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Freeny v. Fossil Group, Inc.

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

May 10, 2019

CHARLES C. FREENY III, BRYAN E. FREENY, and JAMES P. FREENY, Plaintiffs,
v.
FOSSIL GROUP, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE.

         On March 12, 2019, the Court held a hearing to determine the proper construction of the disputed claim terms in United States Patent No. 6, 490, 443 (“the '443 Patent”). Having considered the arguments made by the parties at the hearing and in the parties' claim construction briefing (Dkt. Nos. 50, 52, & 53), having considered the intrinsic evidence, and having made subsidiary factual findings about the extrinsic evidence, the Court hereby issues this Claim Construction Memorandum and Order. 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).

         TABLE OF CONTENTS

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

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

         II. APPLICABLE LAW .......................................................................................................... 5

         A. Claim Construction ................................................................................................ 5

         B. 35 U.S.C. § 112(6) (pre-AIA) / § 112(f) (AIA) ..................................................... 8

         C. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA) ................ 10

         D. Departing from the Ordinary Meaning of a Claim Term .................................... 11

         III. CONSTRUCTION OF AGREED TERMS ...................................................................... 12

         IV. CONSTRUCTION OF DISPUTED TERMS ................................................................... 18

         1. “request authorization code” ........................................................................ 18

         2. “the [request authorization code]” ................................................................ 23

         3. “means for communicating audio and video information in a format perceivable by an individual located adjacent to the portable housing” ............. 32

         4. “means for playing back the messages and data” ......................................... 39

         5. Claim 90 (as a whole) ................................................................................... 42

         6. “controlled from a central control center” .................................................... 51

         V. CONCLUSION ................................................................................................................. 57

         I. BACKGROUND

         The '443 Patent was filed on August 31, 2000, issued on December 3, 2002, and is titled “Communication and Proximity Authorization Systems.” The '443 Patent relates to a “Master proximity authorization system” that includes “a proximity authorization unit” for activating “a plurality of proximity service units.” '443 Patent at 31:33-37. Figure 29 illustrates a block diagram of a Master proximity authorization system 2900.

         (Image Omitted)

Id. at Figure 29 (annotated). The specification states that “[t]he Master proximity authorization system 2900 is provided with a proximity authorization unit 2910 . . . for activating a plurality of proximity service units 2920 incorporating features of the present invention.” Id. at 31:32-36. Regarding the proximity services units 2920, the specification states the following:

The proximity service unit 2920 can be any device which provides a predetermined service upon activation. For example, the proximity service unit 2920 can be a house key system, a garage key system, a subway gate system, a taxi meter system, a parking lot gate system, a parking meter system, an ATM system, a vending machine system, a gas pump system, a store checkout system, a toll booth system, a vehicle control system, or the public communication unit 50 described herein before with reference to FIG. 1.

Id. at 32:15-23. The specification further discloses that “[s]ome of the Proximity Service Units 2920 are capable of receiving information via a first signal and some of the proximity service units 2920 are capable of receiving information via a second signal.” Id. at 31:36-40. Regarding the proximity authorization unit 2910, the specification states the following:

The proximity authorization unit 2910 is provided with a portable housing 2911, a computer unit 3000, and a transmitter/receiver unit 3070. The computer unit 3000 is supported by the portable housing 2911 and has at least one and preferably a plurality of request authorization codes stored therein. Each of the request authorization codes uniquely identify the proximity authorization unit 2910. The transmitter/receiver unit 3070 is supported by the port able housing 2911. The computer unit 3000 retrieves the request authorization code and the transmitter/receiver unit 3070 outputs the request authorization code on the first signal for communication to the proximity service units 2920 capable of receiving the first signal, and the transmitter/receiver unit 3070 outputs the request authorization code via the second signal to the proximity service units 2920 capable of receiving the second signal.

Id. at 31:44-59. The specification further discloses that “the proximity service unit 2920 communicates with the proximity authorization unit 2910 via either a wireless link 2912 or in some cases a physical link 2917.” Id. at 32:24-27. The specification indicates that “[t]he wireless link 2912 is preferably a low power wireless link which does not typically communicate farther than about 300 feet.” Id. at 32:28-30.

         Claim 90 of the '443 Patent recite the following elements (disputed term in italics):

90. A proximity authorization unit for use with proximity service units, some of the proximity service units being capable of receiving information via a first signal and some of the proximity service units being capable of receiving information via a second signal, the second signal being different from the first signal, and each of the proximity service units providing a predetermined service when activated in response to receiving a request authorization code, the proximity authorization unit comprising:
a portable housing;
a computer unit supported by the housing and having the request authorization code stored therein; and
a communication unit supported by the housing, the computer unit retrieving the request authorization code and the communication unit outputting the request authorization code on the first signal for communication to the proximity service units capable of receiving the first signal, and the communication unit outputting the request authorization code via the second signal to the proximity service units capable of receiving the second signal.

         Shortly before the start of the March 12, 2019 hearing, the Court provided the parties with preliminary constructions with the aim of focusing the parties' arguments and facilitating discussion. Those preliminary constructions are noted below within the discussion for each term.

         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. 35 U.S.C. § 112(6) (pre-AIA) / § 112(f) (AIA)[1]

         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, ¶ 6 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).

         C. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)

         Patent claims must particularly point out and distinctly claim the subject matter regarded as the invention. 35 U.S.C. § 112, ¶ 2. A claim, when viewed in light of the intrinsic evidence, must “inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2129 (2014). If it does not, the claim fails § 112, ¶ 2 and is therefore invalid as indefinite. Id. at 2124. Whether a claim is indefinite is determined from the perspective of one of ordinary skill in the art as of the time the application for the patent was filed. Id. at 2130. As it is a challenge to the validity of a patent, the failure of any claim in suit to comply with § 112 must be shown by clear and convincing evidence. Id. at 2130 n.10. “[I]ndefiniteness is a question of law and in effect part of claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012).

         When a term of degree is used in a claim, “the court must determine whether the patent provides some standard for measuring that degree.” Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1378 (Fed. Cir. 2015) (quotation marks omitted). Likewise, when a subjective term is used in a claim, “the court must determine whether the patent's specification supplies some standard for measuring the scope of the [term].” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005); accord Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014) (citing Datamize, 417 F.3d at 1351).

         D. Departing from the Ordinary Meaning of a Claim Term

         There are “only two exceptions to [the] general rule” that claim terms are construed according to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term either in the specification or during prosecution.”[2] Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (“[T]he specification and prosecution history only compel departure from the plain meaning in two instances: lexicography and disavowal.”). The standards for finding lexicography or disavowal are “exacting.” GE Lighting Solutions, 750 F.3d at 1309.

         To act as his own lexicographer, the patentee must “clearly set forth a definition of the disputed claim term, ” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669 F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee's lexicography must appear “with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.

         To disavow or disclaim the full scope of a claim term, the patentee's statements in the specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at 1366 (“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”) “Where an applicant's statements are amenable to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013); see also Avid Tech., Inc. v. Harmonic, Inc., 812 F.3d 1040, 1045 (Fed. Cir. 2016) (“When the prosecution history is used solely to support a conclusion of patentee disclaimer, the standard for justifying the conclusion is a high one.”).

         Although a statement of lexicography or disavowal must be exacting and clear, it need not be “explicit.” See Trs. of Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1364 (Fed. Cir. 2016) (“a patent applicant need not expressly state ‘my invention does not include X' to indicate his exclusion of X from the scope of his patent”). Lexicography or disavowal can be implied where, e.g., the patentee makes clear statements characterizing the scope and purpose of the invention. See On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1340 (Fed. Cir. 2006) (“[W]hen the scope of the invention is clearly stated in the specification, and is described as the advantage and distinction of the invention, it is not necessary to disavow explicitly a different scope.”). Nonetheless, the plain meaning governs “[a]bsent implied or explicit lexicography or disavowal.” Trs. of Columbia Univ., 811 F.3d at 1364 n.2.

         III. CONSTRUCTION OF AGREED TERMS

         The parties agreed to the constructions of the following terms/phrases:

Claim Term/Phrase

Agreed Construction

Preamble of Claim 90

The preamble of Claim 90 is limiting.

“proximity service units”

(Claim 90)

“devices that provide a predetermined service upon activation within a proximity”

(Dkt. No. 58 at 1).[3] In view of the parties' agreement on the proper construction of the identified terms, the Court hereby ADOPTS the parties' agreed constructions.

         During the claim construction hearing, the parties agreed to the preliminary construction of the following terms/phrases:

Claim Term/Phrase

Agreed Construction

“second signal being different from the first signal”

(Claim 90)

No construction necessary.

(not limited to a different frequency band or protocol than the first signal).

“low power communication unit”

(Claim 91)

“communication unit having a power for transmission of up to a maximum of several hundred feet”

“means for recording the messages and data”

(Claim 106)

Function: recording the messages and data

Structure: computer unit 3000 or equivalents thereof.

         Regarding the phrase “second signal being different from the first signal, ” the Court finds that the phrase does not require construction. The phrase is unambiguous, and is easily understandable by a jury, and should be given its plain and ordinary meaning. Plaintiffs originally argued that their construction is consistent with the district court's prior claim construction order in the Freeny v. Apple Inc., No. 2:13-cv-00361-WCB, (E.D. Tex. Aug. 28, 2014). In Freeny v. Apple, the disputed claim term was the phrase “different types of . . . communication signals, ” which was recited in claim 18 of the U.S. Patent No. 7, 110, 744 (“the ‘744 Patent”) (emphasis added).[4] Unlike the disputed phrase in the case, the term construed in Freeny v. Apple explicitly referred to the signals as being of different “types” of signals, not just different signals.

         The Court finds that including “types” in the '744 Patent is significant because it denotes a classification system, which the court in Freeny v. Apple reflected in its construction. Here, the disputed phrase in the '443 Patent does not include the requirement of a different “type” of signal. Thus, the differences between the signals need not be restricted to “types, ” such as frequencies or protocols. Indeed, the specification discloses other differences in signals, such as differences in a first and second “signal strength.” '443 Patent at 34:1-2 (“This can be accomplished by incorporating a signal strength detector in the wireless adapter element 3180”), 13:24-29 (“The multiple channel wireless transceiver 740 is programmed to detect a first signal strength from the wireless device 710a and a second signal strength from the wireless device 710a.”).

         Furthermore, the specification repeatedly discuss “frequencies” and “protocols” in the context of signal types. See, e.g., id. at 34:31-33 (“In addition the proximity authorization unit 2910 can either automatically sense and determine the required signal type and/or protocol”) (emphasis added), 35:13-16 (“The computer unit 3000 controls the functions of a signal selector unit 3030 via the computer control and command bus lines 3005 that selects the type of signal and or protocol that is sent to the service signaling unit 3050 via line 3044.”) (emphasis added), 38:20- 24 (“A preferred embodiment of the receiver unit 3410 and the transmit unit 3420 operate in the 900 Mhz region, the IR spectrum and 2.4 to 2.5 Ghz frequency ranges which are globally accepted low power signaling types for home and business.”) (emphasis added); 11:36-39 (“The AWAU 719 is provided with a multiple channel wireless transceiver 740 capable of receiving at least two signal types, i.e. different frequency signal types or protocols.”) (emphasis added).

         By not including “types” in the claim language, the intrinsic evidence indicates that the patentee drafted the claims in the '443 Patent more broadly than in the '744 Patent. See Nystrom v. TREX Co., 424 F.3d 1136, 1143 (Fed. Cir. 2005) (“When different words or phrases are used in separate claims, a difference in meaning is presumed.”). Accordingly, the Court rejects Plaintiffs' original construction, and agrees with the parties that the phrase “second signal being different from the first signal” should be given its plain and ordinary meaning.

         Regarding the phrase “low power communication unit, ” the Court presented to the parties a construction that is similar to the one adopted in Freeny v. Apple Inc., No. 2:13-cv-00361-WCB, (E.D. Tex. Aug. 28, 2014). In that case, the court construed the term “low power communication signals” in Claim 18 of the '744 Patent as “communication signals having a power for transmission of up to a maximum of several hundred feet.” Freeny v. Apple Inc., No. 2:13-CV-00361-WCB, 2014 U.S. Dist. LEXIS 120446, at *17-19 (E.D. Tex. Aug. 28, 2014) (emphasis added). Applying that construction here, the Court finds that the term “low power communication unit” should be construed to mean “communication unit having a power for transmission of up to a maximum of several hundred feet.”

         Consistent with the court's findings in Freeny v. Apple, the specification on several occasions refers to low power signals as those that do not communicate farther than a few hundred feet. See, e.g., '443 Patent at 32:29-31 (“low power wireless link . . . does not typically communicate farther than about 300 feet”), 35:50-51 (detection range of “say several hundred feet”), 36:31-38 (wireless connection ranges “will vary from several hundred feet to only several feet”), 39:14-16 (transmissions possible “within several hundred feet” of a communication unit), 7:6-9 (transceiver capable of communicating “up to at least a predetermined proximity distance such as a hundred feet”), 13:54-55 (different signal strengths designed for detection at 500 feet and 20 feet), 16:49-51 (authorization distance set at 500 feet and 20 feet). Accordingly, the Court agrees with the parties that the term “low power communication unit” should be construed to mean “communication unit having a power for transmission of up to a maximum of several hundred feet.”

         Regarding the phrase “means for recording the messages and data, ” the Court finds the phrase is governed by 35 U.S.C. § 112, ¶ 6, and is not indefinite. Contrary to Defendant's original contention, the specification clearly identifies the corresponding structure for this limitation. Specifically, Figure 30 depicts an embodiment of the proximity authorization unit. '443 Patent at 4:1-3 (“FIG. 30 is a block diagram showing a proximity authorization unit constructed in accordance with the present invention and for use in the system depicted in FIG. 29.”).

         (Image Omitted)

         Id. at Figure 30. The specification states the following regarding Figure 30:

In FIG. 30 the basic design elements incorporated into the proximity authorization unit 2910 are shown wherein there is the computer unit 3000 such as a Motorola 68000 series or Tl DSP 6000 series unit or a modified Ericsson Bluetooth Baseband Processor made to operate by the power on off unit 3003 which supplies power to all the elements of the proximity authorization unit 2910 via positive lines 3004 and ground lines 3002. The power on off unit 3003 is connected to a battery and charge unit 3001 and the computer unit 3000 program memory and stored request authorization codes and phone directories for example are maintained even when the proximity authorization unit 2910 is turned off by a control panel 3010 via line 3013.

Id. at 34:59-35:4 (emphasis added). Regarding the proximity authorization unit shown in Figure 32, the specification states that “[w]hen F4 is pressed then the audio unit 3260 is connected to the computer unit 3000 memory unit and the audio being spoken or received is stored.” Id. at 37:7-9. Thus, the specification identifies the computer unit 3000 in Figure 30 as the structure for recording messages and data. The specification further recites specific types of computer units 3000, which include “Motorola 68000 series or Tl DSP 6000 series unit or a modified Ericsson Bluetooth Baseband Processor.” Id. at 34:59-63. Plaintiffs' expert, Dr. Dean Sirovica, opines that a person of ordinary skill in the art at the time of the invention would have understood from the specification that the corresponding structure for the function of “recording messages and data” is a computer memory unit. (Dkt. No. 50-2 at ¶ 59). Thus, the specification clearly associates the computer unit 3000 with the function of recording messages and data.

         Defendant originally argued that Plaintiffs' proposed structure inflates the scope of the term to coincide with the performance of the function on any structure. (Dkt. No. 52 at 22) (citing Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1211 (Fed. Cir. 2003)). The Court disagrees. In Apple Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014), the Federal Circuit stated that when “a patentee has invoked computer-implemented means-plus-function claiming, the corresponding structure in the specification for the computer implemented function must be an algorithm unless a general purpose computer is sufficient for performing the function.” Id. at 1298. For example, In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303 (Fed. Cir. 2011), the Federal Circuit found that “it was not necessary to disclose more structure than the general purpose processor that performs those functions . . ., because the functions of ‘processing,' ‘receiving,' and ‘storing' are coextensive with the structure disclosed, ...


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