Intellectual Ventures II LLC v. AT&T Corp.

Filing 85

MEMORANDUM OPINION AND ORDER REGARDING CLAIMS CONSTRUCTION, ( Scheduling Conference set for 8/28/2015 02:00 PM before Judge Lee Yeakel,). Signed by Judge Lee Yeakel. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
AHII:03

INTELLECTUAL VENTURES II, LLC,
PLAINTIFF,

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V.

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AT&T CORP. D/B/A AT&T
ADVANCED SOLUTIONS D/B/A SBC
ADVANCED SOLUTIONS; AT&T
COMMUNICATIONS OF TEXAS, LLC;
AT&T OPERATIONS, INC.; AT&T
SERVICES, INC.; AT&T VIDEO
SERVICES, INC. A/K/A AT&T VIDEO
SERVICES, LLC; SBC INTERNET
SERVICES, INC. D/B/A AT&T
ENTERTAINMENT SERVICES D/B/A
AT&T INTERNET SERVICES D/B/A
PACIFIC BELL INTERNET SERVICES;
AND SOUTHWESTERN BELL
TELEPHONE COMPANY,
DEFENDANTS.

Yf;

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CAUSE NO. 1:13-CV-116-LY
(LEAD CASE)

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INTELLECTUAL VENTURES II, LLC,
PLAINTIFF,

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V.

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CAUSE NO. 1:13-CV-118-LY

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CENTURYTEL BROADBAND
SERVICES, LLC D/B/A
CENTURYLINK; AND QWEST CORP.
D/B/A CENTURYLINK QC,
DEFENDANTS.

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INTELLECTUAL VENTURES II, LLC,
PLAINTIFF,

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I!,

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WINDSTREAM COMMUNICATIONS
TELECOM, LLC; WINDSTREAM
COMMUNICATIONS KERRVILLE,

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CAUSE NO. 1:13-CV-119-LY

LLC; WTNDSTREAM SUGARLAND,
INC.; TEXAS WINDSTREAM, INC.,
VALOR TELECOMMUNICATIONS OF
TEXAS, LLC D/B/A WINDSTREAM

COMMUNICATIONS SOUTHWEST;
PAETEC COMMUNICATIONS, INC.;
AND MCLEOD USA
TELECOMMUNICATIONS SERVICES,
LLC D/B/A PAETEC BUSINESS
SERVICES,
DEFENDANTS.

MEMORANDUM OPINION AND ORDER REGARDING
CLAIMS CONSTRUCTION
Before the court are the parties' Amended Joint Claim Construction Statement filed June 18,
2014 (Clerk's Doc. No. 70); Plaintiff's Opening Claim Construction Brief filed April 11, 2014

(Clerk's Doe. No. 52); Defendants' Opening Claim Construction Brief flIed April 11, 2014 (Clerk's
Doe. No. 53); Plaintiff's Reply Claim Construction Brief filed May 23, 2014 (Clerk's Doe. No. 55);

Defendants' Reply Claim Construction Brief filed May 23, 2014 (Clerk's Doe. No. 56); Plaintiff's
Addendum to the Declaration of Dr. George A. Zimmerman and Supplemental Declaration of Dr.
Douglas A. Chrissan in Support of Plaintiff's Reply Claim Construction Brief filed June 18, 2014

(Clerk's Doe. Nos. 67-1 & 67-2); Defendants' Notice of Supplemental Authority ified June 18, 2014
(Clerk's Doe. No. 68); and the parties' claim-construction presentations.
The court held a two day claim-construction hearing beginning on June 19, 2014. See

Markmanv. Westviewlnstruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995)(enbanc),aff'd, 517 U.S.
370 (1996).

After considering the patents and their prosecution history, the parties' claim-

construction briefs and additional filings, the applicable law regarding claim construction, and
argument of counsel, the court now renders its order with regard to claim construction.

2

1.

Introduction
The court renders this memorandum opinion and order to construe the claims in U.S. Patent

No. 6,246,695 ("695 Patent"); U.S. Patent No. 6,424,636 ("636 Patent"); U.S. Patent No.

6,798,735 ("735 Patent"); U.S. Patent No. 7,817,532 ("532 Patent"); U.S. Patent No. 6,266,348

("348 Patent"); U.S. Patent No. 5,534,912 ("912 Patent"); 5,790,548 ("548 Patent"); U.S. Patent
No. 6,101,182 ("182 Patent"); U.S. Patent No. 6,567,473 ("473 Patent"); U.S. Patent No.
6,667,991 ("991 Patent"); U.S. Patent No. 7,649,928 ("928 Patent"); U.S. Patent No. 7,860,175

("175 Patent"); U.S. Patent No. 8,045,601 ("601 Patent"); U.S. Patent No. 6,498,808 ("808
Patent"); U.S. Patent No. 6,654,410 ("410 Patent"); U.S. Patent No. 7,508,876 ("876 Patent");
U.S. Patent No. 6,647,068 ("068 Patent"); U.S. Patent No. 7,272,171 ("171 Patent"); and U.S.

Patent No. 7,826,545 ("545 Patent") (collectively "patents-in-suit"). The parties have divided the
above-listed 19 patents into eight "families," wherein each family possesses the same specification and

priority date. The patents-in-suit generally relate to digital subscriber line ("DSL") technology.
Plaintifi Intellectual Ventures II, LLC ("Intellectual Ventures" or "IV") alleges that
Defendants1

infringe the patents-in-suit.

By its order of June 17, 2013 (Clerk's Doc. No. 39) the court informally consolidated Case
Nos. 1:13-cv-00116-LY (the '116 case), 1:13-cv-00118-LY, and 1:13-cv-00119-LY for pretrial
purposes only. The court ordered all filings in the three cases to be made under the '116 case. The
constructions set forth in this order apply in all three cases.
Additionally, as the claim-construction arguments and interests of Defendants AT&T Corp. d/b/a
AT&T Advanced Solutions d/b/a SBC Advanced Solutions, AT&T Communications ofTexas, LLC,
AT&T Operations, Inc., AT&T Services, Inc., AT&T Video Services, Inc. alk/a AT&T Video
Services, LLC, SBC Internet Services, Inc. d/b/a AT&T Entertainment Services d/b/a AT&T Internet
Services d/b/a Pacific Bell Internet Services, Southwestern Bell Telephone Company, Centurytel
BroadBand Services, LLC d/b/a CenturyLink, Inc., Qwest Corp. d/b/a CenturyLink QC,
McLeodUSA Telecommunications Services, LLC d/b/a PaeTec Business Services, PaeTec
Communications, Inc., Texas Windstream, Inc., Valor Telecommunications of Texas, LLC d/b/a
Windstream Communications Southwest, Windstream Communications Kerrville, LLC, Windstream
Communications Telecom, LLC,Windstream Communications, Inc., and Windstream Sugar Land,
ci

2.

Legal Principles of Claim Construction
Determining infringement is a two-step process. See Markman, 52 F.3d at 976 ("[There are]

two elements of a simple patent case, construing the patent and determining whether infringement

occurred

. .

.

."). First, the meaning and scope

of the relevant claims must be ascertained. Id.

Second, the properly construed claims must be compared to the accused device. Id. Step one, claim

construction, is the current issue before the court.

The court construes patent claims without the aid ofa jury. See Markman 52 F.3d at 979.
The "words ofa claim 'are generally given their ordinary and customary meaning." Phillips v. A Wil

Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp.

v.

Conceptronic,

Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). The ordinary and customary meaning of a claim term is

the meaning that the term would have to a person of ordinary skill in the art in question at the time

of the invention. Id. at 1313. The person of ordinary skill in the art is deemed to have read the claim
term in the context of the entire patent. Id. Therefore, to ascertain the meaning of claims, courts
must look to the claims, the specification, and the patent's prosecution history. Id. at 131

4i 7;

Markman, 52 F.3d at 979.
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.

Inc. do not diverge with regard to claim construction, the court will refer to Defendants collectively
as "AT&T."

Claims must also be read "in view of the specification, of which they are a part." Markman,
52 F.3d at 979. The 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." Teleflex, Inc.
v.

Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed.Cir.2002) (internal citations omitted). In the

specification, a patentee may define a term to have a meaning that differs from the meaning that the

term would otherwise possess. Phillips, 415 F. 3d at 1316. In such cases, the patentee's lexicography

governs. Id. The specification may also reveal a patentee's intent to disclaim or disavow claim
scope. Id. Such intentions are dispositive for claim construction. Id. Although the specification may

indicate that certain embodiments are preferred, particular embodiments appearing in the specification
will not be read into the claims when the claim language is broader than the embodiment. Electro

Med. Sys., S.A.

v.

Cooper Life Scis., Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994).

The prosecution history is another tool to supply the proper context for claim construction

because it demonstrates how the inventor understood the invention. Phillips, 415 F.3d at 1317. A

patentee may serve as his own lexicographer and define a disputed term in prosecuting a patent.
Home Diagnostics, Inc.

v.

LfeScan, Inc., 381 F.3d 1352, 1356 (Fed.Cir.2004).

Similarly,

distinguishing the claimed invention over the prior art during prosecution indicates what the claims
do not cover. Spectrum

Int'l v. Sterilite Corp.,

164 F.3d 1372, 1378-79 (Fed.Cir.1988). The

doctrine ofprosecution disclaimer precludes patentees from recapturing specific meanings that were

previously disclaimed during prosecution. Omega Eng 'g, Inc.

v.

Raytek Corp., 334 F.3d 1314, 1323

(Fed.Cir.2003). Disclaimers of claim scope must be clear and unambiguous. Middleton, Inc.
Co., 311 F.3d 1384, 1388 (Fed.Cir.2002).

5

v.

3M

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. Extrinsic evidence may be useful when considered in the context of the
intrinsic evidence, id. at 1319, but it cannot "alter a claim construction dictated by a proper analysis

of the intrinsic evidence." On-Line Techs., Inc.
1133, 1139 (Fed. Cir. 2004).

v.

Bodenseewerk Perkin-Elmer GmbH, 386 F.3d

3.

Discussion

A.

Agreed Terms

Prior to the claims-construction hearing, the parties agreed to the construction of various
claim terms. The following table summarizes the parties' agreement. The court hereby adopts the

agreed construction of all claim terms as listed below.2

Term; Patent - Claim

Agreed Construction
U.S. Patent Nos.

6,798,735

and 7,817,532

table that indicates for all subchannels of a multicarrier signal,
the number of bits to be encoded on each subchannel

"bit allocation table"

'735-Claims 1, 9, 10
"developing a second bit allocation
table"

'735-Claim

forming or updating a second bit allocation table that is nonduplicative of the first bit allocation table

1

grouping of bits to be modulated into a DMT symbol and/or
demodulated from a DMT symbol

"frame"

'735-Claim 10
'532-Claims 4, 6, 8, 9,

11

". .a method for modulation bits
onto subchannels. ."
.

.

'735-Claim

typo; should read:
subchannels...

. .

.a method for modulating bits onto

1

Throughout, the bolded terms indicate the court's adopted construction.
7

Term; Patent - Claim

Agreed Construction

U.S. Patent Nos. 6,567,473,7,860,175,6,667,991,7,649,928,8,045,601 and 6,498,808

changing, during data [transmission/reception] and not during

"seamlessly changing"

initialization, without an interruption in the
"seamlessly transitioning"

Itransmission/reception] of data

"seamlessly transition"
"seamless transition"

'808-Claims

1, 3, 7, 10,

40, 109

'473-Claims 42, 57
'991-Claims 9, 12, 13, 18
'928-Claims

1, 2, 3, 5, 6, 7

'601-Claims 17, 19, 21, 23
"seamlessly changes"

changes, during data [transmission/reception] and not during

initialization, without an interruption in the
'808-Claims 40, 109

[transmission/reception] of data

"seamlessly entering"

entering, during data [transmission/receptionl and not during

initialization,
'473-Claims 32, 37, 42, 57, 366,
372

"second transmission bit rate"

without

an
[transmissionlreception] of data

interruption in the

second bit rate used to transmit bits different from the first bit

rate
'808-Claims

1, 3, 5,

40, 41

"second reception bit rate"
'808-Claims 7, 10, 109

second bit rate used to receive bits different from the first bit rate

Term; Patent - Claim

Agreed Construction

"second data rate"

second data rate used to transmit or receive data different from
the first data rate

'473-Claims 32, 37, 366, 372

'601-Claim 6

"second bit rate"

second bit rate used to transmit or receive data different from the
first bit rate

'473-Claims 42, 57
'991-Claims 9, 12, 13, 18

grouping of bits to be modulated into a DMT symbol and/or
demodulated from a DMT symbol

"frame"

'928-Claims 2, 6

'601-Claim 16

R-S codeword, which includes overhead framing bytes, user data
bytes, and Reed-Solomon FEC check bytes

"codeword"
'808-Claims
40, 41, 109

1, 3, 4, 5, 7, 8, 10,

'473-Claims 32, 37, 42, 57, 366,
372
'991-Claims 9, 12, 13, 18
'928-Claims 1, 2, 3, 5, 6, 7
'175-Claims 1, 7

'601-Claims6, 7, 9, 11, 17,21

Term; Patent - Claim

Agreed Construction

"bit allocation table"

table that indicates for all subchannels of a multicarrier signal,
the number of bits to be encoded on each subchannel

"Bit Allocation Table"
'808-Claims 1, 3, 5, 7, 10, 19, 20,
41, 43, 109

'473-Claims 32, 35, 37, 40, 42,
50, 57, 366, 367, 372, 373
'991-Claims 9, 12, 13, 18

'601-Claim 13

.transmitting
codewords.

plurality

the

typo; should read:

. .

.transmitting the plurality of codewords...

.

'991-Claims 9,12

"...receiving

the

plurality

typo; should read: ...receiving the plurality of codewords...

codewords.
'991-Claims 13, 18
"inverted synch symbol"

typo; should read: inverted sync symbol

'928-Claim 6
[Preambles various of claims]

preambles are limitations

'175-Claims 1, 7

'991-Claims 9, 12, 13,18
'473-Claims 32, 37, 42, 57, 366,
372

10

Term; Patent - Claim

Agreed Construction

"In a multicarrier a transceiver.

'928-Claims 1,

.

."

a typo; should read: In a multicarrier transceiver...

5

U.S. Patent No. 6,266,348
"first and second parameter sets
defining data communications over
said channels"

first and second parameter sets, each of which defines data
communications over both the upstream and downstream
channels

'348-Claims 47, 49, 52

U.S. Patent No. 5,534,912
"subscriber loops"

twisted pair or copper, telephone wires

"subscriber loop"

'912-Claims 2,

3

[Preamble of Claim 1]

Preamble is a limitation

'912-Claim 1

U.S. Patent Nos. 5,790,548 and 6,101,182
"Internet address"

a number that identifies an entity on the Internet

'548-Claim 26

"Internetwork addresses"

numbers that identify entities on the data internetwork

'182-Claim 3

11

Term; Patent - Claim

Agreed Construction

"local loops"

twisted pair or copper, telephone wires

"subscriber lines"

'182-Claim

1

'182-Claim 14

"said Internet service providers
providing selective connection to
information providers via said
Internet subscriber lines"

said Internet service providers transferring data between users
and information providers

'182-Claim 4
"domain name server means"

a server that translates domain names (e.g., www.yahoo.com)
into an internet address (e.g., 164.109.211.239)

'182-Claim 2

U.S. Patent Nos. 6,654,410 and 7,508,876
"second data rate"
'410-Claims

second data rate used to transmit or receive data different from
the first data ratebytes, and Reed-Solomon FEC check bytes

1, 12, 14, 77, 78

'876-Claim 1

"codeword"

R-S codeword, which includes overhead framing bytes, user data
bytes, and Reed-Solomon FEC check bytes

'410-Claims 12, 14, 77, 78

'876-Claim 1

12

Term; Patent - Claim

Agreed Construction

"bit allocation table"

table that indicates for all subchannels of a multicarrier signal,
the number of bits to be encoded on each sub channel

'410-Claims 14, 77, 78

'876-Claim

1

"seamless change"

change, during data [transmission / reception], without an
interruption in the [transmission / reception] of data

'410-Claims 12, 14, 77, 78

'876-Claim

1

IV stipulates that the revised construction of "seamless[ly] change
/ adapting" in the
'410 and '876 Patents does not cover
changing the data rate by restarting the initialization process.
IV stipulates that the phrase "the [transmission

/

reception] of

data" in the revised construction refers to user data, as opposed
to data used only for the purpose of initialization.
"seamlessly adapting"

changing, during data [transmission / reception], without an
interruption in the [transmission / reception] of data

'410-Claims 12, 14, 77, 78

'876-Claim

1

IV stipulates that the revised construction of "seamless [ly] change
/ adapting" in the
'410 and '876 Patents does not cover

changing the data rate by restarting the initialization process.
IV stipulates that the phrase "the [transmission / reception] of
data" in the revised construction refers to user data, as opposed
to data used only for the purpose of initialization.

13

B.

Disputed Terms

The parties dispute the construction of66 terms. The following table summarizes the parties'

proposed constructions of the disputed terms.

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction
US. Patent Nos.

1.

"transceiver"

6,246,695

and 6,424,636

plain and ordinary meaning; no
construction needed.

'695-Claim 20
Alternatively: a device that is
capable of both transmitting and
receiving signals

2. "DSL modem or line-card"

'636-Claims 52, 75

a modulator/demodulator or an
electronic circuit board for DSL
signals

14

transceiver that operates by
dividing available bandwidth
between two channels in at least
two of the following ways: (1)
where the first channel is smaller
than the second ("conventional
ADSL" mode); (2) where the two
channels are of "roughly" equal
size ("bi-directional" mode); and
(3) where the first channel is larger
than the second ("reversible"
mode)

transceiver that operates by
dividing available bandwidth
between two channels in at least
two of the following ways: (1)
where the first channel is smaller
than the second ("conventional
ADSL" mode); (2) where the two
channels are of "roughly" equal
size ("bi-directional" mode); and
(3) where the first channel is larger
than the second ("reversible"
mode)

Term-Claim

Intellectual Ventures Proposed AT&T's Proposed Construction
Construction

3. "available operation modes"

available states of operation
wherein the set of downstream
and upstream transmission rates is
different for each state

'695-Claim 20

"at least two asymmetrical
digital subscriber line ADSL
modes"
4.

"said at least two
operation modes"

ADSL

at least two states of operation
wherein the set of downstream
and upstream transmission rates is
unequal and different for each
state

at least two of the following three

modes characterizing bandwidth
allocationbetween first and second
channels: (1) where the first
channel is smaller than the second
("conventional ADSL" mode); (2)
where the two channels are of
"roughly" equal size ("bidirectional" mode); and (3) where
the first channel is larger than the
second ("reversible" mode)

a "conventional ADSL" mode
where the bandwidth allocation of
the first channel is smaller than the
second channel, and a "reversible"
mode where the bandwidth
allocation of the first channel is
larger than the second channel

'695-Claim 20

U.S.
"allocation of bits
subchannels"
5.

Patent Nos. 6,798,735 and 7,817,532

to

indication ofthe number ofbits to
be encoded to subchannels of a
multicarrier signal

"allocation of bits"

allocation of bits for all
subchannels ofa multicarrier signal
that indicates the number ofbits to
be encoded on each subchannel

'532-Claims 4, 6-12

15

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

"storing the first and second
bit allocation tables at each of the
communication units"

plain and ordinary meaning; no
construction needed

at each of the communication
units, maintaining the first and
second bit allocation tables such
that the first bit allocation table
can be updated while the second
bit allocation table is being used
for communications

7. "select a first allocation of bits

plain and ordinary meaning; no

to subchannels"

construction needed

choose the first allocation of bits
to subchannels from two stored
allocations of bits to subchannels

6.

'735-Claim

1

where

IV

has

beyond

offered

'532-Claim 4

constructions for terms contained
within this broader limitation

response to receipt
of a flag from the other
transceiver, asecond allocationof
bits to subchannels"

plain and ordinary meaning; no

8. "select, in

construction

where

IV

needed

beyond

has

offered

constructions for terms contained
within this broader limitation

choose the second allocation of
bits to subchannels from two
stored allocations of bits to
subchannels, in response to receipt
of a flag from the other transceiver

'532-Claim 4

9. "selecting, by the transceiver,

a different allocation of bits to
subchannels"

plain and ordinary meaning; no
construction needed

choosing the different allocation of
bits to subchannels from two
stored allocation of bits to
subchannels

a signal that has only two states

signal to request a switch from
using one bit allocation table to
another bit allocation table

'532-Claims 6, 9

10. "flag"

to indicate an action or condition
'735-Claims 9, 10

16

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

11. "flag"

a signal that has only two states
to indicate an action or condition

signal to request a switch from
using one allocation of bits to
subchannels to another allocation
of bits to subchannels

Method steps in claim are NOT
limited to the order in which they
are recited.

Method steps in claim are limited
to the order in which they are
recited.

Method steps in claim are NOT
limited to the order in which they
are recited.

Method steps in claim are limited
to the order in which they are
recited.

'532-Claims 4, 6, 8, 9,

11

12. [entire claim]

'735-Claims 1, 9, 10

13. [entire claim]

'532-Claims 4, 6, 9

U.S. Patent Nos. 6,567,473, 7,860,175, 6,667,991, 7,649,928, 8,045,601 and 6,498,808
"changing transmission
parameters"
14.

"changing

subchannel

transmission parameters"

plain and ordinary meaning; no
construction needed
alternatively: changing one or
more [subchannel] parameters
defining how to transmit data

changing [subchannel] parameters
to adapt the rate for transmitting
data

'928-Claim 1
'175-Claim

1

"changing

reception

plain and ordinary meaning; no
construction needed

"changing subchannel reception
parameters"

alternatively: changing one or
more [subchannel] parameters
defining how to receive data

15.

parameters"

'928-Claim 5
'175-Claim 7

17

changing [subchannel] parameters
to adapt the rate for receiving data

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

16.
"change at least one
transmission parameter"

plain and ordinary meaning; no
construction needed

'928-Claim 1

alternatively: change at least one
parameter defining how to
transmit data

17.

"change at least one
reception parameter"

plain and ordinary meaning; no
construction needed

'928-Claim 5

alternatively, change at least one
parameter defining how to
receive data

"change in subchannel
transmission parameters"

plain and ordinary meaning; no
construction needed

'175-Claims 1,

alternatively:

18.

3

change

change at least one parameter to
adapt the rate for transmitting data

change at least one parameter to
adapt the rate for receiving data

change in subchannel parameters

to adapt the rate for transmitting
data

in

subchannel parameters defining
how to transmit data

19.
"change in subchannel
reception parameters"

plain and ordinary meaning; no
construction needed

'175-Claim 9

alternatively:

change

in

subchannel parameters defining
how to receive data

FI

change in subchannel parameters
to adapt the rate for receiving data

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

"transition, during the data
communications, from reception
of a plurality of codewords at the
first data rate to reception of the
plurality of codewords at the
second data rate"

plain and ordinary meaning; no
construction needed beyond

20.

constructions for terms contained
within this broader limitation

change from reception of plurality
of codewords at the first data rate
to reception of the plurality of
codewords at the second data rate
during data reception and not
during initialization, without an
interruption in the reception of
data

plain and ordinary meaning; no
construction needed

change to a new bit rate during
data transmission and not during

where

has

IV

offered

'601-Claim 6

21. "transition to use of the new
bit rate"

initialization,
'601-Claim

11

22. "transition to use of the new

data rate"

plain and ordinary meaning; no
construction needed

'473-Claims 32, 37

'175-Claims 1, 7

24. "frame size"

'928-Claims 3, 7

'601-Claims 9, 11, 19,23

an

change to a new data rate during
data transmission and not during

initialization,
'601-Claim 16

23. "ADSL frame"

without

interruption in the transmission of
data

without

an

interruption in the transmission of
data

unit of data at the framing layer
including overhead framing bytes,
user data bytes, and ReedSolomon FEC check bytes in an
ADSL system

Indefinite

number of bytes of a unit of data
at the framing layer including
overhead framing bytes, user data
bytes, and Reed-Solomon FEC

number ofbytes in an ADSL frame

checkbytes

19

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

25. "full power mode"

highest power level

'473-Claims 32, 37, 366, 372

the power mode used by a
transceiver during normal
operation

26. "flag"

a signal that has only two states

signal sent in response to a request
to change data rate and used to
synchronize changes in bit
allocation tables

to indicate an action or condition
"flag signal"

'473-Claims 32, 37, 43, 50, 58,
366, 372
'991-Claims 12, 18

U.S. Patent No
27. "storing at least first and
second parameter sets"

6,266,348

plain and ordinary meaning; no
construction needed

maintaining at least first and
second parameter sets such that at
least one parameter set can be
reverted to for use after another
parameter set has been used

plain and ordinary meaning; no
construction needed

choosing one of the previously
stored at least first and second
parameter sets

plain and ordinary meaning; no
construction needed

a signal that identifies one of the
previously stored parameter sets to
be selected

'348-Claims 47, 49, 52

28. "selecting a parameter set"

'348-Claims 47, 49, 52

29. "a signal that identifies the
parameter set to be selected"

'348-Claims 47, 49

20

Term- Claim

Intellectual Venture's

Proposed AT&T's Proposed Construction

Construction
30. "wire line"

plain and ordinary meaning; no
construction needed

'348-Claims 47, 49, 52
alternatively: a metallic twisted
pair

31. [entire claim]

'348-Claims 47, 49, 52

Method steps in claim are NOT
limited to the order in which they
are recited.

21

telephone wire line without a
splitter at the subscriber premises,
the line simultaneously carrying
both voice and data

Method steps in claim are limited
to the order in which they are
recited.

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction
U.S. Patent No. 5,534,912

32. "a mechanism by which the
subscriber selects one or more
sources of video information to
be provided to the subscriber's
individual subscriber loop"

plain and ordinary meaning; no

construction needed
Alternative Construction if the
Court construes as a means-plusfunction term:

'912-Claim 3

Function:
subscriber selects one or more
sources of video information to
be provided to the subscriber's
individual subscriber ioop

The correspondint structure is:
(1) channel selector (240), or

(2) a circuit including a voltage
controlled oscillator (350, 545)
that outputs a local oscifiator
frequency, based on a channel
change control signal from a
subscriber, to a mixer (530) for
frequency shifting a composite
FDM spectrum so that the
frequency of a desired video
channel is shifted into a passband
of a subscriber filter, or channel
selector 240.

22

The term should be construed
under a means plus function analysis.

Function:
subscriber selects one or more
sources of video information to be
provided to the subscriber's
individual subscriber loop

The corresponding structure is:
circuit including a voltage
controlled oscillator (350, 545)
that outputs a local oscillator
frequency, based on a channel
change control signal from a
subscriber, to a mixer (345, '345,
530) for frequency shifting a
composite FDM spectrum so that
the frequency of a desired video
channel is shifted into a passband
of a subscriber filter
a

Alternative construction if the
Court does not construe as means
plus function:

a circuit by which a subscriber
selects any video channel from a
combined spectrum by selecting a
local oscifiator frequency to input
to a mixer assigned to the
subscriber

Term- Claim

Intellectual Venture's

Proposed AT&T's Proposed Construction

Construction
33. "a source side interface unit

a source

side interface

unit

Indefinite

of each pair being located located at an intermediate point in
relatively closer to a source of the communications path between
video information than a the source of video information
subscriber side interface unit"

'912-Claim

and the subscriber side interface
unit

1

34. [Claim preamble]

Preamble is NOT a limitation

Preamble is a limitation

'912-Claim 2

U.S. Patent Nos. 5,790,548 and 6,101,182
"assigning a temporary
Internet address to the requesting
entity"
35.

plain and ordinary meaning; no
construction needed.

'548-Claim 26

36. "dynamic host configuration
protocol server means"

server

that provides
internetwork protocol (IP)
A

addresses in response to requests.

'182-Claim 2

23

issuing a temporary Internet
address to a customer personal
computer, the temporary Internet
address determined by a DHCP
server based on an identifier for
the customer personal computer, a
customer name, and password

a dynamic host configuration
protocol (DHCP) server that
dynamically issues internetwork
addresses to customer personal
computers, each internetwork
address determined by the DHCP
server based on an identifier for
the customer personal computer, a
customer name, and password

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

37. "providing dynamic handling

providing addresses in response
to requests.

dynamically issuing internetwork
addresses to customer personal
computers, each internetwork
address determined by a DHCP
server based on an identifier for
the customer personal computer, a
customer name, and password

providing internetwork addresses
for communications of data
processor terminals at the
customer premises in response to
requests

dynamically issuing internetwork
addresses to data processor

provides temporary internetwork
addresses to the customer
premises data terminals upon
request

dynamically issuing

temporary
internetwork addresses to
customer personal computers,
each temporary internetwork
address determined by the DHCP
server based on an identifier for
the customer personal computer, a
customer name, and password

assigning one of a plurality of
temporaryinternetwork addresses
to a data processor terminal in
response to a request

dynamically issuing one of a

of addresses"
'182-Claim

38.

1

"dynamically administer

internetwork

addresses

for
communications of the data
processor terminals"
'182-Claim 14

"provides to customer
premises data terminals dynamic
39.

assignment

of temporary

internetwork addresses"
'182-Claim

3

40.
"providing dynamic
temporary assignment of one of a

plurality of internetwork
addresses"
'182-Claim 15

24

terminals, each internetwork
address determined by a DHCP
server based on an identifier for
the data processor terminal, a
customer name, and password

plurality

o

f temporary

internetwork addresses to a data
processor terminal, the temporary
internetwork address determined
by the DHCP server based on an
identifier for the data processor
terminal, a customer name, and
password

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

"routing data signals
from said central office splitting
means"
41.

1

82-Claim

.

.

.

plain and ordinary meaning; no
construction necessary.

routing data signals received from
a customer personal computer, via
the central office splitting means,
by determining where on a data
internetwork to forward the data
signals based on the source IP
address of the customer personal
computer

a router to send data packets
from a data processor terminal

a gateway router that determines
where on a public wide area data
internetwork to forward packets
from a data processor terminal
based on the source IP address of
the data processor terminal

1

42. "a router
to provide
packet switched communications
for the data processor terminals
via a public wide area data
.

.

.

internetwork"

towards a destination on a pubic
wide area data internetwork
based on address information
contained in the packets.

'182-Claim 14

43.
"customer
processor terminal"

premises

a processor at the customer
premises that acts as a source or
destination for data.

customer personal computer

customer
terminal

'548-Claim 26

an entity at the customer premises
that requests assignment of a
temporary Internet address

45.
"Internet connected
information service provider"

Internet connected information
provider

Indefinite

'548-Claim 26

44. "the requesting entity"

'548-Claim 26

25

premises

processor

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

46.
"said Internet connected
service provider"

Internet connected information
provider

Indefinite

a hi-directional communications
link that uses telephone wiring to
transmit data faster in one
direction over a first set of
frequencies than in the opposite
direction over a second set of

the ADSL standard

'548-Claim 26

47.

"asymmetric

digital

subscriber line (ADSL)"

'548-Claim 26

frequencies.

48. "telephone Internet service
provider network"

'548-Claim 26

49. "internetwork addresses"

a portion of the network operated

a portion of an available public

by the company providing
telephone services that transfers
data to and from a subscriber and
an ISP

switched

numbers that identify entities on a
data internetwork

numbers that identify entities on
the public wide area data
internetwork

assigned numbers that identify
entities on a data internetwork

assigned numbers that identify
entities on the public wide area
data internetwork

'182-Claims 14, 15

50. "assigned addresses"

'182-Claim 16

26

telephone network
allowing a customer to access an
Internet service provider

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

51. "splitting means (subscriber

Function:
splitting signals received over said
local loops into data signals
connected to said data terminals
and telephony signals connected
to said telephone terminals

Function:
splitting signals received over said
local loops into data signals
connected to said data terminals
and telephony signals connected to
said telephone terminals

Corresponding Structure:
(1) a passive filter, or
(2) a POTS splitter

Corresponding Structure:
a passive filter or a POTS splitter
located in a remote ADSL
Terminal Unit (ATU-R)

Function:
splitting signals received over said
local loops into data signals and
telephony signals

Function:
splitting signals received over said
local loops into data signals and
telephony signals

Corresponding Structure:
(1) a passive filter, or
(2) a POTS splitter

Corresponding Structure:
Indefinite

premises)"
1

82-Claim

1

52.
"splitting means (central
office switching system)"
1

82-Claim

1

27

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

53. "processor means"

Function:
switching, addressing and routing
data signals received by said
processor means from said central
office splitting means; (Claim 1)

Function:
switching, addressing and routing
data signals received by said
processor means from said central
office splitting means; (Claim 1)

providing dynamic handling of
addresses for data signals from
said central office splitting means
corresponding to signals from one
of said local loops directed to
said data internetwork (Claim 1)

providing dynamic handling of
addresses for data signals from
said central office splitting means
corresponding to signals from one
of said local loops directed to said
data internetwork (Claim 1)

provides to customer premises

provides to customer premises

'182-Claims

1, 2, 3, 4

data

terminals dynamic data terminals dynamic assignment
assignment of temporary of temporary internetwork
internetwork

addresses and
domain name to internetwork
address translations (Claim 3)

providing connectivity to said
Internet service providers (Claim
4)

'182-Claim

1

providing connectivity to said
Internet service providers (Claim
4)

Corresponding Structure:
an Ethernet switch, a router, a
DNS server and a DHCP server.

54. "telephony switch means"

addresses and domain name to
internetwork address translations
(Claim 3)

Corresponding Structure:
Indefinite

a device that connects
communication paths for voice
signals

POTS or PSTN switch

U.S. Patent Nos. 6,654,410 and 7,508,876

28

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

55. "approximate(s)"

enable(s) the communication link
to operate until an actual value
canbe determined

estimate(s) based on known or
determinable values

56. "approximation"

a value expected to enable the
communication link to operate

estimation based on known or
determinable values

'410-Claims 1, 14, 77, 78

until an actual value can be
determined

57.
"actual parameter
value"/"actual. bit allocation

a parameter value of the
communication link determined
by measurement and/or analysis

'410-Claims 1,2, 14,77,78

.

.

table"

that

occurs

during

data

'410-Claims 1, 2, 6, 8, 14, 77, 78

communication at the first data
rate.

"wherein the step of
determining each of the plurality
of actual parameter values is
attained iteratively in a manner
wherein at least one actual
parameter value is determined in
each iteration"

plain and ordinary meaning; no
construction needed

parameter value corresponding to
the maximum data rate for
required bit error rate of the
system

58.

Alternatively,
Iteration: the process ofrepeating
a set of instructions a specified
number oftimes or until a specific
result is achieved.

wherein during the step of
determining, each of the plurality
of actual parameter values are
determined at least one parameter
value at a time and each parameter
value is used upon determination

'410-Claim 8
Iteratively: relating to or being
iteration of an operation or
procedure
59. "flag"

a signal that has only two states
to indicate an action or condition

"flag signal"

'410-Claims 14, 77, 78

29

signal sent in response to a request
to change data rate and used to
synchronize changes in bit
allocation tables

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction
U.S. Patent Nos. 6,647,068, 7,272,171 and 7,826,545

60.

"variable
initialization"

state length

'068-Claims 4, 7, 13, 16

Not a limitation for '068 and '171
patents.

initialization during

which

transceivers change initialization
state lengths

a state during initialization whose

length can be varied
'171-Claims 2,

3

'545-Claims 5, 6

61. "message includes [a/the]
selected number of multicarrier
symbols"

a message comprising multicarrier
symbols, where the number of
multicarrier symbols in the
message is at least [a/the]
selected number

message specifying [a/the] selected
number of multicarrier symbols

62. "a transmitter configured to
cooperatively perform a variable
state length initialization with a

plain and ordinary meaning; no
construction necessary.

Indefinite

receiver"

Alternatively,
work together

'545-Claims 5, 6

cooperatively:

'545-Claim 5

"the transmitter is further
configured to determine the
selected number of multicarrier
symbols in cooperation with the
receiver"
63.

'545-Claim

plain and ordinary meaning; no
construction necessary.

Alternatively,
working together

5

30

cooperation:

Indefinite

Term- Claim

Intellectual Venture's Proposed AT&T's Proposed Construction
Construction

"selecting a number of
symbols by a
transmitter of the multicarrier
communication system in
cooperation with a receiver ofthe

plain and ordinary meaning; no
construction necessary.

64.

multicarrier

multicarrier

Alternatively,

Indefinite

cooperation:

working together

communication

system as a part of a variable
state length initialization of the
transmitter and the receiver"

'545-Claim 6

65. [Preamble]

Preambles are NOT limiting

Preambles are limiting

Preambles are NOT limiting

Preambles are limiting

'068-Claims 4, 7, 13, 16

66. [Preamble]

'171-Claims 2,

3

31

1.

"transceiver"
AT&T argues that the Federal Circuit has already construed this term in the context of U.S.

Patent No. 5,812,786 (the "786 Patent"), the '695 and '636 Patents' parent, with which they share a
common specification. See Bell At!. Network Servs., Inc.

v.

Covad Commc 'ns Grp., Inc., 262 F.3d

1258 (Fed. Cir. 2001). AT&T contends that in Bell Atlantic, "the Federal Circuit made critical

determinations regarding the meaning of three terms

'mode,' 'rate,' and 'transceiver." These

determinations, AT&T argues, should guide this court's construction of disputed terms from the '695
and '636 Patents. AT&T's proposed construction of this term is based upon the Federal Circuit's

definition of "transceiver" being synonymous with that court's construction of "mode." Bell Atlantic,
262 F.3d at 1275.

Intellectual Ventures argues that the language of the asserted claims of the '695 and '636

Patents is "significantly different than the claims previously construed by the Federal Circuit." Further,
Intellectual Ventures contends generally that terms previously construed are not present in the asserted
claims

of the '636 Patent and that the inventors made clear during the '636 Patent's prosecution that

the claims were specifically prepared so as not to implicate the claim construction in Bell Atlantic.
Intellectual Ventures further argues that because the term "available operating modes" in Claim 20 of

the '695 should not have the identical construction as the Federal Circuit gave "mode" in the '786
Patent, the "transceiver" term should also not be so limited. According to Intellectual Ventures, "there
is no reasonable dispute that the ordinary meaning of 'transceiver' is simply a device that transmits and

receives; thus, Intellectual Ventures urges that the plain and ordinary meaning is the proper

construction.

32

The court, having carefully reviewed the parties' arguments, the Federal Circuit's analysis in

Bell Atlantic, the similarities and differences in claim language of the '695 and '786 Patents, and the
identical specifications ofboth patents, concludes that the Federal Circuit's prior constructions properly
guide this court in construing this term. As the Federal Circuit concluded: "[T]here is no question that

the.

. .

specification uses the terms 'mode' and 'rate' to refer to two different and distinct concepts."

Id. at 1272. Despite the differences in the two patents' claim language, their shared specification makes

clear that rate and mode are related but distinct concepts. Additionally, the court concludes, like the

Federal Circuit concluded with regard to the '786 Patent, that the transceiver described in Claim 20 of
the '695 Patent is defined in the specification and claims synonymously with mode and that the

transceiver ofthe claimed invention operates in conventional, bi-directional, and reversible modes. Id.
at 1275.

Accordingly, the court construes the term "transceiver" to mean "transceiver that operates

by dividing available bandwidth between two channels in at least two of the following ways: (1)

where the first channel is smaller than the second ("conventional ADSL"3 mode); (2) where the
two channels are of "roughly" equal size ("bi-directional" mode); and (3) where the first channel
is

larger than the second ("reversible" mode)."

2. "DSL modem or line-card"

AT&T argues that the prosecution history of the '636 Patent demonstrates that the patentee

equated "DSL4 modems" and "line-cards" to the meaning of "transceiver." AT&T also argues that the

The initialism ADSL means "asymmetrical digital subscriber line."

The initialism DSL means "digital subscriber line."
33

specification does not support a construction of the term that is any broader than the proper

construction oftransceiver, and that the Federal Circuit used the terms interchangeably in Be//Atlantic.
Intellectual Ventures argues that AT&T misrepresents the contents ofthe prosecution history and that
a dictionary-based definition is the proper construction. Intellectual Ventures also contends that the

Federal Circuit did not conclude that modems and line-cards were the same as transceivers in Bell

Atlantic.
After thorough consideration ofthe '636 Patent's prosecution history, read in light ofboth Bell
Atlantic and the differences and similarities between the '786 and '636 Patents, the court concludes that
the patentee's statements in prosecuting the patent combined with the disclosures made in the
specification essentially equates the usage of "DSL modem or line-card" with the specificationdisclosed transceiver, which the court construed above.
Accordingly, the court construes the term "DSL modem or line-card" to mean "transceiver

that operates by dividing available bandwidth between two channels in at least two of the
following ways: (1) where the first channel is smaller than the second ("conventional ADSL"

mode); (2) where the two channels are of "roughly" equal size ("bi-directional" mode); and (3)

where the first channel is larger than the second ("reversible" mode)."

3. "available operation modes"

The crux of the dispute over this term is whether "available operation modes" is defined based

on bandwidth allocation, as is argued by AT&T, or transmission rates, as argued by Intellectual
Ventures. The parties again focus much of their argument on the Federal Circuit's definition of
"modes" in Bell Atlantic. 262 F.3d at 1269-75. At base, Intellectual Ventures argues that while there
34

are three broad categories of modes, there are also separate modes within the broad categories based

on different data rates, each of which defines an available operation mode.
The court disagrees. As previously discussed, the court is informed by the Federal Circuit's
analysis in Bell Atlantic and finds that the concepts

of rate and mode, as clearly outlined in the

specification, are distinct concepts. Despite the differences in the claim language, the terms' usage in

the '695 Patent is similar. Reading the claim language in light of the specification, available operation

modes clearly refers to one of three that are defined in the specification.
The court construes the term "available operation modes" to mean "at least two of the

following three modes characterizing bandwidth allocation between first and second channels:
(1) where the first channel is smaller than the second ("conventional ADSL" mode); (2) where

the two channels are of "roughly" equal size ("bi-directional" mode); and (3) where the first

channel is larger than the second ("reversible" mode)."

4. "at least two asymmetrical digital subscriber line ADSL modes" / "said at least two ADSL operation

modes"
Like the previous three terms, the dispute over this term revolves around whether the Bell

Atlantic decision is applicable to the patents-in-suit. The court agrees with the Federal Circuit's
analysis that there are three general modes taught by the patent's specification: conventional ADSL,

bi-directional, and reversible ADSL. Only the conventional and reversible modes are asymmetrical
modes. The court concludes, after a thorough reading ofthe claim language in light ofthe specification

and the Bell Atlantic decision, that the "at least two [ADSL modes]" of the claim refers to the

conventional and reversible modes.
35

Accordingly, the court construes the terms "at least two asymmetrical digital subscriber line

ADSL modes" and "said at least two ADSL operation modes" to mean "at least a "conventional

ADSL" mode where the bandwidth allocation of the first channel is smaller than the second

channel, and a "reversible" mode where the bandwidth allocation of the first channel is larger

than the second channel."

5. "allocation

of bits to subchannels" / "allocation of bits"

AT&T seeks to define this term through a reiteration of the words "allocation of bits" with an
additional limitation that the allocation be for all subchannels of a multicarrier signal. Intellectual
Ventures opposes this additional limitation and instead proposes a definition which would allow the

allocation to be for all, or a subset of all, subchannels. The parties agree that the term "bit allocation
table" used in the patent means a table that indicates the allocation of bits for all subchannels. AT&T
argues that "bit allocation table" and "allocation of bits" have the same scope and should be afforded
identical constructions. Intellectual Ventures argues that the terms are distinct, are used distinctly in

the patent and specification, and should have distinct construction. Intellectual Ventures also argues
that its definition represents the plain and ordinary meaning of the term and that the intrinsic record
shows no disavowal of claim scope or evidence of the patentee defining the term in a way
distinguishable from the plain and ordinary meaning.

The court agrees with Intellectual Ventures that the term is used distinctly and in conjunction

with "bit allocation table." The court finds no direct support in the claims themselves or in the patents'
specification to justify the introduction ofAT&T ' s suggested limiting language. Although an allocation

36

of bits may be applied to

all channels, there is no suggestion in the language that the disputed terms

refer only to an allocation to all channels.
The court construes the terms "allocation of bits to subchannels" and "allocation of bits" to

mean "indication of the number of bits to be encoded to subchannels of a multicarrier signal."

6. "storing the first and second bit allocation tables at each of the communication units"

Although Intellectual Ventures proposes that no construction is necessary, and that the plain
and ordinary meaning of this term is the correct construction, AT&T argues that the parties' true

dispute is whether "storing" is limited to simultaneous storage or if the term can allow sequential
storage. After considering the language of the claim in light of the specification, intrinsic record, and

surrounding claims, the court finds no compelling support to justify AT&T's narrowing limitation of
the claim language. The disputed claim phrase consists ofeasily understood words combined such that
a person of reasonable skill in the art would understand their contours. Moreover, the claim language
is clear and the court finds merit in none

ofAT&T's arguments to the contrary. With no unequivocal

disavowal or lexicography appearing in the intrinsic record, AT&T's proposed construction is
improper.
The court concludes that the term "storing the first and second bit allocation tables at each of

the communication units" should be afforded its plain and ordinary meaning with no further
construction required.

37

7. "select a first allocation of bits to subchannels"
8. "select, in

response to receipt of a flag from the other transceiver, a second allocation of bits to

subchannels"
9. "selecting, by the transceiver, a different allocation

of bits to subchannels"

The parties appear to agree that, by and large, these terms have a plain and ordinary meaning

which would be readily understood. AT&T proposes a construction replacing "select" or "selecting"
with "choose" or "choosing" and replacing the indefinite article "a" with "the." However, AT&T also
adds the limitation "from two stored allocations of bits to subchannels" to each of the three disputed
claim phrases. The remainder

of the claim phrase

is left unaltered. With regard to the first two

replacements, the court finds the difference between AT&T's proposed definitions and the plain and
ordinary meaning of the words they replace insignificant. The patentee chose "select[ing]

[]a" and

the court finds no reason to substitute "choose{ing] []the." Therefore, the court must only decide if

AT&T' s additional limitation on these disputed claim terms is warranted.
AT&T references the '532 Patent's specification, with particular focus on a section titled
"Detailed Description ofan Illustrative Embodiment." Essentially, AT&T argues that the specification
explains that the invention operates with paired bit allocation tables and that the "selecting" step of the

disputed claim language is only done between the two prestored table pairs. The court finds that

AT&T's proposed constructions attempt to import limitations from the specification's discussion of
a preferred embodiment. While the specification details selecting between two prestored tables, the

claim language used is broader. The court finds no intrinsic support to construe the disputed claim

terms in the limited way that AT&T suggests.

The court concludes that the terms "select a first allocation of bits to subchannels," "select, in

response to receipt ofa flag from the other transceiver, a second allocation ofbits to subchannels," and
"selecting, by the transceiver, a different allocation of bits to subchannels" shall be given their plain

and ordinary meaning with no further construction required.

10. "flag"
11. "flag"

Intellectual Ventures proposes that this term has a plain and ordinary meaning in the art and that
a person having skill in the art would understand it; however, Intellectual Ventures' proposed

construction is actually based on language found in patents that are cited by the '735 and '532 Patents.
AT&T argues that its position is based on the patents-in-suit's specification and the language of the
claims themselves, and that AT&T's definition necessarily represents the purpose and function of the

claimed "flag." Both parties agree that a flag is a type of signal.

Outside of the claims, "flag" appears in the specification in only three places. However, the

word's usage in the invention is exceedingly clear. As used in the patents-in-suit, the word "flag" could
easily be replaced by the word "signal." A flag is transmitted from one transceiver to another to signal

an action, as described in the claims. AT&T attempts to expand this definition into a claim limitation

by explaining the function of the flag in its proposed construction. However, from the context of the
claim language itself read along with the surround claims and the patents' specification, the function

of the flag needs no further definition. AT&T's proposal simply goes to far. The function of the flag
is described in the claims. The court concludes that each parties' proposed definition misses the mark,

and that the use of "flag" in the patents' claims is readily understood.

The court construes the disputed terms "flag" in the '735 and '532 Patents to mean "signal."

39

12. [Claims 1, 9, 101
13. [Claims 4, 6, 91

of '735 Patent

of '532 Patent

The parties dispute whether the method steps in the above-listed claims must be performed in

the order in which they are recited in the patent. AT&T insists that they do; Intellectual Ventures
argues that they do not.
The order in which steps of a method appear in a claim is not a limitation on that claim unless

either (1) "as a matter of logic or grammar, [the steps] must be performed in the order written", or (2)
the specification "directly or implicitly requires such a narrow construction." A/tins Inc.

v.

Symantec

Corp., 318 F. 3d 1363, 1369-70 (Fed. Cir. 2003) (internal quotations and citations omitted). However,
it is clear that the specification and prosecution history can support a construction requiring the steps

to be performed in the order written in the claims. See e.g. Loral Florchild Corp.

v.

Sony Corp., 181

F.3d 1313, 1321-22(Fed.Cir. 1999);Function Media, LLCvGoogle, Inc., 708 F.3d 1310, 1320(Fed.
Cir. 2013).

The court does not find compelling evidence in the language of the claims themselves or in the

specification that, as a matter of logic or grammar, the steps must be performed in exactly the order

they are written. Further, the specification does not directly or implicitly require such ordering. It is
clear in the context of the claims which action occurs in response to other actions, but the court does

not read the claim language so narrowly as to only function in sequential order. Several of the steps
could conceivably be performed simultaneously or in a different order than claimed in the patent. In

the cases cited by AT&T, the implied or expressed order ofthe at-issue claims was much clearer. Here,

though there is some suggestion of sequence in some of the steps, there is no indication that all steps

must be performed in an exact order. Additionally, the court does not agree that the depended claims
also indicate a required order.

Accordingly, the court concludes that steps contained in Claims 1, 9, and 10 of the '735 Patent
and Claims 4, 6, and 9 of the '532 Patent are not limited to the order in which they are recited in

the claims.

14. "changing transmission parameters" / "changing subchannel transmission parameters"
15. "changing reception parameters" / "changing subchannel reception parameters"
16. "change at least one transmission parameter"
17. "change at least one reception parameter"
18. "change in subchannel transmission parameters"
19. "change in subchannel reception parameters"

The parties dispute whether the "change(ing).. . parameters" terms require adapting the data

rate. The '928, '473, '175, '991, '601, 'and '808 Patents, fromwhichthese terms hail, are allrelated,
share common inventors, and also share most of the same figures and written descriptions, with minor
differences. AT&T argues that these terms require the court to include a limitation that the changing

parameters must be for adapting the data rate "because the specification read as a whole leads to the
inescapable conclusion that the claimed invention requires it." Intellectual Ventures argues that the
claims, and the specification supporting the claims, are broad enough to allow changes to any

transmission parameter, regardless of whether a data rate is adapted. Intellectual Ventures further
argues that the disputed terms have plain and ordinary meanings and that further construction would

be unhelpful to ajury.
41

The court has undertaken a thorough review of the specification and file history of this patent
family in light ofthe patents' claims, the disputed terms, and the parties' opposing arguments. Despite

Intellectual Ventures arguments to the contrary, it is exceedingly clear to the court that adapting data

rates is the core of the claimed invention. AT&T is correct in its argument that the patents' "Titles,
Abstracts, Field ofthe Invention, Summary ofthe Invention and every disclosed embodiment describes

adapting data rates as the invention." Throughout the specification, the descriptions and explanations

of all disclosed embodiments stress the advantages in seamless data rate adaptation. Even portions of
the specification cited by Intellectual Ventures, when read in the context ofthe surrounding paragraphs,
support the notion that the invention is solely focused on adapting the data rate in a seamless fashion.
The court concludes that, with regards to these disputed claim terms, it is proper to narrow the claim

terms in light of the totality of the patent and the disclosed invention. See Alloc, Inc.

v.

International

Trade Corn 'n, 342 F.3d 1361, 1370 (Fed.Cir. 2003) ("[W]here the specification makes clear at various
points that the claimed invention is narrower than the claim language might imply, it is entirely
permissible and proper to limit the claims.")
The court construes the term "changing transmission parameters" / "changing subchannel

transmission parameters" to mean "changing [subchannelj parameters to adapt the rate for

transmitting data." The court further construes the term "changing reception parameters" / "changing
subchannel reception parameters" to mean "changing [subchannell parameters to adapt the rate

for receiving data." The court further construes the term "change at least one transmission parameter"
to mean "change at least one parameter to adapt the rate for transmitting data." The court further

construes the term "change at least one reception parameter" to mean "change at least one parameter

to adapt the rate for receiving data." The court further construes the term "change in subchannel
42

transmission parameters" to mean "change in subchannel parameters to adapt the rate for

transmitting data." The court further construes the term "change in subchannel reception
parameters" to mean "change in subchannel parameters to adapt the rate for receiving data."

20. "transition, during the data communications, from reception of a plurality ofcodewords at the first

data rate to reception of the plurality of codewords at the second data rate"
21. "transition to use

of the new bit rate"

22. "transition to use of the new data rate"

The parties dispute whether transitioning to a new rate in the '601 Patent requires a "seamless"
transition. In essence, the parties agree that the terms are otherwise entitled to their plain and ordinary

meaning; however, AT&T argues that the claim terms require the additional limitation of a seamless

transition. AT&T's proposed construction incorporates the parties' agreed construction of"seamless"
into the transitioning terms. AT&T's argument is similar to the previous group of "change(ing)

.

parameters" terms: despite the fact that seamless does not modify every usage of "transition" in the
disputed claims, the patent specification, read as a whole, only supports claims that are so limited.
Intellectual Ventures argues that, under the doctrine of claim differentiation, the patentee's use

of "seamless" as a modifier of "transition" in Claims

17, 19, 21, and 23 indicates that the disputed

claims, which do not use such a modifier, must not import that limitation. According to Intellectual

Ventures, had the patentee wished to so limit the claims, he could have used identical language.
The court disagrees that the specification, viewed as a whole, requires only seamless transitions.
Certainly, seamless transitions are a particularly important part of the '601 Patent. However, that the

patentee specifically claimed apparatuses requiring a seamless transition is particularly convincing to

the court that the claims without the seamless limitation were not intended to be so limited. The court
agrees with Intellectual Ventures that the plain and ordinary meaning of transition "encompasses both
seamless and non-seamless changes." The specification's support does not rise to the level ofjustifying

the seamless limitation being imposed on all usages of transition in the claims.
The court concludes that the terms "transition, during the data communications, from reception

of a plurality of codewords at the first data rate to reception ofthe plurality of codewords at the second
data rate," "transition to use of the new bit rate," and "transition to use of the new data rate" are to be
given their plain and ordinary meaning with no further construction required.

23. "ADSL frame"

AT&T argues that the term "ADSL frame" has no single ordinary meaning in the art and that
the specification defines the term in two contradictory ways without reconciling the differences.
Therefore, argues AT&T, the term as used in the '473 and '175 Patents' disputed claims is indefinite.

Intellectual Ventures acknowledges that an ADSL frame is described in two ways in the
specification, but contends that one description is used in reference to prior-art ADSL frames. The

other descriptionwhich forms the basis for Intellectual Ventures's proposed constructionreferences
the claimed inventive aspects covered by the patent. Intellectual Ventures further argues that the
claims' consistent use of "decoupled" language links the disputed claims with the specification's
definition ofADSL frames in the Detailed Description section of the patent.

After a detailed reading of the specification, particularly in light ofhow prior-art ADSL frames
are contrasted with the claimed ADSL frames (which are decoupled from the DMT signals), the court

concludes that ADSL frame is not indefinite. Specifically, a person having ordinary skill in the art

would understand, with a reasonable level of certainty, that ADSL frames, as used in the claims, are
consistent with the description contained in the Detailed Description of the specification, and not the

prior art ADSL frames, which the specification also discusses at length. Nautilus, Inc.

v.

Biosig

Instruments, Inc., 134 S.Ct. 2120, 2123 (2014).
The court construes "ADSL frame" to mean "unit of data at the framing layer including

overhead framing bytes, user data bytes, and Reed-Solomon check bytes in an Asymmetric
Digital Subscriber Line (ADSL) system."

24. "frame size"

The dispute between the parties with regard to this term can be succinctly stated: does the word

"frame" in "frame size" refer only to ADSL frames or can it refer to frames in systems other than
asymmetric DSL systems? AT&T argues that the specification only discloses ADSL frames and the
only embodiments refer to ADSL systems. Intellectual Ventures argues that the patentee specifically

stated that the claimed invention could be used in systems other than ADSL systems. In addition,
Intellectual Ventures contends that because "ADSL" modifies "frames" in the phrase "ADSL frames,"

the fact that the patentee used the word "frame" alone indicates that "frame size" does not refer only
to ADSL frames.

The court agrees with Intellectual Ventures. The court finds no compelling reason to limit the
claim language to be congruent

only

with the disclosed preferred embodiment. At the conclusion of

the specification, the patentee states "[w]hile the invention has been disclosed in connection to ADSL
systems it can also be applied to any system that utilizes multicarrier modulation." '928 Patent, 19:3-5.

45

The court declines to narrow the claim language absent a clear disavowal of claim scope in the
specification.
The court therefore construes "frame size" to mean "number of bytes in a unit of data at the

framing layer including overhead framing bytes, user data bytes, and Reed-Solomon check bytes
in a system that utilizes multicarrier modulation."

25. "full power mode"

Intellectual Ventures argues that "full power mode" is the mode used by a transceiver during

normal operations, in contrast to a power-saving low power mode. AT&T contends that the term
refers only to the "highest power level" available. The parties accuse each other of providing

unsupported constructions that propose definitions at either extreme of the term's meaning.
The '473 Patent uses "full power mode" in more than 200 places, mainly in the claims; the
specification references the phrase fewer than 10 times. Read in light of the claim language and entire
specification, "full power mode" is used exclusively to contrast a "low power mode," which is defined
as a mode that allows operation at a low power level when transmission requirements are reduced. The

only other description of "full power mode" states that "full power mode is used during normal

operations ofthe transceiver." '473 Patent 14:31-32. The patent is focused on the transition from "low

power mode" to "full power mode." The language of the patent makes it clear that power modes and

power levels are distinct concepts and the terms are not interchangeable, despite the occasional
inconsistent usage of the words. The parties do not appear to disagree about the meaning of "low

power mode."

The court construes the term "full power mode" to mean "power mode

that is used during

normal operations of the transceiver and that is not a low power mode."

26. "flag" / "flag signal"

The parties again dispute the meaning of flag.5 Flag and flag signal are used interchangeably
in the '473 and '991 Patents and are terms that would be well understood by one skilled in the art. In

the context ofthe patents, flags are used "to signal" and "flag signal" is used in a way synonymous with
signal. The parties seek to overcomplicate and limit the term with tortured proposed constructions,

and the court finds insufficient support for either proposed definition in the intrinsic record. The term
is simple and uncomplicated and would be readily understood by both a person skilled in the art and

a Jury.

The court construes the terms "flag" and "flag signal" to mean "signal."

27. "storing at least first and second parameter sets"

The parties dispute whether this term should be given its plain and ordinary meaning or if the

term should be limited to maintaining parameter sets which "can be reverted to" after one of the sets
is used. AT&T seeks to add the functional limitation while Intellectual Ventures urges that no further

construction is required.
The court does not find compelling support for AT&T's argument that the term, as used in the
claim, should be narrowed to maintaining only parameter sets that can be reverted to. Absent a clear

limitation in the specification, which the court does not find, it is improper to narrow the terms as they
See supra discussion, p. 39.
47

are used in the claim. Although some preferred embodiments discuss that the system reverts between

parameter sets, at least one embodiment appears to describe a broader system where the system
establishes a newly defined parameter set. The court finds that the term has a clear and concise
meaning that would be understood by a person having ordinary skill in the art without the additional

limitations added by AT&T.
The court therefore concludes that "storing at least first and second parameter sets" is given its

plain and ordinary meaning with no further construction required.

28. "selecting a parameter set"
29. "a signal that identifies the parameter set to be selected"

AT&T argues that the parameter set in these claim phrases must be one that is previously stored
during the "storing at least [two] parameter sets" phase of the claimed invention. AT&T does not

argue that any part ofthe disputed phrases are unclear, it just inserts the "previously stored" limitation.
This argument dovetails into AT&T's position that the steps in Claims 47, 49, and 52 must be

performed in the recited order, in part due to the antecedent basis problems between the parameter set
and a parameter set.

Intellectual Ventures argues that the plain and ordinary meaning is appropriate, with no further

construction required. In conjunction with its argument that the claims' steps are independent of their
stated order, Intellectual Ventures argues that the parameter sets to be selected do not require being

prestored by the earlier steps of the claim. Intellectual Ventures claims that the "fast retrain"
embodiment of the patent demonstrates that the language is broader than AT&T's definition allows.

The court finds AT&T's argument concerning the antecedent basis and the ordering of the
claimed steps compelling. The language of the claim, read in light of the multiple places in the

specification where the prestored parameter set is a touted feature, indicates to the court that the claim

term should be so limited. Without reading in AT&T's proposed limitation, the antecedent basis would
be unresolved and the claims would be broader than is supported by the specification.
The court concludes that "selecting a parameter set" means "selecting one of the previously

stored at least first and second parameter sets" and "a signal that identifies the parameter set to be
selected" means "a signal that identifies one of the previously stored parameter sets to be

selected."

30. "wire line"

The parties disagree whether this term should be given its plain and ordinary meaning or if the
wire line ofthe claims must be limited to a telephone wire without a splitter that simultaneously carries

voice and data. The court concludes that AT&T's attempt to import such a limitation goes too far.
The specification does not explicitly use the term "wire line" in describing the invention. Nor

does the specification support the limitation that the claimed wire line must always simultaneously carry
voice and data, as AT&T's definition would necessarily require. Wire line is such an easily grasped and
readily understood term that the court believes that a person skilled in the art would know, even

without explicit reference in the specification, what the term means. Without concrete support for

AT&T's limitation, the court declines to import such narrowing language.
The court concludes that "wire line" is to be given its plain and ordinary meaning with no

further construction required.

31. IClaims 47, 49, 52] of '348 Patent

The parties disagree whether the claim steps, which are labeled with capitol letters A, B, C (for
claims 47 and 49), are required to be performed in order. This limitation is a main point of contention

between the parties with regard to this patent and underlies the patent's other disputed claim terms.
As stated

earlier,6

steps in a claim do not need to be performed in a specific order unless the

claims themselves read in light of the specification or the basic logic and grammar ofthe claims compel

such a result. Here, the claims do require such limitation. Intellectual Ventures argues that the labels

"A," "B," and "C" "merely delineate the different steps and do not indicate a necessary order for
performance." The court disagrees. In view of the antecedent basis issue discussed in the context of

the previous disputed claim terms, a plain reading of the claims is that the order of performance is
limited. This is reinforced by the ordinal nature of the patentee's choice in labeling the steps. The

patentee did not choose to delineate all breaks in the claims with ordinal letters. In some claims,
delineating different lines of the claim is done with spacing and punctuation. However, in disputed
claims 47, 49, and 52, it is apparent that the alphabetic designations do indicate an intended order for

the performance of the steps.
Therefore, the court concludes that the method steps in the disputed claims are limited to the

order in which they are recited.

See discussion, supra, pp 40-41.
50

32. "a mechanism by which the subscriber selects one or more sources

of video information to be

provided to the subscriber's individual subscriber loop"
The parties dispute whether this claim limitation is subject to means-plus-function

construction. Additionally, if the term is so construed, the parties disagree whether the "channel

selector (240)" is included as a structure.

The parties also present arguments for alternative

constructions if the court concludes that this claim limitation is not a means-plus-function term.

AT&T argues that "mechanism by which" is a substitution for, and conveys no more structure
than, a claim where the patentee had used "means for." Intellectual Ventures argues that, although

"mechanism" has previously been construed by other courts to implicate a means-plus-function
construction, here, because the claim is a method claimand not an apparatus claima means-plusfunction construction does not apply. Intellectual Ventures further argues that the full claim, which
reads "providing a mechanism by which

.

.

." indicates that the claims cover performing steps, not

tangible physical components. Intellectual Ventures also points out that the patentee used explicit

means-plus-function language in other claims in the '912 Patent; Intellectual Ventures claims this
indicates that the patentee specifically intended for this method claim not to implicate a means-plusfunction construction.
When a claim term lacks the word "means," the presumption that it requires a means-plus
function construction can be overcome if the challenger demonstrates that the claim term fails to
"recite sufficiently definite structure" or else recites "function without reciting sufficient structure for

performing that function." Williamsont v. Citrix Online, LLC,

F.3d

-, No. 2013-1130, 2015 WL

3687459, at *7 (Fed. Cir. June 16,2015). Conversely, "use of the word 'means' creates a presumption

that

112,6 applies."

Id.

51

While the court takes note that the disputed claim term comes in a method claim, "method
claims often include structural details." Akamai Techs., Inc. v. Limelight Networks, Inc., 629 F.3d
1311, 1329 (Fed. Cir. 2010), vacated sub nom., Akamai Techs., Inc.

v.

Massachusetts Inst. of Tech..

419 F. App'x 989 (Fed. Cir. 2011), rev 'd and remanded sub nom., Limelight Networks, Inc.

v.

Akamai

Techs., Inc., 134 S. Ct. 2111 (2014), aff'd sub nom.,Akamai Techs., Inc. v. Limelight Networks, Inc.,

786 F.3d 899 (Fed. Cir. 2015). Here, the claim uses the term "providing" followed by a structure that

must be provided to infringe the claims. This structural limitation is at the core of the providing step.
The court finds that the claim term itself, when construed in light of the entire specification, does not
provide sufficiently definitive structure to avoid a means-plus-function construction.
As to whether "channel selector (240)" should be included as a corresponding structure, the

court concludes that it should not. Intellectual Ventures argues that the specification teaches a channel
selector "by which 'the subscriber selects one or more sources of video." This merely restates the
claim without adding any specific detail of what comprises the structure. Additionally, Intellectual

Ventures argues that prior art cited by the '912 Patent shows that "channel selector" is a known term

of art. The court disagrees. The mechanism by which channels are selected in the claimed invention
can be easily distinguished by the prior-art channel selectors, and there is no indication that the term,
as used in the '912 Patent, is a "term of art" or would be readily understood by a person of ordinary
skill in the art. Moreover, in light

of the specification, "channel selector" is described as no more than

a "black box" in the patent, with little guidance as to what the structure entails. The court declines to
include "channel selector (240)" as a second alternative corresponding structure in this means-plus-

function claim.

52

The court therefore concludes that "a mechanism by which the subscriber selects one or more

sources of video information to be provided to the subscriber's individual subscriber ioop" is properly

construed as a means-plus-function term. The function is: "subscriber selects one or more sources

of video information to be provided to the subscriber's individual subscriber ioop." The
corresponding structure is: "a circuit including a voltage controlled oscillator (350, 545) that

outputs a local oscifiator frequency, based on a channel change control signal from a subscriber,
to a mixer (530) for frequency shifting a composite FDM spectrum so that the frequency of a

desired video channel is shifted into a passband of a subscriber filter."

33. "a source side interface unit

of each pair being located relatively closer to a source of video

information than a subscriber side interface unit"

The parties agree that the preamble of Claim 1 is limiting but dispute whether this claim phrase
is indefinite. AT&T argues that "being located relatively closer.

. .

than" has multiple meanings that

cannot be resolved from the intrinsic evidence. Intellectual Ventures proposes a construction, which

AT&T argues is an unhelpful attempt to rewrite the claim to salvage it from indefiniteness.
The court finds AT&T's multiple-meaning argument unavailing. Only through a tortured

reading including ellipses, parenthetical inclusions, and made-up diagrams does AT&T attempt to
establish the ambiguity of the phrase. To the contrary, the court finds the language of the preamble
clear, especially when read in light of the entire claim, surrounding claims, the specification, and the

specification's discussion of prior art. Intellectual Ventures correctly points out that the preamble for
Claim

1

introduces a Jepson-type claim, which specifically claims advantages over the prior art. As

such, the court concludes that a person of skifi in the art would be informed, with reasonable certainty,
53

of the meaning of "relatively closer" in the context of the patent's specification. Nautilus, 134 S.Ct.
at 2123.

The court also rejects Intellectual Ventures's attempt to rewrite the claim phrase. Intellectual

Ventures's proposal does not clarify the meaning of the phrase as much as it attempts to broaden it
even further. For the same reasons that the court concludes that the term is not indefinite, the court
finds that a person having skifi in the art would require no further construction other than the plain and

ordinary meaning of the term. Read in light of the surrounding claims, the discussed prior art, and the
entirety of the specification, the term is understandable and clear.
The court concludes that "a source side interface unit of each pair being located relatively closer

to a source of video information than a subscriber side interface unit" is to be given its plain and

ordinary meaning with no further construction required.

34. [Preamble

of Claim 21 of '912 Patent

AT&T argues that the preamble of Claim 2 of the '912 Patent is a limitation, whereas

Intellectual Ventures argues that it is not. "In considering whether a preamble limits a claim, the
preamble is analyzed to ascertain whether it states a necessary and defining aspect of the invention, or
is simply an introduction to the general field of the claim." On Demand Mach. Corp. v. Ingram Indus.,

Inc., 442 F.3d 1331, 1343 (Fed. Cir. 2006). Here, the court finds that the preamble is not a "necessary
and defining" aspect of the claim. The preamble does serve to set forth an intended purpose of the
claim and references one of several enumerated "advantages"

of the invention. However, neither the

specification nor the language of the claim supports that the claim should be so narrowly limited.

AT&T's antecedent-basis argument is specious and the court rejects it.
54

The court concludes that the preamble of Claim 2 of the '912 Patent is not a limitation.

35. "assigning a temporary Internet address to the requesting entity"

Intellectual Ventures argues that this term needs no further construction than its plain and
ordinary meaning. AT&T, on the other hand, seeks to define the term, it argues, consistentl with the
specification's disclosure of an authentication mechanism for the disclosed "new" DHCP7 process.

AT&T contends that the patent's repeated reference to this limitation as "the invention" and consistent
statements contrasting the advantages of the new form of DHCP with the prior-art disadvantages
supports such a limiting construction.

The court largely agrees with AT&T's arguments regarding the clear scope ofthe specification,
what the patentee regarded as "the invention," and the requirement to narrow the claim language to be

congruent with what was actually invented and no more. The specification's contrast between prior-art
DHCP and the "new" method of the invention is exceedingly clear. According to the patent's
specification, and applicable to the entire inventionnot just an embodimenta temporary Internet

address is assigned based on the MAC

address8

or other unique computer identifier, a customer

username, and password. There is no support in the specification to allow the broad language of the
claim subsume the prior-art DHCP method, as Intellectual Ventures seeks.

However, the court is not wholly satisfied with AT&T's proposed construction. AT&T seeks
to incorporate its proposed constructions of other disputed terms in the construction ofthis term; also,

The initialism "DHCP" stands for "Dynamic Host Configuration Protocol."

The initialism "MAC" stands for "Media Access Control" and a "MAC address" is a unique
identifier assigned to network interfaces for communications on the physical network segment.
8

55

AT&T needlessly complicates the construction, substituting certain words that do not need to be

changed from the original claim language.
The court concludes that "assigning a temporary Internet address to the requesting entity" is

construed to mean "assigning a temporary Internet address to the requesting entity, the

temporary Internet address determined by a DHCP server based on a MAC address or other
computer identifier, a customer login, and a password."

36. "dynamic host configuration protocol server means"

Neither party proposes that this term is due a means-plus-function construction. Instead, the
basis of the parties' arguments is very similar to the previous term's. Intellectual Ventures proposes
a generic definition that could be applied to any DHCP server. AT&T's construction seeks to limit the

term consistent with its previous arguments regarding the new DHCP protocol of the invention and
how the specification is clear that the term should be so narrowly construed.
For substantially similar reasons stated in the discussion of the previous term, the court agrees
with AT&T.

The court concludes that "dynamic host configuration protocol server means" is

construed to mean "a dynamic host configuration protocol (DHCP) server that assigns an

internetwork address to a requesting entity, the internetwork address determined by a DHCP
server based on a MAC address or other computer identifier, a customer login, and a password."

56

37. "providing dynamic handling

38.

of addresses"

"dynamically administer internetwork addresses for communications of the data processor

terminals"
39. "provides to customer premises data terminals dynamic assignment of temporary internetwork

addresses"
40. "providing dynamic temporary assignment of one of a plurality of internetwork addresses"

These four disputed claim terms relate to dynamically assigning "addresses" and "internetwork

addresses" and can be construed by the court simultaneously, as the parties' arguments closely track
one another. The parties' arguments roughly parallel the arguments and positions relating to the

previous two disputed terms. Intellectual Ventures seeks a broad interpretation of the claim language

without the limitations ofthe new DHCP system disclosed in the patent. The court again disagrees with
Intellectual Ventures that "the specification does not contain expressions

of manifest exclusion or

restriction." (internal quotation and citation omitted). Although the specification does disclose many
different aspects of "an overall network architecture," the improved DHCP process is the only source
for dynamic providing, assigning, and administering addresses. As such, the court finds it proper to so
limit the claim terms.

The court construes "providing dynamic handling of addresses" to mean "dynamically

providing addresses to a requesting entity, each address determined by a DHCF server based
on a MAC address or other computer identifier, a customer login, and a password." The court
further construes "dynamically administer internetwork addresses for communications of the data

processor terminals" to mean "dynamically provide internetwork addresses to data processor

terminals, each internetwork address determined by a DHCP server based on a MAC address
57

or other computer identifier, a customer login, and a password." The court further construes
"provides to customer premises data terminals dynamic assignment of temporary internetwork

addresses" to mean "dynamically assign temporary internetwork addresses to customer premises

data terminals, each temporary internetwork address determined by a DHCP server based on
a MAC address or other computer identifier, a customer login, and a password." The court
further construes "providing dynamic temporary assignment of one of a plurality of internetwork
addresses" to mean "dynamically providing temporary assignment of one of a plurality of

internetwork addresses, the internetwork address determined by a DHCP server based on a
MAC address or other computer identifier, a customer login, and a password."

41. "routing data signals.

. .

from said central office splitting means"

The parties dispute whether this term requires construction; Intellectual Ventures argues that

"routing" as used in the '182 Patent is well known in the art and that the term requires no further
construction. AT&T acknowledges that the concept of routing was well known at the time of the
invention but insists that the specification clearly limits the routing claimed in Claim 1 to include routing

based on the source address of the data signals. Intellectual Ventures argues that AT&T' s support for
its position can be ascribed to a preferred embodiment only, not the entire invention. AT&T argues

that the patent only discusses destination-based routing in discussing the prior art, and that the patents
claims, read in light of the entire specification, strongly supports the limitation AT&T proposes.

The court concludes that the specification's discussion of routing is broad, relatively generic,
and does not clearly indicate a limiting disclaimer on the breadth of the language contained in the
claims. AT&T's proposed construction

simply

goes too far and is not as clearly supported by the
58

specification as its arguments suggest. The court finds that the language in the disputed term is clear,
has a plainly understood meaning to one of skifi in the art, particularly when read in the context of the

specification, and need not be limited in the way AT&T suggests.

The court concludes that "routing data signals.

. .

from said central office splitting means" shall

be given its plain and ordinary meaning with no further construction required.

42. "a router.

. .

to provide packet switched communications for the data processor terminals via a

public wide area data internetwork"

The parties' dispute over this term is very similar to the previous term, with AT&T urging a
limiting construction focused on source-based routing. AT&T's arguments and citations to the '182

Patent specification are largely the same as the previous routing term.

So too are Intellectual

Ventures's. Here, however, Intellectual Ventures proposes its own construction "mainly because
'packet switched communications' is a term of art that may be unfamiliar to lay jurors."
For reasons consistent with the court's conclusion regarding the previous term, the court rejects

both parties' proposed constructions. Here again, the court finds that the claim language at issue has
a readily understood meaning to a person

of ordinary skill in the art, and that

no construction is

required for "lay juror[]" comprehension or otherwise. The court does not construe terms primarily
for reasons ofjuror comprehensionthe meaning of the claim terms read in light of the specification is

the court's guiding principle. The intrinsic record does not directly support either parties' proposed

constructions and the extrinsic sources cited by Intellectual Ventures further suggest to the court that
the plain and ordinary meaning of the words within the disputed term would have clear meaning to a
skilled artisan.

59

The court concludes that "a router.

. .

to provide packet switched communications for the data

processor terminals via a public wide area data internetwork" shall be given its plain and ordinary

meaning with no further construction required.

43. "customer premises processor terminal"

Intellectual Ventures argues that this term should be given a broad interpretation that covers

any processor that acts as a source or destination of data. Intellectual Ventures further argues that the
specification's references to personal computers or PCs are merely exemplars of processor terminals
and that those references in no way limit the scope of the claim term to only personal computers.

AT&T argues that the term should be limited to a "customer personal computer" as customer personal

computers are "the only devices that the specification describes as being assigned Internet addresses
in order to connect to the Internet." AT&T accuses Intellectual Ventures

of attempting to capture a

meaning far beyond the originally intended scope ofthe specification, and that according to Intellectual

Ventures's construction, ADSL modems, servers, or printers would qualify as customer premises
processor terminals.
The court finds Intellectual Ventures's proposal too broad; however, the court also finds

AT&T's construction too restrictive. References in the specification to PCs and personal computers
are used as exemplary, and the specification is careful to treat them as such. The patentee certainly

knew the terms "computer" and "personal computer" and "PC" and chose to define the claims with a

broader genus of processor terminals. Yet it is also clear from the specification that the invention, as
a whole, read in light ofthe entire disclosure,

only contemplates

a customer premises processor terminal

as devices which could be classified as "computers"a term that certainly was well known to a person

of skill in the art.
The court concludes that the term "customer premises processor terminal" is construed to mean

"customer premises computer."

44. "the requesting entity"

AT&T argues that "the requesting entity" must be a "customer premises processor terminal"
due to the context ofthe entire claim's language and the fact that "the requesting entity" has no express
antecedent in the claim. Further, AT&T argues, a customer premises processor terminal is the only
"entity" that requests an IP address. Intellectual Ventures proposes a broad construction because the
claim implies an antecedent of"an entity" before the requesting step ofthe claim. Intellectual Ventures

argues that the patentee "intentionally drafted the claim such that the temporary Internet address could

be requested by another entity other than the customer premises processor terminal." The court
disagrees.
The court finds that the invention, as detailed by the specification and the exact claim language,
leads to only one conclusion: that the requesting entity is the customer premises processor terminal that
is connecting to the information service provider. To read the claim any differently would expand the

invention beyond a plain reading of the claim language and beyond the specification's disclosure.

Furthermore, the court arrives at its construction based on the court's construction of the previous
term, "customer premises processor terminal."
The court therefore concludes that "the requesting entity" is construed to mean "customer

premises computer."
61

45. "Internet connected information service provider"
46. "said Internet connected service provider"

These two disputed claim terms are not introduced in the specification exactly as they are

written in the claims. Instead the specification repeatedly describes, as separate and distinct, either an
Internet Service Provider (ISP) or an Information Provider (IP), each of which serves a different

purpose. However, the specification also makes clear that an internet service provider can also be an
information provider. AT&T argues that the ambiguity in the claim language renders the claim
indefinite. Intellectual Ventures seems to acknowledge that the ambiguity is a case of imprecise claim

drafting, but offers several explanations that "correct" the ambiguities.

According to AT&T,

Intellectual Ventures asks the court to rewrite both claim terms to read "Internet connected information

provider"thereby removing the word "service" from the first term and replacing the word "service"
with "information" in the second term.
The court must closely examine both the claim language and the entire specification to

determine if a person of skill in the art would be informed, with reasonable certainty, of the meaning

of the disputed claim terms in the context of the patent's specification. Nautilus,

134 S.Ct. at 2123.

Here, after thoroughly considering both parties' strenuous argument, the court concludes that, though

inartfully drafted, the claim language does not rise to the level of introducing to the claims ambiguity
resulting in indefiniteness. The court finds that a skilled artisan would be able to understand, with

reasonable certainty, that the "information service provider" of the claim relates to the information

providers described in the specification. Further, "said

. . .

service provider" logically refers to the

antecedent basis of the information service provider despite lacking the word "information." The court

arrives at this conclusion after considering the described purpose of the invention, the level of

understanding of that purpose that a person of ordinary skifi would bring to reading the claims and
specification of the patent, and the language of the claims. Furthermore, the court disagrees with

AT&T's characterization that, in proposing a construction for the disputed term, Intellectual Ventures
is asking the court to rewrite the claim term. The court's understanding of the meaning
claim terms flows from a holistic reading

of the two

of the entire claim, surrounding claims, and the entire

specification.
The court concludes that "Internet connected information service provider" is construed to

mean "Internet connected information provider." The court further concludes that "said Internet
connected service provider" is construed to mean "Internet connected information provider."

47. "asymmetric digital subscriber line (ADSL)"

AT&T argues that the patentee, in order to secure the allowance ofClaim26 ofthe '548 Patent,
limited the term to "then-existing 'ADSL' standards." AT&T contends that this is significant because

"next-generation asymmetric digital subscriber line technology (such as [very high bit-rate digital

subscriber line] VDSL) was known and explicitly referenced in the specification." However, the
patentee "did not claim [VDSL] or refer to [VDSL] in amending the claims" or overcoming the
rejection. Thus, AT&T seeks to limit the definition to "the ADSL standard," despite the fact that

ADSL "standard" is not referenced within the specification or the intrinsic record, and despite the fact

that there exist several existing ADSL standards. Intellectual Ventures proposes a definition that
AT&T contends extends the boundaries of the clear claim limitations and encompasses technologies
that the patentee specifically disclaimed.

63

The court again takes issue with both parties' proposed constructions. The court finds that

neither construction conveys the full picture of how ADSL is referenced in the patent, nor do the
definitions sufficiently distinguish between what the patentee meant defined ADSL as opposed to

successor technologies like VDSL. Indeed, the dictionary relied upon by the patentee suggests that

VDSL is another version of a standard for implementing ADSL technology.
However, as ubiquitous as references to ADSL technology are in the specification, and as
generic as those references appear to be, the court concludes that "asymmetric digital subscriber line

(ADSL)" is a term that has a clearly understood meaning to a person of ordinary skill in the art at the
time ofinvention. Indeed, the specification makes no attempt to define the term according to a specific
standard; instead, the specification largely uses the term with no further explanation or discussion of
a particular "standard." This is a strong indication to the court that a skilled artisan would know

exactly what the term means with no further definition required. Even the portion cited by the patentee
to overcome rejection is not specific about one standard or another. At most, the court would have
to make an inferential leap that a specific "standard" was defined by the distance and speed limitations

discussed in the specification. The court believes this to be unnecessary.

The court concludes that "asymmetric digital subscriber line (ADSL)" is to be given its plain

and ordinary meaning with no further construction required.

48. "telephone Internet service provider network"

The specific combination of words that make up this disputed claim term only appears in the
claims themselves. There is no definition appearing in the specification that describes exactly what the

patentee meant by "telephone Internet service provider network.," nor is it clear that this is a term of
art that would have a specific meaning to a skilled artisan. Thus, the court is left to examine the words'

usage in disputed Claim 26, as well as the other claims in which the term appears. When interpreting

the term in light of the specification, the court finds that AT&T' s proposed definition is the most
consistent with the term's usage throughout the claims. Although Intellectual Ventures insists that the

specification's consistent use of Telco and telephone company indicate that the network must be
operated by the phone company, the court does not find the language of the claims so requires. There
is no indication that the term's use is tied to the company providing telephone services. The claim

language is broader than that; clearly, the patentee knew how to describe networks operated by a Telco
in words that were clear. References in the specification, using different combinations

of words, to

such anangement are numerous. Thus, the patentee's choice of language must be given weight.

The court concludes that "telephone Internet service provider network" is construed to mean

"a portion of an available public switched telephone network allowing a customer to access an

Internet service provider."

65

49. "internetwork addresses"
50. "assigned addresses"

The parties largely agree on the construction ofthese two terms, but disagree as to whether the

construction should contain the limitation "public wide area" or if the data internetwork is of a more
generic variety. Unsurprisingly, AT&T argues for the narrowing limitation and Intellectual Ventures

argues that the term should be given the broader interpretation.
Here, AT&T's argument is persuasive. The court finds that the term "internetwork addresses"

which only appears in the claims, refers only to the previously introduced public wide-area data
network. Claim 14 describes a router providing data processor terminals communication via a public
wide area data network. The very next clause describes administering addressesfor communications

of the terminals, which, according to the previous clause, occurs via the public wide area data
internetwork. Therefore, a person of skill in the art would understand that those addresses would

necessarilybeaddresses on the public wide area data internetwork. Without those addresses, according
to the patent's specification, communication on the public wide area data internetwork could not occur.
The court concludes that "internetwork addresses" is construed to mean "numbers that

identify entities on the public wide area data internetwork." The court further concludes that
"assigned addresses" is construed to mean "numbers that identify entities on the public wide area

data internetwork."

51. "splitting means (subscriber premises)"

The parties agree that the "splitting means" in the subscriber premises is a means-plus-function

term, and that a "passive ifiter" or a "POTS9 splitter" are required structures for performing the
function. The parties' only dispute over this term's construction is whether the passive filter or POTS

splitter performing the function is located in the ADSL Terminal Unit (ATU-R).
Intellectual Ventures argues that the claim language does not require the splitting means to be
located in any particular location. Intellectual Ventures further argues that the passive ifiter and POTS

splitter are the actual disclosed structures that perform the claimed function, but their location is not
functional. Intellectual Ventures stresses that "the structure corresponding to a means-plus-function

element is

only

that structure that is necessaiy for the performance of the claimed function."

(Intellectual Ventures's emphasis, citingAcromed Corp.

v.

SofamorDanek Group, Inc., 253 F. 3d 1371,

1382 (Fed. Cir. 2001)).

Although Intellectual Ventures correctly cites Federal Circuit guidance on the issue, AT&T

correctly points out that Intellectual Ventures's argument misses one key element: the parties agree
that the function includes "data signals connected to said data terminals" and "telephony signals

connected to said telephone signals." The ATU-R is the only disclosed structure in the specification
that performs this essential part of the function. Indeed, certain structures that are part of the ATU-R

that Intellectual Ventures argues do not perform the claimed function are actually essential to the

function's performance. Although Intellectual Ventures is correct that the proper structure includes
only what is necessary to perform the claimed function, there is no inverse requirement that the
The initialism "POTS" is not defined in the specification or by the parties in their briefing.
The court assumes without deciding that POTS is a term of art that would be understood by a person
of ordinary skill in the art.
67

corresponding structure perform only the claimed function. See Engineered Prods. Co.

v.

Donaldson

Co., 147 F. App'x 979, 985 (Fed. Cir. 2005). Additionally, Intellectual Ventures incorrectly applies

general claim construction principles to a means-plus-function element. The fact that the specification

references the location of the POTS splitter and passive filter in what would typically be an expression

of the preferred embodiment does not carry the day here. It is well-settled law that the structure for
a means-plus-function claim element must be disclosed in the specification. Therefore, the patentee is

limited by the structures disclosed and linked to performing the claimed function.
The court concludes that the subscriber premises "splitting means" is construed as follows: the

function is "splitting signals received over said local loops into data signals connected to said data

terminals and telephony signals connected to said telephone terminals." The corresponding
structure is: "a passive filter or a POTS splitter located in a remote ADSL Terminal Unit (ATU-

R)."

52. "splitting means (central office switching system)"

The second splitting means term in Claim

1

of the '182 Patent is at the central office switching

system. The parties agree that the claimed function is "splitting signals received over said local loops
into data signals and telephony signals" and is located at the central office switching system. The

parties dispute whether the claim is indefinite. AT&T argues that the specification fails to disclose

structure corresponding to the claimed function. Intellectual Ventures argues that the corresponding
structure is the previously discussed passive filter or POTS splitter.
After a thorough review of the patent's specification, the court concludes that the structure for
performing the claimed function at the central office switching system is simply not disclosed anywhere

in the body of the patent. The court rejects Intellectual Ventures's attempts to rely on what a person

of ordinary skill would infer from the specification and the knowledge that person would bring to the
art. So too does the court reject arguments in reference to the prosecution history. While those

sources guide the court in interpreting the specification and supporting the linkage between the function
and structure, they are no substitute for the requirement that corresponding structure must be linked

to the claimed function and disclosed in the specification. See Default Proof Credit Card Sys., Inc.

v.

HomeDepot US.A., Inc., 412 F.3d 1291, 1302 (Fed. Cir. 2005) ("[T]he specificationmust nonetheless
disclose some structure. Stated differently, the testimony of one of ordinary skill in the art cannot

supplant the total absence of structure from the specification.")

The court concludes that, due to the total lack of disclosure of structure corresponding to the
central office splitting means claim limitation, the claim term is indefinite.

53. "processor means"

The parties agree that this term is a means-plus-function claim and must be construed as such.
The parties further agree on the function. The parties disagree, however, on the corresponding

structure for "processor means." AT&T argues that the term is indefinite whereas Intellectual Ventures
argues that the claimed functions are performed by an ethernet switch, a router, a DNS1° server, and
a DHCP server.

AT&T posits several reasons why the processor means term is indefinite. First, AT&T argues

that Cardiac Pacemakers, Inc.

v. St.

Jude Med., Inc. compels the court to find that when a single

structure is claimed for performing multiple recited functions, a single structure must be disclosed and
10

The initialism "DNS" stands for "Domain Name System."

clearly linked to all recited functions. 296 F.3d 1106, 1114-15 (Fed. Cir. 2002). The court finds that

AT&T' s arguments overreach both the rule of that case and the facts present here. In Cardiac

Pacemakers, the Federal Circuit stressed that "the language of the claim compels the conclusion that
the same means must perform both function." Id. at 1115. A close examination of the claim language
at issue here reveals no such conclusion. Despite AT&T's argument to the contrary, the court does

not read the "processor means" recited in the claims as limited to a single structure. The claim simply
recites "processor means," not "a processor means" or "the processor means." Thus, the court finds

that there may be one processor means or more than one processor means; both would be subsumed
under the claimed "processor means."
The claim language here can be further distinguished from Cardiac Pacemakers. Here, the

"a means

claim language essentially refers to

for doing X and Y'

.

. .

one means for performing

function X and one (potentially different) means for performing function Y. Id. (capitalization altered
from original) (citing Medtronic, Inc.
(Fed. Cir. 2001) and "noting that.

.

.

v.

Advanced Cardiovascular Sys., Inc., 248 F. 3d 1303, 1313

a single function may be performed by two structures, but that

there must be a clear link between the claimed function and the corresponding structure."). In fact, the
claim language here is even stronger than the hypothetical raised by the Federal Circuit. Instead of"a

means for doing X and Y," here we have simply "means for doing X and Y." Thus, the court cannot
conclude that the language of the claim clearly compels a single structure to perform all recited
functions.
The court further rejects AT&T' s arguments that Intellectual Ventures's proposed structures
are not clearly linked to the recited functions. The court finds ample support in the specification for

70

each aspect of the agreed-upon functions and concludes that there is enough description to "clearly
link" the structures to the recited functions

of the "processor means."

Finally, AT&T argues that "processor means" is indefinite because the specification fails to

disclose a sufficient algorithm for performing all the recited functions. The court concludes that this
argument also fails. AT&T cites Aristocrat Techs. Austi. Pty LTD.

v.

mt '1 Game Tech. for this

argument. 521 F.3d 1328, 1336-37 (Fed. Cir. 2008). Here, however, the court does not read the

claim's usage of "processor means" to be analogous to a generic computer or microprocessor. The

court instead understands the term more generically: something that processes. A thorough reading

of the claim language in light of the specification's disclosure convinces the court that the usage of
"processor means" in this set of claims does not trigger the requirement of algorithmic disclosure
compelled by Aristocrat Techs. and argued by AT&T.

The court therefore concludes that "processor means" is not indefmite. The court further
concludes that "processor means" is construed as follows: the functions are "switching, addressing

and routing data signals received by said processor means from said central office splitting
means (Claim 1); providing dynamic handling of addresses for data signals from said central
office splitting means corresponding to signals from one of said local loops directed to said data

internetwork (Claim 1); provides to customer premises data terminals dynamic assignment of
temporary internetwork addresses and domain name to internetwork address translations
(Claim 3);

providing connectivity to said Internet service providers (Claim 4)"

The

corresponding structure is: "an Ethernet switch, a router, a DNS server and a DHCP server."

71

54. "telephony switch means"

Claim 1 of the '182 Patent recites a "telephony switch means included with said central office
switching system." The parties agree that there is no recited function for the telephony switch means
and neither party contends that it is a means-plus-function term.

AT&T argues that the only telephony switch disclosed in the specification in the central office
switching system is a "POTS voice switch" and that the prosecution history confirms that this is the

telephony switch of the claims.
Intellectual Ventures first directs the court to extrinsic evidence for support of "IV's ordinary
meaning construction." Intellectual Ventures also argues that AT&T seeks to rewrite the claim to limit
it to a preferred embodiment. Intellectual Ventures further argues that the prosecution history shows

that the patentee actually characterized telephony switches as a "broad class" with several exemplars.
Finally, Intellectual Ventures contends that prior art shows that a "telephony switch" was a known

category of devices that was not limited to POTS or PSTN11 switches.
Here, the court finds that the claim language, read in light of the specification and prosecution

history, compels AT&T's construction. The court finds the statements in the prosecution history, and

the changes made to the specification to overcome rejection, inform the court ofthe patentee's intended
meaning of the term. CVI/Beta Ventures, Inc.

v.

Tura LP, 112 F.3d 1146, 1158 (Fed. Cir. 1997)

("[T]hrough statements made during prosecution.

. .

an Applicant for a patent.

. .

may commit to a

particular meaning for a patent term, which meaning is then binding in litigation.")
The court concludes that "telephony switch means" is construed to mean "POTS or PSTN

switch."
The initialism "PSTN" stands for "public switched telephone network."
72

55.

"approximate(s)"

56.

"approximation"
The disputed claim term at issue here can best be understood in context of a simplified reading

of the surrounding claim language of one exemplar claim. Disputed Claim 1 of the '410 Patent recites
"providing.

. .

[a]

.

.

.

[first] value.

. .

that approximates.

value." The claim further recites "establishing a

. .

.

link

. .

. . .

[a]

. . .

corresponding.

using the

. . .

.

[first] value

.

[second]
. . .

as an

approximation of the [second] value." (emphasis added).
The court has considered both parties arguments regarding this term and finds them largely
unhelpful. AT&T seeks an unworkably narrow construction and Intellectual Ventures seeks to define

the term in an exceedingly broad fashion that the court finds unsupported in the intrinsic record. Many
pages ofbriefing and minutes of argument were expended by both parties in an attempt to define a verb
(and derivative noun) that the court ultimately finds easy to understand within the context ofthe entire

patent and a normal understanding of the English language.

Interpreting the claim language in light of the specification's four areas disclosing different
embodiments for establishing predetermined parameter values, the court rejects both parties'

constructions and instead provides its own construction which better captures the plain and ordinary
meaning of the claim language when informed by the entire specification. Furthermore, the court
believes that it is impossible to construe only the words approximate(s) and approximation without

construing them in context of their surrounding phrase.

After a thorough analysis ofthe claim language interpreted in light ofthe specification, the court
concludes that in Claim 1, the phrase "that approximates at least one corresponding actual parameter
value

of the communication link"

is construed to mean "that comes close enough to

73

at least one

corresponding actual parameter value of the communication link as to allow operation of said
communication link." The court further concludes that in Claim 1, the phrase "an approximation of
the at least one actual parameter value ofthe communication link to allow the multicarrier transmission
system to transmit data between the transceivers at the first data rate" is construed to mean "a value

that comes close enough to the at least one actual parameter value of the conununication link
as to allow the multicarrier transmission system to transmit data between the transceivers at the

first data rate."
The court further concludes that in Claim 2, the phrase "that approximate a plurality of actual

parameter values" is construed to mean "that come close enough to a plurality of actual parameter

values of the communication link as to allow operation of said communication link."
The court further concludes that in Claim 14, the phrase "that approximates a corresponding

actual parameter value ofthe communication link" is construed to mean "that comes close enough to
a corresponding actual parameter value of the communication link as to allow operation of said

communication link." The court further concludes that in Claim 14, the phrase "an approximation

of the actual parameter value of the communication link to allow the multicarrier transmission system
to transmit data between transceivers at the first data rate" is construed to mean "a value that comes
close enough to the actual parameter value of the communication link as to allow the

multicarrier transmission system to transmit data between the transceivers at the first data
rate."
The court further concludes that in Claim 77, the phrase "that approximates a corresponding

actual second bit allocation table, having an associated second data rate, of the communication link"
is construed to mean "that comes close enough to a corresponding
74

actual second bit allocation

table, having an associated second data rate, of the communication link as to allow operation of
said communication link."

The court further concludes that in Claim 77, the phrase "an

approximation of the actual second bit allocation table of the communication link to allow the
multicarrier transmission system to transmit data between transceivers at the first data rate" is construed

to mean "a value that comes close enough to the actual second bit allocation table of the

communication link as to allow the multicarrier transmission system to transmit data between
transceivers at the first data rate."
The court further concludes that in Claim 78, the phrase "that approximates a corresponding

actual second bit allocation table, having an associated second data rate, of the communication link"
is construed to mean

"that comes close enough to a corresponding actual second bit allocation

table, having an associated second data rate, of the communication link as to allow operation of
said communication link."

The court further concludes that in Claim 78, the phrase "an

approximation of the actual second bit allocation table of the communication link to allow the
multicarrier transmission system to transmit data between transceivers at the first data rate" is construed

to mean "a value that comes close enough to the actual second bit allocation table of the

communication link as to allow the multicarrier transmission system to transmit data between

transceivers at the first data rate."

57. "actual parameter value" I "actual.

. .

bit allocation table"

The parties do not dispute the meaning of "parameter value" or "bit allocation table." Instead,

they disagree about the limitations that should be applied to the "actual parameter value" and "actual
bit allocation table," terms that are used frequently in the claims and specification. Although both
75

parties cite the court to multiple paragraphs in the specification, Intellectual Ventures argues that

AT&T tries to apply too narrow a construction, and one that is not true to the specification.
Conversely, AT&T argues that Intellectual Ventures's construction completely excludes one disclosed

embodiment and is also not faithful to the specification.
The court finds that the specification, when read in light of the claims, sheds ample light on the

meaning of these claim terms, and that meaning lies in between each parties' proposed construction.

The actual value/allocation table is thoroughly described in the specification and the purpose and

method for arriving at such is clearly explained. The specification frequently refers to the actual

parameter being "optimized" or providing a "optimized" data rate. It is clear that such value is arrived
at through measuring or analyzing the communications while they are occurring in order to seamlessly

arrive at an optimal data rate.
The court concludes that "actual parameter value" is construed to mean "parameter value of

the communication link determined by measurement, analysis, or both, such determination
occurring during data communications, said value corresponding to the optimal data rate for
the required bit error rate of the system." The court further construes "actual.

. .

bit allocation

table" to mean "bit allocation table determined by measurement, analysis, or both, such

determination occurring during data communications, said table corresponding to the optimal

data rate for the required bit error rate of the system."

76

58. "wherein the step

of determining each of the plurality of actual parameter values

is attained

iteratively in a manner wherein at least one actual parameter value is determined in each iteration"

AT&T proposes a construction for this claim phrase that incorporates a "using" step where
"each parameter value is used upon determination." Intellectual Ventures contends that this additional
language is not only not necessary, it violates claim construction tenants by introducing into the claim
an action where none previously existed. Furthermore, Intellectual Ventures argues that AT&T's

support for its construction comes from a preferred embodiment which should not limit the claim
language.

Intellectual Ventures provides a proposed definition for the words "iteration" and

"iteratively" in case "some lay jurors may not know what" those terms mean.
The court agrees with Intellectual Ventures with regard to the fact that the claim phrase is

straightforward and does not use technical terms of art. The court does not find sufficient support in
the specification to justify AT&T's additional limitations. The additional language is simply not part

of the claim itself

is not required by the

specificationwith the exception of an example which is a

preferred embodimentand its inclusion in this court's construction would violate sound claimconstruction principles.
The court concludes that "wherein the step of determining each of the plurality of actual

parameter values is attained iteratively in a manner wherein at least one actual parameter value is
determined in each iteration" is to be given its plain and ordinary meaning with no additional
construction required.

77

59. "flag" / "flag signal"

The parties' arguments regarding the '410 Patent's "flag" terms are the same as their arguments

for the same term in the '928 Patent family and the '473 Patent family. For substantially the reasons
as previously stated, the court construes "flag" and "flag signal" to mean "signal."

60. "variable state length initialization"

The parties' disagreement over this claim phrase can be summed up succinctly: is the correct
subject noun in the term "variable state length initialization" "state," as Intellectual Ventures proposes,

or "initialization" as AT&T proposes? Despite the parties' arguments directing the court to various
points in the specification and attempting to explain the parties' opposed views of the meaning of the

patents, the court need look no further than the abstract of the patent to define the term. Reading the
claims in light

of the entire specification, of which the Abstract is part, the court can easily determine

that the claims, and indeed the entire patents, are directed at "variable state length initialization, through

which transceivers "can have control of the length of one or more initialization states."

The

specification and claims abundantly supports this simple statement, which concisely defines what a
variable state length initialization is in the context of the patent.

The court therefore concludes that "variable state length initialization" is construed to mean

"initialization through which transceivers can change the length of one or more initialization
states."

61. "message includes 1a1the selected number of multicarrier symbols"

Because the court finds the immediately following "cooperation" and "cooperatively" terms
indefinite, the court declines to construe this disputed term.

62. "a transmitter configured to cooperatively perform a variable state length initialization with a

receiver"
63. "the transmitter is further configured to determine the selected number of multicarrier symbols in

cooperation with the receiver"
64. "selecting a number of multicarrier symbols by a transmitter of the multicarrier communication

system in cooperation with a receiver of the multicarrier communication system as a part of a variable
state length initialization of the transmitter and the receiver"

AT&T argues that this group of terms is indefinite because the "cooperatively" and

"cooperation" limitations have unclear scope. Intellectual Ventures contends that the terms should be
given their plain and ordinary meaning and provides an alternative construction for

cooperation/cooperatively as "work together."
The court agrees with AT&T' s characterization of Intellectual Ventures's arguments which
identify one broad category of embodiments as "cooperative" and the other one as "non-cooperative."

To the court, the distinctions that Intellectual Ventures argue seem arbitrary and counterintuitive to a
normal understanding ofthe word cooperative. This is further exacerbated by the complete lack of any

support in the specification for the distinction as argued by Intellectual Ventures. In fact, the court
finds that Intellectual Ventures's convoluted argument in some ways actually supports AT&T' s position

that a person of skifi in the art would not be informed, with reasonable certainty, of the contours of
79

those claims that use "cooperative" or "cooperatively." The court can find no clear distinction in the
specification or the surrounding claim language that gives a clue about when transceivers work
cooperatively and when they don't. In a broad sense, and using Intellectual Ventures's alternative

construction as an example, any part of a system that is conceived to "work together" can be said to
perform a task cooperatively. Without further support in the specification that distinguishes the
disputed claim's cooperation from the prior art specifically, and cooperative systems generally, the
court camiot conclude that this term, read in light of the specification and prosecution history, inform,
with reasonable certainty, one skilled in the art about the scope of the claim. Nautilus, 134 S. Ct. at
2124.
The court concludes that the disputed claim terms containing "cooperatively" and "cooperation"

are indefinite.

65. [Preamble to Claims 4, 7,13, 161

66. [Preamble to Claims 2,

31

of '068 Patent

of '171 Patent

AT&T argues that the preambles of several disputed claims in the '068 and '171 patent are
limiting because the preamble (identical in each disputed claim) provides an antecedent basis for terms
in the body of the claim and was used by the patentee to distinguish the claims over prior art during

prosecution. Intellectual Ventures argues that the patentee did not rely on the preamble ofthe disputed
claim to distinguish prior art. Intellectual Ventures further argues that the preambles do not provide

an antecedent basis required for the remainder ofthe claim. Finally, Intellectual Ventures contends that

the repeated reference to "variable state length initialization" do not render the preamble limiting.
The court flatly disagrees with Intellectual Ventures's argument that the preamble phrase "in

a multicarrier transceiver" does not provide antecedent basis to the claim's later step of "transmitting

to a second multicarrier transceiver." Without the former, the latter holds no clear meaning. The court
finds, at a minimum, that the claims rely on the preamble for antecedent basis and the preamble is

"necessary to give life, meaning, and vitality" to the claim.

Catalina Mktg. Int'l, Inc.

v.

Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002).

The court therefore concludes that the preamble to Claims 4, 7, 13, 16 of the '068 Patent and
Claims 2 and

3

of the '171 Patent are limiting.

F;"

C.

Summary Table of Adopted Agreed and Disputed Constructions

Term; Patent - Claim

Adopted Construction

"bit allocation table"

table that indicates for all subchannels of a multicarrier signal,
the number of bits to be encoded on each subchannel

'735-Claims

1, 9, 10

"developing a second bit allocation
table"

'735-Claim

forming or updating a second bit allocation table that is nonduplicative of the first bit allocation table

1

grouping of bits to be modulated into a DMT symbol and/or
demodulated from a DMT symbol

"frame"

'735-Claim 10
'532-Claims 4, 6, 8, 9,

11

". a method for modulation bits
.

.

onto subchannels.

."

typo; should read:
subchannels...

. . .

a method for modulating bits onto

'735-Claim 1

changing, during data Itransmission/receptionl and not during

"seamlessly changing"

initialization,
"seamlessly transitioning"
"seamlessly transition"
"seamless transition"

'808-Claims

1, 3, 7, 10,

40, 109

'473-Claims 42, 57
'991-Claims 9, 12, 13, 18

'928-Claims 1, 2, 3, 5, 6, 7
'601-Claims 17, 19, 21, 23

without

an

[transmissionlreceptionl of data

interruption in the

Term; Patent - Claim

Adopted Construction

"seamlessly changes"

changes, during data [transmissionlreceptionl and not during

initialization, without

an

interruption in the

'808-Claims 40, 109

Itransmission/receptionl of data

"seamlessly entering"

entering, during data [transmissionlreception] and not during

initialization, without an interruption in the
'473-Claims 32, 37, 42, 57, 366,
372

Itransmission/receptionl of data

"second transmission bit rate"

second bit rate used to transnnt bits different from the first bit

rate
'808-Claims 1, 3, 5, 40, 41

"second reception bit rate"

second bit rate used to receive bits different from the first bit rate

'808-Claims 7, 10, 109

"second data rate"

second data rate used to transmit or receive data different from

the first data rate
'473-Claims 32, 37, 366, 372

'601-Claim 6

"second bit rate"

second bit rate used to transmit or receive data different from the
first bit rate

'473-Claims 42, 57
'991-Claims 9, 12, 13, 18

"frame"

'928-Claims 2, 6

'601-Claim 16

grouping of bits to be modulated into a DMT symbol and/or
demodulated from a DMT symbol

Term; Patent - Claim

Adopted Construction

"codeword"

R-S codeword, which includes overhead framing bytes, user data
bytes, and Reed-Solomon FEC check bytes

'808-Claims 1, 3, 4, 5, 7, 8, 10,
40, 41, 109

'473-Claims 32, 37, 42, 57, 366,
372
'991-Claims 9, 12, 13, 18
'928-Claims

1, 2, 3, 5, 6, 7

'175-Claims 1,7
'601-Claims

6,7,9,

11, 17,21

table that indicates for all subchannels of a multicarrier signal,
the number of bits to be encoded on each subchannel

"bit allocation table"

"Bit Allocation Table"

'808-Claims 1, 3, 5, 7, 10, 19, 20,
41, 43, 109

'473-Claims 32, 35, 37, 40, 42,
50, 57, 366, 367, 372, 373
'991-Claims 9, 12, 13, 18

'601-Claim 13

.transmitting
codewords.
.

'991-Claims 9, 12

the

plurality

typo; should read:

. .

.transniitting the plurality of codewords...

Term; Patent - Claim
". .receiving

the

.

Adopted Construction

plurality

typo; should read: ...receiving the plurality of codewords...

codewords..."
'991-Claims 13, 18
"inverted synch symbol"

typo; should read: inverted sync symbol

'928-Claim 6
[Preambles various of claims]

preambles are limitations

'175-Claims 1, 7
'991-Claims 9, 12, 13, 18
'473-Claims 32, 37, 42, 57, 366,
372

"In a multicarrier a transceiver.

.

."

a typo; should read: In a multicarrier transceiver...

'928-Claims 1, 5
"first and second parameter sets
defining data communications over
said channels"

first and second parameter sets, each of which defmes data
communications over both the upstream and downstream
channels

'348-Claims 47, 49, 52

twisted pair or copper, telephone wires

"subscriber loops"
"subscriber ioop"

'912-Claims 2,

3

[Preamble of Claim

'912-Claim

1

1]

Preamble is a limitation

Term; Patent - Claim

Adopted Construction

"Internet address"

a number that identifies an entity on the Internet

'548-Claim 26

"Internetwork addresses"

numbers that identify entities on the data internetwork

'182-Claim 3
"local ioops"

twisted pair or copper, telephone wires

"subscriber lines"

'182-Claim

1

'182-Claim 14

"said Internet service providers
providing selective connection to
information providers via said
Internet subscriber lines"

said Internet service providers transferring data between users
and information providers

'182-Claim 4
"domain name server means"

a server that translates domain names (e.g., www.yahoo.com)
into an internet address (e.g., 164.109.211.239)

'182-Claim 2

"second data rate"
'410-Claims 1, 12, 14, 77, 78

'876-Claim

1

second data rate used to transmit or receive data different from
the first data ratebytes, and Reed-Solomon FEC check bytes

Term; Patent - Claim

Adopted Construction

"codeword"

R-S codeword, which includes overhead framing bytes, user data
bytes, and Reed-Solomon FEC check bytes

'410-Claims 12, 14, 77, 78

'876-Claim

1

"bit allocation table"

table that indicates for all subchannels of a multicarrier signal,
the number of bits to be encoded on each subchannel

'410-Claims 14, 77, 78

'876-Claim

1

"seamless change"

change, during data [transmission / reception], without an
interruption in the [transmission / reception] of data

'410-Claims 12, 14, 77, 78

'876-Claim

1

The revised construction of "seamless[ly] change / adapting" in
the '410 and '876 Patents does not cover changing the data rate
by restarting the initialization process.
The phrase "the [transmission / reception] of data" in the revised
construction refers to user data, as opposed to data used only for
the purpose of initialization.

"seamlessly adapting"

changing, during data [transmission / reception], without an
interruption in the [transmission / reception] of data

'410-Claims 12, 14, 77, 78

'876-Claim

1

The revised construction of "seamiess[lyJ change / adapting" in
the '410 and '876 Patents does not cover changing the data rate
by restarting the initialization process.
The phrase "the [transmission / reception] of data" in the revised
construction refers to user data, as opposed to data used only for
the purpose of initialization.

Term; Patent - Claim

1.

Adopted Construction

transceiver that operates by dividing available bandwidth
between two channels in at least two of the following ways: (1)
where the first channel is smaller than the second ("conventional
ADSL" mode); (2) where the two channels are of "roughly" equal
size ("bi-directional" mode); and (3) where the first channel is
larger than the second ("reversible" mode)

"transceiver"

'695-Claim 20

2. "DSL modem or line-card"

transceiver that operates by dividing available bandwidth
between two channels in at least two of the following ways: (1)
where the first channel is smaller than the second ("conventional
ADSL" mode); (2) where the two channels are of "roughly" equal
size ("bi-directional" mode); and (3) where the first channel is
larger than the second ("reversible" mode)

'636-Claims 52, 75

3. "available operation modes"

at least two of the following three modes characterizing
bandwidth allocation between first and second channels: (1)
where the first channel is smaller than the second ("conventional
ADSL" mode); (2) where the two channels are of "roughly" equal
size ("bi-directional" mode); and (3) where the first channel is
larger than the second ("reversible" mode)

'695-Claim 20

"at least two asymmetrical
digital subscriber line ADSL
modes"
4.

at least a "conventional ADSL" mode where the bandwidth
allocation of the first channel is smaller than the second channel,
and a "reversible" mode where the bandwidth allocation of the
first channel is larger than the second channel

"said at least two ADSL operation
modes"

'695-Claim 20

"allocation of bits
subchannels"
5.

to

indication of the number of bits to be encoded to subchannels of
a multicarrier signal

"allocation of bits"
'532-Claims 4, 6-12

1'L'J
[SI.,

Term; Patent - Claim

Adopted Construction

6. "storing the first and second bit

[plain and ordinary meaning]

allocation tables at each of the
communication units"

'735-Claim

1

7. "select a first allocation of bits

[plam and ordinary meaning]

to subchannels"

'532-Claim 4

response to receipt
other
transceiver, a second allocation of
bits to subchannels"
8. "select, in

[plain and ordinary meaning]

of a flag from the

'532-Claim 4

9. "selecting, by the transceiver, a
different allocation of bits to
subchannels"

[plain and ordinary meaning]

'532-Claims 6, 9

signal

10. "flag"

'735-Claims 9, 10

signal

11. "flag"

'532-Claims 4, 6, 8, 9,

11

Term; Patent - Claim

Adopted Construction

12. [entire claim]

[not limited to order in which they are recited]

'735-Claims 1, 9, 10
13. [entire claim]

[not limited to order in which they are recited]

'532-Claims 4, 6, 9

"changing transmission
parameters"
14.

changing Isubchannelll parameters to adapt the rate for
transmitting data

"changing subchannel transmission
parameters"

'928-Claim

1

'175-Claim

1

1

5.

"changing

reception

parameters"

changing [subchannel] parameters to adapt the rate for receiving

data

"changing subchannel reception
parameters"

'928-Claim 5
'175-Claim 7

"change at least
transmission parameter"
16.

'928-Claim

1

one

change at least one parameter to adapt the rate for transmitting

data

Term; Patent - Claim

Adopted Construction

17. "change at least one reception

change at least one parameter to adapt the rate for receiving data

parameter"
'928-Claim 5

18.
"change in subchannel
transmission parameters"

change in subchannel parameters to adapt the rate for

transmitting data

'175-Claims 1,3

"change in subchannel
reception parameters"
19.

change in subchannel parameters to adapt the rate for receiving

data

'175-Claim 9

20. "transition, during the data
communications, from reception of
a plurality of codewords at the
first data rate to reception of the
plurality of codewords at the
second data rate"

[plain and ordinary meaning]

'601-Claim 6

21. "transition to use of the new
bit rate"

[plain and ordinary meaning]

'601-Claim 11

22. "transition to use of the new

[plain and ordinary meaning]

data rate"
'601-Claim 16

91

Term; Patent - Claim

Adopted Construction

23. "ADSL frame"

unit of data at the framing layer including overhead framing
bytes, user data bytes, and Reed-Solomon check bytes in an
Asymmetric Digital Subscriber Line (ADSL) system

'473-Claims 32, 37
'175-Claims

1, 7

24. "frame size"

'928-Claims 3, 7

number of bytes in a unit of data at the framing layer including
overhead framing bytes, user data bytes, and Reed-Solomon
check bytes in a system that utilizes multicarrier modulation

'601-Claims 9, 11, 19,23

25. "full power mode"

power mode that is used during normal operations of the
transceiver and that is not a low power mode

'473-Claims 32, 37, 366, 372
26. "flag"

signal

"flag signal"

'473-Claims 32, 37, 43, 50, 58,
366, 372
'991-Claims 12, 18

27. "storing at least first and
second parameter sets"

Iplain and ordinary meaning]

'348-Claims 47, 49, 52

28. "selecting a parameter set"

selecting one of the previously stored at least first and second
parameter sets

'348-Claims 47, 49, 52

92

Term; Patent - Claim

Adopted Construction

"a signal that identifies the
parameter set to be selected"

a signal that identifies one of the previously stored parameter sets
to be selected

29.

'348-Claims 47, 49

30. "wire line"

[plain and ordinary meaning]

'348-Claims 47, 49, 52

31. [entire claim]

[steps are limited to the order in which they are recited]

'348-Claims 47, 49, 52

32. "a mechanism by which the
subscriber selects one or more
sources ofvideo information to be

provided to the subscriber's
individual subscriber loop"

The function is:

subscriber selects one or more sources of video information to be
provided to the subscriber's individual subscriber loop
The corresponding structure is:

'912-Claim 3
a circuit including a voltage controlled oscillator (350, 545) that
outputs a local oscillator frequency, based on a channel change
control signal from a subscriber, to a mixer (530) for frequency
shifting a composite FDM spectrum so that the frequency of a
desired video channel is shifted into a passband of a subscriber

filter
33. "a source side interface unit of

[plain and ordinary meaning]

each pair being located relatively
closer to a source of video
information than a subscriber side
interface unit"

'912-Claim

1

93

Term; Patent - Claim

Adopted Construction

34. [Claim preamble]

[preamble is not a limitation]

'912-Claim 2

35.

"assigning a temporary
Internet address to the requesting
entity"

assigning a temporary Internet address to the requesting entity,
the temporary Internet address determined by a DHCP server
based on a MAC address or other computer identifier, a
customer login, and a password

'548-Claim 26

36. "dynamic host configuration
protocol server means"
'1 82-Claim 2

37. "providing dynamic handling

of addresses"
'182-Claim

38.

a dynamic host configuration protocol (DHCP) server

that

assigns an internetwork address to a requesting entity, the
internetwork address determined by a DHCP server based on a
MAC address or other computer identifier, a customer login, and
a password

dynamically providing addresses to a requesting entity, each
address determined by a DHCP server based on a MAC address
or other computer identifier, a customer login, and a password.

1

"dynamically administer

internetwork

addresses

for
of the data

communications
processor terminals"

dynamically provide internetwork addresses to data processor
terminals, each internetwork address determined by a DHCP
server based on a MAC address or other computer identifier, a
customer login, and a password

'182-Claim 14

39.
"provides to customer
premises data terminals dynamic

assignment

of temporary

internetwork addresses"
'182-Claim 3

dynamically assign temporary internetwork addresses to
customer premises data terminals, each temporary internetwork
address determined by a DHCP server based on a MAC address
or other computer identifier, a customer login, and a password

Term; Patent - Claim

Adopted Construction

40. "providing dynamic temporary
assignment of one of a plurality of

dynamically providing temporary assignment of one of a
plurality of internetwork addresses, the internetwork address
determined by a DHCP server based on a MAC address or other
computer identifier, a customer login, and a password

internetwork addresses"
'182-Claim 15

41. "routing data signals. from
said central office splitting means"
.

'182-Claim

.

[plain and ordinary meaning]

1

"a router
to provide
packet switched communications
for the data processor terminals
via a public wide area data
intemetwork"
42.

.

.

.

[plain and ordinary meaning]

'182-Claim 14

43. "customer premises processor
terminal"

customer premises computer

'548-Claim 26

44. "the requesting entity"

customer premises computer

'548-Claim 26

45.

"Internet

connected

Internet connected information provider

information service provider"

'548-Claim 26

95

Term; Patent - Claim

Adopted Construction

46.
"said Internet connected
service provider"

Internet connected information provider

'548-Claim 26

47. "asymmetric digital subscriber
line (ADSL)"

[plain and ordinary meaning]

'548-Claim 26

"telephone Internet service
provider network"
48.

a portion of an available public switched telephone network
allowing a customer to access an Internet service provider

'548-Claim 26

49. "internetwork addresses"

numbers that identify entities on the public wide area data
internetwork

'182-Claims 14, 15

50. "assigned addresses"

numbers that identify entities on the public wide area data
internetwork

'182-Claim 16

51. "splitting means (subscriber
premises)"
'1 82-Claim

1

The function is:

splitting signals received over said local loops into data signals
connected to said data terminals and telephony signals connected
to said telephone terminals
The structure is:

a passive filter or a POTS splitter located in a remote ADSL
Terminal Unit (ATU-R)

Term; Patent - Claim

Adopted Construction

52. "splitting means (central office

[indefinite]

switching system)"

'182-Claim

1

53. "processor means"

182-Claims 1, 2, 3, 4

The functions are:

"switching, addressing and routing data signals received by said
processor means from said central office splitting means (Claim
1); providing dynamic handling of addresses for data signals
from said central office splitting means corresponding to signals
from one of said local loops directed to said data internetwork
(Claim 1); provides to customer premises data terminals dynamic
assignment of temporary internetwork addresses and domain
name to internetwork address translations (Claim 3); providing
connectivity to said Internet service providers (Claim 4)
The structure is:

an Ethernet switch, a router, a DNS server and a DHCP server
54. "telephony switch means"

'182-Claim

POTS or PSTN switch

1

97

Term; Patent - Claim

Adopted Construction

55. "approximate(s)"

Claim 1:
"that approximates at least one corresponding actual parameter value
of the communication link" is construed to mean "that comes close

'410-Claims 1, 2, 14, 77, 78

enough to at least one corresponding actual parameter value of
the communication link as to allow operation of said
communication link"
Claim 2:
"that approximate a plurality of actual parameter values" is construed
to mean "that come close enough to a plurality of actual
parameter values of the communicationlink as to allow operation

of said communication link"
Claim 14:
"that approximates a corresponding actual parameter value of the
communication link" is construed to mean "that comes close enough

to a corresponding actual parameter value of the communication
link as to allow operation of said communication link"
Claim 77:
"that approximates a corresponding actual second bit allocation table,
having an associated second data rate, of the communication link" is
construed to mean "that comes close enough to a corresponding

actual second bit allocation table, having an associated second
data rate, of the communication link as to allow operation of said
communication link."
Claim 78:
"that approximates a corresponding actual second bit allocation table,
having an associated second data rate, of the communication link" is
construed to mean "that comes close enough to a corresponding

actual second bit allocation table, having an associated second
data rate, of the communication link as to allow operation of said
communication link."

Term; Patent - Claim

Adopted Construction

56. "approximation"

Claim 1:
"an approximation of the at least one actual parameter value of the
communication link to allow the multicarrier transmission system to
transmit data between the transceivers at the first data rate" is
construed to mean "a value that comes close enough to the at least
one actual parameter value of the communication link as to allow

'410-Claims

1, 14, 77, 78

the multicarrier transmission system to transmit data between
the transceivers at the first data rate."
Claim 14:
"an approximation of the actual parameter value of the
communication link to allow the multicarrier transmission system to
transmit data between transceivers at the first data rate" is construed
to mean "a value that comes close enough to the actual parameter
value of the communication link as to allow the multicarrier

transmission system to transmit data between the transceivers at
the first data rate."
Claim 77:
"an approximation of the actual second bit allocation table of the
communication link to allow the multicarrier transmission system to
transmit data between transceivers at the first data rate" is construed
to mean "a value that comes close enough to the actual second bit
allocation table of the communication link as to allow the

multicarrier transmission system to transmit data between
transceivers at the first data rate."
Claim 78:
"an approximation of the actual second bit allocation table of the
communication link to allow the multicarrier transmission system to
transmit data between transceivers at the first data rate" is construed
to mean "a value that comes close enough to the actual second bit
allocation table of the communication link as to allow the

multicarrier transmission system to transmit data between
transceivers at the first data rate

Term; Patent - Claim

Adopted Construction

57.
"actual parameter
value"/"actual
bit allocation
table"

parameter value of the communication link determined by
measurement, analysis, or both, such determination occurring
during data communications, said value corresponding to the
optimal data rate for the required bit error rate of the system

.

.

.

'410-Claims 1, 2, 6, 8, 14, 77, 78

bit allocation table determined by measurement, analysis, or
both, such determination occurring during data communications,
said table corresponding to the optimal data rate for the required
bit error rate of the system
"wherein the step of
determining each ofthe plurality of
actual parameter values is attained
iteratively in a manner wherein at
least one actual parameter value is
determined in each iteration"
58.

[plain and ordinary meaningi

'410-Claim 8

59. "flag"

signal

"flag signal"

'410-Claims 14, 77, 78

"variable
initialization"
60.

state

length

initialization through which transceivers can change the length
of one or more initialization states

'068-Claims 4, 7, 13, 16
'171-Claims 2,

3

'545-Claims 5, 6

100

Term; Patent - Claim

Adopted Construction

61. "message includes [althe]
selected number of multicarrier
symbols"

1110

construction]

'545-Claims 5, 6

62. "a transmitter configured to

[indefinite]

cooperatively perform a variable
state length initialization with a
receiver"
'545-Claim 5

63. "the transmitter is further
configured to determine the
selected number of multicarrier
symbols in cooperation with the

[indefiniteJ

receiver"
'545-Claim 5

"selecting a number of
multicarrier symbols by a
transmitter of the multicarrier
64.

communication

system

[indefmitel

in

cooperation with a receiver of the
multicarrier communication system
as a part of a variable state length
initialization of the transmitter and
the receiver"
'545-Claim 6

101

Term; Patent - Claim

Adopted Construction

65. [Preamble]

[preamble is limiting]

'068-Claims 4,7, 13, 16

66. [Preamble]

'171-Claims 2,

[preamble is limiting]
3

102

4.

Conclusion
For the above reasons, the court construes the agreed and disputed claims as noted and so

ORDERS. No further claim terms require construction.

IT IS FURTHER ORDERED that this case is set for a Scheduling Conference on
August 28, 2015, at 2:00 p.m., in Courtroom 7, Seventh Floor, United States Courthouse, 501 W.
5th Street, Austin, Texas 78701. The parties shall meet and confer in advance of that date in an
attempt to settle this case. If the case is not settled, the parties shall confer in an attempt to reach
agreement on a schedule to follow for the remainder of this case. The court will render a
Scheduling Order as a result of the August 28, 2015 conference.
SIGNED this

day of July 2015.

yAIr-/
UNytED STAT(S
LEE

/

(

DIST(RICT JUDGE

103