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Emg Technology Group, LLC v. Vanguard Group, Inc.

United States District Court, Fifth Circuit

December 4, 2013

EMG TECHNOLOGY GROUP, LLC
v.
THE VANGUARD GROUP, INC., et al.

MEMORANDUM OPINION AND ORDER

MICHAEL H. SCHNEIDER, District Judge.

This claim construction order construes the disputed claim terms of United States Patent No. 7, 441, 196. Plaintiff filed an opening brief (Doc. No. 138), Defendants filed a response (Doc. No. 140), and Plaintiff filed a reply (Doc. No. 142).[1] After consolidating Cause No. 6:13-cv-134 with this action, the Court allowed Defendant Autozone, Inc. to join in the claim construction positions Defendants briefed. Having considered the parties' arguments and the applicable law, the Court canceled the Markman hearing originally scheduled for December 11, 2013 in Tyler, Texas, and for the reasons that follow, the Court adopts the constructions set forth herein. A summary of the final constructions is included with this order as Attachment A.

I. BACKGROUND

This is a patent infringement suit. Plaintiff alleges infringement of United States Patent No. 7, 441, 196 ("the '196 Patent") by Defendants The TJX Companies, Inc., J.C. Penney Corp., Inc., Coach, Inc., Williams-Sonoma, Inc., Pottery Barn Inc., Pottery Barn Teen Inc., Pottery Barn Kids Inc., West Elm, Inc., and Autozone, Inc.

The '196 Patent, titled "Apparatus and Method of Manipulating a Region on a Wireless Device Screen for Viewing, Zooming and Scrolling Internet Content, " issued on October 21, 2008, and bears an earliest priority date of November 15, 1999. The '196 Patent has undergone reexamination at the United States Patent and Trademark Office ("PTO"), and a reexamination certificate issued on September 6, 2011. The Abstract of the '196 Patent states:

A method and apparatus of simplified navigation. A web page is provided having a link to a sister site. The sister site facilitates simplified navigation. Pages from the sister site are served responsive to actuation of the sister site link. In one embodiment, the sister site includes matrix pages to permit matrix navigation.

The Court previously construed various terms in the '196 Patent in EMG Technology, LLC v. Dr. Pepper Snapple Group Inc., et al., first in a provisional claim construction order (No. 6:10-CV-536, Doc. No. 296 (Apr. 3, 2012) (Davis, J.)), and then in a final claim construction order (No. 6:10-CV-536, Doc. No. 311, 2012 WL 3263588 (Aug. 8, 2012) (Davis, J.) (" Dr. Pepper ")).[2] The Court also construed claims of the '196 Patent in EMG Technology, LLC v. Chrysler Group, et al., No. 6:12-CV-259, Doc. No. 143, 2013 WL 3753562 (July 11, 2013) (Schneider, J.) (" Chrysler ").[3]

II. LEGAL PRINCIPLES

Claim construction is a matter of law. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995). The purpose of claim construction is to resolve the meanings and technical scope of claim terms. U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). When the parties dispute the scope of a claim term, "it is the court's duty to resolve it." O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008).

The claims of a patent define the scope of the invention. Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1324 (Fed. Cir. 2002). They provide the "metes and bounds" of the patentee's right to exclude. Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989). Accordingly, claim construction begins with and "remain[s] centered on the claim language itself." Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004).

Claim terms are normally given their "ordinary and customary meaning." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). Generally, "the ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention." Id at 1313.

The best guide for defining a disputed term is a patent's intrinsic evidence. Teleflex, 299 F.3d at 1325. Intrinsic evidence includes the patent's specification and the prosecution history. Id.

The claims are part of the specification. Markman, 52 F.3d at 979.."). "[T]he context in which a term is used in the asserted claim can be highly instructive." Phillips, 415 F.3d at 1314; see also Abtox, Inc. v. Exitron Corp., 122 F.3d 1019, 1023 (Fed Cir. 1997) ("[T]he language of the claim frames and ultimately resolves all issues of claim interpretation."). "Differences among claims can also be a useful guide in understanding the meaning of particular claim terms." Phillips, 415 F.3d at 1314.

In addition to the claims, the specification's written description is an important consideration during the claim construction process. Vitronics Corp., 90 F.3d at 1582. The written description provides further context for claim terms and may reflect a patentee's intent to limit the scope of the claims. See Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000). "[T]he specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Phillips, 415 F.3d at 1315 (quoting Vitronics, 90 F.3d at 1582).

The specification may also resolve ambiguous claim terms "where the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words alone." Teleflex, Inc., 299 F.3d at 1325. For example, "[a] claim interpretation that excludes a preferred embodiment from the scope of the claim is rarely, if ever, correct.'" Globetrotter Software, Inc. v. Elam Computer Grp., Inc., 362 F.3d 1367, 1381 (Fed. Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583).

But care must be taken to avoid unnecessarily reading limitations from the specification into the claims. Teleflex, 299 F.3d at 1326; see also Raytheon Co. v. Roper Corp., 724 F.2d 951, 957 (Fed. Cir. 1983) ("That claims are interpreted in light of the specification does not mean that everything expressed in the specification must be read into all the claims."). "[P]articular embodiments appearing in the written description will not be used to limit claim language that has broader effect." Innova/Pure Water, 381 F.3d at 1117; see also Phillips, 415 F.3d at 1323 ("[A]lthough the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments.").

The prosecution history is also part of the intrinsic evidence. Phillips, 415 F.3d at 1317. It "consists of the complete record of the proceedings before the PTO and includes the prior art cited during the examination of the patent." Id. "As in the case of the specification, a patent applicant may define a term in prosecuting a patent." Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004). Statements made during the prosecution of the patent may limit the scope of the claims. Teleflex, 299 F.3d at 1326; see Omega Eng'g Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003) (explaining that the doctrine of prosecution disclaimer "preclud[es] patentees from recapturing through claim interpretation specific meanings disclaimed during prosecution").

Finally, the Court may rely on extrinsic evidence to aid with understanding the meaning of claim terms. Markman, 52 F.3d at 981. Extrinsic evidence includes "all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Id. at 980. Extrinsic evidence is generally less useful or reliable, Phillips, 415 F.3d at 1317, and it should not be relied on when it contradicts the intrinsic evidence, Markman, 52 F.3d at 981.

Prior claim construction proceedings involving the same patents in suit are "entitled to reasoned deference under the broad principals of stare decisis and the goals articulated by the Supreme Court in Markman, even though stare decisis may not be applicable per se. " Maurice Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779, at *4 (E.D. Tex. June 21, 2006). The Court nonetheless conducts an independent evaluation during claim construction proceedings. See, e.g., Texas Instruments, Inc. v. Linear Techs. Corp., 182 F.Supp.2d 580, 589-90 (E.D. Tex. 2002); Burns, Morris & Stewart Ltd. P'ship v. Masonite Int'l Corp., 401 F.Supp.2d 692, 697 (E.D. Tex. 2005); Negotiated Data Solutions, Inc. v. Apple, Inc., No. 2:11-CV-390, 2012 WL 6494240 (E.D. Tex. Dec. 13, 2012).

III. LEVEL OF ORDINARY SKILL IN THE ART

As a threshold matter, the parties dispute the level of skill of a person of ordinary skill in the art. The Court has a duty to resolve the dispute. See Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998) ("It is the person of ordinary skill in the field of the invention through whose eyes the claims are construed."); accord Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1478 (Fed. Cir. 1998) (Rader, C.J., concurring in part) (noting that "claim construction requires... assessment of the level of ordinary skill in the art").

Plaintiff proposes that "one of ordinary skill in the art in the 1999 time frame would have had a bachelor[']s degree in computer science or two years [of] experience with HTML programming and some basic knowledge of computer science" (Doc. No. 138 at 8).

Defendants propose that "one of ordinary skill in the art in the 1999 time frame would have had a master[']s degree in computer science or commensurate industry experience of at least four to five years of experience with HTML programming and general knowledge of Internet browser technology" (Doc. No. 140 at 4).

On balance, the Court finds that the level of ordinary skill in the art at the relevant time was a bachelor's degree in computer science or, alternatively, two years of experience with HTML programming.

IV. CONSTRUCTION OF DISPUTED TERMS

A. "manipulated within selected one of the regions"

Plaintiff's Proposed Construction Defendants' Proposed Construction Plain meaning "manipulated within the region that is associated with a unique input"

(Doc. No. 138 at 8).

Defendants submit that "[t]he construction of manipulated within selected one of the regions' was raised by a party that is no longer in this action, Motorola Mobility LLC, and is not disputed by the remaining Defendants" (Doc. No. 140 at 4 n.2).

The parties having thus reached agreement, the Court hereby construes "manipulated within selected one of the regions" to have its plain meaning.

B. "email form"

Plaintiff's Proposed Construction Defendants' Proposed Construction Plain meaning "a form that, when filled, transmits an email"

(Doc. No. 113-1 at 1; Doc. No. 138 at 8). The parties submit that this term appears in Claims 36 and 72.

Defendants submit that "in the interest of limiting the number of claim terms the Court will need to address, Defendants will accept a construction of plain meaning for the term email form'" (Doc. No. 140 at 4 n.2). The parties' November 8, 2013 Joint Claim Construction Chart confirms this agreed construction (Doc. No. 149-2 at 2).

The parties having thus reached agreement, the Court hereby construes "email form" to have its plain meaning.

C. "purchasing interface"

Plaintiff's Proposed Construction Defendants' Proposed Construction Plain meaning "purchasing form displayed in the navigation matrix"

(Doc. No. 138 at 12; Doc. No. 140 at 4). The parties submit that this term appears in Claims 37 and 73.

In its reply brief, Plaintiff states that it "will agree with Defendants' proposed construction of purchas[ing] interface' as meaning a purchas[ing] form displayed in the navigation matrix" (Doc. No. 142 at 1 n.2). The parties' November 8, 2013 Joint Claim Construction Chart confirms this agreed construction (Doc. No. 149-2 at 2).

The parties having thus agreed upon a construction, the Court hereby construes "purchasing interface" to mean "purchasing form displayed in the navigation matrix."

D. "simplified navigation interface"[4]

Plaintiff's Proposed Construction Defendant Coach's Proposed Construction Plain meaning "a navigation interface that cannot encompass links between pages' or prioritization' of content from a web page"

(Doc. No. 138 at 12; Doc. No. 140 at 7). The parties submit that this term appears in Claims 25, 35, 36, 58, 71, and 72.

(1) The Parties' Positions

Plaintiff argues that "Defendants' attempt to define a term by stating what it does not mean will confuse the jury" and is "based on excerpts taken out of context from the prosecution history of related patent applications" (Doc. No. 138 at 14). Plaintiff urges that "[i]t would run contrary to th[e] plain language to say that a simplified navigation interface cannot encompass links between pages" (Doc. No. 138 at 15). As to the prosecution history, Plaintiff argues that it "distinguished the prior art on the basis that it lacked a sister site, i.e., a website separate from the standard site, " and Plaintiff further argues that it "merely state[d] that prioritization is different from simplification" (Doc. No. 138 at 15-17).

Defendant Coach, Inc. ("Coach") responds that during prosecution, the patentee definitively stated that "links between pages" and "prioritization of content from a web page" are outside the scope of the claimed "simplified navigation interface." Coach cites RFID Tracker, Ltd. v. Wal-Mart Stores, Inc., 342 Fed.App'x 628 (Fed. Cir. 2009), as an example of a negative limitation. In RFID Tracker, the Court of Appeals for the Federal Circuit affirmed the district court's construction of the term "interrogator/reader" as meaning "an interrogator/reader that includes a field generator and a receiver, but not a transmitter." Id. at 629. The district court relied upon prosecution history that stated the "interrogator/reader" performs no transmission other than generating a radio frequency field for polling radio frequency identification (RFID) tags. Id. at 631-32. Coach has also noted that "an applicant's argument that a prior art reference is distinguishable on a particular ground can serve as a disclaimer of claim scope even if the applicant distinguishes the reference on other grounds as well." Saffran v. Johnson & Johnson, 712 F.3d 549, 559 (Fed. Cir. 2013) (quoting Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1374 (Fed. Cir. 2007)) (internal quotation marks omitted).

Plaintiff replies that Coach "contorts [Plaintiff's] straight-forward response to the examiner that merely having links between pages of a single website is not a sister site" (Doc. No. 142 at 1). Instead, Plaintiff argues, Plaintiff distinguished prior art as lacking a separate sister site (Doc. No. 142 at 2). As to "prioritization, " Plaintiff replies that it "distinguished the prior art on the basis that it lacked a simplified navigation interface or one provided by a sister site. Merely having a web page on a single website that has less content is not the same as a separate website (i.e., sister site) having a simplified navigation interface" (Doc. No. 142 at 2-3). Finally, Plaintiff submits that "[i]f there is any disclaimer, it would be that a standard website that merely prioritizes content on one of its webpages does not disclose a sister site having a simplified navigation interface" (Doc. No. 142 at 3 n.4).

(2) Analysis

As to Coach's argument regarding "links between pages, " the patentee stated during prosecution of United States Patent No. 7, 020, 845 ("the '845 Patent"):[5]

[L]inks between individual webpages within a website do not constitute the accessing of sister sites or the association of a webpage with a sister site. Further, Appellants note that the standard manner in which a website is navigated is by using links between pages. Arora [(United States Patent No. 5, 911, 145)] simply provides an automated and organized manner for linking the webpages of a website to one another. This is not equivalent to providing simplified navigation, rather it is standard navigation.

(7/11/2003 Appeal Brief, Doc. No. 138-5 at 13; see 7/5/2005 Decision on Appeal, Doc. No. 140-7 at 12 ("[W]e agree with appellants (brief, pages 13 and 14) that having links to other web pages does not simplify the navigation of a web page, and that this simplified navigation, as characterized by the Examiner, is not provided by a sister site but is provided in the webpage itself.")). Coach argues that the patentee thereby "unmistakably distinguished simplified navigation' from standard navigation, ' which [Plaintiff] defined as links between pages' that provide an automated and organized manner for linking the webpages of a website to one another.' Thus, [Plaintiff] agreed and represented that simplified navigation' does not encompass links between pages, ' which [Plaintiff] dismissed as standard' navigation" (Doc. No. 140 at 8).

A reasonable reading, however, is that the patentee criticized Arora not for using links between pages but rather for using a single website instead of a distinct sister site. See SanDisk Corp. v. Memorex Prods., Inc., 415 F.3d 1278, 1287 (Fed. Cir. 2005) ("There is no clear and unmistakable' disclaimer if a prosecution argument is subject to more than one reasonable interpretation, one of which is consistent with a proffered meaning of the disputed term."). On balance, the patentee made no definitive statements that would warrant precluding links from being part of a "simplified navigation interface." See Omega Eng'g, 334 F.3d at 1324 ("As a basic principle of claim interpretation, prosecution disclaimer promotes the public notice function of the intrinsic evidence and protects the public's reliance on definitive statements made during prosecution." (emphasis added)). Moreover, the specification discloses examples of linking between pages as part of a simplified navigation interface. See '196 Patent at 8:24-9:25, 9:46-10:3, Figs. 2a, 2b, 10a-10g.

As to Coach's argument regarding "prioritization of content from a web page, " Coach cites the prosecution of abandoned United States Patent Application No. 12/547, 429.[6] The applicant responded to a rejection based on "Kanevsky, " United States Patent No. 6, 300, 947:

The cited section makes no mention of a "simplified navigation interface" or that such an interface is provided by a "sister site." Rather, the cited section discusses how a web page can have some of its content dropped when displayed on a smaller display based on a prioritization scheme. See col. 11, lines 42-45 ("[p]rioritization depends on such factors as, for example, the importance of information contained in an object and/or how often this object (link) is visited by this particular user or all users"). Thus, the navigation is not simplified; rather, the navigation is prioritized. This could in fact render the navigation more complicated or less simple, due to low priority navigation options being dropped to fit a screen size. Dropping navigation options makes accessing dependent or linked content more difficult when the corresponding links are dropped.

(8/2/2011 Response to Office Action, Doc. No. 140-10 at 6).

A reasonable reading is that the patentee did not disclaim prioritization but rather merely criticized Kanevsky for dropping low priority navigation options instead of providing a distinct sister site. See SanDisk, 415 F.3d at 1287. On balance, the patentee made no definitive statements that would warrant precluding a "simplified navigation interface" from including "prioritization" of content from a web page. See Omega Eng'g, 334 F.3d at 1324. Moreover, one embodiment disclosed in the 196 Patent includes a "ranking system" for displaying, "in a userfriendly ranked order, " only the highest-ranked products in a particular category. See '196 Patent at 8:56-9:2, Fig. 10e.

Coach's proposed construction is therefore hereby expressly rejected. No further construction is necessary. See U.S. Surgical, 103 F.3d at 1568 ("Claim construction is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the claims, for use in the determination of infringement. It is not an obligatory exercise in redundancy."); see also O2 Micro, 521 F.3d at 1362 ("[D]istrict courts are not (and should not be) required to construe every limitation present in a patent's asserted claims."); Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010) ("Unlike O2 Micro, where the court failed to resolve the parties' quarrel, the district court rejected Defendants' construction.").

The Court accordingly hereby construes "simplified navigation interface" to have its plain meaning.

E. "next deeper navigation layer"[7]

Plaintiff's Proposed Construction Defendant Coach's Proposed Construction Plain meaning "a more specific navigation layer from the plurality of layers"

(Doc. No. 138 at 17; Doc. No. 140 at 12; Doc. No. 149-2 at 4). The parties submit that this term appears in Claims 25 and 58.

(1) The Parties' Positions

Plaintiff submits that "[a]ccording to the claim language, the next deeper layer is more specific than the layer that preceded it" (Doc. No. 138 at 17). Plaintiff argues that because Coach's proposed language "already is in the language of the claim, " "[t]he addition of duplicative language only will serve to confuse a jury" (Doc. No. 138 at 18).

Coach responds that Plaintiff's argument actually supports Coach's proposal that "next deeper" means "more specific" and that there must be multiple layers (Doc. No. 140 at 12).

Plaintiff replies by reiterating that "the claim already includes the language... that Coach proposes to add" (Doc. No. 142 at 3).

(2) Analysis

Claim 58 is representative and recites (emphasis added; reexamination amendments included but not indicated):

58. A machine readable medium having instructions stored therein, which when executed cause a machine to perform a set of operations comprising:
displaying on-line content accessed via the Internet, the on-line content reformatted from a webpage in a hypertext markup language (HTML) format into an extensible markup language (XML) format to generate a sister site, the sister site including a portion or a whole of content of the web page reformatted to be displayed and navigable through a simplified navigation interface on any one of a television, web appliance, console device, handheld device, wireless device or cellular phone, the simplified navigation interface displayed in a form of a twodimensional layer of cells from a plurality of layers and a plurality of cells, the two-dimensional layer in a form of a navigation matrix, each cell is a division of a screen and exclusive to a separate single navigation option associated with a specific unique input, the on-line content formatted to be displayed in one or more of the plurality of cells and formatted to be selected for navigation by one or more of the unique inputs, navigation options to change between layers of the simplified navigation interface from general to more specific in each deeper layer;
displaying a hyperlink on the sister site to navigate to the web page, or displaying a hyperlink on the web page to navigate to the sister site;
receiving a user selection of one of the navigation options;
forwarding the selected navigation option across the internet to a server providing the simplified navigation interface;
receiving a next deeper navigation layer of the simplified navigation interface corresponding to the selected navigation option; and
manipulating a region of the screen for viewing and zooming and/or scrolling of the displayed on-line content.

The specification also discloses "layers":

"Primary navigation options" as used herein are those navigation options that necessarily change between successive matrix layers, changing from general to more specific with increases in depth in the matrix.

'196 Patent at 7:46-49.

FIGS. 10 a-g are a series of matrix layers displayed during an exemplary navigation using one embodiment of the invention. In this example, navigation begins at the Shopping and Products matrix layer and [ sic ] shown in FIG. 10 a. A selection of 5 on the 10 a matrix layer yields an Electronics matrix layer shown in FIG. 10 b.
Selecting 1 on the keypad when the matrix layer of 10 b is displayed yields the Audio matrix layer of FIG. 10 c. By selecting an 8 on the keypad when 10 c is displayed, the system displays a Receivers matrix layer of FIG. 10 d, which breaks down receivers into price categories and also provides the option of navigating, in this embodiment, into Consumer Reports industry reports related to receivers.

Id. at 8:36-49.

During prosecution of related United States Patent Application No. 09/440, 214, which issued as United States Patent No. 6, 600, 497 ("the '497 Patent"), [8] the patentee explained: "[T]he instant application defines a next deeper navigation matrix layer as a layer for which the primary navigation options are more specific than the layer above it." (7/16/2002 Amendment and Response to Office Action, Doc. No. 140-9 at 2). Also during that prosecution, the patentee stated:

Additionally, responsive to the selection of a cell navigation matrix layer, a next deeper navigation matrix layer is generated on the display. In this manner, the user is able to drill down through successively more exact categories until the desired content page is reached at the maximum depth of that path through the navigation matrix....

(1/7/2004 Appeal Brief, Doc. No. 140-10 at 5).

On balance, the prosecution history cited by Coach adds little, if anything, that is not already present in surrounding claim language, such as in Claim 58, quoted above. Instead, Coach's proposed construction would tend to confuse rather than clarify the scope of the claims. The Court therefore hereby expressly rejects Coach's proposed construction.

No further construction is necessary. See U.S. Surgical, 103 F.3d at 1568 ("Claim construction is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the claims, for use in the determination of infringement. It is not an obligatory exercise in redundancy."); see also O2 Micro, 521 F.3d at 1362 ("[D]istrict courts are not (and should not be) required to construe every limitation present in a patent's asserted claims."); Finjan, 626 F.3d at ...


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