Eidos Display, LLC et al v. AU Optronics Corporation et al

Filing 184

MEMORANDUM OPINION AND ORDER. The Court adopts the constructions set forth in this order. Signed by Magistrate Judge John D. Love on 04/12/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
EIDOS DISPLAY, LLC, and
EIDOS III, LLC

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Plaintiffs,
vs.
AU OPTRONICS CORPORATION, et al.,
Defendants.

No. 6:11cv201 LED-JDL
JURY DEMANDED

MEMORANDUM OPINION AND ORDER
This claim construction opinion construes the disputed terms of U.S. Patent No.
5,879,958 (“the ‘958 Patent”). For the reasons stated herein, the Court adopts the constructions
set forth below.
BACKGROUND
Plaintiffs Eidos Display, LLC and Eidos III, LLC (collectively “Plaintiffs”) allege
Defendants1 infringe claim 1 of the ‘958 Patent (“patent-in-suit”). The parties have presented
extensive claim construction briefing. (Doc. Nos. 149, 153, 159).
On November 14, 2012, Plaintiffs filed their opening claim construction brief in this case
(Doc. No. 149) (“PLS.’ BR.”). Defendants collectively filed a single responsive claim
construction brief (Doc. No. 153) (“DEFS.’ BR.”), and Plaintiffs have filed a reply brief (Doc. No.
159) (“REPLY”).

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Defendants are: AU Optronics Corporation; AU Optronics Corporation America; Chi Mei Innolux Corporation;
Chi Mei Optoelectronics USA, Inc.; Chungwa Picture Tubes, Ltd.; Hannstar Display Corporation; and Hannspree
North America, Inc. (collectively “Defendants”).

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CLAIM CONSTRUCTION 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 (Fed. Cir. 2005) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381
F.3d 1111, 1115 (Fed. Cir. 2004)). The Court examines a patent’s intrinsic evidence to define
the patented invention’s scope.

Id. at 1313–14; Bell Atl. Network Servs., Inc. v. Covad

Commc’ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). Intrinsic evidence includes the
claims, the rest of the specification and the prosecution history. Phillips, 415 F.3d at 1312–13;
Bell Atl. Network Servs., 262 F.3d at 1267. The Court gives claim terms their ordinary and
customary meaning as understood by one of ordinary skill in the art at the time of the invention.
Phillips, 415 F.3d at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir.
2003).
Claim language guides the Court’s construction of claim terms. Phillips, 415 F.3d at
1314. “[T]he context in which a term is used in the asserted claim can be highly instructive.” Id.
Other claims, asserted and unasserted, can provide additional instruction because “terms are
normally used consistently throughout the patent.” Id. Differences among claims, such as
additional limitations in dependent claims, can provide further guidance. Id.
“[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)). “[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). In the specification, a patentee may define his own

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terms, give a claim term a different meaning that it would otherwise possess, or disclaim or
disavow some claim scope. Phillips, 415 F.3d at 1316. Although the Court generally presumes
terms possess their ordinary meaning, this presumption can be overcome by statements of clear
disclaimer. See SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337,
1343-44 (Fed. Cir. 2001). This presumption does not arise when the patentee acts as his own
lexicographer. See Irdeto Access, Inc. v. EchoStar Satellite Corp., 383 F.3d 1295, 1301 (Fed.
Cir. 2004).
The specification may also resolve ambiguous claim terms “where the ordinary and
accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of
the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at 1325. For
example, “[a] claim interpretation that excludes a preferred embodiment from the scope of the
claim ‘is rarely, if ever, correct.’” Globetrotter Software, Inc. v. Elam Computer Group Inc., 362
F.3d 1367, 1381 (Fed. Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583). But, “[a]lthough
the specification may aid the court in interpreting the meaning of disputed language in the
claims, particular embodiments and examples appearing in the specification will not generally be
read into the claims.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir.
1988); see also Phillips, 415 F.3d at 1323.
The prosecution history is another tool to supply the proper context for claim
construction because a patentee may define a term during prosecution of the patent. Home
Diagnostics Inc. v. LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
specification, a patent applicant may define a term in prosecuting a patent”).

The well-

established doctrine of prosecution disclaimer “preclud[es] patentees from recapturing through
claim interpretation specific meanings disclaimed during prosecution.” Omega Eng’g Inc. v.

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Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). The prosecution history must show that the
patentee clearly and unambiguously disclaimed or disavowed the proposed interpretation during
prosecution to obtain claim allowance. Middleton Inc. v. 3M Co., 311 F.3d 1384, 1388 (Fed. Cir.
2002); see also Springs Window Fashions LP v. Novo Indus., LP, 323 F.3d 989, 994 (Fed. Cir.
2003) (“The disclaimer . . . must be effected with ‘reasonable clarity and deliberateness.’”)
(citations omitted). “Indeed, by distinguishing the claimed invention over the prior art, an
applicant is indicating what the claims do not cover.” Spectrum Int’l v. Sterilite Corp., 164 F.3d
1372, 1378–79 (Fed. Cir. 1988) (quotation omitted).

“As a basic principle of claim

interpretation, prosecution disclaimer promotes the public notice function of the intrinsic
evidence and protects the public’s reliance on definitive statements made during prosecution.”
Omega Eng’g, Inc., 334 F.3d at 1324.
Although, “less significant than the intrinsic record in determining the legally operative
meaning of claim language,” the Court may rely on extrinsic evidence to “shed useful light on
the relevant art.” Phillips, 415 F.3d at 1317 (quotation omitted). Technical dictionaries and
treatises may help the Court understand the underlying technology and the manner in which one
skilled in the art might use claim terms, but such sources may also provide overly broad
definitions or may not be indicative of how terms are used in the patent. Id. at 1318. Similarly,
expert testimony may aid the Court in determining the particular meaning of a term in the
pertinent field, but “conclusory, unsupported assertions by experts as to the definition of a claim
term are not useful.” Id. Generally, extrinsic evidence is “less reliable than the patent and its
prosecution history in determining how to read claim terms.” Id.

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DISCUSSION
A. Overview of the Patent-in-Suit
The ‘958 Patent is titled “Method of Producing an Electro-Optical Device” and relates to
the process of forming circuitry used in controlling liquid crystal displays (“LCD”). Specifically,
the ‘958 relates to the process for forming an array of thin film transistors (“TFT”) and pixel
electrodes that are used to control the light emission of an LCD. Notably, the ‘958 Patent
contains 17 embodiments (identified as A-S) providing various manufacturing processes that
reduce the number of photolithographic steps. See ‘958 Patent at 4:50–14:18 (describing
processes with four or five lithographic steps as opposed to seven).
Claim 1 is the only issued claim in the ‘958 Patent. Claim 1 recites as follows:
1. A method for producing an electro-optical device
in which an electro-optical material is put between
a pair of substrates opposed to each other, at least
a portion of opposing surfaces of the substrates is
insulative, a plurality of source wirings and a
plurality of gate wirings are formed crossing each
other on the surface of one of said pair of
substrates and a transparent pixel electrode and a
thin film transistor are formed at each of the
crossing points between the source wirings and the
gate wirings, wherein the method comprises:
a step G1 of forming a first metal film on
the surface of said one substrate,
a first photolithographic step G2 of
patterning the first metal film to
form a gate electrode and a gate
wiring,
a step G3 of forming a first insulator film,
a semiconductor film and an ohmic
contact film on the surface of said
one substrate after the first
photolithographic step,
a second photolithographic step G4 of
patterning the semiconductor active
film and the ohmic contact film to
form a semiconductor portion

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above the gate electrode in a state
isolated from other portions,
a step G5 of forming a second metal film
on the surface of said one substrate
after the second photolithographic
step,
a third photolithographic step G6 of
patterning the second metal film
and the ohmic contact film to form
a source electrode, a drain electrode
and a channel portion,
a step G7 of forming a passivation film on
the surface of said one substrate
after the third photolithographic
step, and
a fourth photolithographic step G8 of
patterning the passivation film to
form a contact hole reaching the
gate wiring, a contact hole reaching
the drain electrode and a contact
hole for source wiring and gate
wiring connection terminals,
a step G9 of forming a transparent
conductive film on the surface of
said one substrate after the fourth
photolithographic step, and
a fifth photolithographic step G10 of
patterning the transparent
conductive film to form a
transparent pixel electrode.
‘958 Patent at 58: 5–47.

B. Disputed Terms
Defendants’
Court’s Construction
Proposal
1. “patterning the passivation film to form a contact hole reaching the gate wiring, a
contact hole reaching the drain electrode and a contact hole for source wiring and gate
wiring connection terminals”
Claim Language

Plaintiffs’ Proposal

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Claim Language
958: 1

Defendants’
Proposal
“removing portions of “Plain meaning,
the passivation film to which is removing
form an opening
portions of the
exposing a portion of passivation film to
the gate wiring, an
form a first opening
opening exposing a
exposing a portion
portion of the drain
of the gate wiring, a
electrode, an opening second opening
for a source wiring
exposing a portion
connection terminal,
of the drain
and an opening for a
electrode, and a
gate wiring
third opening for
connection terminal” source wiring and
gate wiring
connection
terminals”
Plaintiffs’ Proposal

Court’s Construction
Not ripe for
construction

The above-quoted portion of step G8 of claim 1 presents the primary claim construction
dispute between the parties. The parties dispute whether the claim requires 3 or 4 contact holes,
and whether those corresponding holes must be “separate and distinct.” Much of this dispute
centers around the very last portion of step G8, “a contact hole for source wiring and gate wiring
connection terminals,” and whether this portion of the claim recites a common contact hole for
both terminals, or whether it calls for separate contact holes—one opening for a source wiring
connection terminal and one opening for a gate wiring connection terminal.
Plaintiffs argue that the last portion of the claim calls for separate openings for the source
wiring connection terminal and the gate wiring connection terminal. PLS.’ BR. at 29. Plaintiffs
point to a portion of the specification describing step D8, the fourth photolithographic step of
claim 5, to uphold their position. Id. at 28. That section reads as follows: “…a contact hole 132
for a source wiring connection terminal and a contact hole for a gate wiring connection
terminal…” ‘958 Patent at 31:50–52. Plaintiffs also contend that their construction is consistent

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with both the plain language of the claim that reads “a contact hole,” “a” meaning “one or more,”
and the prosecution history, whereby the Examiner allowed the claim saying “to form contact
holes reaching to the gate wiring, drain electrode, source wiring and gate wiring connection
terminals” was not taught in the prior art. PLS.’ BR. at 29.
Defendants argue that the claim language unambiguously states “…a contact hole for
source wiring and gate wiring connection terminals…” thereby meaning a common hole for both
connection terminals. DEFS.’ BR. at 7. Defendants contend that if the Court were to construe the
phrase to mean two separate holes, it would improperly re-write the unambiguous claim
language. Id. at 8–9. Defendants point out that the G embodiment, the embodiment that
corresponds to issued claim 1, does not disclose two separate holes; it is only in the D
embodiment that corresponds to original claim 5, where the Plaintiffs find support for their
argument. Id. at 9. Aside from this distinction, Defendants also point out that the formation of “a
contact hole for gate wiring” and “a contact hole for gate wiring connection terminals” disclosed
in the D embodiment are not created in a single step. Thus, Defendants also state it would be
improper to rewrite the claim to require separate and distinct contact holes for the contact hole
reaching the gate wiring and the contact hole for the gate wiring connection terminal. Id. at 7.
Defendants argue that nowhere does the specification disclose separate and distinct holes formed
in a single step. Id. at 13. Finally, Defendants argue that if Plaintiffs’ “separate and distinct”
argument is accepted, then the contact holes must also be mutually exclusive. Id. at 16.
Claim 1 reads “...a contact hole for source wiring and gate wiring connection
terminals…” ‘958 Patent at 58:40–41. As a preliminary matter, the Court finds that there was no
clear disavowal by the patentee that would overcome the presumption that “a” in the context of
comprising claim 1 means “one or more.” See Baldwin v. Graphic Sys., Inc. v. Siebert, Inc., 512

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F.3d 1338, 1342 (Fed. Cir. 2008). The presumption that “a” means “one or more” in the context
of claim 1 is not surprising as there is no dispute that thousands of contact holes would be made
using step G8. The issue presented is really whether that indefinite article can be read onto the
last phrase of the fourth photolithographic step to require a separate hole for the source wiring
connection terminal and a separate hole for the gate wiring connection terminal. The Court finds
the use of that article unpersuasive to render separate holes for the source wiring and gate wiring
connection terminals. While “a” may very well mean “one or more” it does not translate to
“separate.”
The plain language of claim 1 gives no direction to resolve the parties’ dispute unless the
Court were to interpret “…a contact hole for the source wiring and the gate wiring connection
terminals…” to mean the same hole for the both the source wiring connection terminal and the
gate wiring connection terminal. Such an interpretation would be equally inappropriate, as it
would render “a” to mean “the same.” Defendants cite Chef America to argue that because the
claim language is unambiguous, the Court cannot rewrite the claim simply because it does not
match a preferred embodiment or is inoperable.2 DEFS.’ BR. at 8 (citing Chef America, Inc., v.
Lamb-Weston, Inc., 358 F.3d 1371,1374 (Fed. Cir. 2004), resolving a dispute regarding “heating
the resulting batter-coated dough to a temperature in the range of 400o F. to 850o F.”). However,
the use of the indefinite article “a” as a prelude the last phrase of step G8 distinguishes this
situation from Chef America.
In Chef America, the court held the disputed meaning of the claim language
unambiguously required the dough to be heated to a temperature range of 400o F. to 850o F. Chef
America, Inc., 358 F.3d at 1374. The parties had disputed whether it was the oven or the dough
2

Defendants further cite Chef America to dispose of Plaintiffs’ assertion that the plain language “would render the
array inoperable and have likely never been practiced in actual TFT manufacturing.” Id. (citing PLS.’S BR. at 2). To
the extent Plaintiffs are making that argument, the Court finds it unpersuasive for the reasons discussed herein.

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that must reach the desired temperature claimed, as the dough would be burnt to a crisp at 850o F.
Id. at 1371. However, the claim language disputed in Chef America made no mention of the
oven temperature, but rather plainly stated “heating the resulting batter-coated dough to a
temperature in the range of 400o F. to 850o F.” Id. at 1374. Here, the last disputed phrase “…a
contact hole for the source wiring and the gate wiring connection terminals…” mentions both the
source wiring and the gate wiring connection terminals introduced by “a contact hole.” Unlike
Chef America, where the claim language rendered only one unambiguous meaning of what was
being claimed—notwithstanding the inoperability of the claimed invention—here, for the
reasons explained above, the claim language is seeded with ambiguity surrounding the use of the
indefinite article “a” followed by both the source wiring and gate wiring connection terminals.
Similarly, the Patent Examiner’s statement that “the language literally states that there is a single
contact hole for both the source wiring and gate wiring terminals…[but] the claim language
implicitly requires separate contact holes for the source wiring and gate wiring connection
terminals”3 does not support Defendants’ contention that the claim language is unambiguous, but
rather points out the exact ambiguity that lies therein. Thus, the express language claimed does
not aid in the resolution of the parties’ dispute.
Ultimately, while the claim language raises ambiguity regarding the contact holes, neither
party’s construction is supported by the specification. It is not disputed that, in step G8, claim 1
recites at least three contact holes for the corresponding structures—gate wiring, drain electrode,
and source wiring and gate wiring connection terminals—all formed in a single
photolithographic step. As Defendants point out, the specification does not disclose the creation
of separate and distinct contact holes for the corresponding structures in a single step. The D
embodiment is the only embodiment to disclose separate contact holes for the gate wiring and
3

NON-FINAL OFFICE ACTION at 4.

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source wiring connection terminals formed in step D8, but that embodiment does not appear to
correspond to step G8 of claim 1, because a separate step, D4, is used to form the contact hole
reaching the gate wiring. Further, the D embodiment does not appear to disclose the formation of
a contact hole reaching the drain electrode. Thus, Plaintiffs’ reliance on the D embodiment to
disclose a single step formation of the contact holes recited in claim 1, as required by step G8 of
the claim, seems incorrect. Similarly, the Court has failed to locate support in the specification
for a common contact hole for both the source wiring and gate wiring connection terminals
formed in a single step along with a contact hole reaching the gate wiring and a contact hole
reaching the drain electrode. The G embodiment, which corresponds to claim 1, fails to expressly
mention the formation of a common contact hole, or separate contact holes, for the source wiring
and gate wiring connection terminals.
Thus, while the parties have piecemealed portions of the specification and the incomplete
ex parte reexamination of the ‘958 patent to support their arguments, the Court ultimately finds
that the issue of whether there are three or four holes, and whether those corresponding holes are
separate and distinct, is not ripe for claim construction, as the dispute presented centers around
theories of invalidity pursuant to 35 U.S.C. § 112.
Having concluded the dispute is not ripe for claim construction, the Court declines to
construe the term “patterning the passivation film to form a contact hole reaching the gate
wiring, a contact hole reaching the drain electrode and a contact hole for source wiring and gate
wiring connection terminals.”4
Claim Language

Plaintiffs’ Proposal

Defendants’
Proposal

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Court’s Construction

While the parties bifurcated the phrase presented into a second term “a contact hole for source wiring and gate
wiring connection terminals,” the Court finds such bifurcation unnecessary when the instant phrase as a whole best
presents the issue disputed without artificially removing a portion of the claim from the context of what is actually
claimed.

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Claim Language

Plaintiffs’ Proposal

2. “a contact hole reaching the gate wiring”
958: 1
“an opening exposing
a portion of the gate
wiring”

Defendants’
Proposal

Court’s Construction

Plain meaning,
which is “one
passivation layer
opening exposing a
portion of the gate
wiring”

“an opening exposing a
portion of the gate
wiring”

At the Markman hearing on January 31, 2013, the Court proposed the following
construction to which the parties agreed: “an opening exposing a portion of the gate wiring.”
Claim Language
3. “gate wiring”
958: 1

Plaintiffs’ Proposal

Defendants’
Proposal

Court’s Construction

“a patterned,
electrically
conductive material
that conveys gate
signals”

“the patterned,
electrically
conductive material
that is necessary to
electrically connect
the gate connection
terminal to the gate
electrodes”

Not ripe for
construction

The Court presently declines to construe the term “gate wiring.” At the Markman
hearing, the Court proposed the following construction: “a patterned, electrically conductive
material that conveys gate signals to gate electrodes.” While it seems the parties may somewhat
agree to that construction, for reasons explained at the hearing, the Court has determined that it is
not necessary to construe the term at the present time.
Claim Language

Plaintiffs’ Proposal

Defendants’
Proposal

4. “in a state isolated from other portions”

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Court’s Construction

Claim Language

Plaintiffs’ Proposal

958: 1

“isolated from the
semiconductor
portion of other
adjacent thin film
transistors having the
gate wiring in
common”

Defendants’
Proposal
“isolated from at
least the channel
portion and another
semiconductor
portion”

Court’s Construction
“isolated from other
portions of the
semiconductor active
film”

At the Markman hearing on January 31, 2013, the Court proposed the following
construction to which the parties agreed: “isolated from other portions of the semiconductor
active film”
Claim Language
5. “metal film”
958: 1

Plaintiffs’ Proposal

Defendants’
Proposal

Court’s Construction

“a thickness of one or
more layers of metal”

Plain meaning,
which is “a thin
layer of a metal”

“a thickness of one or
more layers of metal”

The parties dispute whether “metal film” is only one layer of metal or can be more than
one layer of metal. Plaintiffs contend that the metal film “can be made of various types of metal
or even multiple types of metal.” PLS.’ BRIEF at 11. In support, Plaintiffs cite to one portion of
the specification describing a “first metal film” that can be formed from conductive material such
as Cr, Ta, Mo, and Al, and another portion of the specification describing a “second metal film”
formed of Cr and Al. ‘958 Patent at 35:3–39; 27:33–36. Plaintiffs further point to portions of the
specification that describe why a particular metal might be used, and also why a multilayer
structure might be used. See PLS.’ BR. at 12 (citing ‘958 Patent at 3:60 – 4: 24 and 25:42–53,
describing solutions to “signal delay,” such as the use of Titanium, which is less prone to

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oxidation, or the use of multilayers, by covering a highly conductive material, such as Al, with
another metal that is not as easily oxidized). Plaintiffs also cite to the original application, which
included a dependent claim “wherein the first metal film used comprises a conductive metal film
and a barrier film.” Id. at 13. Finally, Plaintiffs argue the use of “a” is commonly construed to
mean “one or more.” Id.
Defendants first contest that “a” does not necessarily mean “one or more.” DEFS.’ BR. at
22. Defendants then point out that the Patent Examiner rejected Plaintiffs’ attempt to introduce a
dependent claim reciting a metal film having more than one layer on grounds that it failed to
meet the requirements of 35 U.S.C. § 112. Id. at 23. Defendants also note that Plaintiffs’ citations
to the specification come from the “B” embodiment and not the relevant “G” embodiment and
argue that it is improper to read limitations from one embodiment into the other. Id. at 23–24.
Finally, Defendants point out that the dependent claim in the original application cited by
Plaintiffs was cancelled when the divisional application was filed for the ‘958 patent. Id. at 24.
Although Defendants are correct in asserting that Plaintiffs cite to embodiment “B” of the
specification, that portion of the specification expressly calls a laminate structure a “metal film”
and discloses multiple layers formed by more than one element: “a second metal film 64 of a
laminate structure comprising a conductive film 62 made, for example, of Cr and a conductive
film 63, made, for example, of Al is formed as shown in FIG 16.” ‘958 Patent at 27: 33–36.
Similarly, the specification describes “a first metal film 434 comprising a conductive metal film
434a made of a good conductive metal material such as Al or Ta, and a barrier film 434b made
of a metal material such as Cr…” ‘958 Patent at 51:16–20. On the whole, the specification
consistently describes the “metal film” as having more than one layer and comprising more than
one type of metal. The specification does not restrict the metal film to only one layer or only one

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metal. Instead, the specification provides support that a “metal film” is not limited to just one
layer.5
Accordingly, in resolving the parties’ dispute as to “metal film,” the Court construes
“metal film” as “a thickness of one or more layers of metal.”

Claim Language

Plaintiffs’ Proposal

6. “connection terminals”
958: 1
plain and ordinary
meaning, or
alternatively,
“terminals for
electrical connection
with a signal supply
.
circuit and a scanning
circuit”

Defendants’
Proposal

Court’s Construction

“conductors for
electrical
connection to
source wiring
and/or gate wiring”

“conductors for
electrical connection to
source wiring and/or
gate wiring”

At the Markman hearing on January 31, 2013, the Court proposed the following
construction to which the parties agreed: “conductors for electrical connection to source wiring
and/or gate wiring”
CONCLUSION
For the foregoing reasons, the Court adopts the constructions set forth above.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 12th day of April, 2013.

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Defendants also argue that the rejected attempts to add dependent claims in which the metal film is composed of
more than one layer supports the contention that the metal film is only made of one layer. DEFS.’ BR. at 23.
However, those claims were rejected under §112 for failure to be supported in the written description, and the Court
declines to adopt Defendants’ proposal based on an incomplete ex parte reexamination that has not been fully
presented to the Court and currently stands on appeal.

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