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Realzoom LLC v. L Brands, Inc.

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

May 18, 2018

REALZOOM LLC, Plaintiff,
v.
L BRANDS, INC., VICTORIAS SECRET STORES, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

         On January 10, 2018, the Court held a hearing to determine the proper construction of the disputed claim terms in United States Patent No. 7, 774, 712 (“the '712 Patent”). The Court has considered the arguments made by the parties at the hearing and in their claim construction briefs. Docket Nos. 45, 46, & 48.[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.

         I. BACKGROUND

         The '712 Patent was filed on December 31, 2004, was issued on August 10, 2010 and is titled “Methods and Systems for Displaying an Enlarged Image.” The disclosure is generally directed to displaying a first image and a portion of an enlarged version of the first image based on the position of a cursor. '712 Patent at Abstract, 1:36-46. The following figures demonstrate an exemplary embodiment of the recited claim elements. Starting with Figure 5, the figure illustrates an exemplary screen shot displaying a first image (52), with the cursor (28) positioned away from the first image. Id. at 8:5-14.

         (Image Omitted)

         Figure 6 then illustrates an exemplary screen shot displaying the first image (52) of Figure 5, and a portion of an enlarged version of the first image (212). Id. at 8:15-32.

         (Image Omitted)

         Figure 6 shows the cursor (28) over the first image (52), and the display of the corresponding portion of the enlarged version of the first image (212) on the screen. Id. The specification states that the cursor (28) takes the form of a point to decrease the amount of the first image (52) that is blocked by the cursor. Id. at 8:20-22.

         Figure 7 illustrates a second exemplary screen shot displaying the first image (52) of Figure 5, and a different portion of the enlarged version of the first image (222). Id. at 8:33-54.

         (Image Omitted)

         Figure 7 shows the cursor (28) moved to a different portion of the first image (52), and the display of the corresponding different portion of the enlarged version of the first image. Id.

         Claim 1 of the '712 Patent is an exemplary claim and recites the following elements (disputed term in italics):

1. 1. A method of displaying an enlarged image on a display of a client device running an enlargement application executed by a browser program, the client device configured to generate a user interface in which a user may control a position of a cursor, the method comprising:
transmitting, over a network, a first image and an enlarged version of the first image from a server to the client device;
displaying the first image at a first location on the display; determining whether the position of the cursor generated by the client device overlaps with the first location of the first image;
if the position of the cursor overlaps with the first location of the first image, determining a portion of the enlarged version of the first image with the client device without requesting additional information from the server, where the portion of the enlarged version of the first image is determined based on the position of the cursor;
displaying the portion of the enlarged version of the first image at a second location on the display of the client device while continuing to display the first image at the first location;
displaying an indication on the first image that indicates a portion of the first image that corresponds to the displayed portion of the enlarged version of the first image; and
displaying a different portion of the enlarged version of the first image whenever the position of the cursor changes.

         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-subject to certain specific exceptions discussed infra-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.CONSTRUCTION OF DISPUTED TERMS

         The parties' dispute focuses on the meaning of six terms/phrases in the '712 Patent.

         A. “displaying a different portion of the enlarged version of the first image whenever the position of the cursor changes”

Disputed Term
Plaintiff's Proposal
Defendants' Proposal

“displaying a different portion of the enlarged version of the first image whenever the position of the cursor changes”

Plain and ordinary meaning.

ALTERNATIVELY:

“displaying a different portion of the enlarged version of the first image whenever the position of the cursor changes in a direction where more of the enlarged version of the first image remains to be shown within its boundaries”

“displaying a different portion of the enlarged version of the first image with every change of the position of the cursor that overlaps with the first location”

         1. The Parties' Positions

         The parties dispute whether the phrase “displaying a different portion of the enlarged version of the first image whenever the position of the cursor changes” requires construction. Plaintiff contends that the only difference between the claim language and Defendants' construction is the change of the phrase “whenever the position of the cursor changes” to “with every change of the position of the cursor that overlaps with the first location.” Docket No. 45 at 9. Plaintiff argues that the portions of the specifications cited by Defendants are more consistent with the ordinary claim language, and not Defendants' construction. Id. at 9-10 (citing '712 Patent at 6:24-32, 7:12-21, 8:36-54).

         Defendants respond that their construction makes clear that “the claims require (1) the enlarged version of the image to change with every change of the cursor position, but (2) only when the cursor is over the smaller image.” Docket No. 46 at 9. Defendants argue that the claim language requires “a different portion” of the enlarged image to be displayed “whenever the position of the cursor changes.” Id. According to Defendants, the specification makes clear that the term “whenever” means “every time.” Id. at 10 (citing '712 Patent at 7:12-21, 8:39-42, Figures 5-7). Defendants contend that the specification does not disclose a system in which the enlarged image does not change every time the cursor moves on the smaller image. Docket No. 46 at 10. (citing ...


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