MicroPairing Technologies LLC v. Toyota Motor Manufacturing Texas Inc.
Filing
66
ORDER. Signed by Judge Xavier Rodriguez. (mgr)
Case 5:21-cv-00940-XR Document 66 Filed 01/05/22 Page 1 of 45
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICROPAIRING TECHNOLOGIES
LLC,
Plaintiff,
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v.
TOYOTA MOTOR MANUFACTURING
TEXAS INC.,
Defendant.
SA-21-CV-00940-XR
ORDER
On this date, the Court considered Plaintiff’s opening claim construction brief (ECF No.
30), Defendant’s responsive claim construction brief (ECF No. 32), Plaintiff’s reply claim
construction brief (ECF No. 34), Defendant’s surreply claim construction brief (ECF No. 38), the
parties’ joint claim construction brief (ECF No. 46), Plaintiff’s notice concerning claim
construction (ECF No. 55), Defendant’s supplemental claim construction brief (ECF No. 56), and
the parties’ oral argument on claim construction (ECF No. 59). After careful consideration, the
Court issues the following order construing thirteen disputed claim terms.
BACKGROUND
On October 28, 2020, Plaintiff MicroPairing Technologies LLC (“MicroPairing”) filed suit
against Defendant Toyota Motor Manufacturing Texas Inc. (“Toyota”) for patent infringement.
ECF No. 1. MicroPairing alleges that Toyota has directly infringed upon its U.S. Patent Nos.
6,629,033 (“‘033 Patent”), 6,778,073 (“‘073 Patent”), 7,793,136 (“‘136 Patent”), 8,380,383 (“‘383
Patent”), 8,953,816 (“‘816 Patent”), 9,697,015 (“‘015 Patent”), and 8,583,292 (“‘292 Patent”). Id.
¶¶ 48, 57, 65, 74, 83, 96, 109. MicroPairing also alleges that Toyota has indirectly infringed upon
its ‘816 and ‘015 Patents. Id. ¶¶ 87, 100.
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MicroPairing’s asserted patents allegedly disclose novel technology, software, and
methods for operating a vehicle’s audio system. See, e.g., id. ¶¶ 10–16. MicroPairing alleges that
Toyota infringes upon one or more of its asserted patents whenever Toyota makes, uses, sells, or
offers to sell a Toyota Tundra or Tacoma with a vehicle audio system called an “infotainment
system.” Id. ¶ 3. MicroPairing, therefore, seeks damages and a judgment against Toyota for
directly and indirectly infringing upon one or more of its asserted patents. Id. at 29–30.
MicroPairing initiated this suit in the Waco Division of the Western District of Texas. See
ECF No. 4. On February 8, 2021, Toyota filed a motion to transfer venue to the San Antonio
Division. ECF No. 24. On October 1, 2021, United States District Judge Alan D. Albright granted
Toyota’s motion to transfer venue, ECF No. 48, and the undersigned was assigned to this case.
On June 4, 2021, MicroPairing filed its opening claim construction brief. ECF No. 30. On
June 25, 2021, Toyota filed its responsive claim construction brief. ECF No. 32. MicroPairing
filed a reply brief, and Toyota filed a surreply brief. ECF Nos. 34, 38. On November 9, 2021,
MicroPairing filed a notice concerning claim construction, and Toyota filed a supplemental claim
construction brief. ECF Nos. 55, 56. On November 16, 2021, the Court held a hearing and heard
argument on the contested claim terms. 1 See ECF No. 59.
DISCUSSION
I.
Legal Standard
Claim construction is a matter of law. Markman v. Westview Instruments, Inc., 517 U.S.
370, 372 (1996). “The purpose of claim construction is to ‘determine the meaning and scope of
the patent claims asserted to be infringed.’” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
521 F.3d 1351, 1360 (Fed. Cir. 2008) (quoting Markman v. Westview Instruments, Inc., 52 F.3d
At the hearing, the Court also heard argument on Toyota’s motion to dismiss, which the Court granted in
part and denied in part. See ECF Nos. 15, 60.
1
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967, 976 (Fed. Cir. 1995) (en banc), aff’d 517 U.S. 370 (1996)). “When the parties present a
fundamental dispute regarding the scope of a claim term, it is the court’s duty to resolve it.” O2,
521 F.3d at 1362; cf. Acumed LLC v. Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007) (“[A]
sound claim construction need not always purge every shred of ambiguity”).
Claim terms “are generally given their ordinary and customary meaning.” Vitronics Corp.
v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The ordinary and customary meaning
of a term “is the meaning that the term would have to a person of ordinary skill in the art in question
at the time of invention[.]” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005). “In some
cases, the ordinary meaning of claim language as understood by a person of skill in the art may be
readily apparent[.]” Id. at 1314. “[C]laim construction in such cases involves little more than the
application of the widely accepted meaning of commonly understood words.” Id. If the ordinary
meaning of claim language is not readily apparent, the Court looks to “the words of the claims
themselves, the remainder of the specification, the prosecution history, and extrinsic evidence[.]”
Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004).
General principles of claim construction also apply to allegations of indefiniteness. HZNO
Medicines LLC v. Actavis Laby’s UT, Inc., 940 F.3d 680, 688 (Fed. Cir. 2019), cert. denied sub
nom. HZNP Fin. Ltd. v. Actavis Laby’s UT, Inc., 141 S. Ct. 662 (2020). “[A] patent is invalid for
indefiniteness if its claims, read in light of the specification delineating the patent, and the
prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope
of the invention.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 901 (2014).
“Indefiniteness must be proven by clear and convincing evidence.” Sonix Tech. Co. v. Publ'ns
Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).
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Although earlier Federal Circuit decisions have stare decisis effect, see Key Pharms. v.
Hercon Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998), the “Court is not obliged to endorse the
constructions adopted in any . . . previous district court opinions construing the patents-in-suit.”
Good Tech. Corp. v. Little Red Wagon Techs., Inc., No. 3:11-CV-02373-M, 2013 WL 4052408, at
*3 (N.D. Tex. Aug. 11, 2013). Thus, notwithstanding previous district court opinions construing
some of the claims and claim terms the parties contest in this case, “stare decisis does not preclude
this Court from an independent analysis” of the same. Kinetic Concepts, Inc. v. Wake Forest Univ.
Health Scis., No. SA-11-CV-163-XR, 2013 WL 6164592, at *3 (W.D. Tex. Nov. 25, 2013) (citing
Maurice Mitchell Innovations, L.P. v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779, at *4
(E.D. Tex. June 21, 2006), aff’d, 249 F. App’x 184 (Fed. Cir. 2007)). Instead, the Court gives
“reasoned deference to the decisions of other district courts” that have construed the claims and
claim terms the parties presently contest. Kinetic, 2013 WL 6164592, at *3.
II.
Analysis
A. Contested Claim Terms
The parties ask the Court to construe thirteen claim terms. 2 The parties’ proposed
constructions for each of the thirteen claim terms establish a fundamental dispute on the scope of
the claim terms. Construction of each disputed claim term is therefore necessary.
1. “application”
The parties submit that the term “application” appears in claims of the asserted ‘033, ‘136,
‘383, ‘816, ‘015, and ‘292 Patents. 3 See ECF No. 30, at 7 n.1; see also ECF No. 32, at 9 n.4.
2
In MicroPairing Technologies LLC v. General Motors LLC, No. 6-20-CV-01002-ADA, the parties asked
the Court to construe the same thirteen claim terms contested herein. There, the court provided its preliminary claim
constructions by email. See ECF No. 55-1. To date, the court has not issued a formal claim construction order.
In identifying the claims in which the disputed term(s) appear, the Court does not include all claims that
incorporate the disputed term(s) through dependency.
3
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MicroPairing asks the Court to construe the term according to its plain and ordinary meaning. ECF
No. 46-1, at 2. Toyota proposes “entire computer program, other than the operating system, that
performs a task to fulfill a specific need of a user and can be added to the system after it is put into
use.” Id. As discussed at the claim construction hearing, the Court construes the term “application”
as “software, other than operating system and support software, that performs a task to fulfill a
specific need of a user.” See ECF No. 59, at 40:24–46:17.
2. “priority labels used independently by the individual priority managers to
determine processing priorities for the individual messages for the individual
software applications”
The parties submit that this term appears in Claim 13 of the asserted ‘033 Patent. See ECF
No. 30, at 9 n.2; see also ECF No. 32, at 19 n.10. MicroPairing asks the Court to construe the term
according to its plain and ordinary meaning. ECF No. 46-1, at 2. Toyota proposes “each individual
priority manager independently uses a message’s priority value to control the order in which a
message is processed based on a comparison of the message’s priority value to the priority value
of other messages in a queue and a ranking of the message’s priority.” Id.
MicroPairing submits that the term “is easily understood in the context of the claim in
which it appears.” ECF No. 30, at 9. MicroPairing contends that Toyota’s construction improperly
limits the term to a particular priority scheme “based on a comparison of the message’s priority
value to the priority value of other messages in a queue and a ranking of the message’s priority.”
Id. at 10. Because nothing in the intrinsic record suggests a limitation to this term, MicroPairing
argues, the term “should be given its full scope.” Id. In MicroPairing’s view, Toyota’s construction
is “an attempt to limit claim 13 to the embodiment” described in the specification for the asserted
‘033 Patent. Id. Nevertheless, to the extent construction is necessary, MicroPairing asks the Court
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to construe the term as “wherein the individual priority managers independently use a message’s
priority label to control when, if at all, a message is processed.” 4 ECF No. 59, at 47:8–19.
Toyota counters that its construction describes the sole priority scheme disclosed, and
therefore patented, in the asserted ‘033 Patent. ECF No. 32, at 20. Citing the asserted ‘033 Patent’s
specification, Toyota explains:
[T]he specification describes how the “priority manager 44
determines a priority value for the message that determines how the
message is processed.” ’033 Patent, 3:49–51. It discloses that “the
priority manager 44 compares the priority value for the outgoing
message with the priority values for other messages in the
processor.” ’033 Patent, 3:58–60. The specification also discloses
that, as part of determining the order of processing using the priority
value, the priority manager “ranks the [priority value for the]
outgoing message with respect to other messages and then sends the
message.” ’033 Patent, 3:61–62. The specification specifically
discloses a queue: “[t]he priority manager 44 in block 72 ranks the
priority of the incoming message in relation to the priorities of all
the other messages in the processor. The priority manager in block
74 decides according to the ranking whether the message should
be put in a queue or sent directly to the application for immediate
processing.” Id., 4:30–35.
Id. at 20–21. Toyota contends that its “construction is consistent with the ordinary meaning and
the specification’s defined method for determining the processing order of messages[.]” Id. at 21.
According to Toyota, its construction is proper because “[t]he patentee consistently declared in the
specification that messages are ranked against each other and the message with the highest priority
processed.” Id. “Construction is necessary[,]” Toyota argues “to prevent MicroPairing from
disregarding important aspects of this claim language.” Id. at 22.
In its briefing, MicroPairing alternatively proposed “wherein the individual priority managers
independently use a message’s priority value to control when, if at all, a message is processed.” ECF No. 34, at 7 n.2
(emphasis added). At the claim construction hearing, MicroPairing asked the Court to construe its alternative proposal
as follows: “wherein the individual priority managers independently use a message’s priority label to control when,
if at all, a message is processed.” See ECF No. 59, at 47:8–19 (emphasis added). MicroPairing correctly noted at the
hearing that Claim 13 of the asserted ‘033 Patent recites the word “label” instead of “value.” See id. The Court,
therefore, considers MicroPairing’s alternative proposal as stated at the claim construction hearing.
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“[T]he person of ordinary skill in the art is deemed to read the claim term not only in the
context of the particular claim in which the disputed term appears, but in the context of the entire
patent, including the specification.” Phillips, 415 F.3d at 1313; see also Innova/Pure Water, 381
F.3d at 1116 (“A court construing a patent claim seeks to accord a claim the meaning it would
have to a person of ordinary skill in the art at the time of the invention.”). “[T]he specification may
resolve ambiguous claim terms ‘where the ordinary and accustomed meaning of the words used in
the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words
alone.’” Halliburton Energy Servs., Inc. v. M-I, LLC, 456 F. Supp. 2d 811, 815 (E.D. Tex. 2006)
(quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002)). “Much of
the time, upon reading the specification . . . it will become clear whether the patentee is setting out
specific examples of the invention . . . or whether the patentee instead intends for the claims and
the embodiments in the specification to be strictly coextensive.” Phillips, 415 F.3d at 1323.
Here, a person of ordinary skill in the relevant art at the time of the invention, after reading
the term in the context of the claim in which the term appears and the specification, would
understand that the patentee intended to patent one priority scheme as it relates to an individual
priority manager in an Open Communication system receiving and reading a message. Broadly,
the asserted ‘033 Patent’s specification discloses a “communication system for a mobile vehicle”
that “includes multiple processors.” ECF No. 1-2, at 1:53–54. The specification provides that
“multiple processors each run an Open Communication system that controls how data is
transferred between processors based on data content as opposed to the links that connect the
processors together.” Id. at 1:54–58. The specification also discloses that the Open Communication
system “enables data or messages to be effectively transferred and processed for real-time
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applications or other server based applications that may be running on the multiple processors in
a secure environment regardless of processors, locations, or data links.” Id. at 1:59–63.
Significantly, the specification describes a queue by which an individual priority manager
in an Open Communication system ranks and processes an incoming message. The specification
explicitly discloses that an individual priority manager “decides according to the ranking whether
the message should be put in a queue or sent directly to the application for immediate processing.”
Id. at 4:33–35. Figure 4, a flow diagram showing how the priority manager receives data in the
open communication system, illustrates the described queue:
Id. at 6. According to Figure 4, an individual priority manager identifies an incoming message’s
priority label and subsequently determines whether the value on the identified incoming message’s
priority label is sufficient to run on the processor. Id. If the identified incoming message’s priority
label is sufficient to run on the processor, then the individual priority manager ranks the identified
incoming message’s priority label by comparing the value of that priority label with the values of
priority labels on other incoming messages. Id. If it is not sufficient, then the individual priority
manager rejects the message. Id. The individual priority manager ultimately schedules processing
of those incoming messages that it did not reject according to priority ranking. Id. This priority
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scheme is not simply, as MicroPairing contends, a preferred embodiment; rather, it is the only
priority scheme disclosed by the asserted ‘033 Patent’s intrinsic evidence and therefore patented. 5
However, the term fails to describe the patented priority scheme. While the term discloses
that individual priority managers independently use priority labels to determine priority labels for
the individual messages received from individual software applications, the term fails to explain
how the individual priority managers use the priority labels. See ECF No. 1-2, at 11:61–64. Claim
13 of the asserted ‘033 Patent is similarly deficient; the claim merely describes a vehicle system
comprising multiple processors operating a communication system, which further comprises
individual priority managers associated with individual software applications that attach priority
labels to individual messages transferred between individual software applications in the vehicle.
See id. at 11:50–64. Dependent claims also fail to explain how the individual priority managers
use priority labels. For instance, Claim 17 recites a “system according to claim 13 wherein the
priority managers assign priority values to different sensor data messages according to a likelihood
of objects identified in the sensor data colliding with the vehicle[,]” id. at 12:13–16, but the claim
fails to describe how the individual priority managers use priority labels.
“The construction that stays true to the claim language and most naturally aligns with the
patent’s description of the invention will be, in the end, the correct construction.” Renishaw PLC
v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). While Toyota’s proposed
construction provides some clarity on the patented priority scheme, its construction fails to clearly
account for the possibility that an individual priority manager may reject a message upon receiving
Even if the only priority scheme described in the asserted ‘033 Patent’s specification is, as MicroPairing
urges, an embodiment, for the reasons discussed, there is “a clear indication in the intrinsic record that the patentee
intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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and reading the value on the message’s priority label. 6 MicroPairing’s alternative proposed
construction, however, accounts for this possibility.
Therefore, the Court construes “priority labels used independently by the individual
priority managers to determine processing priorities for the individual messages for the individual
software applications” as “wherein the individual priority managers independently use a message’s
priority label to control when, if at all, a message is processed.” A person of ordinary skill in the
relevant art at the time of the invention would have understood that Claim 13 of the asserted ‘033
Patent claims a particular priority scheme, wherein the individual priority managers independently
use a message’s priority label to control when, if at all, a message is processed.
3. “configured to” / “adapted to”
The parties submit that the term “configured to” appears in Claim 10 of the asserted ‘073
Patent; Claims 1, 18, and 31 of the asserted ‘136 Patent; Claim 1 of the asserted ‘383 Patent;
Claims 1, 6, and 17 of the asserted ‘816 Patent; Claims 1, 6, and 17 of the asserted ‘015 Patent;
and Claims 1 and 2 of the asserted ‘292 Patent. See ECF No. 30, at 11 n.3; see also ECF No. 32,
at 17 n.8. The parties further submit that the term “adapted to” appears in Claim 25 of the asserted
‘033 Patent. See ECF No. 30, at 11 n.3; see also ECF No. 32, at 17 n.8. MicroPairing asks the
Court to construe the terms according to their plain and ordinary meaning. ECF No. 46-1, at 2.
Toyota proposes “actually configured to and not merely capable to.” Id. The parties agree that the
terms should be construed consistently. See ECF No. 17, at 17. As discussed at the claim
construction hearing, the Court construes the terms “configured to” and “adapted to” according to
their plain and ordinary meaning. See ECF No. 59, at 50:16–53:12.
To the extent Toyota argues that its construction captures the possibility of an individual priority manager
rejecting a message because “[d]iscarding the message is processing the message according to the ranking of its
priority against other messages[,]” ECF No. 38, at 11, its construction is unclear. See Kinetic, 2013 WL 6164592, at
*15 (rejecting proposed construction because “further defining the term would only add to the jury’s confusion”).
6
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4. “audio sources”
The parties submit that the term “audio sources” appears in Claim 10 of the asserted ‘073
Patent. See ECF No. 30, at 12 n.4; see also ECF No. 32, at 22 n.11. MicroPairing initially proposed
“devices that generate audio data.” ECF No. 46-1, at 2. At the claim construction hearing, however,
MicroPairing stated that it “is amenable to plain and ordinary meaning[.]” ECF No. 59, at 53:19–
20. Toyota also proposes the term’s plain and ordinary meaning. ECF No. 46-1, at 2. Therefore,
as discussed at the claim construction hearing, the Court construes the term “audio sources”
according to its plain and ordinary meaning. See ECF No. 59, at 53:13–21.
5. “wireless audio output devices” / “the audio output devices”
The parties submit that the terms “wireless audio output devices” and “the audio output
devices” appear in Claim 10 of the asserted ‘073 Patent. See ECF No. 30, at 13 n.5; see also ECF
No. 32, at 23 n.12. MicroPairing asks the Court to construe the terms according to their plain and
ordinary meaning. ECF No. 46-1, at 3. Alternatively, MicroPairing proposes “devices configured
to output audio from audio data provided by wireless audio sources.” Id. Toyota proposes “wireless
devices that output sound.” Id. As discussed at the claim construction hearing, the Court construes
the terms “wireless audio output devices” and “the audio output devices” as “wireless devices that
output sound.” See ECF No. 59, at 53:22–58:10.
6. “multiprocessor system” / “multi-processor system”
The parties submit that the terms “multiprocessor system” and “multi-processor system”
appear in Claims 1, 18, and 31 of the asserted ‘136 Patent; Claim 6 of the asserted ‘816 Patent;
and Claim 6 of the asserted ‘015 Patent. 7 See ECF No. 30, at 15 n.7; see also ECF No. 32, at 25
MicroPairing states that the term “multi-processor system” also appears in Claim 1 of the asserted ‘383
Patent. ECF No. 30, at 15 n.7. However, the word “distributed” immediately precedes the term as it appears in Claim
1 of the asserted ‘383 Patent and reads “distributed multi-processor system,” which the parties have asked the Court
7
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n.13. The parties appear to agree that the terms should be construed consistently. MicroPairing
asks the Court to construe the terms according to their plain and ordinary meaning. ECF No. 461, at 3. Toyota proposes “system of multiple processors which share memory, and in which the
processing tasks for an application can be coordinated across multiple processors.” Id.
MicroPairing submits that the terms are entitled to the full scope of their plain and ordinary
meaning, namely “a system that includes multiple processors.” 8 ECF No. 30, at 16. MicroPairing
argues that the relevant claim language and specifications do not require multiple processors in a
multiprocessing system to share memory and coordinate processing tasks. Id. Citing to the
specification for the unasserted ‘260 Patent, MicroPairing submits that the memory in a
multiprocessor system “may also include different local memories that are accessed locally by
specific processors.” 9 Id.; see also ECF No. 30-3, at 5:44–46. MicroPairing further contends that
the relevant intrinsic records do not indicate that a multiprocessor system is limited to a system of
multiple processors “in which the processing tasks for an application can be coordinated across
multiple processors.” ECF No. 30, at 16. MicroPairing maintains that “the language of the asserted
claims itself defines how the claimed multiprocessor systems are configured.” Id.
In response, Toyota argues that the relevant claim language and specifications dispense
with MicroPairing’s construction that a multiprocessor system is simply a system that includes
to construe separately. See ECF No. 1-5, at 20:13–43. The Court, therefore, does not construe the term “multiprocessor system” in Claim 1 of the asserted ‘383 Patent in this section.
Elsewhere, MicroPairing submits that “a system with multiple processors” captures the full scope of the
terms’ plain and ordinary meaning. See ECF No. 30, at 15. The distinction is immaterial. Construing the terms
according to their plain and ordinary meaning, a system that includes multiple processors is a system with multiple
processors and a system with multiple processors is a system that includes multiple processors.
8
According to MicroPairing, the specification for the unasserted ‘260 Patent is incorporated into the
specifications for each of the patents asserted in this case, except for the asserted ‘033 Patent. See ECF No. 30, at 16.
Toyota appears to agree, stating in its responsive claim construction brief that the specification for the unasserted ‘260
Patent “is incorporated by reference into the Multiprocessor Patents[.]” ECF No. 32, at 26.
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multiple processors. ECF No. 32, at 25–26. Toyota contends that the relevant claim language
establishes that a multiprocessor system requires “multiple processors to be networked together.”
Id. at 26. For instance, Toyota submits, Claim 6 of the asserted ‘816 Patent recites, “multiple
processors networked together into a multi-processor system.” Id. at 26; see also ECF No. 1-6, at
9:37–38. According to Toyota, the relevant specifications further explain “that part of networking
multiple processors together is giving them access to a shared memory.” ECF No. 32, at 26. Citing
the specification for the unasserted ‘260 Patent, Toyota argues that requiring the sharing of
memory among multiple processors is not, as MicroPairing contends, contrary to the ordinary
meaning of the terms. 10 Id. at 28. In Toyota’s view, the fact that a multiprocessor system “may
also include . . . [t]he presence of additional local memories for specific processors does not detract
from the ‘260 Patent’s confirmation that the ordinary meaning of ‘multiprocessor system’ requires
a shared memory among multiple processors.” Id. Based on its proposition that a multiprocessor
system requires “multiple processors networked together,” Toyota further contends that the
relevant specifications describe, and therefore also require, that a multiprocessor system “facilitate
coordination of processing tasks for an application across multiple processors.” Id.
This is not the first time a court has construed the disputed terms. In Eagle Harbor
Holdings, LLC v. Ford Motor Co., No. 3:11-CV-05503-BHS (W.D. Wash. July 29, 2013), the
court appointed a special master to construe the term “multiprocessor system” in, inter alia, Claim
1 of the asserted ‘136 Patent. 11 See Special Master Order, Eagle Harbor Holdings, LLC v. Ford
Toyota also cites to extrinsic evidence. See ECF No. 32, at 27, 29. “Such evidence, however, is ‘less reliable
than the patent and its prosecution history in determining how to read claim terms.’” Good Tech., 2013 WL 4052408,
at *3 (quoting Phillips, 415 F.3d at 1318).
10
To be precise, the parties in Eagle Harbor asked the court to construe the terms “multiprocessor system,”
“multiprocessor network,” and “a processor system, wherein a processor is coupled to at least a second processor.”
See Special Master Order, Eagle Harbor Holdings, LLC v. Ford Motor Co., No. 3:11-CV-05503-BHS (W.D. Wash.
July 29, 2013), ECF No. 165, at 31–32.
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Motor Co., No. 3:11-CV-05503-BHS (W.D. Wash. July 29, 2013), ECF No. 165, at 31. The special
master observed that, in many instances, the term appeared in the preamble of a claim, followed
by the word “comprising.” Id. at 36. “Where the term is not in the preamble,” the special master
noted, “it is followed by the term ‘configured to’ and limitations describing requirements for the
multiprocessor system.” Id. “For example,” the special master illustrated, “claim 1 of the ‘136
patent includes the limitation ‘one or more of the multiple on-board processors coupled together
into a multiprocessor system and configured to’ followed by several additional limitations defining
the multiprocessor system.” Id.
Based on the structure of the claims in which the term appeared, the special master
concluded that the term is used in the nominative sense in the preamble and body of claims,
“providing a descriptive name to the set of limitations that follow, and in which the further
limitations completely set forth the invention.” Id. at 37. According to the special master, “A
person of ordinary skill would understand that the limitations following the preamble or the
‘configured to’ transition would define the requirements of the multiprocessor system.” 12 Id. at
12
The special master reached this conclusion even though the terms “are sometimes used for the first time in
the body of an asserted claim instead of the preamble[.]” Special Master Order, Eagle Harbor, No. 3:11-CV-05503BHS, ECF No. 165, at 37. The special master explained:
[T]he parties have agreed that these terms should be construed to mean the same
thing in every instance, regardless of whether they appear in the preamble or in
the body of the claim. This potentially raises an issue as to whether the precedent
for interpretation of preamble is equally applicable to terms applying in the body
of the claim, but in this instance even where these terms [first appear] in the body
of a claim rather than in the preamble, they are still used in the same nominative
sense. Because these terms are frequently used in the preamble in a nominative
sense, or used in the body of a claim in the similar nominative sense, and where
they are grouped together to be construed the same way, the guidance for
interpretation of terms in a preamble should be applied to these terms.
Id. The court subsequently considered a motion for further claim construction of the disputed terms. See Eagle Harbor
Holdings, LLC v. Ford Motor Co., No. 3:11-CV-05503-BHS, 2014 WL 12570145 (W.D. Wash. Feb. 4, 2014). In
resolving the motion, the court recognized that, under Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d
801 (Fed. Cir. 2002), “dependence on a particular disputed preamble phrase for antecedent basis may limit claim scope
because it indicates a reliance on both the preamble and claim body to define the claimed invention.” Id. at 809. Still,
the court concluded that further construction of the terms would be “unworkable because it is clear that the inventors
14
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36–37. The term, the special master reasoned, is “not limiting and need not be expressly
construed.” 13 Id. at 37. As a result, the special master construed the term “multiprocessor system”
according to its plain and ordinary meaning as defined by the limitations that follow the term. Id.
at 38. The court agreed and adopted the special master’s construction. See Order, Eagle Harbor
Holdings, LLC v. Ford Motor Co., No. 3:11-CV-05503-BHS (W.D. Wash. Nov. 13, 2013), ECF
No. 184, at 9–11.
Having independently reviewed the claims of the asserted patents in which the terms
“multiprocessor system” and “multi-processor system” appear in this case, the Court finds that the
Eagle Harbor court’s construction of “multiprocessor system” is entitled to deference. Like the
term “multiprocessor system” in Eagle Harbor, the terms “multiprocessor system” and “multiprocessor system” in this case are followed by the term “configured to” and limitations describing
requirements for the disclosed multiprocessor and multi-processor systems. For instance, Claim 6
of the asserted ‘816 Patent recites, “A method of operating an audio system in a vehicle
comprising: multiple processors networked together into a multi-processor system, the multiprocessor system configured to . . . .” ECF No. 1-6, 9:35–39. Claim 6 of the asserted ‘015 Patent
similarly recites, “A method of operating an audio system in a vehicle comprising: networking
multiple processors together into a multiprocessor system, the multi-processor system which is
configured to . . . .” ECF No. 1-7, at 21:16–20. Claims 1, 18, and 31 of the asserted ‘136 Patent
are no different. See ECF No. 1-4, at 6:45–10:42. There is no need to add Toyota’s proposed “extra
used the duplicative terms to reference the system as a whole and not to provide additional limitations for the
antecedent system.” Eagle Harbor, 2014 WL 12570145, at *2. Construing the terms to provide further limitations in
the claim, the court reasoned, “is illogical and contrary to the invention as a whole.” Id.
The special master also concluded that it would be “redundant to impose requirements that the processors
must operate common software and control operation of applications where other limitations more specifically define
the nature of these same requirements.” Special Master Order, Eagle Harbor, No. 3:11-CV-05503-BHS, ECF No.
165, at 38.
13
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language because it does not change the claims in any substantive way.” USB Bridge Sols., LLC
v. Buffalo Inc., No. 1-17-CV-001158-LY, 2020 WL 1906898, at *7 (W.D. Tex. Apr. 17, 2020).
Thus, the Court construes “multiprocessor system” and “multi-processor system”
according to their plain and ordinary meaning as defined by the limitations that follow these terms.
One of ordinary skill in the relevant art at the time of the invention would have understood that the
limitations following the “configured to” transition define the requirements of a multiprocessor
system and multi-processor system.
7.
“move” / “download”
The parties submit that these terms appear in five varied forms in Claims 1, 18, and 31 of
the asserted ‘136 Patent; Claim 1 of the asserted ‘292 Patent; and Claims 1, 6, and 17 of the asserted
‘816 Patent. See ECF No. 30, at 17–18; see also ECF No. 56, at 9–10. The parties agree that the
terms should be construed consistently. ECF No. 46-1, at 3 n.2. MicroPairing generally proposes
“make the application from the memory available for execution by one of the processors.” 14 Id. at
In its reply claim construction brief, MicroPairing agreed that, when the terms refer to the moving or
downloading of an application into a processor, the construction should include “from the memory.” See ECF No. 34,
at 13–15. Because the terms as used in the relevant claims of the asserted ‘136 and ‘292 Patents refer to the moving
or downloading of an application into a processor, the only substantive distinction among the parties’ proposed
constructions with respect to the terms as they appear in the relevant claims of the asserted ‘136 and ‘292 Patents is
Toyota’s inclusion of “in an address space” in its proposed construction. See id. at 14.
14
According to MicroPairing, the terms as used in Claims 1, 6, and 17 of the asserted ‘816 Patent do not refer
to the moving or downloading of an application into a processor. See id. MicroPairing, therefore, maintains that the
proper construction of the terms as used in Claims 1, 6, and 17 of the asserted ‘816 Patent must omit both “in an
address space” and “from the memory.” Id. at 14–15.
MicroPairing, however, has also represented to the Court that “these terms should be construed consistently
with one another” and that the parties’ “dispute centers on whether the claim language requires making an application
‘available in an address space.’” ECF No. 30, at 17. Further, at the claim construction hearing, MicroPairing did not
specifically request a different construction of the same terms based on the claims in which the terms are used. See
ECF No. 59, at 63:6–65:5. The Court, therefore, declines MicroPairing’s inconsistent invitation to construe the terms
as used in the claim of one asserted patent differently from the terms as used in the claims of other asserted patents.
See Phillips, 415 F.3d at 1314 (“Because claim terms are normally used consistently throughout the patent, the usage
of a term in one claim can often illuminate the meaning of the same term in other claims.”).
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3–4. Toyota generally proposes “make the application from the memory available in an address
space for execution by one of the processors.” 15 Id.
MicroPairing argues that the relevant claim language and intrinsic record fail to support
Toyota’s construction. ECF No. 30, at 17. According to MicroPairing, “Neither the language the
parties seek to construe nor any other claim language mentions the process of making an
application available in an address space.” Id. MicroPairing contends that “[t]he specifications do
not link the functions of ‘moving’ or ‘downloading’ an application with the function of initializing
an application or making it available in an address space.” Id. “Rather,” MicroPairing argues, “the
specifications generally connect the ‘moving’ or ‘downloading’ functions with executing an
application on a processor in response to certain conditions, such as the detection of a data type
associated with that application or the detection of another processor.” Id. at 17–18.
Toyota, on the other hand, argues that the relevant specifications describe an application
being loaded, which is synonymous with download, into a processor. ECF No. 32, at 33–35.
Toyota
further
contends
that
the
“relevant
claims
indicate
the
purpose
of
moving/downloading/loading the application into the processor, is to run or execute the
application.” Id. at 33. “Thus,” Toyota submits, “the claim language and the specifications make
clear that loading/downloading/moving the applications ‘from memory’ and into the processor (or
for processing) requires that the application be loaded ‘into’ or ‘onto’ the processor for execution.”
Id. at 34. Relying on extrinsic evidence, Toyota argues that “in order to load the application for
execution, the processor must first create an address space in its working memory.” Id. Toyota
submits that its construction recognizes “that the concept of ‘moving’ or ‘downloading’ an
The parties propose the same construction for the terms, differing only to account for the claim language
in which the terms appear. See ECF No. 46, at 3–4.
15
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application ‘from memory’ ‘to a processor’ or ‘for processing’ by a processor necessarily involves
making that application available in an address space so that it can be processed.” Id. at 31–32.
The Eagle Harbor court also construed the terms “move” and “download” in Claim 1 of
the asserted ‘136 Patent. See Eagle Harbor Holdings, LLC v. Ford Motor Co., 3:11-CV-05503BHS, 2014 WL 4748139, at *1 (W.D. Wash. Aug. 8, 2014). MicroPairing’s predecessor-in-interest
argued that the terms could be understood according to their plain and ordinary meaning, and thus,
did not require construction. Id. at *2. Ford disagreed and argued “that the terms ‘move’ and
‘download’ are used in a manner that is synonymous with ‘load,’ and that a person of ordinary
skill in the art would understand ‘load’ to require the application to be made available in an address
space in order to be executed by the particular processor.” Id.
After examining the relevant claim language and specifications, the special master
determined that “[a] person of ordinary skill in the relevant art, having read the specifications of
the patents at issue, would have understood the terms ‘download,’ and ‘move’ to be synonymous
with ‘load,’ and to encompass either moving an application physically into a working memory or
mapping the application to a virtual memory.” Id. at *9. “Because they are used synonymously,”
the special master reasoned, ‘“download’ and ‘move’ must be construed in a manner that is also
consistent with the meaning of ‘load.’” Id. Relying on undisputed extrinsic evidence defining the
term “load,” the special master construed the terms “move” and “download” as requiring “a series
of steps that includes creating an address space for the program[.]” Id. at *8. Despite objections,
the court adopted the special master’s construction. See Eagle Harbor Holdings, LLC v. Ford
Motor Co., No. C-11-CV-05503-BHS, 2014 WL 4748142, at *3 (W.D. Wash. Sept. 22, 2014).
The Court has independently reviewed the claims of the asserted patents in which the terms
“move” and “download” appear in this case and finds that the Eagle Harbor court’s construction
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of the same is entitled to deference. Based on the relevant specifications, Toyota, like Ford,
convincingly establishes that the terms “move” and “download” are synonymous with “load.” ECF
No. 32, at 33–35. MicroPairing does not challenge Toyota’s assertion that the terms “move” and
“download” are synonymous with “load.” See generally ECF Nos. 30, 34, 55. Further, Toyota’s
extrinsic evidence, like Ford’s, persuasively establishes that “in order to load the application for
execution, the processor must first create an address space in its working memory.” ECF No. 32,
at 34. Again, MicroPairing does not dispute that the term “load” requires the creation of an address
space for a program. See generally ECF Nos. 30, 34, 55. In short, the Eagle Harbor court
considered the arguments Toyota presents in this case, and its construction of the terms “move”
and “download” in Claim 1 of the asserted ‘136 Patent is legally sound.
As a result, the Court construes the terms “move” and “download” as “make the application
from the memory available in an address space for execution by one of the processors,” differing
only to account for the language in the relevant claims. A person of ordinary skill in the relevant
art at the time of the invention would have understood the terms “move” and “download” to be
synonymous with “load,” which requires the creation of an address space for a program.
8. “distributed multi-processor system” / “distributed processing system”
The parties submit that the terms “distributed multi-processor system” and “distributed
processing system” appear in Claim 1 of the asserted ‘383 Patent and Claim 1 of the asserted ‘292
Patent. See ECF No. 30, at 18 n.8; see also ECF No. 32, at 35 n.17. The parties appear to agree
that the terms should be construed consistently. MicroPairing proposes a “system consisting of
two or more processors, connected so that information can be exchanged.” ECF No. 46-1, at 4.
Toyota proposes a “system of multiple processors which share memory, and in which the
19
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processing tasks for an application are distributed among and coordinated across multiple
processors.” Id.
MicroPairing asks the Court to construe the terms according to the full scope of their plain
and ordinary meaning, namely “a system consisting of two or more processors, connected so that
information can be exchanged.” ECF No. 30, at 19. MicroPairing submits that the claim language
reciting the terms support its construction. Id. at 18. Further, as with the disputed terms
“multiprocessor system” and “multi-processor system,” MicroPairing argues that Toyota’s
construction improperly requires processors in a “distributed multi-processor system” or
“distributed processing system” to share memory and coordinate processing tasks. Id. at 19.
MicroPairing acknowledges that the Eagle Harbor court previously construed the term
“distributed processing system” to mean “a multiprocessor system in which the processing tasks
for the applications can be distributed among multiple processors.” Id. at 20. Still, MicroPairing
submits that “nothing in the intrinsic record suggests that the patentee intended to give the term
anything other than its full scope (a system consisting of two or more processors, connected so
that information can be exchanged).” Id. at 20. If a limiting construction is necessary, however,
MicroPairing asks the Court to adopt the Eagle Harbor court’s construction. ECF No. 34, at 16.
Toyota submits that MicroPairing’s construction “erases the concept of ‘distributed’ from
the claims.” ECF No. 32, at 36. Based on the claim language reciting the terms, Toyota contends
that a “distributed multi-processor system” and “distributed processing system” are a particular
type of multiprocessor system. Id. Toyota argues that the specifications for the asserted ‘383 Patent
and unasserted ‘033 Patent, which the asserted ‘383 Patent incorporates by reference, describe a
“distributed multi-processor system” and “distributed processing system” as having the “ability to
distribute applications from one processor to another based on system needs[.]” Id. at 37. Toyota
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further submits that extrinsic evidence from the time of the claimed invention establishes that a
“distributed multi-processor system” and “distributed processing system” require the system to
distribute applications from one processor to another based on system needs. Id. In Toyota’s view,
its construction provides proper meaning to the word “distributed.” Id. at 37–38.
Although the parties in Eagle Harbor agreed that the term “distributed processing system”
described a particular type of multiprocessor system, they offered different constructions. See
Special Master Order, Eagle Harbor, No. 3:11-CV-05503-BHS, ECF No. 165, at 38–39. In that
instance, MicroPairing’s predecessor-in-interest proposed to construe the term as “two or more
processors, connected by links, that perform various tasks with and communicate with each other.”
Id. at 39. Ford, on the other hand, proposed to construe the term as “a multiprocessor system or
network in which applications can be distributed among multiple processors.” Id. To resolve the
parties’ dispute, the special master analyzed the relevant claim language and specifications, as well
as the extrinsic evidence the parties presented. See id. at 39–45. Based on his analysis, the special
master concluded that both constructions were deficient. The construction proposed by
MicroPairing’s predecessor-in-interest, the special master determined, was “too vague” and failed
to sufficiently differentiate a distributed processing system from the more general multiprocessor
system. Id. at 44–45. And Ford’s construction requiring the distribution of applications among
multiple processors, the special master concluded, was too narrow. Id. at 42. According to the
special master, “[A] person of ordinary skill in the art would understand distributed processing to
include the use of multiple different processors to perform the computing tasks (whether in the
form of threads or otherwise) of a single application, as well as the distribution of single
applications to different processors.” Id. Finding deficiencies in both parties’ constructions, the
special master instead construed the term as “a multiprocessor system in which the processing
21
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tasks for applications can be distributed among multiple processors.” Id. at 45. The court agreed
and adopted the special master’s construction. See Order, Eagle Harbor, No. 3:11-CV-05503BHS, ECF No. 184, at 2–3, 11.
After independently reviewing the claims in the asserted patents in which the terms
“distributed multi-processor system” and “distributed processing system” appear in this case, the
Court finds that the Eagle Harbor court’s construction of the term “distributed processing system”
is entitled to deference. The parties in this case have asked the Court to construe the terms
“distributed multi-processor system” and “distributed processing system” consistently and apart
from “multiprocessor system” and “multi-processor system.” In so doing, MicroPairing and
Toyota, like the parties in Eagle Harbor, have indicated to the Court that a “distributed multiprocessor system” or “distributed processing system” is distinct from a “multiprocessor system”
or “multi-processor system.” Further, the one evident distinction between the former and latter pair
of terms is the use of the word “distributed” to modify a “multi-processor system” or “processing
system” in the latter pair of terms. “A claim construction that gives meaning to all the terms of the
claim is preferred over one that does not do so.” Merck & Co., Inc. v. Teva Pharms. USA, Inc., 395
F.3d 1364, 1372 (Fed. Cir. 2005). Thus, the best construction of the terms “distributed multiprocessor system” and “distributed processing system” must account for the word “distributed.”
MicroPairing’s construction, however, fails to account for the word “distributed.” A system
consisting of two or more processors connected so that information can be exchanged, as
MicroPairing proposes, can also describe a “multiprocessor system” or “multi-processor system”
that is not distributed; such a construction would improperly render the word “distributed” in the
terms a nullity. And while Toyota’s construction accounts for the distribution of an application’s
processing tasks among multiple processors, it goes too far in requiring multiple processors to
22
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share memory and coordinate processing tasks. The Court has already found that these additional
requirements are unnecessary in construing the terms “multiprocessor system” and “multiprocessor system.” The Court will not create confusion by imposing these additional requirements
onto what appears—by Toyota’s own request to construe the terms “multiprocessor system,”
“multi-processor system,” “distributed multi-processing system,” and “distributed processing
system” with the same requirements—to be a more limited multi-processing or processing system.
The Eagle Harbor court’s construction accounts for the word “distributed” and is legally sound.
Therefore, the Court construes the terms “distributed multi-processing system” and
“distributed processing system” as “a multiprocessor system in which the processing tasks for the
applications can be distributed among multiple processors.” One of ordinary skill in the relevant
art at the time of the invention would have understood the terms “distributed multi-processing
system” and “distributed processing system” to be a type of multiprocessor system in which the
processing tasks for the applications can be distributed among multiple processors.
9. “secure real-time executive”
The parties submit that the term “secure real-time executive” appears in Claim 1 of the
asserted ‘383 Patent. See ECF No. 30, at 20 n.9; see also ECF No. 32, at 38 n.18. The parties
dispute whether the term is indefinite. ECF No. 46-1, at 4.
MicroPairing submits that the term “secure real-time executive” is not indefinite because
a person of ordinary skill in the relevant art at the time of the invention would have understood the
term and the scope of the claim in which it appears with reasonable certainty. ECF No. 30, at 21.
To support its argument, MicroPairing relies on an expert, Steven Loudon. 16 See id.; see also ECF
According to his declaration, Loudon’s work, since 1988, “has involved the design, development, testing
and analysis of hardware and software that has been used in automobile control systems.” Loudon Decl. ¶ 8. Loudon
submits that he has “an extensive understanding and background of the type of rigorous software development process
that is necessary for automobile control systems.” Id.
16
23
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No. 30-1 (“Loudon Decl.”). Recognizing that his assessment “must be undertaken from the
perspective of what would have been known or understood by a person having ordinary skill in
the art[,]” Loudon Decl. ¶ 18, Loudon opines that the term “secure real-time executive” is not
indefinite, id. ¶ 35. According to Loudon, “A person of skill in the art at the time of the invention
after reviewing the claims, specification, and file history for the ‘383 patent would have understood
with reasonable certainty the scope of claim 1 and the term ‘secure real-time executive.’” 17 Id. ¶
44. Loudon bases his opinion on the constituent parts of the term “secure real-time executive” and
the specification for the asserted ‘383 Patent as it relates to the Open Communication system,
which, Loudon submits, a person of ordinary skill in the relevant art at the time of the invention
would have understood to be an example of a “secure real-time executive.” Id. ¶ 44–45.
With respect to the constituent parts of the term, Loudon opines that, “[b]y April 2001,
when the earliest application to which the ‘383 patent claims priority was filed, the term ‘real-time
executive’ was widely used and understood by those of skill in the art to describe a class of
software that operates between applications and the underlying software and hardware support
facilities (e.g., operating systems) to facilitate real-time applications or capability.” Id. ¶ 44. To
illustrate, Loudon cites an article titled “Task scheduling policies for real-time systems,” which,
according to Loudon, defines the term “real-time executive” in substantially the same manner. Id.;
see also ECF No. 34-8, at 2. Loudon further opines that a person of ordinary skill in the relevant
art “at the time of the invention (and up to the present) would have understood a secure system or
software to refer to a system or software that protects against unpermitted access or modification.”
Loudon Decl. ¶ 44. Thus, Loudon submits, a person of ordinary skill in the relevant art at the time
of the invention “would have understood ‘secure real-time executive’ to generally refer to software
Loudon’s declaration, at times, refers to an ‘838 Patent. See, e.g., ECF No. 30-1 ¶ 45. The Court assumes
that references to an ‘838 Patent are a typographical error, intended to refer to the asserted ‘383 Patent.
17
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that operates between applications and underlying software and hardware support facilities to
facilitate real-time functionality and protect against unpermitted access modification.” 18 Id.
Loudon also opines that the Open Communication system described in the specification
for the asserted ‘383 Patent is an example of a “secure-real time executive.” Id. ¶ 45. The patent’s
abstract and relevant claim language, Loudon explains, indicate that a “secure real-time executive
includes, among other things, a security manager and is configured to control how processors
communicate with each other and how priorities are set for messages.” Id. The Open
Communication system, Loudon explains, “is a secure system because it protects against
unauthorized access, and it [is] a real-time executive because it operates between applications and
an operating system to facilitate real-time applications and functionality, such as automobile
braking applications.” Id. ¶ 46. Loudon therefore submits that a person of ordinary skill in the
relevant art at the time of the invention “would have understood the scope of Claim 1 of the
asserted ‘383 Patent and the term ‘secure real time-executive’ with reasonable certainty.” Id. ¶ 49.
Toyota relies on its own expert, Scott Andrews, to argue that the term “secure real-time
executive” is indefinite. 19 See ECF No. 32, at 39–42; see also ECF No. 32-2 (“Andrews Decl.”).
Acknowledging that the meaning and scope of patent claims should be assessed “from the
perspective of a person of ordinary skill in the art as of the earliest claimed priority date[,]”
18
MicroPairing also submits that the U.S. Patent and Trademark Office (“PTO”) twice “blessed the claim
language ‘secure real-time executive’” by issuing Notices of Allowance related to the distributed vehicle control
system invention. ECF No. 30, at 23; see also ECF Nos. 30-7, 30-8. MicroPairing’s briefing and the cited Notices of
Allowance, however, fail to suggest, let alone establish, that the PTO specifically considered whether the term “secure
real-time executive” is indefinite. See generally ECF Nos. 30, 30-7, 30-8, 34, 55. “[A] patent examiner’s finding of
validity carries less weight on issues that the examiner did not specifically consider.” Brown v. Baylor Health Care
Sys., 662 F. Supp. 2d 669, 682 (S.D. Tex. 2009).
19
Andrews submits that he has “over 30 years of professional experience in the field of Automotive
electronics, including vehicle information systems, vehicle electrical architectures, vehicle safety and control systems,
vehicle infotainment systems, mobile devices and mobile information systems, including handheld communications
and navigation devices.” ECF No. 32-1 ¶ 9. Andrews further states that he has “authored numerous published technical
papers and [he is] the named inventor on 25 U.S. and foreign patents.” Id.
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Andrews Decl. ¶ 21, Andrews opines that the term “secure real-time executive” is not a term of
art and must therefore be defined and described to understand the scope and meaning of the term
with reasonable certainty, id. ¶ 101. According to Andrews, the constituent parts of the term have
“many different definitions” and “depend on the operational context.” Id. ¶ 96. Based on his review
of the asserted ‘383 Patent’s abstract, as well as relevant claim language in the asserted ‘383 and
‘033 Patents, Andrews further opines that a person of ordinary skill in the relevant art at the time
of the invention would have not understood the Open Communication system to be an example of
a “secure real-time executive.” See id. ¶¶ 106–32. Andrews opines that the use of the term “secure
real-time executive” in the unasserted ‘049 Patent is inconsequential because the date of invention
claimed in the asserted ‘383 Patent, where the term “secure real-time executive” appears, is earlier
than the date of invention claimed in the unasserted ‘049 Patent. Id. ¶ 133. “Nothing in the ‘383
Patent[,]” Andrews submits, “suggests looking to the ‘049 Patent, or ‘136 Patent for guidance.” 20
“[C]laim construction must begin with the words of the claims themselves.” Amgen Inc. v.
Hoechst Marion Roussel, Inc., 457 F.3d 1293, 1301 (Fed. Cir. 2006). Claim 1 of the asserted ‘383
Patent describes a distributed vehicle control system comprising multiple processors in a
distributed multi-processor system. ECF No. 1-5, at 20:13–15. The distributed vehicle control
system also comprises a secure real-time executive operating in the distributed multi-processor
system. Id. at 20:16–17. Claim 1 explains that the secure real-time executive operates on each
processor independently. Id. at 20:17–18. Each secure real-time executive “comprises a message
manager associated with an application running on each of the processors and configured to
associate priority values with messages transmitted by the applications and to control the
processing sequence of messages received by applications according to a predetermined priority
Andrews submits that the unasserted ‘049 Patent is a continuation of the asserted ‘136 Patent. See Andrews
Decl. ¶ 133.
20
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scheme[.]” Id. at 20:19–25. According to Claim 6 of the asserted ‘383 Patent, the secure real-time
executive “further comprises a security manager configured to control which data and messages
are allowed to be received and transmitted by the different vehicle applications operating on the
different processors.” Id. at 20:61–64. Claim 15 of the asserted ‘383 Patent further provides, that
the secure real-time executive “cannot be manipulated by the applications.” Id. at 21:41–42. Claim
7 of the asserted ‘383 Patent also makes clear that the secure real-time executive “comprises a
critical data manager configured to identify messages containing data from critical and non-critical
operations and to prevent applications related to non-critical operations and messages from noncritical operations from being transferred to processors running applications associated with
critical operations.” Id. at 20:66–21:4. Claim 16 of the asserted ‘383 Patent further provides that
the secure real-time executive “initiates two or more of the processors in a lock-step mode wherein
the lock-step mode is used to at least one of determine a system failure, determine a sequence of
events, reconstruct a vehicle accident and diagnose a vehicle system.” Id. at 21:44–48.
Based on the claim language, the Court finds that a person of ordinary skill in the relevant
art at the time of the invention would have understood with reasonable certainty that the term
“secure real-time executive” means, as Loudon opines, software that operates between applications
and underlying software and hardware support facilities to facilitate real-time functionality and
protect against unpermitted access or modification. 21 Cf. Phillips, 415 F.3d at 1318 (quoting Key
Pharms., 415 F.3d at 716) (“[A] court should discount any expert testimony ‘that is clearly at odds
with the claim construction mandated by the claims themselves[.]’”). Toyota’s arguments to the
contrary are unpersuasive. In contending that the term “secure real-time executive” is indefinite
To be clear, the Court reaches this finding based on its analysis of the claim language itself, recognizing
that “[e]xperts may explain terms of art and the state of the art at any given time, but they cannot be used to prove the
legal construction of a writing.” Teva Pharms. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335, 1339 (Fed. Cir. 2015).
21
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because the relevant specifications do not disclose the claimed “secure real-time executive,”
Toyota improperly attacks the patent’s validity at the claim construction stage. See Eon Corp. IP
Holdings v. Silver Spring Networks, 815 F.3d 1314, 1319 (Fed. Cir. 2016) (stating that, at the claim
construction stage, “courts should not resolve questions that do not go to claim scope, but instead
go to infringement, or improper attorney argument”) (internal citations omitted). Further, while
the term “secure real-time executive” may not be, as Toyota urges, a term of art, the claims in
which the term appears provide a fair understanding of the invention the patentee intended to patent
in claiming a distributed vehicle control system comprising a secure real-time executive. See
Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1279–80 (Fed. Cir. 2017) (citing
Phillips, 415 F.3d at 1314) (“The claims themselves often provide significant guidance as to the
meaning of a particular term.”); see also ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed.
Cir. 2003) (“While certain terms may be at the center of the claim construction debate, the context
of the surrounding words of the claim also must be considered in determining the ordinary and
customary meaning of those terms.”). In other words, the claims of the asserted ‘383 Patent
particularly point out and distinctly claim the subject matter which MicroPairing regards as the
invention. See Nautilus, 572 U.S. at 901 (quoting 35 U.S.C. § 112, ¶ 2 (2006 ed.)) (“The Patent
Act requires that a patent specification ‘conclude with one or more claims particularly pointing
out and distinctly claiming the subject matter which the applicant regards as the invention.’”).
Loudon’s declaration also credibly establishes, at the claim construction stage, that a
person of ordinary skill in the relevant art at the time of the invention would have understood the
term “secure real-time executive” according to its constituent parts, “with an understanding of their
meaning in the field, and . . . knowledge of any special meaning and usage in the field.” Multiform
Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998). Based on their specialized
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knowledge of the term’s constituent parts, a person of ordinary skill in the relevant art at the time
of the invention could translate “secure” and “real-time executive” to ascertain the meaning of the
term and the scope of the claims in which the term appears with reasonable certainty. Cf.
Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1251 (Fed. Cir. 2008) (“Even if a
claim term’s definition can be reduced to words, the claim is still indefinite if a person of ordinary
skill in the art cannot translate the definition into meaningfully precise claim scope.”).
For these independent reasons, Toyota has failed to prove by clear and convincing evidence
that the term is indefinite. Thus, the claims in which the term appears are not invalid as indefinite.
A person of ordinary skill in the relevant art at the time of the invention would have understood
with reasonable certainty that the term “secure real-time executive” means software that operates
between applications and underlying software and hardware support facilities to facilitate realtime functionality and protect against unpermitted access or modification.
10. “message manager associated with an application running on each of the
processors”
The parties submit that this term appears in Claim 1 of the asserted ‘383 Patent. See ECF
No. 30, at 23 n.10; see also ECF No. 32, at 47 n.20. MicroPairing asks the Court to construe the
term according to its plain and ordinary meaning. ECF No. 46-1, at 4. Toyota initially proposed
“dedicated software component associated with the same application running on every processor.”
Id. However, at the claim construction hearing, Toyota agreed to construe the term according to
its plain and ordinary meaning. See ECF No. 59, at 76:15–77:7. Thus, as discussed at the claim
construction hearing, the Court construes the term “message manager associated with an
application running on each of the processors” according to its plain and ordinary meaning. Id.
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11. “associate priority values with messages transmitted by the applications and to
control the processing sequence of messages received by applications according to
a predetermined priority scheme”
The parties submit that this term appears in Claim 1 of the asserted ‘383 Patent. See ECF
No. 30, at 26 n.11; see also ECF No. 32, at 42 n.19. MicroPairing asks the Court to construe the
term according to its plain and ordinary meaning. ECF No. 46-1, at 5. Toyota proposes “assign
priority values to messages transmitted by the applications and control the order in which messages
received by the applications are processed based on a comparison of a message’s priority value to
the priority value of other messages in a queue and a ranking of the message’s priority.” Id.
MicroPairing argues that the term does not need to be construed because its meaning “is
easily understood in the context of the asserted claims.” ECF No. 30, at 26. MicroPairing submits
that Toyota’s construction improperly limits the term in two ways. Id. First, MicroPairing
contends, Toyota’s construction improperly requires the message managers on each independently
operating secure real-time executive to “assign priority values to messages.” Id. “[N]othing in the
specification or file history[,]” MicroPairing urges, “suggests ‘associate priority values’ means
‘assign priority values to messages.’” Id. “In fact,” MicroPairing argues, Toyota’s “construction is
inconsistent with the specification[,]” which “discloses embodiments where the priority manager
determines (e.g. reads) a priority value that was previously assigned.” 22 Id. at 26. MicroPairing
further contends that Toyota’s construction improperly requires the message managers on each
independently operating secure real-time executive to determine priority values according to a
particular predetermined priority scheme, namely “based on a comparison of a message’s priority
value to the priority value of other messages in a queue and a ranking of the message’s priority.”
Id. at 27. MicroPairing submits that “nothing in the specification or file history sets out a special
22
same.
In so arguing, MicroPairing appears to concede that a “message manager” and “priority manager” are the
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meaning for ‘according to a predetermined priority scheme’ or disavows the full scope of the
phrase.” Id. In MicroPairing’s view, Toyota’s construction improperly limits Claim 1 of the
asserted ‘383 Patent to the embodiment disclosed in the specification. Id. Thus, MicroPairing
maintains, the term should be construed according to its plain and ordinary meaning. Id. at 26.
Toyota, on the other hand, submits that its construction is the plain and ordinary meaning
of the term. ECF No. 32, at 42. Toyota anchors its construction on the claim language and
specifications for the asserted ‘383 Patent and the asserted ‘033 Patent, which the asserted ‘383
Patent incorporates by reference. Id. at 43. According to Toyota, this evidence “indicates that the
‘message manager’ as claimed in Claim 1 of the ‘383 Patent has the same functionality as the
‘priority manager’ as described in the specifications of the ‘383 and ‘033 Patents.” Id. “Consistent
with the functioning of the ‘priority manager’ as disclosed by the ‘383 Patent and the ‘033 Patent,”
Toyota explains, “the ‘message manager’ assigns priority values to messages transmitted by the
applications.” Id. at 44. Toyota further contends that its construction accounts for the one priority
scheme disclosed in the specifications for the asserted ‘383 and ‘033 Patents. Id. at 45. “In cases
like this, where the specification consistently describes a process for determining priority,” Toyota
submits, “that characterization properly is read as part of the claim.” Id. at 46. Toyota therefore
argues that its construction “is consistent with ordinary meaning and the specification’s defined
method for determining the processing order of messages[.]” Id. at 46–47.
“To begin with, the context in which a term is used in the asserted claim can be highly
instructive.” Phillips, 415 F.3d at 1314. Claim 1 of the asserted ‘383 Patent provides that message
managers on each independently operating secure real-time executive are configured to “associate”
priority values with messages transmitted by the applications according to predetermined priority
scheme. See ECF No. 1-5, at 20:17–25. Claim 1 explains that the secure real-time executive
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running on a first processor, which runs a first application, receives a first message from the first
application “and associates a priority value with the first message[.]” Id. at 20:28–29. Claim 1
describes that the secure real-time executive running on a second processor, which runs a second
application, also receives a second message from the second application “and associates a second
priority value with the second message[.]” Id. at 20:33–34. Claim 1 further provides that the secure
real-time executive running on a third processor, which runs a third application, “receives the first
message and associated first priority from the first processor and receives the second message and
associated second priority from the second processor[.]” Id. at 20:37–40. Claim 1 ends by reciting
that, “responsive to receiving the priority associated messages,” the secure real-time executive on
the third processor “determines the sequence in which the third application handles the priority
associated messages using the predetermined priority scheme.” Id. at 20:40–43.
The claim language surrounding the term consistently uses the word “associate” to describe
the claimed invention. The Court sees no reason to create any ambiguity by construing the word
“associate” in the term as “assign,” while leaving the word “associate” unchanged in the
surrounding claim language. See Phillips, 415 F.3d at 1314 (“[T]he claims themselves provide
substantial guidance as to the meaning of particular claim terms.”); see also Power-One, Inc. v.
Artesyn Techs., Inc., 599 F.3d 1343, 1348 (Fed. Cir. 2010) (quoting Sulzer Textil A.G. v. Picanol
N.V., 358 F.3d 1356, 1366 (Fed. Cir. 2004)) (“The terms, as construed by the court, must ‘ensure
that the jury fully understands the court’s claim construction rulings and what the patentee covered
by the claims.’”). A person of ordinary skill in the relevant art at the time of the invention would
understand that the patentee’s use of the word “associate” throughout Claim 1 of the asserted ‘383
Patent was intentional and according to its plain and ordinary meaning.
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Thus, the only remaining dispute between the parties is the use of “predetermined priority
scheme” in the term. “[T]he person of ordinary skill in the art is deemed to read the claim term not
only in the context of the particular claim in which the disputed term appears, but in the context of
the entire patent, including the specification.” Phillips, 415 F.3d at 1313. “[T]he specification may
resolve ambiguous claim terms ‘where the ordinary and accustomed meaning of the words used in
the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words
alone.’” Halliburton, 456 F. Supp. 2d at 815 (quoting Teleflex, 299 F.3d at 1325). “Much of the
time, upon reading the specification . . . it will become clear whether the patentee is setting out
specific examples of the invention . . . or whether the patentee instead intends for the claims and
the embodiments in the specification to be strictly coextensive.” Phillips, 415 F.3d at 1323.
Here, a person of ordinary skill in the relevant art at the time of the invention, after reading
the term in the context of the claim in which the term appears and the specification, would
understand that the patentee intended to patent one priority scheme as it relates to a secure realtime executive message manager in a distributed multi-processor system controlling the processing
sequence of messages received by applications. The asserted ‘383 Patent’s specification discloses
a “multiprocessor system used in a car” comprising “multiple processors that run different realtime applications.” ECF No. 1-5, at 4:13–14. The specification provides that the processors “all
include software that run a Dynamic Configuration (DC) system 6010 that enables new processors
or devices to be automatically added and removed from the car multiprocessor system[.]” Id. at
5:24–27. According to the specification, the DC system “runs on the multiple processors and
includes a device manager, configuration manager, and data manager.” Id. at 4:15–17. The
specification explains that a device manager “establishes communications with new devices that
are to be incorporated into the multiprocessor system[.]” Id. at 6:22–24. The specification provides
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that a configuration manager “dynamically moves applications between different processors
according to user inputs and other monitored conditions in the multiprocessor system[.]” Id. at
6:25–27. The specification further discloses that a “data manager identifies the type of data input
or output by a new processor and identifies other processors or devices in the multiprocessor
system that can output data from the new device or input data to the new device.” Id. at 6:27–31.
The asserted ‘383 Patent also claims to incorporate the asserted ‘033 Patent by reference.
See id. at 1:16–17. As with the specification for the asserted ‘033 Patent, the specification for the
asserted ‘383 Patent discloses a “communication system for a mobile vehicle” that “includes
multiple processors.” Id., at 4:24–25. The specification provides that “multiple processors each
run an Open Communication system that controls how data is transferred between processors
based on data content as opposed to the links that connect the processors together.” Id. at 4:25–29.
The specification further discloses that the Open Communication system “enables data or
messages to be effectively transferred and processed for real-time applications or other server
based applications that may be running on the multiple processors in a secure environment
regardless of processors, locations, or data links.” Id. at 4:30–34.
In describing the Open Communication system, the specification provides that, “[a]fter a
message passes through the car interface manager 3346, a priority manager 3344 determines a
priority value for the message that determines how the message is processed both in the local
processor 3350 and in other processors[.]” 23 Id. at 12:65–13:2. The specification cites to Figure
16, a flow diagram showing how a priority manager processes outgoing data in the Open
Communication system, id. at 4:56–57, to establish that “an outgoing message is identified by the
priority manager[,]” id. at 13:3–4. Figure 16 depicts the following:
At this point, the specification makes clear that the terms “message” and “data” are used interchangeably.
ECF No. 12:64–65.
23
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The specification does not explicitly disclose a queue in describing how a priority manager
processes outgoing messages in the Open Communication system; however, it explains that a
“priority for the message is identified . . . by reading a priority value that the generic car interface
manager 3346 has attached to the message.” 24 Id. at 13:4–6. The specification discloses that “the
priority manager 3344 compares the priority value for the outgoing message with the priority
values for other messages in the processor.” Id. at 13:7–9. The specification further provides that
the priority manager “ranks the outgoing message with respect to the other messages and then
sends the message to the logging manager[.]” Id. at 13:9–11. By way of example, the specification
discloses that “there may be several messages that either need to be output or received by a
particular processor.” Id. at 13:12–14. “An output message with a high priority value, such as a
crash indication message,” the specification explains, “will be assigned higher priority than other
messages and will therefore be immediately transmitted by the processor 3350 before other lower
The specification discloses a queue when describing how a priority manager processes incoming messages.
See ECF No. 13:47–50.
24
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priority messages.” Id. at 13:14–18. The Court has carefully reviewed the relevant claim language
and specifications and finds that this is the only priority scheme disclosed and therefore patented.25
The term itself, however, fails to describe the patented priority scheme. The term merely
states that a secure real-time executive message manager in a distributed multi-processor system
controls the processing sequence of messages received by applications according to a
predetermined priority scheme. Id. at 20:24–25. Claim 1 of the asserted ‘383 Patent also fails to
describe the patented priority scheme. Claim 1 simply recites that message managers on each
independently operating secure real-time executive are configured to associate priority values with
messages transmitted by the applications according to a predetermined priority scheme. See id. at
20:17–25. To be sure, Claim 1 goes on to describe three secure real time executives running on
three distinct processors, claiming that, “responsive to receiving the priority associated messages,”
the secure real-time executive on the third processor “determines the sequence in which the third
application handles the priority associated messages using the predetermined priority scheme.” Id.
at 20:40–43. But the fact remains that Claim 1 altogether fails to describe how a secure real-time
executive message manager in a distributed multi-processor system controls the processing
sequence of messages received by applications. Dependent claims similarly fail to explain how a
secure real-time executive message manager in a distributed multi-processor system controls the
processing sequence of messages received by applications. 26
As with the priority scheme disclosed in the specification for the asserted ‘033 Patent, even if the only
priority scheme described in the specification for the asserted ‘383 Patent is, as MicroPairing contends, an
embodiment, for the reasons discussed, there is “a clear indication in the intrinsic record that the patentee intended the
claims to be so limited.” Liebel-Flarsheim, 358 F.3d at 913.
25
26
Though not noted by any party, the Court has carefully reviewed the dependent claims. Claim 5 of the
asserted ‘383 Patent recites, “The vehicle distributed control system according to claim 1 wherein the predetermined
priority scheme is based on critical occupant safety data and system warning prompts.” ECF No. 1-5, at 20:57–59.
Claim 5 is indeed dependent on Claim 1 and limits the predetermined priority scheme described in Claim 1 to one that
is based on critical occupant safety data and system warning prompts. It is well established that “[o]ther claims of the
patent in question, both asserted and unasserted, can also be valuable sources of enlightenment as to the meaning of
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“The construction that stays true to the claim language and most naturally aligns with the
patent’s description of the invention will be, in the end, the correct construction.” Renishaw, 158
F.3d at 1250. Based on the parties’ proposed constructions, the Court finds that Toyota’s
construction most naturally aligns with the patent’s description. 27 Nonetheless, because neither the
claim language nor the specification for the asserted ‘383 Patent explicitly acknowledge a queue,
the Court will not adopt Toyota’s proposed construction insofar as it describes a queue. 28
the claim term.” Phillips, 415 F.3d at 1314. For instance, “the presence of a dependent claim that adds a particular
limitation gives rise to a presumption that the limitation in question is not present in the independent claim.” Id. at
1315. Thus, the predetermined priority scheme described in Claim 1 of the asserted ‘383 Patent must mean something
more than the predetermined priority scheme limited by Claim 5 of the same. More precisely, the predetermined
priority scheme described in Claim 1 must be based on something more than the predetermined priority scheme Claim
5 describes. The disputed term, as written, aptly captures the fact that the patentee intended to claim a predetermined
priority scheme that is not entirely based on critical occupant safety data and system warning prompts.
Nevertheless, Claim 5 and other dependent claims fail to describe how a secure real-time executive message
manager in a distributed multi-processor system controls the processing sequence of messages received by
applications. While Claim 5 indicates that the predetermined priority scheme described in Claim 1 may be based on
critical occupant safety data and system warning prompts, the fact remains that neither Claim 5 nor any other
dependent claim explain how a secure real-time executive message manager in a distributed multi-processor system
controls the processing sequence of messages received by applications. In short, no dependent claim explains what
“predetermined priority scheme” means.
In reaching this finding, the Court is mindful that “[t]he doctrine of claim differentiation ‘creates a
presumption that each claim in a patent has a different scope.’” Versa Corp. v. Ag-Bag Intern. Ltd., 392 F.3d 1325,
1330 (Fed. Cir. 2004) (quoting Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998)). To
be sure, further elaboration of a term in dependent claim language is a significant factor given the Federal Circuit’s
warning against confining claims to their respective embodiments; as the Federal Circuit cautioned, “a particular
embodiment appearing in the written description may not be read into a claim when the claim language is broader
than the embodiment.” SuperGuide Corp. v. DirectTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). “The manner
in which the patentee uses a term within the specification and claims usually will make the distinction apparent.”
Phillips, 415 F.3d at 1323. Nevertheless, having reviewed the relevant claim language, including Claim 5, and
specifications, the Court is persuaded that Claim 1 of the asserted ‘383 Patent and the embodiment in the specification
for the asserted ‘383 Patent are strictly coextensive. See Phillips, 415 F.3d at 1323.
MicroPairing takes issue with Toyota’s construction because the specification for the asserted ‘383 Patent
discloses a priority scheme where a priority manager may reject an incoming message. See ECF No. 34, at 20–21. The
parties, however, agree that the disputed term appears in the context of a secure real-time executive message manager
in a distributed multi-processor system associating priority values to outgoing, not incoming, messages. See ECF No.
1-5, at 20:16–25; see also ECF No. 34, at 17–18; ECF No. 38, at 23.
27
28
Although the specification for the asserted ‘033 Patent, which the asserted ‘383 Patent claims to incorporate
by reference, does disclose a queue, the Court is not convinced that intrinsic evidence describing the priority scheme
disclosed in the asserted ‘033 Patent applies with equal force to the priority scheme disclosed in Claim 1 of the asserted
‘383 Patent. The specification for the asserted ‘033 Patent discloses a priority scheme based on a queue in relation to
an individual priority manager in an Open Communication system that ranks and processes an incoming message. See
ECF No. 1-2, at 4:33–35. Claim 1 of the asserted ‘383 Patent, however, discloses a priority scheme in relation to a
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Therefore, the Court construes “associate priority values with messages transmitted by the
applications and to control the processing sequence of messages received by applications
according to a predetermined priority scheme” as “associate priority values with messages
transmitted by the applications and to control the processing sequence of messages received by
applications according to a predetermined priority scheme based on a comparison of a message’s
priority value to the priority value of other messages and a ranking of the message’s priority.” A
person of ordinary skill in the relevant art at the time of the invention would have understood that
Claim 1 of the asserted ‘383 Patent uses the word “associate” according to its plain and ordinary
meaning and further claims a particular priority scheme based on a comparison of a message’s
priority value to the priority value of other messages and a ranking of the message’s priority.
12. “at least one of . . . and . . .”
The parties submit that this term appears in Claims 1, 2, 6, and 17 of the asserted ‘015
Patent; Claim 1 of the asserted ‘292 Patent; and Claims 2 and 4 of the asserted ‘383 Patent. See
ECF No. 30, at 27 n.12; see also ECF No. 32, at 48 n.21. The parties do not dispute that the term
should be construed consistently. See ECF No. 30, at 28. MicroPairing proposes that the term is
disjunctive. ECF No. 46-1, at 5. Toyota proposes that the term is conjunctive. Id.
secure real-time executive message manager in a distributed multi-processor system controlling the processing
sequence of messages received by applications; moreover, the disputed term appears in the context of a secure realtime executive message manager in a distributed multi-processor system associating priority values to outgoing, not
incoming, messages. The parties’ claim construction briefing fails to make clear whether, and how, priority managers
in an Open Communication system and secure real-time executive message managers in a distributed multi-processor
system are related. Absent specific compelling evidence to the contrary, the Court declines to read limitations from
the specification for the purportedly incorporated and asserted ‘033 Patent into the claims of the asserted ‘383 Patent.
See Uniloc USA, Inc. v. AVG Techs. USA, Inc., No. 2:16-CV-00393, 2017 WL 3498496, at *7 n.4 (E.D. Tex. Aug.
16, 2017) (quoting Advanced Display Sys. Inc. v. Kent State Univ., 212 F.3d 1272, 1282 (Fed. Cir. 2000)) (“The
Federal Circuit has stated that ‘incorporation by reference provides a method for integrating material from various
documents into a host document . . . by citing material in a manner that makes clear that the material is effectively
part of the host document as if it were explicitly contained therein.’”) (emphasis added).
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MicroPairing argues that the term is disjunctive and used to indicate alternatives. ECF No.
30, at 28. To support its argument, MicroPairing cites Claims 1 and 2 of the asserted ‘015 Patent,
Claim 1 of the asserted ‘292 Patent, and Claim 4 of the asserted ‘383 Patent. See id. at 28–30.
According to MicroPairing, this claim language confirms that Toyota’s construction is
“nonsensical” and would render the term “meaningless.” Id. at 28, 29. For instance, MicroPairing
explains, Claim 4 of the asserted ‘383 Patent recites, “wherein the network is at least one of wired
and wireless.” Id. at 29; see also ECF No. 1-5, at 55–56. The term, MicroPairing contends, “is
clearly used to indicated alternatives—the network is wired or wireless.” ECF No. 30, at 29–30.
Toyota counters that the term is conjunctive and means “at least one of A and at least one
of B.” ECF No. 32, at 48. Relying on SuperGuide Corp. v. DirectTV Enterprises Inc., 358 F.3d
870 (Fed. Cir. 2004), Toyota submits that its “construction fits squarely within Federal Circuit
precedent setting forth the rules for interpreting claim language that includes the phrase ‘at least
one of X and Y.’” Id. Those rules, Toyota contends, provide that the plain and ordinary meaning
of the term “at least one of . . . and . . .” is one in which the term modifies each member of the list
or each category in the list Id. at 49. Toyota submits that the Patent Trial and Appeal Board adopted
this construction in Ex Parte Jung, Appeal No. 2016-008290, 2017 WL 1130560 (P.T.A.B. Mar.
20, 2017). Id.at 49–50. In Toyota’s view, “MicroPairing misreads unambiguous claims to assert
mutual exclusivity that does not exist.” Id. at 51.
In SuperGuide, the Federal Circuit determined that the plain and ordinary meaning of the
phrase “at least one of” is “one or more.” 358 F.3d at 886. To ascertain what the term “at least one
of . . . and . . .” meant in that case, the Federal Circuit considered what the phrase “at least one of”
modifies. Id. The Federal Circuit noted that “[a] common treatise on grammar teaches that ‘an
article of a preposition applying to all the members of the series must either be used only before
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the first term or else be repeated before each term.’” Id. (quoting William Strunk, Jr. & E.B. White,
The Elements of Style 27 (4th ed. 2000)). The Federal Circuit further observed that the claim at
issue in SuperGuide listed criteria consisting of four categories, where each category was further
comprised of many possible values. SuperGuide, 458 F.3d at 886. After assessing the relevant
intrinsic evidence, the Federal Circuit also found that “[e]very disclosed embodiment teaches that
the user must choose a value for each designated category.” Id. at 887. Based on these
circumstances, the Federal Circuit concluded that the “phrase ‘at least one of’ precedes a series of
categories of criteria, and the patentee used the term ‘and’ to separate the categories of criteria,
which connotes a conjunctive list.” Id. at 886.
Nevertheless, courts have recognized that, in some instances, deviation from the Federal
Circuit’s construction of the term “at least one of . . . and . . .” as articulated in SuperGuide is
warranted. For example, “[w]hen ‘the specification or claims imply a broader meaning’ than would
be established by the conjunctive construction, the disjunctive construction applies.” Shotkam LLC
v. Tachyon, Inc., No. CV H-20-1070, 2021 WL 23311, at *6 (S.D. Tex. Jan. 4, 2021) (quoting
Hewlett-Packard Co., v. MPHJ Tech. Invs., LLC, No. IPR2013-00309, 2013 WL 8563946, at *5
(P.T.A.B. Nov. 21, 2013)). Courts have also “found SuperGuide inapplicable when the listed items
following ‘at least one of’ are not categories containing many possible values.” Apple, Inc. v.
Evolved Wireless LLC, No. IPR2016-01177, 2017 WL 6543970, at *4 (P.T.A.B. Dec. 20, 2017).
Also, where the relevant claim language recites an option of two rather than a list, “[t]he duality
of the term makes it a binary choice between two options—not a list giving rise to the confusion
present in SuperGuide.” 3rd Eye Surveillance, LLC v. United States, 140 Fed. Cl. 39, 69 (2018).
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In this case, the claims in which the term “at least one of . . . and . . .” appears and the
relevant specifications indicate that the term implies a broader meaning than the construction the
Federal Circuit articulated in SuperGuide. For example, Claim 2 of the asserted ‘383 Patent recites:
2. The vehicle distributed control system according to
claim 1 wherein the distributed vehicle control system comprises at least one of vehicle infrared sensor control, vehicle
radar sense control, vehicle video control, vehicle brake
control, vehicle audio control, vehicle environmental control
and vehicle driver assistance control.
ECF No. 1-5, at 20:44–49. Yet, the specification for the asserted ‘383 Patent does not necessarily
require that the claimed vehicle distributed control system be comprised of one of each of the
vehicle control categories recited in the claim. Further, it is unclear what possible values could fall
under the categories—if they represent categories at all—vehicle infrared sensor control and
vehicle brake control. In addition, the term appears in claim language reciting an option of two
rather than a list. For instance, Claims 1 and 2 of the asserted ‘015 Patent recite “at least one of a
first speaker of the vehicle audio system and a speaker in the wireless audio device” and “at least
one of 802.11 and Bluetooth[,]” respectively. ECF No. 1-7, at 21:1–3, 21:5–6 . Claim 1 of the
asserted ‘292 Patent similarly provides, “at least one of an unauthorized application and
unauthorized data[.]” ECF No. 1-8, at 9:12–13. And Claim 4 of the asserted ‘383 Patent recites,
“The vehicle distributed control system according to claim 1 wherein the network is at least one
of wired and wireless.” ECF No. 1-5, at 20:54–56. “If given a choice between two options, it is
equally as natural to say ‘choose between this and that’ as it would be to say ‘choose between this
or that.’” 3rd Eye, 140 Fed. Cl. at 69 n.21.
Thus, the Court construes the term “at least one of . . . and . . .” as disjunctive. A person of
ordinary skill in the relevant art at the time of the invention would have understood that the
patentee used the term to indicate alternatives.
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13. Claims 1 and 6 of the asserted ‘816 Patent
The parties dispute whether Claims 1 and 6 of the asserted ‘816 Patent are indefinite. ECF
No. 46-1, at 5. MicroPairing submits that the asserted claims are not indefinite because a person
of ordinary skill in the relevant art at the time of the invention would understand with reasonable
certainty that the claims are infringed upon “the act of ‘operating’ an audio system with the claimed
structural requirements.” ECF No. 30, at 32. The asserted claims, MicroPairing contends, are
limited to practicing the claimed method. Id. According to MicroPairing, Toyota’s argument
“presupposes that a method claim must be presented in a particular form and incorrectly suggests
that a method claim is invalid for reciting physical structure.” Id. at 31. Citing MicroProcessor
Enhancement v. Texas Instruments, 520 F.3d 1367 (Fed. Cir. 2008), MicroPairing argues that
“there is no prohibition against claiming structure in a method claim.” Id.
In response, Toyota argues that Claims 1 and 6 of the asserted ‘816 Patent are indefinite
“because they impermissibly mix statutory subject matter classes.” ECF No. 32, at 52. Toyota
submits that the “the claims are entirely unconstrained by any method steps and are therefore
written so broadly as to conceivably encompass every possible ‘method of operating’ the described
audio systems.” Id. at 53. “For example,” Toyota explains, “it is unclear if these claims would be
infringed when the vehicle is first turned on and the audio system begins playing music from the
radio, or when the driver presses the ‘mute’ button, or when the driver changes the volume.” Id. at
54. Toyota therefore asks the Court to find that the asserted claims are indefinite. 29 Id. at 55.
“A single patent may include claims directed to one or more of the classes of patentable
subject matter, but no single claim may cover more than one subject matter class.”
Toyota also cites a communication from the U.S. Patent and Trademark Office. See ECF No. 30, at 54; see
also ECF No. 32-8. That communication, however, reflects a non-final action. See ECF No. 32-8, at 3. “[E]vidence
of non-final reexamination determinations is of little relevance[.]” K-TEC, Inc. v. Vita-Mix Corp., 696 F.3d 1364,
1376 (Fed. Cir. 2012).
29
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MicroProcessor, 520 F.3d at 1374 (citing IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d
1377, 1384 (Fed. Cir. 2005)). A claim that covers more than one subject matter “‘is not sufficiently
precise to provide competitors with an accurate determination of the “metes and bounds” of
protection involved’ and is ‘ambiguous and properly rejected[.]’” IPXL, 430 F.3d at 1384 (quoting
Ex Parte Lyell, 17 U.S.P.Q.2d 1548, 1550–51 (1990)). Therefore, a claim is indefinite if it is
ambiguous whether infringement of the claim occurs when one creates or uses the claimed
invention. IPXL, 430 F.3d at 1384. By contrast, a claim is not necessarily indefinite if it is
unambiguous that infringement of the claim occurs upon one’s creation or use of the claimed
invention. MicroProcessor, 520 F.3d at 1374.
Here, Claims 1 and 6 of the asserted ‘816 Patent clearly establish that infringement of these
claims occurs when one operates the described vehicle audio system. The claims explicitly recite
“a method of operating a vehicle audio system” followed by a description of the vehicle audio
system’s structural requirements. See ECF No. 1-6, at 9:2–4, 35–36; see also MicroProcessor, 520
F.3d at 1375 (“Direct infringement of claim 1 is clearly limited to practicing the claimed method
in a pipelined processor possessing the requisite structure.”). Additionally, surrounding claims
explain the steps involved in the claimed methods. See, e.g., ECF No. 1-6, at 9:24–25, 10:3–4; see
also In re Mouttet, 716 F. App’x 984, 986 (Fed. Cir. 2017) (finding that method claims were not
indefinite because one of the claims recited a method and the remaining claims further specified
the process steps). No risk of confusion exists. Cf. IPXL, 430 F.3d at 1384 (finding claim indefinite
where it is unclear whether infringement occurs when one creates or uses the claimed invention).
Infringement of Claims 1 and 6 of the asserted ‘816 Patent is clearly limited to operating the
claimed methods in a vehicle audio system possessing the described structural requirements. 30
In arguing that “it is unclear if these claims would be infringed when the vehicle is first turned on and the
audio system begins playing music from the radio, or when the driver presses the ‘mute’ button, or when the driver
30
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Case 5:21-cv-00940-XR Document 66 Filed 01/05/22 Page 44 of 45
As a result, Toyota has failed to prove by clear and convincing evidence that Claims 1 and
6 of the asserted ‘816 Patent are indefinite. Thus, the claims are not invalid as indefinite. A person
of ordinary skill in the relevant art at the time of the invention would have understood that these
claims are limited to operating the claimed methods in a vehicle audio system possessing the
described structural requirements.
CONCLUSION
Accordingly, the Court construes the thirteen contested claim terms as follows:
Term
Construction
“application”
“software, other than operating system and
support software, that performs a task to
fulfill a specific need of a user”
“priority labels used independently by the
individual priority managers to determine
processing priorities for the individual
messages for the individual software
applications”
“wherein the individual priority managers
independently use a message’s priority value
to control when, if at all, a message is
processed”
“configured to” / “adapted to”
Plain and ordinary meaning
“audio sources”
Plain and ordinary meaning
“wireless audio output devices” / “the audio
output devices”
“wireless devices that output sound”
“multiprocessor system” / “multi-processor
system”
Plain and ordinary meaning
changes the volume[,]” ECF No. 32, at 54, Toyota seems to take issue with the meaning of the word “operating” as
used in Claims 1 and 6 of the asserted ‘816 Patent. The parties have not asked the Court to construe the word
“operating” as used in these claims. Moreover, the relevant inquiry is whether the claims are indefinite. They are not.
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“move” / “download”
“make the application from the memory
available in an address space for execution by
one of the processors”
“distributed processor system” / “distributed
processing system”
“a multiprocessor system in which the
processing tasks for the applications can be
distributed among multiple processors”
“secure real-time executive”
Not indefinite
“message manager associated with an
application running on each of the
processors”
Plain and ordinary meaning
“associate priority values with messages
transmitted by the applications and to control
the processing sequence of messages received
by applications according to a predetermined
priority scheme based on a comparison of a
message’s priority value to the priority value
of other messages and a ranking of the
message’s priority”
“associate priority values with messages
transmitted by the applications and to control
the processing sequence of messages received
by applications according to a predetermined
priority scheme”
“at least one of . . . and . . .”
Disjunctive
Claims 1 and 6 of the asserted ‘816 Patent
Not indefinite
It is so ORDERED.
SIGNED this January 5, 2022.
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
45
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