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Fractus v. AT&T Mobility LLC

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

April 16, 2019

FRACTUS, S.A., Plaintiff,
v.
AT&T MOBILITY LLC, SPRINT COMMUNICATIONS COMPANY, L.P., SPRINT SPECTRUM, L.P., SPRINT SOLUTIONS, INC., NEXTEL OPERATIONS, INC., T-MOBILE US, INC., T-MOBILE USA, INC., VERIZON COMMUNICATIONS INC., CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Defendants.

          CLAIM CONSTRUCTION MEMORANDUM AND ORDER

          RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE

         Before the Court is the Opening Claim Construction Brief (Dkt. No. 183) filed by Plaintiff Fractus, S.A. (“Plaintiff” or “Fractus”). Also before the Court are the Responsive Claim Construction Brief (Dkt. No. 211) filed by Defendants AT&T Mobility LLC, Sprint Communications Company, L.P., Sprint Spectrum L.P., Sprint Solutions, Inc., Nextel Operations, Inc., Cellco Partnership d/b/a Verizon Wireless, T-Mobile USA, Inc., and T-Mobile US, Inc., and Intervenor-Defendants CommScope Technologies LLC and CellMax Technologies, AB (collectively, “Defendants”) as well as Plaintiff's reply (Dkt. No. 218).

         The Court held a claim construction hearing on March 25, 2019.

         Table of Contents

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

         II. LEGAL PRINCIPLES ........................................................................................................... 3

         III. AGREED TERMS ................................................................................................................. 8

         IV. DISPUTED TERMS IN THE INTERLACED PATENTS .............................................. 12

         A. “antenna element” and “element” ....................................................................................... 12

         B. “juxtaposition” .................................................................................................................... 15

         C. “multiband antenna, ” “multiband antenna element, ” and “multiband antenna array” ....... 25

         D. “interlaced multiband antenna array” ................................................................................. 31

         E. “frequency band” ................................................................................................................. 35

         F. “situated around” ................................................................................................................. 41

         G. “at least one . . . antenna element of . . . antenna array(s) . . . is repositioned to coincide with a nearest . . . antenna element of . . . antenna array(s)” .............................................. 47

         H. “radiation and impedance patterns that are [substantially] similar in a plurality of the plurality of working frequency bands” ............................................................................... 51

         I. antenna array “employing a . . . multiband antenna in those positions of the [array] in which the positions of two or more elements . . . come together” ...................................... 59

         V. DISPUTED TERMS IN THE SLIM TRIPLE BAND PATENTS ................................... 66

         VI. CONCLUSION .................................................................................................................... 67

         I. BACKGROUND

         Plaintiff has alleged infringement of: United States Patents No. 6, 937, 191 (“the '191 Patent”), 7, 250, 918 (“the '918 Patent”), 7, 557, 768 (“the '768 Patent”), 7, 932, 870 (“the '870 Patent”), and 8, 228, 256 (“the '256 Patent”) (collectively, “the Interlaced Patents”); and United States Patents No. 8, 497, 814 (“the '814 Patent”) and 9, 450, 305 (“the '305 Patent”) (collectively, “the Slim Triple Band Patents”)[1] (all, collectively, “the patents-in-suit”). (See Dkt. No. 1, Exs. A‒ J.) The '191 Patent, titled “Interlaced Multiband Antenna Arrays, ” issued on August 30, 2005, and bears an earliest priority date of October 26, 1999. The Abstract of the '191 Patent states:

Antenna arrays which can work simultaneously in various frequency bands thanks to the physical disposition of the elements which constitute them, and also the multiband behaviour of some elements situated strategically in the array. The configuration of the array is described based on the juxtaposition or interleaving of various conventional mono-band arrays working in the different bands of interest. In those positions in which elements of different multiband arrays come together, a multiband antenna is employed which covers the different working frequency bands. The advantages with respect to the classic configuration of using one array for each frequency band are: saving in cost of the global radiating system and its installation (one array replaces several), and its size and visual and environmental impact are reduced in the case of base stations and repeater stations for communication systems.

         II. LEGAL PRINCIPLES

         It is understood that “[a] claim in a patent provides the metes and bounds of the right which the patent confers on the patentee to exclude others from making, using or selling the protected invention.” Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed. Cir. 1999). Claim construction is clearly an issue of law for the court to decide. Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996).

         “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.” Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015) (citation omitted). “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.” Id. (citing 517 U.S. 370).

         To ascertain the meaning of claims, courts look to three primary sources: the claims, the specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must contain a written description of the invention that enables one of ordinary skill in the art to make and use the invention. Id. A patent's claims must be read in view of the specification, of which they are a part. Id. For claim construction purposes, the description may act as a sort of dictionary, which explains the invention and may define terms used in the claims. Id. “One purpose for examining the specification is to determine if the patentee has limited the scope of the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).

         Nonetheless, it is the function of the claims, not the specification, to set forth the limits of the patentee's invention. Otherwise, there would be no need for claims. SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own lexicographer, but any special definition given to a word must be clearly set forth in the specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992). Although the specification may indicate that certain embodiments are preferred, particular embodiments appearing in the specification will not be read into the claims when the claim language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc., 34 F.3d 1048, 1054 (Fed. Cir. 1994).

         This Court's claim construction analysis is substantially guided by the Federal Circuit's decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips, the court set forth several guideposts that courts should follow when construing claims. In particular, the court reiterated that “the claims of a patent define the invention to which the patentee is entitled the right to exclude.” Id. at 1312 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To that end, the words used in a claim are generally given their ordinary and customary meaning. Id. 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, i.e., as of the effective filing date of the patent application.” Id. at 1313. This principle of patent law flows naturally from the recognition that inventors are usually persons who are skilled in the field of the invention and that patents are addressed to, and intended to be read by, others skilled in the particular art. Id.

         Despite the importance of claim terms, Phillips made clear that “the 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.” Id. Although the claims themselves may provide guidance as to the meaning of particular terms, those terms are part of “a fully integrated written instrument.” Id. at 1315 (quoting Markman, 52 F.3d at 978). Thus, the Phillips court emphasized the specification as being the primary basis for construing the claims. Id. at 1314-17. As the Supreme Court stated long ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive portions of the specification to aid in solving the doubt or in ascertaining the true intent and meaning of the language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878). In addressing the role of the specification, the Phillips court quoted with approval its earlier observations from Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998):

Ultimately, the interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelop with the claim. 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.

Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important role the specification plays in the claim construction process.

         The prosecution history also continues to play an important role in claim interpretation. Like the specification, the prosecution history helps to demonstrate how the inventor and the United States Patent and Trademark Office (“PTO”) understood the patent. Id. at 1317. Because the file history, however, “represents an ongoing negotiation between the PTO and the applicant, ” it may lack the clarity of the specification and thus be less useful in claim construction proceedings. Id. Nevertheless, the prosecution history is intrinsic evidence that is relevant to the determination of how the inventor understood the invention and whether the inventor limited the invention during prosecution by narrowing the scope of the claims. Id.; see Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (noting that “a patentee's statements during prosecution, whether relied on by the examiner or not, are relevant to claim interpretation”).

         Phillips rejected any claim construction approach that sacrificed the intrinsic record in favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court condemned the suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193 (Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through dictionaries or otherwise) before resorting to the specification for certain limited purposes. Phillips, 415 F.3d at 1319-24. According to Phillips, reliance on dictionary definitions at the expense of the specification had the effect of “focus[ing] the inquiry on the abstract meaning of words rather than on the meaning of claim terms within the context of the patent.” Id. at 1321. Phillips emphasized that the patent system is based on the proposition that the claims cover only the invented subject matter. Id.

         Phillips does not preclude all uses of dictionaries in claim construction proceedings. Instead, the court assigned dictionaries a role subordinate to the intrinsic record. In doing so, the court emphasized that claim construction issues are not resolved by any magic formula. The court did not impose any particular sequence of steps for a court to follow when it considers disputed claim language. Id. at 1323-25. Rather, Phillips held that a court must attach the appropriate weight to the intrinsic sources offered in support of a proposed claim construction, bearing in mind the general rule that the claims measure the scope of the patent grant.

         The Supreme Court of the United States has “read [35 U.S.C.] § 112, ¶ 2 to require that a patent's claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910, 134 S.Ct. 2120, 2129 (2014). “A determination of claim indefiniteness is a legal conclusion that is drawn from the court's performance of its duty as the construer of patent claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005) (citations and internal quotation marks omitted), abrogated on other grounds by Nautilus, 134 S.Ct. 2120. “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).

         III. AGREED TERMS

         The parties have submitted the following agreed-upon constructions (Dkt. No. 132, Ex. A; Dkt. No. 238-1, Ex. A, at 4-5, 9, 10, 17, 23, 30, 31, 36-37 & 43), which the Court adopts:

Term

Construction

integer divider

'870 Patent, Claim 1

'768 Patent, Claims 9, 14, 21

“a divider that is a whole number, and does not have a fractional or decimal part”

integer factor

'918 Patent, Claim 25 '940 Patent, Claim 16

“a factor that is a whole number, and does not have a fractional or decimal part”

come together

'191 Patent, Claims 1, 5

'918 Patent, Claims 1, 5

'768 Patent, Claims 1, 9, 16, 23, 30, 38

'870 Patent, Claims 1, 4, 11, 20, 29

'256 Patent, Claims 1, 17

“coincide in the same physical location”

interlaced dual-polarized multiband antenna array

'870 Patent, Claims 29, 33-38

The term “interlaced dual-polarized multiband antenna array” should be construed as “an interlaced multiband antenna array having dual polarization, ” with “interlaced multiband antenna array” being separately construed.

repositioned

'768 Patent, Claims 17, 31 '870 Patent, Claim 1 '256 Patent, Claim 11

“moved to a different position”

two, three, or more cellular or wireless services '814 Patent, Claim 4

“two or more cellular or wireless services”

the number of the mono-band arrays corresponds to the number of working frequencies of the multiband antenna array

'191 Patent, Claims 1, 5

“the number of the mono-band antenna arrays equals the number of working frequencies of the multiband antenna array”

the number of the plurality of mono-band antenna arrays corresponds to the number of working frequency bands of the interlaced multiband antenna array

'918 Patent, Claim 1

“the number of the plurality of mono-band antenna arrays equals the number of working frequency bands of the interlaced multiband antenna array”

a number of the plurality of mono-band antenna arrays corresponds to a number of the plurality of working frequency bands of the interlaced multiband antenna array

'768 Patent, Claims 1, 9, 16, 23, 30, 38 '870 Patent, Claims 1, 11, 20

“the number of the plurality of mono-band antenna arrays equals the number of the plurality of working frequency bands of the interlaced multiband antenna array”

a number of the plurality of dual-polarized mono-band antenna arrays corresponds to a number of the plurality of working frequency bands of the interlaced dual-polarized multiband antenna array

'870 Patent, Claim 29

“the number of the plurality of dual-polarized mono-band antenna arrays equals the number of the plurality of working frequency bands of the interlaced dual-polarized multiband antenna array”

a first plurality of antenna elements operating in . . .

'493 Patent, Claim 1

“a first plurality of antenna elements, each antenna element operating in . . .”

a first set of antenna elements transmitting and receiving . . .

'493 Patent, Claim 11

“a first set of antenna elements, each antenna element transmitting and receiving . . .”

a second set of antenna elements transmitting and receiving . . .

'493 Patent, Claim 11

“a second set of antenna elements, each antenna element transmitting and receiving . . .”

a set of antenna elements operating in . . . '493 Patent, Claim 18

“a set of antenna elements, each antenna element operating in . . .”

a first plurality of antenna elements . . . being configured to provide operation . . .

'940 Patent, Claim 8

“a first plurality of antenna elements . . ., each antenna element being configured to provide operation . . .”

a second plurality of antenna elements . . . being configured to provide operation . . .

'940 Patent, Claim 8

“a second plurality of antenna elements . . ., each antenna element being configured to provide operation . . .”

antenna array

'256 Patent, Claims 1, 11, 17

'940 Patent, Claims 8, 9

'814 Patent, Claims 1, 8-11, 15, 17-21

'305 Patent, All Asserted Claims

“two or more antenna elements arranged and excited in order to shape the radiation pattern”

array

'191 Patent, Claims 1, 5

“two or more antenna elements arranged and excited in order to shape the radiation pattern”

a first set of radiating elements for operating at at least said first frequency band

'814 Patent, Claim 1

“a first set of radiating elements, each radiating element for operating at at least said first frequency band”

a second set of radiating elements for operating at at least said second frequency band

'814 Patent, Claim 1

“a second set of radiating elements, each radiating element for operating at at least said second frequency band”

a third set of radiating elements for operating at only both of said third frequency band and said first frequency band

'814 Patent, Claim 1

“a third set of radiating elements, each radiating element operating at only both of said third frequency band and said first frequency band”

a fourth set of radiating elements for operating at only at both of said third frequency band and said second frequency band

'814 Patent, Claim 1

“a fourth set of radiating elements, each radiating element operating at only both of said third frequency band and said second frequency band”

smaller than 0.5, 0.4, 0.35, or even 0.3 times a wavelength

'814 Patent, Claim 5

“smaller than 0.5 times a wavelength”

smaller than 0.5, 0.45, 0.4, 0.35, or even 0.3 times a wavelength

'814 Patent, Claim 6

“smaller than 0.5 times a wavelength”

smaller than 1, 0.9 or 0.8 times a wavelength '814 Patent, Claim 9

“smaller than 1 times a wavelength”

less than 0.5, 0.4 or even 0.3 times the wavelength

'814 Patent, Claim 18

“less than 0.5 times a wavelength”

less than 2, 1.5, 1.4, 1.3, or even 1 times a wavelength

'814 Patent, Claim 18

“less than 2 times a wavelength”

a third set of radiating elements, wherein a plurality of radiating elements of the third set are configured to operate at the first frequency band and a third frequency band

'305 Patent, Claim 1

“a third set of radiating elements, wherein each of a plurality of radiating elements of the third set are configured to operate at the first frequency band and a third frequency band”

a third set of radiating elements configured to operate at the first frequency band and a third frequency band

'305 Patent, Claim 12

“a third set of radiating elements, each element configured to operate at the first frequency band and a third frequency band”

         IV. DISPUTED TERMS IN THE INTERLACED PATENTS

         A. “antenna element” and “element” Plaintiff's Proposed Construction

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“individual antenna that makes up an array”

“individual antenna that makes up an antenna array and that can independently radiate and receive electromagnetic waves”

(Dkt. No. 132, Ex. B, at 2 & 4; Dkt. No. 183, at 3; Dkt. No. 238-1, Ex. A, at 1, 6, 12, 24, 30 & 37.)

         The parties submit that “antenna element” appears in Claim 1 of the '191 Patent, Claims 1, 5, 23, and 26 of the '918 Patent, Claims 1, 8, 9, 12, 16, 17, 23, 30, 31, and 38 of the '768 Patent, Claims I, 4, 11, 20, and 29 of the '870 Patent, Claims 1, 6, 7, 11, and 17 of the '256 Patent, Claims 1, 9, II, 13, 14, and 18 of the '493 Patent, and Claims 8, 9, 11, and 18 of the '940 Patent. (Dkt. No. 132, Ex. B, at 2.) The parties submit that “element” appears in Claims 1 and 5 of the '191 Patent and Claim 17 of the '256 Patent. (Dkt. No. 132, Ex. B, at 4.)

         (1) The Parties' Positions

         Plaintiff argues that Defendants' proposal should be rejected because “[n]owhere does the specification or claims discuss the ‘independent' radiation and reception of electromagnetic waves or any related concept.” (Dkt. No. 183, at 3.)

         Defendants respond that “Fractus cannot dispute that an ‘antenna element' must radiate and receive electromagnetic waves.” (Dkt. No. 211, at 1.) In particular, Defendants argue that an individual antenna element must itself be able to radiate and receive radio waves. (Id., at 2.) Defendants urge that “Defendants' construction makes clear that two separate, independently radiating elements centered at the same location are not a single ‘antenna element.'” (Id., at 3.)

         Plaintiff replies that “Defendants' position is based on a misreading of statements made during the European and U.S. prosecutions, and confuses distinctions Fractus drew between the term ‘multiband antenna element' and prior art in which two independent antennas were located in the same position-not distinctions based on the standalone term ‘antenna element.'” (Dkt. No. 218, at 1.)

         (2) Analysis

         Claim 1 of the '191 Patent, for example, recites (emphasis added):

1. An interlaced multiband antenna array having a plurality of antenna elements, wherein the multiband antenna array works simultaneously on a plurality of frequencies,
the multiband antenna array being characterised in that the position of the elements in the array results from the juxtaposition of a plurality of mono-band arrays, wherein the number of mono-band arrays corresponds to the number of working frequencies of the multiband antenna array,
the multiband antenna array employing a single multiband antenna in those positions of the multiband antenna array in which the positions of two or more elements of the mono-band arrays come together, wherein the single multiband antenna covers at least two working frequencies of the multiband antenna array.

         As to the term “antenna element, ” at the March 25, 2019 hearing Plaintiff agreed that an antenna can receive and transmit radio signals. (See also Dkt. No. 183, at 1 (“Base station antennas enable communication between the cellular telephone network and mobile devices like cell phones, and are comprised of individual antenna elements that work together in an array to provide reception and transmission of radio signals.”).) The specification discloses that “antenna array theory” “establishes the basic design rules for shaping the radiation properties of the array.” '191 Patent at 1:56-61.

         Defendants have submitted a technical dictionary definition of “antenna” as: “That part of a transmitting or receiving system that is designed to radiate or to receive electromagnetic waves.” (Dkt. No. 211, Ex. 9, IEEE Standard Definitions of Terms for Antennas § 2.12 (1993); see Id. at § 2.306 (defining “radiating element” as: “A basic subdivision of an antenna that in itself is capable of radiating or receiving radio waves.”); see also id., Ex. 10, The Authoritative Dictionary of IEEE Standards Terms (7th ed. 2000) (same as to “antenna” and “radiating element”).)[2]

         “Because dictionaries, and especially technical dictionaries, endeavor to collect the accepted meanings of terms used in various fields of science and technology, those resources have been properly recognized as among the many tools that can assist the court in determining the meaning of particular terminology to those of skill in the art of the invention.” Phillips, 415 F.3d at 1318).

         As to the term “element, ” although the parties have proposed that “element” has the same meaning as “antenna element, ” the patents-in-suit use “element” in various contexts, not just in the context of a particular antenna. For example, the specification refers not only to elements of an array but also elements of an individual multiband antenna. See, e.g., '191 Patent at 2:33-39 (“antenna formed by a set of elements”), 2:58-3:6 (“disposition of the elements that constitute the MIA [(Multiband Interleaved Array)]”) & 3:7-8 (“each element of the array”). The term “element” requires no construction apart from the Court's constructions of larger terms.

         The Court thus hereby construes these disputed terms as set forth in the following chart:

Term

Construction

antenna element”

individual antenna that makes up an antenna array and that by itself can radiate and receive radio waves”

element”

Plain meaning

         B. “juxtaposition”

“juxtaposition”
('918 Patent, Claim 1; '870 Patent, Claim 29)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“overlapping [a plurality of mono-band antenna arrays] to determine the position where antenna elements in the mono-band antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

The term does not need to be construed separately and should be construed as part of the larger phrases discussed below.

“juxtaposition of a plurality of mono-band antenna arrays”
('918 Patent, Claim 1; '768 Patent, Claims 1, 9, 16, 23, 30, 38; '870 Patent, Claims 1, 11, 20)
“juxtaposition of a plurality of mono-band arrays”
('191 Patent, Claims 1, 5)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“overlapping a plurality of mono-band antenna arrays to determine the position where antenna elements in the mono-band antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“interleaving the antenna elements of a plurality of mono-band antenna arrays while maintaining the spacing between the antenna elements within each mono-band array”

“juxtaposition of at least a first antenna array operating in a first frequency band, and a second antenna array operating in a second frequency band”

('256 Patent, Claims 1, 17)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“overlapping at least a first antenna array operating in a first frequency band, and a second antenna array operating in a second frequency band to determine the position where antenna elements in the mono-band antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“interleaving the antenna elements of a first antenna array operating in a first frequency band and the antenna elements of a second antenna array operating in a second frequency band while maintaining the spacing between the antenna elements within the first antenna array and the antenna elements within the second antenna array”

“positions of the plurality of antenna elements result from juxtaposition of a plurality of mono-band antenna arrays”

('918 Patent, Claim 1; '768 Patent, Claims 1, 9, 16, 23, 30, 38; '870 Patent, Claims 1, 11, 20)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“positions of the plurality of antenna elements result from overlapping a plurality of mono-band antenna arrays to determine the position where antenna elements in the mono-band antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“positions of the plurality of antenna elements in the interlaced multiband antenna array result from the step of interleaving the antenna elements of the plurality of mono-band antenna arrays while maintaining the spacing between the antenna elements within each mono-band array” (this is a product-by-process limitation)

“the position of the elements in the array results from the juxtaposition of a plurality of mono-band arrays”

('191 Patent, Claims 1, 5)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“the position of the elements in the array results from overlapping a plurality of mono-band antenna arrays to determine the position where antenna elements in the mono-band antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“positions of the antenna elements in the interlaced multiband antenna array result from the step of interleaving the antenna elements of a plurality of mono-band antenna arrays while maintaining the spacing between the antenna elements with each mono-band array” (this is a product-by-process limitation)

“positions of the plurality of antenna elements result from juxtaposition of at least a first antenna array operating in a first frequency band, and a second antenna array operating in a second frequency band, and a third antenna array operating in a third frequency band”

('256 Patent, Claim 17)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“positions of the plurality of antenna elements result from overlapping at least a first antenna array operating in a first frequency band, and a second antenna array operating in a second frequency band, and a third antenna array operating in a third frequency band, to determine the position where antenna elements in the antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“positions of the antenna elements in the interlaced multiband antenna array result from the step of interleaving the antenna elements of a first antenna array operating only in a first frequency band, the antenna elements of a second antenna array operating only in a second frequency band, and the antenna elements of a third antenna array operating only in a third frequency band while maintaining the spacing between the antenna elements within the first antenna array, the second antenna array, and the third antenna array” (this is a product-by-process limitation)

“the position of the elements in the array results from the juxtaposition of a plurality of mono-band arrays”

('191 Patent, Claims 1, 5)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“the position of the elements in the array results from overlapping a plurality of mono-band antenna arrays to determine the position where antenna elements in the mono-band antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“positions of the antenna elements in the interlaced multiband antenna array result from the step of interleaving the antenna elements of a plurality of mono-band antenna arrays while maintaining the spacing between the antenna elements with each mono-band array” (this is a product-by-process limitation)

“positions of the plurality of antenna elements result from juxtaposition of at least a first antenna array operating in a first frequency band, and a second antenna array operating in a second frequency band, and a third antenna array operating in a third frequency band”

('256 Patent, Claim 17)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“positions of the plurality of antenna elements result from overlapping at least a first antenna array operating in a first frequency band, and a second antenna array operating in a second frequency band, and a third antenna array operating in a third frequency band, to determine the position where antenna elements in the antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“positions of the antenna elements in the interlaced multiband antenna array result from the step of interleaving the antenna elements of a first antenna array operating only in a first frequency band, the antenna elements of a second antenna array operating only in a second frequency band, and the antenna elements of a third antenna array operating only in a third frequency band while maintaining the spacing between the antenna elements within the first antenna array, the second antenna array, and the third antenna array” (this is a product-by-process limitation)

“positions of the plurality of dual-polarized antenna elements result from juxtaposition of a plurality of dual-polarized mono-band antenna arrays”

('870 Patent, Claim 29)

Plaintiff's Proposed Construction

Defendants' Proposed Construction

“positions of the plurality of dual-polarized antenna elements result from overlapping a plurality of dual-polarized mono-band antenna arrays to determine the position where antenna elements in the antenna arrays coincide (including after repositioning elements in low-frequency mono-band array[s] to the positions of elements in the highest-frequency array)”

“positions of the dual-polarized antenna elements in the interlaced multiband antenna array result from the step of interleaving the dual-polarized antenna elements of the plurality of dual polarized mono-band antenna arrays while maintaining the spacing between the dual-polarized antenna elements within in each dual-polarized mono-band array” (this is a product-by-process limitation)

(Dkt. No. 132, Ex. B, at 14; Dkt. No. 183, at 4-6; Dkt. No. 238-1, Ex. A, at 2-3, 6-8, 12-14, 18- 19, 24-26, 32-33 & 37-39; see Id. at 34.)

         (1) The Parties' Positions

         Plaintiff submits that “juxtapositioning” “instructs that the multiband element's placement should be determined after repositioning elements in the lower-frequency mono-band array to the positions of elements in the highest-frequency array.” (Dkt. No. 183, at 6.) Plaintiff argues that “‘[j]uxtaposition' is not a process for manufacturing an antenna array, but a descriptive tool that defines the placement of the elements, ” and “[t]he claims explicitly define the relevant limitation as describing the positions of the elements, not as reciting a process that results in the claimed product.” (Id., at 8 & 10.) Plaintiff explains that “[o]nce the positioning of the elements is determined by the antenna engineer, the antennas are manufactured without any reference to juxtapositioning at all.” (Id., at 10.) Finally, Plaintiff argues that Defendants' proposed interpretation “not only reads the repositioning aspect out of the term ‘juxtapositioning,' but also excludes any configurations requiring repositioning.” (Id., at 11.)

         Defendants respond that Plaintiff's proposal of “overlapping” is unclear and lacks support in the specification. (Dkt. No. 211, at 15.) Defendants also argue that “[e]very example of a multiband antenna array in the patents that was formed by ‘juxtaposing' two or more monoband arrays maintains the original spacing of the constituent mono-band array elements, ” and “the specification treats ‘juxtaposition' and ‘repositioning' as separate steps (with repositioning occurring, if at all, after juxtaposition).” (Id., at 16-17.) Finally, Defendants argue that “[t]he claims here require that the positions of the elements in the antenna array result from a specific process: juxtaposing (interleaving) two or more monoband antenna arrays.” (Id.)

         Plaintiff replies that “[j]uxtaposition is the term used throughout the specification and claims to describe the position of elements in the claimed multiband array by reference to the positioning of elements in conventional monoband arrays.” (Dkt. No. 218, at 2.)

         (2) Analysis

         Claim 1 of the '191 Patent, for example, recites (emphasis added):

1. An interlaced multiband antenna array having a plurality of antenna elements, wherein the multiband antenna array works simultaneously on a plurality of frequencies,
the multiband antenna array being characterised in that the position of the elements in the array results from the juxtaposition of a plurality of mono-band arrays, wherein the number of mono-band arrays corresponds to the number of working frequencies of the multiband antenna array,
the multiband antenna array employing a single multiband antenna in those positions of the multiband antenna array in which the positions of two or more elements of the mono-band arrays come together, wherein the single multiband antenna covers at least two working frequencies of the multiband antenna array.

         As another example, Claim 1 of the '918 Patent recites (emphasis added):

1. An interlaced multiband antenna array comprising:
a plurality of antenna elements;
wherein the interlaced multiband antenna array is adapted to operate simultaneously on a plurality of frequency bands;
wherein positions of the plurality of antenna elements result from juxtaposition of a plurality of mono-band antenna arrays;
wherein the number of the plurality of mono-band antenna arrays corresponds to the number of working frequency bands of the interlaced multiband antenna array;
wherein the interlaced multiband antenna array employs a single multiband antenna element in positions wherein a plurality of antenna elements of the mono-band antenna arrays come together; and
wherein the single multiband antenna element covers at least two working frequency bands of the interlaced multiband antenna array.

         Plaintiff has not shown that the term “juxtaposition” has any well-known meaning in the relevant art. The specification refers to “juxtaposition or interleaving”:

The array configuration is described on a basis of the juxtaposition or interleaving of various conventional single-band arrays operating in the different bands of interest. In those positions where elements of different multiband arrays come together, use is made of a multiband antenna which covers the different working frequency bands.
A Multiband Interleaved Array (MIA) consists of an array of antennas which has the particularity of being capable of working simultaneously in various frequency bands. This is achieved by means of using multiband antennas in strategic positions of the array. The disposition of the elements that constitute the MIA is obtained from the juxtaposition of conventional mono-band arrays, employing as many monoband arrays as frequency bands that it is wished to incorporate in the Multiband Interleaved Array. In those positions in which one or various elements originating in the conventional mono-band arrays coincide, a single multiband antenna (element) shall be employed which covers simultaneously the different bands. In the remaining nonconcurrent positions, it can be chosen to employ also the same multiband antenna or else recur to a conventional mono-band antenna which works at the pertinent frequency. The excitation at one or various frequencies of each element of the array depends therefore on the position of the element in the array and is controlled by means of the signal distribution network.

'191 Patent at 1:13-19 & 2:58-3:10 (emphasis added); see also Id. at 4:21-22 (“A multiband interleaved array (MIA) is constituted by the juxtaposition of various conventional mono-band arrays”) & 5:8-9 (“The configuration of the MIA is obtained from the juxtaposition of the positions of the different mono-band arrays.”). The specification provides specific examples of monoband array positions coinciding:

In FIG. 7 the position of the elements is shown, as well as their working frequencies. The elements shown in white indicate operation in the GSM 900 band; the elements shown in black indicate operation in the GSM 1800 band and the elements marked in black in the lower triangle and in white in their two upper triangles indicate simultaneous operation in both bands. Precisely the simultaneous operation in both bands via a single multiband element (the multi-triangular element) in such positions of the array (those positions at which those of the original mono-band arrays coincide), is one of the main characteristic features of the MIA [(multiband interleaved array)] invention.

Id. at 7:56-67 (emphasis added).

The disposition of elements of the three classic mono-band arrays at the frequencies f, f/2 and f/3 is shown in figures (3.[a]), (3.[b]) and (3.[c]) by means of black circles, circumferences and squares respectively. The column of figure (3.[d]) shows the disposition of elements in the tri-band interleaved array. In those positions in which elements of the three arrays come together (indicated in the drawing by the juxtaposition of the different geometric figures identifying each array), use is made of a multiband element; the same strategy is followed in those positions in which elements of two arrays coincide: use should be made of a multiband element capable of covering the frequencies ...

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