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Semcon IP Inc. v. Kyocera Corp.

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

August 22, 2019

SEMCON IP INC., Plaintiff,
v.
KYOCERA CORPORATION, Defendant. Term[5] Agreed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiffs Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction Disputed Term Plaintiff's Proposed Construction Defendant's Proposed Construction

          CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER

          ROY S. PAYNE UNITED STATES MAGISTRATE JUDGE

         Before the Court is the opening claim construction brief of Semcon IP Inc. (“Plaintiff”) (Dkt. No. 46, filed on June 12, 2019), [1] the response of Kyocera Corporation (“Defendant”) (Dkt. No. 48, filed on June 26, 2019), and Plaintiff's reply (Dkt. No. 52, filed on July 3, 2019). The Court held a hearing on the issues of claim construction and claim definiteness on July 29, 2019. Having considered the arguments and evidence presented by the Parties at the hearing and in their briefing, the Court issues this Order.

         Table of Contents

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

         II. LEGAL PRINCIPLES ..................................................................................................... 5

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

         B. Departing from the Ordinary Meaning of a Claim Term ........................................ 8

         C. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA) ................... 9

         III. AGREED CONSTRUCTIONS ..................................................................................... 10

         IV. CONSTRUCTION OF DISPUTED TERMS ............................................................... 11

         A. “computer processor, ” “processor, ” “central processor, ” “processing unit, ” and “processing device” ........................................................................................ 11

         B. The Determining Terms ........................................................................................ 13

         C. The Executing-Instructions-While-Changing-the-Voltage-Terms ....................... 15

         D. The Operating-Conditions Terms ......................................................................... 17

         E. “a counter” ............................................................................................................ 18

         F. “clock frequency source, ” “clock generator, ” “clock frequency generator, ” “programmable frequency generator, ” and “frequency generator” ...................... 20

         G. “a voltage source” ................................................................................................. 22

         H. The Causing-a-Change-in-Voltage Terms ............................................................ 24

         I. The Changing-the-Frequency-While-Execution-of-Instructions-is-Stopped Terms ............ 26

         J. “level of permitted power” .................................................................................... 28

         K. “… is not capable of functioning …” and “… can not function …” .................... 29

         L. The Monitoring Terms .......................................................................................... 31

         M. “reducing a magnitude of a difference” ................................................................ 33

         V. CONCLUSION ............................................................................................................... 34

         I. BACKGROUND

         Plaintiff alleges infringement of four U.S. Patents: No. 7, 100, 061 (the “'061 Patent”), No. 7, 596, 708 (the “'708 Patent”), No. 8, 566, 627 (the “'627 Patent”), and No. 8, 806, 247 (the “'247 Patent”) (collectively, the “Asserted Patents”). These patents are related through a series of continuation applications and all ultimately claim priority to the application that issued as the '061 Patent, which was filed on January 18, 2000. The '061 Patent was subject to an inter partes reexamination requested on June 13, 2007 and from which a certificate issued on August 4, 2009.

         The Court previously construed terms of the Asserted Patents in Semcon IP Inc. v. Huawei Device USA Inc. et al., No. 2:16-cv-00437-JRG-RSP, 2017 U.S. Dist. LEXIS 108040 (E.D. Tex. July 12, 2017) (“Huawei”), Semcon IP Inc. v. Amazon.com, Inc., No. 2:18-cv-00192-JRG, 2019 U.S. Dist. LEXIS 79846 (E.D. Tex. May 13, 2019) (“Amazon.com”), and Semcon IP Inc. v. ASUSTeK Computer, Inc., No. 2:18-cv-00193-JRG, 2019 U.S. Dist. LEXIS 114957 (E.D. Tex. July 10, 2019) (“ASUSTeK”). Nearly all the terms now before the Court were construed in Huawei, Amazon.com, or ASUSTek.

         The Asserted Patents are generally directed to technology for managing a computer system's power consumption by dynamically adjusting the processor's operating frequency and voltage. The technology of the patents may be generally understood with reference to Figure 1 of the '061 Patent, produced below and annotated by the Court. A frequency generator (17) receives an external or “slow” clock (green) and from that generates a processor or “core” clock (purple) for operating the processor's processing unit (16). The generator (17) also provides other clocks for various system-memory and other components. '061 Patent col.3 ll.18-26. As shown in the figure, a voltage generator (12) that is connected to a power supply (13) provides a voltage (blue) to the processor's processing unit 16. See id. at col.2 ll.46-57. The processor's power consumption and operability are related to the voltage and core-clock frequency. See, e.g., id. at col.1 ll.39-47, col.7 ll.39-60.

         (Image Omitted)

         The abstracts of the Asserted Patents are identical and provide as follows:

A method for controlling the power used by a computer including the steps of measuring the operating characteristics of a central processor of the computer, determining when the operating characteristics of the central processor are significantly different than required by the operations being conducted, and changing the operating characteristics of the central processor to a level commensurate with the operations being conducted.

         Claims 1 and 17 of the '247 Patent, exemplary method and system claims respectively, provide:

1. A method, comprising:
determining a level of permitted power consumption by a processing device from a set of operating conditions of the processing device, with the determining the level of permitted power consumption not based upon instructions to be executed by the processing device;
determining a highest allowable frequency of operation of the processing device that would result in power consumption not exceeding the level of permitted power consumption;
determining a lowest allowable level of voltage to apply to the processing device that would allow execution of the instructions by the processing device at the highest allowable frequency; and
changing power consumption of the processing device during execution of the instructions by reducing a magnitude of a difference between an operating frequency of the processing device and the highest allowable frequency of operation of the processing device and reducing a magnitude of a difference between a voltage applied to the processing device and the lowest allowable level of voltage.
17. An apparatus, comprising:
a frequency generator configured to generate a first clock signal at a first frequency; and
a processing device configured to receive the first clock signal and a first voltage provided by a voltage source, the processing device operable to monitor operating parameters of the processing device, the processing device operable to determine a second frequency of the first clock signal and a second voltage for operation of the processing device at lower power than operation at the first frequency and the first voltage, with the processing device operable to determine the second frequency and the second voltage not based on instructions to be executed by the processing device, the processing device operable to control the frequency generator to change from generating the first clock signal at the first frequency to generating the first clock signal at a second frequency, and the processing device operable to control the voltage source to change from providing the first voltage to providing the second voltage during execution of the instructions by the processing device.

         II. LEGAL PRINCIPLES

         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 not helpful to a court. Id. 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. 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).

         C. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)[3]

         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., 572 U.S. 898, 910 (2014). If it does not, the claim fails § 112, ¶ 2 and is therefore invalid as indefinite. Id. at 901. 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 911. 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. BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360, 1365 (Fed. Cir. 2017). “[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). The standard “must provide objective boundaries for those of skill in the art.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014).

         III. AGREED CONSTRUCTIONS

         The Parties have agreed to the following constructions set forth in their Joint Claim Construction Chart (Dkt. No. 57).[4]

Term[5]
Agreed Construction

“programmable voltage supply”

• '247 Patent Claim 5

power supply configured to provide one of a plurality of distinct voltage levels specified by an input

“a selectable voltage”

• '627 Patent Claim 5

one of a plurality of distinct voltage levels specified by an input

“a power supply furnishing selectable output voltages”

• '061 Patent Claim 56

a power supply providing one of a plurality of distinct voltage levels corresponding to an input

“power supply … configured to furnish a selectable voltage”

• '627 Patent Claim 5

a power supply configured to provide one of a plurality of distinct voltage levels specified by an input

“idle time”

• '061 Patent Claim 23

time spent in an idle state

“idle state(s)”

• '061 Patent Claims 31, 33

state in which various components of the system are quiescent

“plurality of idle states of said computer processor”

• '061 Patent Claim 30

“halt state”

• '061 Patent Claim 33

state in which the core clock has been stopped but the processor responds to most interrupts

“concurrently furnish clock signals at different frequencies”

• '627 Patent Claim 10

simultaneously furnishing more than one distinct frequency at the same time

         Having reviewed the intrinsic and extrinsic evidence of record, the Court hereby adopts the Parties' agreed constructions.

         IV. CONSTRUCTION OF DISPUTED TERMS

         A. “computer processor, ” “processor, ” “central processor, ” “processing unit, ” and “processing device”

Disputed Term
Plaintiff's Proposed Construction
Defendant's Proposed Construction

“computer processor” / “processor”

• Dkt. No. 57-1 at 1, No. 2[6]

CPU

CPU. Each core of a multi-core processor is a CPU.

“processing unit” / “processing device”

• Dkt. No. 57-1 at 1, No. 3

computing portion of CPU

Computing portion of CPU. Each core of a multi-core processor is a CPU.

         Because the Parties' arguments and proposed constructions with respect to these terms are related, the Court addresses the terms together.

         The Parties' Positions

          Plaintiff submits: Defendant's proposed construction is a construction of “multi-core processor, ” which does not appear in the claims. Whether a core of a multi-core processor is a CPU is a factual issue of infringement rather than of claim construction. Dkt. No. 46 at 8-9.

         Defendant responds: As used in the Asserted Patents, the terms “computer processor, ” “processor, ” and “central processor” refer to a CPU and each core in a multi-core processor is a CPU. References in the claims to “the” or “said” processor refer to the CPU, rather than to a component that contains the CPU, such as a multi-core processor. Dkt. No. 48 at 6-10.

         In addition to the claims themselves, Defendant cites the following intrinsic and extrinsic evidence to support its position: Intrinsic evidence: '061 Patent fig.1. Extrinsic evidence: Diefendorff, Power4 Focuses on Memory Bandwidth: IBM Confronts IA-64, Says ISA Not Important, Microdesign Resources: Microprocessor Report (Oct. 6, 1999) (Defendant's Ex. A, Dkt. No. 48-2); L. Hammond, The Stanford Hydra CMP, IEEE MICRO (2000) (Defendant's Ex. B, Dkt. No. 48-3); Carbonell Decl.[7] ¶¶ 34-35 (Plaintiff's Ex. E, Dkt. No. 46-6).

         Plaintiff replies: The stated purpose of Defendant's proposed construction is to decide as a matter of claim construction an issue of infringement. Dkt. No. 52 at 5.

         Analysis

          The issue in dispute distills to whether the Court should construe “multi-core processor.” Given that “multi-core processor” is not a term in the Asserted Patents, the Court declines at this ...


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