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Free Stream Media Corp. v. Alphonso Inc.

United States District Court, E.D. Texas, Marshall Division

March 29, 2017

FREE STREAM MEDIA CORP. d/b/a SAMBA TV, Plaintiff,
v.
ALPHONSO INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

         On February 8, 2017, the Court held a hearing to determine the proper construction of the disputed claim terms in United States Patent Nos. 9, 026, 668 (“the '668 Patent”) and 9, 386, 356 (“the '356 Patent”) (collectively “the Asserted Patents). The Court has considered the arguments made by the parties at the hearing and in their claim construction briefs. Docket Nos. 99, 104, & 109.[1] The Court has also considered the intrinsic evidence and made subsidiary factual findings about the extrinsic evidence. See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). The Court issues this Claim Construction Memorandum and Order in light of these considerations.

         TABLE OF CONTENTS

         MEMORANDUM OPINION AND ORDER ................................................................................. 1

         I. BACKGROUND ................................................................................................................ 3

         II. APPLICABLE LAW .......................................................................................................... 6

         III. LEVEL OF ORDINARY SKILL IN THE ART .............................................................. 12

         IV. CONSTRUCTION OF AGREED TERMS ...................................................................... 13

         V. CONSTRUCTION OF DISPUTED TERMS ................................................................... 15

         1. “communication session” ............................................................................. 16

         2. “associate with..., ” “associated with..., ” “associating with..., ” “associate...with...” ................ 24

         3. “targeted data” .............................................................................................. 29

         4. “content identification server” and “relevancy-matching server” ................ 34

         5. “client device configured to” and “network device configured to” .............. 44

         6. “the processor is configured to match a targeted data with a primary data based on a relevancy factor associated with a user” ........................................... 55

         7. “instructions stored in the memory and executed using the processor configured to” ................................. 58

         8. “the sandboxed application is configured to gather the primary data from the networked device through the communication session” / “the embedded object is configured to gather the primary data from the networked device through the communication session” ...................................................................................... 64

         VI. CONCLUSION ................................................................................................................. 69

         I. BACKGROUND

         The '668 Patent was filed on May 28, 2013, issued on May 5, 2015, and is titled "Real-Time and Retargeted Advertising on Multiple Screens of a User Watching Television." The '356 Patent was filed on December 29, 2015, issued on July 5, 2016, and is titled "Targeting with Television Audience Data Across Multiple Screens." The Asserted Patents share a common specification. The Asserted Patents generally relate to "[a] method, apparatus, and system related to relevancy improvement through targeting of information based on data gathered from a networked device associated with a security sandbox of a client device." '668 at 2:15-18.

         The specification describes Figure 1 as "a block diagram depicting a system of automatic bidirectional communication (e.g., sending and receiving information in both directions without prior configuration by a human) between multiple devices, according to one embodiment." '668 Patent at 5:54-57.

         (Image Omitted)

Id. at Figure 1. Figure 1 includes "a client device 100, a networked device 102, a security sandbox 104, an executable environment 106, a processor 108, a memory 110, a sandboxed application 112, a sandbox-reachable service 114, a communication session 116, a cross-site scripting technique 118, an appended header 120, a same origin policy exception 122, and an other mode 124." Id. at 5:58-65. The specification states that "the client device 100 may automatically establish the communication session 116 between the sandboxed application 112 and the sandbox-reachable service 114 of the networked device 102." Id. at 6:6-9.

         The specification further specifies that "[t]he communication session 116 may be established between the sandboxed application 112 and the sandbox-reachable service 114 through the cross-site scripting technique 118, the appended header 120, the same origin policy exception 122, and/or the other mode 124 of bypassing a number of (e.g., at least one) access controls of the security sandbox 104." Id. at 6:9-16. The specification adds that "networked device 102 may generate a primary data 500 and/or a preliminary data 702, " and that "[t]he primary data 500 and/or the preliminary data 702 may be associated with a user 902." Id. at 6:28-32.

         The specification describes Figure 2 as illustrating "a system of bidirectional communication between a relevancy-matching server 200, the client device 100, and the networked device 102, according to one embodiment." Id. at 11:45-47.

         (Image Omitted)

Id. at Figure 2. The specification states that "the relevancy-matching server 200 may be a computer hardware system dedicated to matching, using a processor and a memory, a targeted data 800 with the primary data 500 based on a relevancy factor associated with the user 902.” Id. at 11:56-60. The specification further states that “[t]he relevancy-matching server 200 may match the targeted data 800 with the primary data 500 by searching the storage 200 for a matching item and/or a related item based on the relevancy factor.” Id. at 12:17-20.

         For example, “[t]he client device 100 may communicate the primary data 500 to the relevancy-matching server 200 through the embedded object 204.” Id. at 13:9-11. “When the relevancy-matching server 200 has the primary data 500, the relevancy-matching server 200 may use the primary data 500 to select the targeted data 800 to render to the user 902.” Id. at 13:11- 14. The specification adds that “[t]he relevancy-matching server 200 may synchronize the targeted data 800 on the client device 100 to the primary data 500 on the networked device 102.” Id. at 13:14-17.

         Claim 1 of the '668 Patent is an exemplary claim and recites the following elements

         (disputed term in italics):

         a networked device configured to:

automatically announce a sandbox-reachable service of the networked device to a discovery module; and
a relevancy-matching server configured to match a targeted data with a primary data based on a relevancy factor associated with the user; and
a client device configured to:
automatically process an identification data of at least one of the networked device and the sandbox-reachable service of the networked device from the discovery module,
automatically associate with the networked device through a sandboxed application of the client device communicatively coupled to the sandbox-reachable service based on the identification data,
process an embedded object from the relevancy-matching server through the sandboxed application,
gather the primary data through at least one of the embedded object and the sandboxed application, and
communicate the primary data to the relevancy-matching server through the embedded object;
wherein the client device is further configured to: constrain an executable environment in a security sandbox,
execute the sandboxed application in the executable environment, and
automatically establish a communication session between the sandboxed application and the sandbox-reachable service through at least one of a cross-site scripting technique, an appended header, a same origin policy exception, and an other mode of bypassing a number of access controls of the security sandbox, and
wherein the relevancy-matching server is configured to match the targeted data with the primary data in a manner such that the relevancy-matching server is configured to search a storage for at least one of a matching item and a related item based on the relevancy factor comprising at least one of a category of the primary data, a behavioral history of the user, a category of the sandboxed application, and an other information associated with the user.

         Claim 1 of the '356 Patent is an exemplary claim and recites the following elements (disputed term in italics):

1. A system comprising:
a television to generate a fingerprint data;
a relevancy-matching server to:
match primary data generated from the fingerprint data with targeted data, based on a relevancy factor, and search a storage for the targeted data;
wherein the primary data is any one of a content identification data and a content identification history;
a mobile device capable of being associated with the television to:
process an embedded object, constrain an executable environment in a security sandbox, and execute a sandboxed application in the executable environment; and a content identification server to:
process the fingerprint data from the television, and communicate the primary data from the fingerprint data to any of a number of devices with an access to an identification data of at least one of the television and an automatic content identification service of the television.

         II. APPLICABLE LAW

         A. Claim Construction

         “It is a ‘bedrock principle' of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.' ” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. The general rule is that each claim term is construed according to its ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption that claim terms carry their accustomed meaning in the relevant community at the relevant time.”) (vacated on other grounds).

         “The claim construction inquiry . . . begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n all aspects of claim construction, ‘the name of the game is the claim.' ” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)). First, a term's context in the asserted claim can be instructive. Phillips, 415 F.3d at 1314. Other asserted or unasserted claims can also aid in determining the claim's meaning, because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.

         “[C]laims ‘must be read in view of the specification, of which they are a part.' ” Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.' ” Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). But, “ ‘[a]lthough the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims.' ” Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is improper to read limitations from a preferred embodiment described in the specification-even if it is the only embodiment-into the claims absent 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).

         The prosecution history is another tool to supply the proper context for claim construction because, like the specification, the prosecution history provides evidence of how the U.S. Patent and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317. However, “because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history may be “unhelpful as an interpretive resource”).

         Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic record in determining the legally operative meaning of claim language.'” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert's conclusory, unsupported assertions as to a term's definition are entirely unhelpful to a court. Id. Generally, extrinsic evidence is “less reliable than the patent and its prosecution history in determining how to read claim terms.” Id. The Supreme Court recently explained the role of extrinsic evidence in claim construction:

In some cases, however, the district court will need to look beyond the patent's intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871) (a patent may be “so interspersed with technical terms and terms of art that the testimony of scientific witnesses is indispensable to a correct understanding of its meaning”). In cases where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that extrinsic evidence. These are the “evidentiary underpinnings” of claim construction that we discussed in Markman, and this subsidiary factfinding must be reviewed for clear error on appeal.

Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015).

         B. Functional Claiming and 35 U.S.C. § 112, ¶ 6 (pre-AIA) / § 112(f) (AIA) [2]

         A patent claim may be expressed using functional language. See 35 U.S.C. § 112, ¶ 6; Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347-49 & n.3 (Fed. Cir. 2015) (en banc in relevant portion). Section 112, Paragraph 6, provides that a structure may be claimed as a “means . . . for performing a specified function” and that an act may be claimed as a “step for performing a specified function.” Masco Corp. v. United States, 303 F.3d 1316, 1326 (Fed. Cir. 2002).

         But § 112, ¶ 6 does not apply to all functional claim language. There is a rebuttable presumption that § 112, ¶ 6 applies when the claim language includes “means” or “step for” terms, and that it does not apply in the absence of those terms. Masco Corp., 303 F.3d at 1326; Williamson, 792 F.3d at 1348. The presumption stands or falls according to whether one of ordinary skill in the art would understand the claim with the functional language, in the context of the entire specification, to denote sufficiently definite structure or acts for performing the function. See Media Rights Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1372 (Fed. Cir. 2015) (§ 112, ¶ 6 does not apply when “the claim language, read in light of the specification, recites sufficiently definite structure” (quotation marks omitted) (citing Williamson, 792 F.3d at 1349; Robert Bosch, LLC v. Snap-On Inc., 769 F.3d 1094, 1099 (Fed. Cir. 2014))); Williamson, 792 F.3d at 1349 (§ 112, ¶ 6 does not apply when “the words of the claim are understood by persons of ordinary skill in the art to have sufficiently definite meaning as the name for structure”); Masco Corp., 303 F.3d at 1326 (§ 112, ¶ 6 does not apply when the claim includes an “act” corresponding to “how the function is performed”); Personalized Media Communications, L.L.C. v. International Trade Commission, 161 F.3d 696, 704 (Fed. Cir. 1998) (§ 112, ¶ 6 does not apply when the claim includes “sufficient structure, material, or acts within the claim itself to perform entirely the recited function . . . even if the claim uses the term ‘means.' ” (quotation marks and citation omitted)).

         When it applies, § 112, ¶ 6 limits the scope of the functional term “to only the structure, materials, or acts described in the specification as corresponding to the claimed function and equivalents thereof.” Williamson, 792 F.3d at 1347. Construing a means-plus-function limitation involves multiple steps. “The first step . . . is a determination of the function of the means-plus-function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). “[T]he next step is to determine the corresponding structure disclosed in the specification and equivalents thereof.” Id. A “structure disclosed in the specification is ‘corresponding' structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim.” Id. The focus of the “corresponding structure” inquiry is not merely whether a structure is capable of performing the recited function, but rather whether the corresponding structure is “clearly linked or associated with the [recited] function.” Id. The corresponding structure “must include all structure that actually performs the recited function.” Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir. 2005). However, § 112 does not permit “incorporation of structure from the written description beyond that necessary to perform the claimed function.” Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).

         For § 112, ¶ 6 limitations implemented by a programmed general purpose computer or microprocessor, the corresponding structure described in the patent specification must include an algorithm for performing the function. WMS Gaming Inc. v. Int'l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). The corresponding structure is not a general purpose computer but rather the special purpose computer programmed to perform the disclosed algorithm. Aristocrat Techs. Austl. Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008).

         III. LEVEL OF ORDINARY SKILL IN THE ART

         It is well established that patents are interpreted from the perspective of one of ordinary skill in the art. See Phillips, 415 F.3d at 1313 (“[T]he 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, i.e., as of the effective filing date of the patent application.”). The Federal Circuit has advised that the “[f]actors that may be considered in determining the level of skill in the art include: (1) the educational level of the inventors; (2) the type of problems encountered in the art; (3) prior art solutions to those problems; (4) the rapidity with which innovations are made; (5) sophistication of the technology; and (6) education level of active workers in the field.” Env'tl Designs, Ltd. v. Union Oil Co. of California, 713 F.2d 693, 696 (Fed. Cir. 1983). “These factors are not exhaustive but are merely a guide to determining the level of ordinary skill in the art.” Daiichi Sankyo Co. Ltd. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007).

         The parties essentially agree that a person of ordinary skill in the art would have at least a bachelor degree in computer science, electrical engineering, or a related discipline and 2-3 years of experience. Plaintiff submitted a declaration of Dr. Vijay Madisetti, in which he opines that “a POSITA in this timeframe would have been someone with at least a bachelor degree in computer science, electrical engineering, or a related discipline and 2-3 years of experience. Alternatively, a POSITA may have been someone with an advanced degree in computer science, electrical engineering, or a related discipline.” Docket No. 99-13 at 12 (Vijay Madisetti Decl. at ¶ 33). Defendant submitted a declaration of Dr. Michael Shamos, in which he states that he generally agrees with Dr. Madisetti description of level of education. Docket No. 104-1 at 5 (Michael Shamos Decl. at ¶ 15). Defendant argued in its brief that a “POSITA would need an undergraduate degree in computer science or electrical engineering, or equivalent experience, and at least three years of industry or research experience in computer networking and audio and video systems, including exposure to fingerprinting, watermarking, content identification, device and service discovery, sandboxing, circumvention of sandbox protection, and relevancy matching to identify targeted data.” Docket No.104 at 10.

         As an initial matter, the Court finds that the differences between the parties' descriptions of the person of ordinary skill in the art are not significant for the purpose of claim construction. Having considered the parties' proposals, and the factors that may be considered in determining the level of skill in the art, the Court finds that a person of ordinary skill in the art would have at least a bachelor degree in computer science, electrical engineering, or a related discipline, and a working knowledge of the technologies implemented in “networking, data recognition systems, and data recommendation systems.” '668 Patent at 1:38-40.

         IV. CONSTRUCTION ...


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