Iridescent Networks, Inc. v. AT&T, Inc. et al

Filing 162

MEMORANDUM OPINION AND ORDER. The Court adopts the constructions as set forth in this Order. Signed by Magistrate Judge John D. Love on 07/18/17. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
IRIDESCENT NETWORKS, INC.,
Plaintiff,
v.
AT&T MOBILITY, LLC,
Defendant.

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CIVIL ACTION NO. 6:16-CV-01003-RWS

MEMORANDUM OPINION AND ORDER
This claim construction opinion construes the disputed claim terms in United States
Patent No. 8,036,119 (“the ’119 Patent”).

Plaintiff Iridescent Networks, Inc. (“Plaintiff”)

alleges that Defendant AT&T Mobility, LLC (“AT&T”) and Defendant-Intervenor Ericsson
Inc. (“Ericsson”) infringe certain claims of the ’119 Patent. Plaintiff filed an opening claim
construction brief (Doc. No. 119), to which Defendants filed a responsive brief (Doc. No. 128),
and Plaintiff filed a reply (Doc. No. 131). The parties additionally submitted a Joint Claim
Construction Chart pursuant to P.R. 4-5(d). (Doc. No. 134.) On July 13, 2017, the Court held
a claim construction hearing. Upon consideration of the parties’ arguments, and for the reasons
stated herein, the Court adopts the constructions set forth below.
OVERVIEW OF THE PATENTS
Plaintiff contends that “[u]sing the distributed controller and portal architecture of the
’119 Patent, AT&T’s network ensures a high quality of service connection for its customers,
facilitating next-generation services like Voice Over LTE (‘VoLTE’ or ‘HD Voice’) and Video
Over LTE (‘ViLTE’) calling.” (Doc. No. 119, at 1.) The ’119 Patent is entitled “System and
1

Method of Providing Bandwidth on Demand.” ’119 Patent. The disclosure of the ’119 Patent
relates generally to communications systems, and specifically to an improved system and
method of providing guaranteed bandwidth on demand for an end user and/or enterprise. ’119
Patent at 1:19–22. Claim 1 is representative of the claimed invention and recites:
1. A method for providing bandwidth on demand comprising:
receiving, by a controller positioned in a network, a request
for a high quality of service connection supporting any
one of a plurality of one-way and two-way traffic types
between an originating end-point and a terminating endpoint, wherein the request comes from the originating
end-point and includes at least one of a requested
amount of bandwidth and a codec;
determining, by the controller, whether the originating
end-point is authorized to use the requested amount of
bandwidth or the codec and whether the terminating
end-point can be reached by the controller;
directing, by the controller, a portal that is positioned in
the network and physically separate from the controller
to allocate local port resources of the portal for the
connection;
negotiating, by the controller, to reserve far-end resources
for the terminating end-point; and
providing, by the controller to the portal, routing instructions for traffic corresponding to the connection so that
the traffic is directed by the portal based only on the
routing instructions provided by the controller, wherein
the portal does not perform any independent routing on
the traffic, and wherein the connection extending from
the originating end-point to the terminating end-point is
provided by a dedicated bearer path that includes a
required route supported by the portal and dynamically
provisioned by the controller, and wherein control paths
for the connection are supported only between each of
the originating and terminating end-points and the
controller and between the portal and the controller.
’119 Patent at 7:43–8:7.

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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 terms, give a claim term a different meaning than it would otherwise possess, or
disclaim or disavow some claim scope.

Phillips, 415 F.3d at 1316.

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

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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., L.P., 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.
In patent construction, “subsidiary fact finding is sometimes necessary” and the court
“may have to make ‘credibility judgments’ about witnesses.” Teva v. Sandoz, 135 S.Ct. 831, 838
(2015). In some cases, “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

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the meaning of a term in the relevant art during the relevant time period.” Id. at 841. “If a district
court resolves a dispute between experts and makes a factual finding that, in general, a certain
term of art had a particular meaning to a person of ordinary skill in the art at the time of the
invention, the district court must then conduct a legal analysis: whether a skilled artisan would
ascribe that same meaning to that term in the context of the specific patent claim under review.”
Id. (emphasis in original). When the court makes subsidiary factual findings about the extrinsic
evidence in consideration of the “evidentiary underpinnings” of claim construction, those
findings are reviewed for clear error on appeal. Id.
DISCUSSION
The parties dispute the meaning of the following claim terms, which are set forth herein:
I.

“a high quality of service connection” (Claims 1, 11)

Claim Term
“a high quality of
service connection”
(Claims 1, 11)

Plaintiff’s Proposal
“a connection in which one or
more quality of service
parameters, including bandwidth,
latency, and/or packet loss, are
assured from end-to-end based on
the requirements of the
application”

Defendants’ Proposal
“a connection that assures
connection speed of at least
approximately one megabit per
second and, depending on the
application, packet loss
requirements that are about 10-5,
and latency requirements that are
less than one second”

With respect to the term “a high quality of service connection,” the parties dispute
whether “high quality of service” merely signifies an assured connection that is distinctive from
the “best effort” prior art, or whether the term, coined by the patentee, connotes specific
requirements with respect to the service connection. Specifically, Plaintiff argues that “[t]here is
no one-size-fits-all ‘high quality of service connection’ because the parameters and values
change according to the application,” and that this is not a term of degree because the
specification discloses only either a “best effort” connection or a “high quality of service”
connection. (Doc. No. 119, at 7; Doc. No. 131, at 1.) Defendants respond that “this term
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presents a simple issue of whether the patent or its prosecution history provides some standard of
measuring the term of degree (‘high’) and, if so, what that standard is.” (Doc. No. 128, at 6.)
As an initial matter, the parties substantially agree that while the term “quality of service”
is a term of art that would be understood by a person of ordinary skill in the art, the term “high
quality of service” is not a known term of art, but rather a term coined by the patentee. The Court
must therefore look to the use of the term “high quality of service” as it is used by the patentee in
the context of the ’119 Patent to decipher its meaning.
Here, the majority of the parties’ dispute surrounds Figure 3 of the ’119 Patent:

(’119 Patent, Fig. 3.)
Figure 3 of the ’119 Patent sets forth several applications identified as “Bandwidth on
Demand & High QoS Enabled Broadband Applications.” See ’119 Patent, Fig. 3 (highlighting in
box: Video from Studio, Network Hosted Software, HD Video Multicasting, Realtime Video,
Telemedicine, Multi-player Gaming, SD Video on Demand, Distance Learning, File Sharing,
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Video Conferencing). Figure 3 gives exemplary “High QoS” applications with bandwidth shown
ranging from approximately 1 Megabit per second to 300 Megabits per second. (’119 Patent, Fig.
3.) Figure 3 similarly shows “Quality of Service” values for packet loss and latency, including as
to applications that are not indicated as being “High QoS” applications.
While Plaintiff relies on Figure 3 to broadly interpret the term “high quality of service”
based on assurance of the “service parameters” illustrated in this figure, Figure 3, as illustrated in
the patent alone, is not the full extent of the intrinsic record. Here, in response to an
indefiniteness rejection by the Examiner, the patentee stated the following during prosecution:
As illustrated by the boxed set of applications on the left side of Fig. 3, high QoS
(quality of service) may be viewed in the present application as having speeds
varying from approximately 1–300 megabits per second, packet loss requirements
that are typically about 10-5, and latency requirements that are typically less than
one second. These are commonly used parameters and, as illustrated in Fig. 3,
often vary somewhat based on the type of application.
(Doc. No. 128, Ex. A, July 22, 2009 Amendment and Response to Office Action at 7–8
(emphasis added).)
This description by the patentee of “high QoS (quality of service)” in the prosecution
history reveals the patentee’s intent in using the term “high quality of service” and provides clear
guidance on the disclosures of Figure 3. Specifically, with respect to the illustrated parameters,
the patentee makes clear that bandwidth varies from “approximately 1–300 megabits per second,
packet loss requirements . . . are typically about 10-5, and latency requirements . . . are typically
less than one second.” Id. Further, the patentee notes that these parameters vary “based on the
type of application.” Id. Although Figure 3 illustrates that not all applications are necessarily
sensitive to packet loss and latency, the parameters set forth during prosecution nonetheless serve
to “provide some standard for measuring” this term of degree. Hearing Components, Inc. v.
Shure Inc., 600 F.3d 1357, 1367 (Fed. Cir. 2010) (citation and internal quotation marks omitted).
Moreover, the patentee’s clear statement outweighs any inconsistencies in Figure 3 that might
8

arise from a strict interpretation of the Figure to set forth clear parameters for “high quality of
service” (particularly to whatever extent “DSL” can be interpreted as being an “application”
rather than merely an example of bandwidth). Indeed, this Court does not interpret patent figures
for exact measurement or strictly limiting parameters. See, e.g., Application of Olson, 212 F.2d
590, 592 (C.C.P.A. 1954); Hockerson-Halberstadt, Inc. v. Avia Group Int’l, Inc., 222 F.3d 951,
956 (Fed. Cir. 2000) (“it is well established that patent drawings do not define the precise
proportions of the elements and may not be relied on to show particular sizes if the specification
is completely silent on the issue”).
Accordingly, the Court construes the term “a high quality of service connection” to mean
“a connection that assures connection speed of at least approximately one megabit per second
and, where applicable based on the type of application, packet loss requirements that are about
10-5 and latency requirements that are less than one second.”
II. “includes at least one of a requested amount of bandwidth and a codec” (Claims 1, 3, 4)
Claim Term
“includes at least
one of a requested
amount of
bandwidth and a
codec”

Plaintiff’s Proposal
“includes a requested amount of
bandwidth, or a codec, or both”

Defendants’ Proposal
“includes at least one requested
amount of bandwidth and at least
one codec”

(Claims 1, 3, 4)

The parties dispute whether the phrase “includes at least one of a requested amount of
bandwidth and a codec” is conjunctive or disjunctive. Plaintiff contends that “[t]he specification
of the ’119 Patent teaches that the claimed ‘request’ need not always include both a required
amount of bandwidth and a codec.” (Doc. No. 119, at 15.) Defendants respond that Defendants’

9

proposed construction “is the ordinary meaning of this conjunctive term, and is consistent with
the patent’s specification and the prosecution history.” (Doc. No. 128, at 13.) In response,
Plaintiff argues that the specification “merely says that if a voice and/or video codec is present,
the controller handles ‘negotiation’” and “only says that the controller ‘ensures interoperability’
of video codec type and bandwidth and says nothing about what the ‘request’ includes.” (Doc.
No. 131 at 5–6 (citing ’119 Patent at 4:67–5:1 & 5:27–33).)
In relevant part, Claim 1 recites:
1. A method for providing bandwidth on demand comprising:
receiving, by a controller positioned in a network, a request for a high
quality of service connection supporting any one of a plurality of one-way and
two-way traffic types between an originating end-point and a terminating
endpoint, wherein the request comes from the originating end-point and includes
at least one of a requested amount of bandwidth and a codec; . . . .
determining, by the controller, whether the originating end-point is
authorized to use the requested amount of bandwidth or the codec and whether
the terminating end-point can be reached by the controller;
(’119 Patent, Claim 1) (emphasis added).
While the claim phrase recites “bandwidth and a codec,” it also expressly begins with “at
least one of…” and later recites “the requested amount of bandwidth or the codec.” (’119 Patent,
Claim 1) (emphasis added). Thus, the plain language of claim 1 recites that the request includes
either a “bandwidth” or “a codec” or both.
In support of their conjunctive argument, Defendants primarily rely upon SuperGuide
Corp. v. DirecTV Enterprises, Inc., in which “at least one of a desired program start time, a
desired program end time, a desired program service, and a desired program type” was construed
to require a selection from each category. 358 F.3d 870, 886 (Fed. Cir. 2004). In SuperGuide,
however, the court noted that “[e]very disclosed embodiment teaches that the user must choose a
value for each designated category.” Id. at 887. Here, by contrast, the specification appears to
disclose that a codec might not necessarily be requested: “The Controller 800 will receive the
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request, including bandwidth required and if video, a video codec . . . .” ’119 Patent at 5:49–55;
compare id. with id. at 5:29–33. Instead, the specification uses the term “codec” with reference
to “video and/or voice” (id. at 4:66–5:3) and “video compression methods” (see id. at 3:31–45).
Moreover, the separate usage of “at least one of” in claim 6 corresponds to a disclosure in which
the specification uses the phrase “any combination of or single element of.” Id. at 6:61–64; see
Digital-Vending Servs. Int’l, LLC v. Univ. of Phoenix, Inc., 672 F.3d 1270, 1275 (Fed. Cir. 2012)
(finding that term was “presumed to have the same meaning throughout all of the claims in the
absence of any reason to believe otherwise”).
Similarly, Defendants reliance on this Court’s decision in Stragent LLC v. BMW North
America LLC is also unavailing. No. 6:11-CV-278, 2013 WL 3367295, at *4 (E.D. Tex. July 3,
2013). In Stragent, the court found that an “at least . . . and” phrase denoted a conjunctive list.
Id. However, unlike Stragent where the disputed term recited “at least,” here, the claim plainly
recites “at least one of.” (’119 Patent, Claim 1) (emphasis added).
Defendants also rely on the prosecution history in support of their conjunctive argument.
During prosecution, the Examiner issued a rejection of the then-recited limitation of “either a
specific bandwidth or a codec type” based, in part, on a disclosure in the “Ooghe” reference of a
request for a specific amount of bandwidth. (Doc. No. 119, Ex. 12, Jan. 22, 2009 Final Office
Action at 5.) The patentee responded by cancelling all of the original application claims and
adding new claims reciting “wherein the request [. . .] includes at least one of a requested amount
of bandwidth and a [video] codec.” (Doc. No. 128, Ex. A, July 22, 2009 Response to Office
Action at 2 & 5 (application claims 22 and 41).)
Despite this change in claim language from “either . . . or” to “at least one of,”
Defendants have not identified any definitive statements by the patentee that would warrant a

11

conjunctive interpretation. Likewise, the amendment of application claim 2 changing “at least
one of [X] and [Y]” to “at least one of [X] or [Y],” in response to an office action stating that the
examiner “expected OR,” reinforces an understanding that the phrase “at least one of” indicates a
disjunctive list. (See id., Ex. B, Aug. 5, 2008 Amendment at 3; see also id., Ex. H, Nov. 4, 2008
Amendment and Response to Office Action at 6.)
Defendants’ argument effectively reads out “at least one of” in favor of the word “and.”
But the claim language, the specification, and the prosecution do not support such a reading.
Rather, as explained herein, the intrinsic evidence suggests the phrase “includes at least one of a
requested amount of bandwidth and a codec” is disjunctive. Accordingly, the Court construes the
phrase “includes at least one of a requested amount of bandwidth and a codec” to mean “includes
a requested amount of bandwidth, or a codec, or both.”
III. “dynamically provisioned by the controller” (Claim 1)
Claim Term
Plaintiff’s Proposal
Defendants’ Proposal
“provisioned by the controller in No construction necessary; plain
“dynamically
and ordinary meaning applies
provisioned by the response to the request”
controller”
(Claim 1)

The parties dispute whether “dynamically provisioned by the controller” means the
provisioning occurs in response to a request, or whether there can be a connection set up in
advance as part of the end-to-end connection. Plaintiff argues that construction is necessary
because “Defendants seek to leave the dynamic provisioning untethered from the request,
apparently attempting to read this provision on a dedicated line configured in advance of a
quality of service request.” (Doc. No. 119, at 20.) Defendants respond that Plaintiff’s proposal

12

“excludes embodiments where a pre-defined path that had not previously been assigned is
provided, or made available, to an endpoint in response to the request.” (Doc. No. 128, at 27.)
In relevant part, claim 1 recites:
. . . wherein the connection extending from the originating end-point to the
terminating end-point is provided by a dedicated bearer path that includes a
required route supported by the portal and dynamically provisioned by the
controller, and wherein control paths for the connection are supported only
between each of the originating and terminating end-points and the controller and
between the portal and the controller.
(’119 Patent, Claim 1) (emphasis added).
While the specification distinguishes the prior art “dedicated lines” as “not allow[ing] for
dynamic bandwidth allocation and utilization” (’119 Patent at 3:27–28), Plaintiff itself submits a
dictionary definition of “dedicated line” as meaning “[a] communications channel that
permanently connects two or more locations.” (Doc. No. 119, Ex. 13, Microsoft Press Computer
Dictionary 137 (1997).) Thus, the fact that the ’119 Patent distinguishes a “dedicated line,” does
not foreclose that pre-defined paths could be made available to particular end-points in response
to particular requests.
Therefore, the Court finds no basis to exclude the use of pre-existing connections, so long
as such connections are provided to an end-point in response to a request. Accordingly, the Court
construes the term “dynamically provisioned by the controller” to mean “provisioned to an endpoint by the controller in response to the request.”
IV. “wherein the connection extending from the originating end-point to the terminating
end-point is provided by a dedicated bearer path that includes a required route supported
by the portal and dynamically provisioned by the controller” (Claim 1)
Claim Term
“wherein the
connection
extending from the
originating end-

Plaintiff’s Proposal
“wherein the connection
extending from the originating
end-point to the terminating endpoint is provided by a dedicated
13

Defendants’ Proposal
“wherein the connection extending
from the originating end-point to
the terminating end-point is (1)
provided by a dedicated bearer path

point to the
terminating endpoint is provided by
a dedicated bearer
path that includes a
required route
supported by the
portal and
dynamically
provisioned by the
controller”

bearer path that includes a
required route (1) supported by
the portal and (2) dynamically
provisioned by the controller”

that includes a required route
supported by the portal and (2)
dynamically provisioned by the
controller”

(Claim 1)

With respect to the recited wherein clause, the parties dispute whether the claimed
“supported” and “provisioned” actions modify the “required route” or the entirety of the
“connection.” Plaintiff argues that its interpretation, which directs the modification of “required
route” only, is more natural and “is also consistent with the specification, which depicts an
embodiment in which the controller dynamically provisions a required route that is part of—but
not necessarily coextensive with—the overall connection between originating and terminating
end points.” (Doc. No. 119, at 22–23.) Defendants argue that disclosures in the ’119 patent
disclose that all provisioning is done by the controller and therefore contend that the entire endto-end connection is “provisioned” by the controller. (Doc. No. at 23–24.)
Claim 1 recites:
. . . wherein the connection extending from the originating end-point to the
terminating end-point is provided by a dedicated bearer path that includes a
required route supported by the portal and dynamically provisioned by the
controller, and wherein control paths for the connection are supported only
between each of the originating and terminating end-points and the controller and
between the portal and the controller.
(’119 Patent, Claim 1) (emphasis added).
Regarding the plain language of claim 1, the “doctrine of the last antecedent” states that
“[r]eferential and qualifying words and phrases, where no contrary intention appears, refer solely
14

to the last antecedent, which consists of the last word, phrase, or clause that can be made an
antecedent without impairing the meaning of the sentence for purposes of statutory
construction.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1336 (Fed. Cir. 2008)
(emphasis omitted; internal citations and quotation marks omitted). Relatedly, the “rule of
punctuation,” provides that where the modifier is set off from two or more antecedents by a
comma, the comma indicates the drafter’s intent that the modifier relate to more than the last
antecedent.

See id.

“[T]he doctrine of the last antecedent and its corollary, the rule of

punctuation, . . . are more guidelines than absolute rules.” Id.; see Demko v. U.S., 216 F.3d 1049,
1053 (Fed. Cir. 2000) (last antecedent rule inapplicable where it “creates absurd or otherwise
conflicting results”) (citation omitted). Here, based on the express claim language, both the
doctrine of the last antecedent and the rule of punctuation would dictate that only the “required
route” is modified because the “required route” is the last antecedent and is not set off by a
comma.
In addition, the context of the remainder of the claim is consistent with applying the
doctrine of the last antecedent. For example, requiring “the connection extending from the
originating end-point to the terminating end-point” to be “dynamically provisioned” would
seemingly be at odds with the separately recited limitation of “negotiating, by the controller, to
reserve far-end resources for the terminating end-point.” (’119 Patent, Claim 1.) Indeed,
Defendants have not shown any contrary intent or evidence that any exception to these rules
would apply in this instance.
In relevant part, the specification provides that “the Controller 800 inter-works with
network protocols to dynamically provision a dedicated path, including required route and
bandwidth, on demand through the network.” ’119 Patent at 5:64–67. While this disclosure could

15

be read to mean that the “dedicated path” that is “dynamically provision[ed]” corresponds to the
recited “connection extending from the originating end-point to the terminating end-point,” it
could also be read to as meaning that a “required route” is “dynamically provision[ed]” (as part
of “a dedicated path”). Thus, this ambiguous disclosure in the specification does not overcome
the express language of the claim.
Moreover, although Defendants have cited a disclosure that provides “all provisioning . ..
is managed at the controller . . .” (’119 Patent at 6:59-60), this disclosure does not amount to
disclosure that the entire end-to-end connection is necessarily “provisioned” by the controller.
Id. at 6:59–60; see id. at 7:21–23 (“handles all functions . . . necessary for the broadband services
to be dynamically connected and managed with quality”) (emphasis added); see also id. at 2:54–
55 (“Quality assurance requires managing the services end to end . . . .”). Similarly, Defendants’
reliance on the prosecution history is unpersuasive. In the portion of the prosecution history cited
by Defendants, the patentee relied upon “end-to-end connection management . . . with a
controller that provides ‘end-to-end quality assurance,’” not end-to-end dynamic provisioning.
(Doc. No. 128, Ex. A, July 22, 2009 Amendment and Response to Office Action at 9.)
Therefore, for the reasons set forth herein, the Court construes “wherein the connection
extending from the originating end-point to the terminating end-point is provided by a dedicated
bearer path that includes a required route supported by the portal and dynamically provisioned by
the controller” to mean “wherein the connection extending from the originating end-point to the
terminating end-point is provided by a dedicated bearer path that includes a required route (1)
supported by the portal and (2) dynamically provisioned by the controller.”
V.

“far-end resources” (Claim 1)

Claim Term
“far-end resources”

Plaintiff’s Proposal
Defendants’ Proposal
No construction necessary; plain “resources of a node located at the
16

and ordinary meaning applies.

terminating end of the connection”

(Claim 1)

Finally, with respect to the term “far end resources,” the parties dispute whether “far end
resources” must be at the terminating end of the connection. Plaintiff contends that Defendants’
proposal “excludes preferred embodiments where ‘far end resources’ are not at the very farthest
end of the connection.” (Doc. No. 119, at 26.) Defendants argue that “[t]he claims are clear that
the term ‘far-end resources’ is used to contrast from those resources available for use by the
originating end-point at the originating end of the connection, and instead refer to those
resources available for use by the terminating end-point at the far end, or terminating end, of the
connection.” (Doc. No. 128, at 28–29.) Plaintiff replies that both end points use all of the
resources of the connection. (Doc. No. 131, at 10.)
Here, nothing in the intrinsic record requires the “far end resources” be located at the
terminating end of the connection. To support their argument that the “far end resources” must
be at the terminating end, Defendants rely on dependent claim 8, which recites, “negotiating, by
the controller, to reserve far-end resources on the terminating end-point.” (’119 Patent, Claim 8.)
However, this language that the far-end resources are reserved on the terminating end-point, does
not demonstrate that “far-end resources” was intended to refer to resources at the terminating
end-point. Moreover, claim 8 further recites that negotiating to reserve “far-end resources”
includes “negotiating with another controller associated with the terminating end-point,” not at
the terminating end-point.
In sum, nothing in the intrinsic record requires such a limiting construction that the “farend resources” be at the terminating end. Therefore, the Court construes “far-end resources” to
mean “resources of a node located at, or associated with, the terminating end of the connection.”
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VIII. Agreed Constructions
Finally, the parties submitted the following agreed constructions:
Term

Agreed Construction

“originating end-point”
(Claims 1, 7, 11)

“an originating point relative to the entire
connection that does not constitute an intermediate
point in the connection but rather is one of the two
sides engaged in the connection”

“terminating end-point”
(Claims 1, 11)

“a terminating point relative to the entire
connection that does not constitute an intermediate
point in the connection but rather is one of the two
sides engaged in the connection”

“the connection”
(Claims 1, 11)

“the high quality of service connection”

“control paths for the connection”
(Claims 1)

“paths that carry control signaling for the high
quality of service connection”

“wherein control paths for the connection
are supported only between each of the
originating and terminating end-points and
the controller and between the portal and
the controller”
(Claim 1)

“wherein control paths for the connection are
supported only 1) between the originating endpoint and the controller; 2) between the
terminating end-point and the controller; and
3) between the portal and the controller”

“the request”
(Claims 1, 3, 4)

“the request that is received by the controller”

“bandwidth”
(Claim 1)

“data rate”

The Court, having reviewed the parties’ agreed constructions, as well as the asserted
patents’ claims, specifications, and prosecution histories, finds the parties’ agreed constructions
appropriate and construes the terms as set forth above.
CONCLUSION
For the foregoing reasons, the Court adopts the constructions set forth above.
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So ORDERED and SIGNED this 18th day of July, 2017.

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