaternion obtained
from the measured angular velocities ωx, ωy,
ωz of the current state at current time T, the
measured axial accelerations Ax, Ay, Az, and
the predicted axial accelerations Ax′, Ay′, Az′
also at current time T to obtain an updated
state or updated quaternion.”
Huawei’s Proposed Construction
Indefinite
Positions of the Parties
Huawei primarily contends that the term does not explain what is being compared. Further,
like the prior “to compare” term, Huawei contends that it does not specify how the comparing is
done.
First, Huawei contends that the term fails to explain which values the claims call for
comparing. Dkt. No. 85 at 25. Huawei summarizes the dispute as asking what it means by
“comparing A with B and C.” Does it mean, for example, (1) comparing A with B and comparing
A with C; (2) comparing A with some amalgamation of B and C; or (3) comparing A and B, A and
C, and B and C? Dkt. No. 103 at 12 (citing Welch Decl. at ¶¶ 102-104). Thus, Huawei contends
that the term may be interpreted in a number of manners including to mean that the first value is
compared to the second and third values independently; that the second and third values are fused
together and then the result compared to a third value; or that some combination of comparisons
31
is used. Id. Huawei further states that the exemplary embodiments in the specification also fail to
resolve the ambiguity in this term as CyWee itself argues against limiting the claims to a direct
comparison between values, arguing that indirect comparisons are within the scope of the patent.
Id. (citing CyWee Opening Br. at 7). Huawei contends that an open-ended understanding of the
claim language renders the language unclear as to the values to be compared and the comparison
to perform. Id.
CyWee contends that Huawei’s arguments fail for the same reasons as the prior term.
CyWee contends that the mere fact that a claim can potentially cover multiple configurations does
not render it invalid. Dkt. No. 99 at 5. CyWee contends that a particular way of comparing is not
what is claimed, rather all the claim requires is comparing.
CyWee contends that what the claim language and specification does make clear is that
this claim term describes a comparison between the predicted axial accelerations and the measured
axial accelerations. Id. at 6. CyWee contends that this conforms to the specification. Specifically
CyWee states:
As this Court has held, the methodology of the patents “does not invoke a
precise apples-to-apples comparison and requires some conversion.” Samsung
Order at 17. Thus a direct comparison is not required. As shown in Equation 1 and
further illustrated in Step 720 of Figures 7 and 8, the second quaternion is obtained
using measured angular velocities ωx, ωy, ωz. ’438 patent Equation 1, Fig. 7;
LaViola Rep. Decl. ¶ 15. This equation is embodied in the language of the claim
limitation requiring a “second quaternion in relation to the measured angular
velocities ωx, ωy, ωz. As Dr. LaViola testifies, Equations 2-4 teach a POSITA how
to take this second quaternion and convert it to predicted axial accelerations as
recited in the claim limitation, and as further illustrated in Step 730 of Figures 7
and 8. Id.
Dkt. No. 99 at 6.
As to the meaning of the term, CyWee states that the term recites a “comparison.” Dkt. No.
79 at 11. CyWee states that the ’438 patent describes that a comparison may generally refer to
32
calculating and obtaining deviation angles. Id. (citing’438 patent 2:27-29, 4:53-59). CyWee
contends that Figures 7 and 8 are flowcharts that illustrate a sensor fusion algorithm and the
comparison of the claims. CyWee states that Figures 7 and 8 describe the use of three quaternions
as part of the enhanced comparison method, as an iterative process or loop in which the comparison
method is repeated over time. Id. CyWee states that the 1st quaternion (shown in Figures 7 and 8)
represents orientation at previous time T-1, which may be initialized the first time through the
loop. Id. (citing ’438 patent Fig. 7 Step 705, 11:62-64). CyWee state that on subsequent iterations
of the loop, the 1st quaternion is sourced from an updated quaternion (the 3rd quaternion). Id.
CyWee contends that the second quaternion is computed using the angular velocities ωx,
ωy, ωz originating from the rotation sensor (comprising one or more gyroscopes) at current time
T (’438 patent 7:64-65, 9:16-17, 12:32-38) and the first quaternion described above. Dkt. No. 79
at 11. CyWee contends that the ’438 Patent further illustrates this step through the use of Equation
1, which is used to compute the second quaternion shown as step 720 in Figures 7 and 8. Id. (citing
LaViola Decl. at ¶75;’438 Patent 12:40-60 (describing Equation 1)). CyWee contends that the
measured axial accelerations Ax, Ay, Az originate from the accelerometer or accelerometers at
current time T. Id. at 11-12 (citing ’438 Patent Fig. 7 Step 725, 5:27-31; LaViola Decl. at ¶76).
CyWee further states that the predicted axial accelerations are calculated at current time T. Id. at
12 (citing’438 patent Fig. 7 Step 730). CyWee contends that Figures 7 and 8 disclose that the
second quaternion (from Step 720), measured axial accelerations (from Step 725), and predicted
axial accelerations (from step 730) are used to obtain an updated state or updated quaternion
(referred to as a 3rd quaternion in Step 735). Id.
CyWee then states that Equations 2-4 in the ’438 Patent describe an embodiment having a
predicted axial acceleration, which is derived from the second quaternion (which is computed in
33
Equation 1), and this quaternion is derived from the first quaternion and measured angular
velocities (see Figs. 7 and 8). Id. at 12 (citing LaViola Decl. at ¶91). CyWee states that because
the predicted axial acceleration is derived from the second quaternion, and a POSITA would
understand that the second quaternion is normalized so that it represents orientation, the predicted
axial accelerations would represent (and only represent) accelerations that stem from gravity (since
gravitational acceleration is used to determine orientation). Id.
Huawei contends that when CyWee states that this claim term describes a comparison
between the predicted axial accelerations and the measured axial accelerations, CyWee reads out
the plain language of the claim which requires comparing a second quaternion with measured axial
accelerations and predicted axial accelerations. Dkt No. 103 at 11. Huawei contends that in
CyWee’s expert’s deposition, Dr. LaViola contended that the “second quaternion” was not
involved in the comparison but only the source of the predicated axial acceleration. Id. at 12 (citing
LaViola Tr. at 87:1-20, 160:24-161:2) Huawei contends that at other times, Dr. LaViola testified
that there were two comparisons: one between the predicted axial acceleration and the measured
axial acceleration and another between the result of that comparison and the second quaternion.
Id. (citing LaViola Tr.at 90:14-91:9; 92:19-93:24). Further, Huawei contends that Dr. LaViola
admitted that the three items being compared in this term were the same three items used in
CyWee’s alternative proposed construction, which recites “utilizing” the three items “to obtain an
updated state or updated quaternion.” Id. (citing LaViola Tr. at 94:3-97:18). Huawei states that if
a person of ordinary skill in the art would understand this claim to recite that all three items are
used to obtain a result, it suggests that such a person would also understand all three items, and
not just two of them, must be compared in a single comparison. Id.
34
Finally, Huawei contends that as with the prior term, there could be many ways to perform
the comparing (no matter what is being compared), thus rending the term indefinite.
Analysis
At the oral argument, the positions of the parties became more well-defined. CyWee
reiterated that it contends that the claim only requires comparing the measured axial accelerations
to the predicted axial accelerations. Dkt. No. 110 at 68. In the nomenclature used above, this is
“comparing B to C.” CyWee contends that support for this position can be found because the
second quaternion (“A” in the nomenclature above) is used to generate the predicted axial
accelerations. Id. at 68-69. CyWee contends that a direct comparison is not required and that
because the predicted axial acceleration is based on the second quaternion, the claim limitation is
met by merely comparing the measured axial acceleration to the predicted axial acceleration.
At the oral hearing, Huawei acknowledged to the Court that the term, if it has meaning,
means comparing “A with B and C” or “A with B” and “A with C.” Dkt. No. 110 at 63-64.
However, Huawei emphasized its position that merely interpreting the limitation to mean
comparing the measured axial acceleration to the predicted axial acceleration was an improper
interpretation of the claim. Id. at 65-66.
On this point, the Court agrees with Huawei. The claim limitation in question is:
comparing the second quaternion in relation to the measured angular velocities ωx,
ωy, ωz of the current state at current time T with the measured axial accelerations
Ax, Ay, Az and the predicted axial accelerations Ax', Ay', Az' also at current time
T
’438 Patent claim 14 (21:33-38), claim 19 (22:42-47). Further, the claims are clear that the
predicted axial accelerations are calculated based on the measured angular velocities and that the
second quaternion is the current state and is obtained from the measured angular velocities:
35
obtaining a current state of the six-axis motion sensor module by obtaining
measured angular velocities ωx, ωy, ωz gained from the motion sensor signals of
the six-axis motion sensor module at a current time T…
calculating predicted axial accelerations Ax', Ay', Az' based on the measured
angular velocities ωx, ωy, ωz of the current state of the six-axis motion sensor
module…
said current state of the six-axis motion sensor module is a second quaternion with
respect to said current time T
’438 Patent claim 14 (21:23-33), claim 19 (22:28-42). Thus, the claim limitations very clearly
express the second quaternion, measured axial measurements and predicted axial measurements
as distinct elements. CyWee, however, seeks to ignore this in the comparing limitation in question.
Rather, CyWee seeks to interpret the claim term in the following manner (strike-through and
underline indicating CyWee’s changes:
comparing the second quaternion in relation to the measured angular velocities ωx,
ωy, ωz of the current state at current time T with the measured axial accelerations
Ax, Ay, Az and with the predicted axial accelerations Ax', Ay', Az' also at current
time T
CyWee’s construction conflicts with the explicit language of the claim limitation and the clear
structure of the claim as a whole with regard to these elements. The specification further does not
support CyWee’s reduction of the claim language. For example, Figure 7 (and the corresponding
text) describes “Obtain a current state (2nd quaternion) at T” in Block 720 which is formed from
the measured angular velocities, “Obtain ‘measured axial accelerations’ of a measured state at T”
in Block 725, and “Calculate ‘predicted axial accelerations’ of a measured state at T” in Block 730
which are obtained from the measured angular velocities. ’438 Patent Figure 7, 11:5-15, 12:3213:13. Then, in Block 735 it is the current state (2nd quaternion) which is compared to the
measured state: “Obtain an updated state (3rd quaternion) by comparing current state with
measured state.” Id. at Figure 7, 11:15-18, 13:28-28. As summarized in the specification:
36
In other words, in one embodiment as shown in step 735, it is preferable to compare
the second quaternion in relation to the measured angular velocities of the current
state at present time T with the measured axial accelerations Ax, Ay, Az as well as
the predicted axial accelerations Ax', Ay', Az' also at present time T. Following
which, a result may be obtained as an updated state of the six-axis motion sensor
module.
Id. at 13:28-28. The specification thus supports the explicit claim language that requires comparing
the second quaternion (item “A” in the nomenclature above).
That the claim and specification may allow for the comparison to occur in a variety of
manners (for example “A with B and C” or “A with B and A with C”), does not render the claim
indefinite. The Court finds that as drafted the claim term on its face and in light of the
accompanying specification informs “those skilled in the art about the scope of the invention with
reasonable certainty.” See Nautilus Inc., 134 S. Ct. at 2129. It is equally clear that the claim itself
and the specification both require comparing the second quaternion. The Court explicitly rejects
CyWee’s attempt to rewrite the term by construing the term as meaning comparing the measured
axial accelerations with the predicated axial accelerations.
Having found that the term is not indefinite and having rejected CyWee’s construction of
the term, the Court has resolved the dispute presented and finds that no further construction is
needed. See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir.
2008) (“district courts are not (and should not be) required to construe every limitation present in
a patent’s asserted claims.”); Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed.
Cir. 2010) (“Unlike O2 Micro, where the court failed to resolve the parties’ quarrel, the district
court rejected Defendants’ construction.”).
The Court finds that “comparing the second quaternion in relation to the measured
angular velocities ωx, ωy, ωz of the current state at current time T with the measured axial
37
accelerations Ax, Ay, Az and the predicted axial accelerations Ax', Ay', Az' also at current
time T” is not indefinite.
7. “generating the orientation output based on the first signal set, the second signal set
and the rotation output or based on the first signal set and the second signal set”
(’978 Patent claim 10)
CyWee’s Proposed Construction
This term need not be construed. In the
alternative only, this term may be construed
as follows: “generating the orientation output
based on (1) the first signal set (from an
accelerometer), the second signal set (from a
magnetometer) and the rotation output (from
a rotation sensor or gyroscope) or (2) the first
signal set (from an accelerometer) and the
second signal set (from a magnetometer)”
Huawei’s Proposed Construction
Indefinite
The primary issues are (1) Huawei contends that the term is indefinite as it encompasses
multiple possible embodiments and (2) Huawei contends that “based on” has an uncertain meaning
for the same reasons as Huawei asserts “to compare” is indefinite. The parties did not present oral
arguments regarding this term but rather relied only on the briefing. Dkt. No. 110 at 60, 67.
Positions of the Parties
Huawei contends that the term is indefinite because it could be interpreted in two manners:
(A) a single embodiment in which the output is based on all of the first signal set, the second signal
set and the rotation output and selectively based on only the first signal set and second signal set,
or (B) the claim is directed toward two separate embodiments: one embodiment based on all of the
first signal set, the second signal set and the rotation output and a second embodiment based on
the first signal set and second signal set.
Huawei contends that CyWee’s expert provides three interpretations of the claim language:
38
A) The orientation output is based on the first signal set (item 1 - accelerometer),
the second signal set (item 2 - magnetometer) and the rotation output (item 3 –
rotation sensor or gyro) or it is based on (1) and (2);
B) The orientation output is based on (1) and (2) and optionally (3); or
C) The orientation output is based on (1) and (2) when the device is stationary and
based on (1), (2) and (3) when the device is moving.
Dkt. No. 85 at 27 (citing LaViola Decl. at ¶¶103, 111). Huawei contends that the patent does not
teach performing one type of comparison when the device is stationary and one type of comparison
when the device is moving. Huawei also contends that the patent does not teach that the gyroscope
is optional. Id.
Huawei also contends that “based” is unbounded in scope for the same reasons that Huawei
argued with regard to “to compare”
CyWee contends that the term is clear: the orientation is based on either three recited
elements or is based on two of the three recited elements.
CyWee contends that the three
interpretations of CyWee’s expert presented by Huawei are all consistent with CyWee’s
interpretation. CyWee contends that interpretations (A) and (B) above are essentially the same and
consistent with CyWee’s construction. CyWee further contends that interpretation (C) is consistent
as one skilled in the art would know a subset of the data (items 1 and 2) is only needed when the
device is stationary. Dkt. No. 99 at 7 (citing Dkt. No. 99-1 (“LaViola Rep. Decl.”) at ¶¶24, 28).
CyWee contends that because the clear language articulates two possible embodiments this
demonstrates that though the term is broad, it is sufficiently definite to inform the public of the
scope. Id. at 8 (citing Ultimax Cement Mfg. Corp., 849 F.3d at 1352). CyWee contends that the
fact that the claim may cover a single embodiment or multiple embodiments is an issue of breadth,
not indefiniteness. Id.
39
As to “based on,” CyWee contends that Huawei’s argument fails for the same reason that
the Huawei’s “to compare” argument fails.
In the Sur-Reply, Huawei states that the term recites generating output based on “A” (thee
components) or based on “B” (two components). Huawei contends that there are two
interpretations of this. First, the claim may be directed to a method that is capable of both “A” and
“B” but, depending on unclaimed details, does one or the other. Second, the claim is a compound
claim, directed to methods that generate output based on “A” and to other methods that generate
output based on “B.” Dkt. No. 103 at 13.
Huawei contends that CyWee’s expert also is not clear because it is not certain as to
whether the claim requires a method that uses both “A” (three components) and “B” (two
components) or whether the claim requires a method that only uses one of “A” and “B.” Id. Huawei
contends that thus it is unclear as to whether a method that always uses a gyroscope (the third
component) infringes. Likewise, Huawei contends that CyWee’s expert was not clear as to whether
all three components must be used if all three were available Id. at 13-14.
Analysis
The literal language of the claim clearly describes the use of two components or the use of
three components. Huawei complains that this could encompass methods that only use two
components, methods that only use three components or methods that use two components at
certain times and three components at other times. That the claim is drafted broadly enough to
cover multiple embodiments does not render the claim indefinite. On its face, the claim language
clearly allows the use of two components or three components and does not exclude differing uses
at different times.
40
As to the “based on” arguments, the Court finds such term sufficiently definite and that the
term does not require a specific “based on” method, similar to the analysis of “to compare” in the
prior term discussed above.
The Court finds that “generating the orientation output based on the first signal set,
the second signal set and the rotation output or based on the first signal set and the second
.
signal set” is not indefinite.
V.
CONCLUSION
The Court adopts the above constructions. The parties are ordered to not refer, directly or
indirectly, to each other’s claim construction positions in the presence of the jury. Likewise, the
parties are ordered to refrain from mentioning any part of this opinion, other than the definitions
adopted by the Court, in the presence of the jury. However, the parties are reminded that the
testimony of any witness is bound by the Court’s reasoning in this order but any reference to claim
construction proceedings is limited to informing the jury of the definitions adopted by the Court.
SIGNED this 3rd day of January, 2012.
SIGNED this 6th day of December, 2018.
____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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