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Infernal Technology LLC v. Activision Blizzard Inc.

United States District Court, N.D. Texas, Dallas Division

September 6, 2019

INFERNAL TECHNOLOGY, LLC AND TERMINAL REALITY, INC., Plaintiffs,
v.
ACTIVISION BLIZZARD INC., Defendant.

          CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER

          BARBARA M. G. LYNN CHIEF JUDGE.

         This Order addresses the claim-construction disputes jointly presented by the parties in Infernal Technology, LLC et al. v. Microsoft Corp., No. 2:18-cv-00144-JRG (E.D. Tex.) (the "Microsoft Case"), Infernal Technology, LLC et al. v. Crytek GmbH, No. 2:18-cv-00284-JRG (E.D. Tex.) (the "Crytek Case"), and Infernal Technology, LLC et al. v. Activision Blizzard Inc., No. 3:18-cv-01397-M (N.D. Tex.) (the "Activision Case"). The parties submitted the same claim-construction briefing in all cases. Infernal Technology, LLC and Terminal Reality, Inc. (collectively, "Plaintiffs") submitted opening and responsive briefs (Microsoft Case, Dkt. No. 101 and Dkt. No. 107; Crytek Case, Dkt. No. 45 and Dkt. No. 47; Activision Case, Dkt. No. 93 and Dkt. No. 96). Microsoft Corp., Crytek GmbH, and Activision Blizzard Inc. (collectively "Defendants") submitted opening and responsive briefs (Microsoft Case, Dkt. No. 99 and Dkt. No. 106; Crytek Case, Dkt. No. 43 and Dkt. No. 46; Activision Case, Dkt. No. 90 and Dkt. No. 95). The U.S. District Courts for the Northern District of Texas and the Eastern District of Texas held a concurrent claim-construction hearing in these proceedings on August 16, 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......................................................................................................7

         A. Claim Construction..................................................................................................7

         B. Departing from the Ordinary Meaning of a Claim Term......................................10

         III. AGREED CONSTRUCTIONS......................................................................................11

         IV. CONSTRUCTION OF DISPUTED TERMS................................................................12

         A. The Preambles of Claim 1 of the '822 Patent and Claims 1 and 11 of the '488 Patent.............................................................................................................12

         B. "determine if a modeled point within said scene is illuminated by said light source"...........................................................................................................17

         C. "providing lighting data associated with a plurality of simulated light sources arranged to illuminate said scene, said lighting data including light image data"............................................................................................................21

         D. "light image data"..................................................................................................26

         E. "storing at least a portion of said light image data associated with said point and said light source" and "at least a portion of.........................................31

         F. "light accumulation buffer"...................................................................................34

         V. CONCLUSION................................................................................................................38

         I. BACKGROUND

         Plaintiffs allege infringement of two U.S. Patents: No. 6, 362, 822 (the '"822 Patent") and No. 7, 061, 488 (the '"488 Patent") (collectively, the "Asserted Patents"). The application that issued as the '488 Patent is a continuation of the application that issued as the '822 Patent, which was filed on March 12, 1999. Each of the Asserted Patents is entitled "Lighting and Shadowing Method and Arrangements for Use in Computer Graphic Simulations."

         The Asserted Patents were construed previously in Infernal Technology, LLC et al. v. Electronic Arts Inc., No. 2:15-cv-1523-JRG-RSP (E.D. Tex.) (the "EA Case"). The EA Court issued a claim-construction order on September 27, 2016. 2016 WL 5415429 (the "EA Construction"). Several of the terms in dispute here were addressed in, or include terms addressed in, the EA Construction.

         Each of the Asserted Patents was also the subject of Inter Partes Review before the U.S. Patent and Trademark Office in IPR2016-00928 (the '"822 Patent IPR") and consolidated IPR2016-00929 and IPR2016-00930 (the '"488 Patent IPR").[1] The Patent Trial and Appeal Board ("PTAB") issued decisions instituting review of the Asserted Patents in October 2016[2] and issued final written decisions declining to invalidate any claims of the patents in October 2017.[3] In the institution decisions, as relevant here, the PTAB provided a preliminary claim-construction analysis of "light accumulation buffer." '822 Patent IPR Institution, slip op. at 11-15; '488 Patent IPR Institution, slip op. at 12-15.

         In general, the Asserted Patents are directed to technology for handling lighting and shadowing in computer graphics. The technology can be generally understood with reference to Figures 2, 3, and 4 of the '822 Patent.[4] Figure 2, reproduced here, depicts a simulated three-dimensional ("3D") scene (10). The scene includes at least one 3D object (12) that is represented by spatial data, such as polygons. And the scene is illuminated by one or more light sources (16, 18). The 3D scene is rendered in two dimensions ("2D") and the 2D image is suitable for display, such as on a computer screen. The 2D view of the 3D scene is from the observer's, or camera's (14), perspective and takes into account the light incident on the 3D obj ect as viewed from the observer's perspective. The relative positions of the object, observer, and light sources are defined using a 3D coordinate system (20). '822 Patent col.1 ll.25-38, col.6 ll.28-57.

         (Image Omitted)

         Figures 3 and 4, reproduced below, depict exemplary data structures and an image processing flow for producing an image for display. The scene is rendered into 2D from the observer's (camera's) view (step 102) and also from each light source's view (step 104). The 2D data for each view include image (e.g., color) and depth information associated with each point in the view's 2D coordinate system (data structures 51 A, 5 IB, 51C, 5 ID, 5 IE, 5 IF). The 2D version of the scene from the observer's view is transformed from the observer's coordinate system to the light source's coordinate system (step 106) and for each region in the observer's view that is illuminated by the light source, the light image information is accumulated in a light source buffer (data structure 51G) (step 108). After the observer data is processed for each light source to generate the accumulated light data, the accumulated light data is combined with the observer data to generate the image for display (data structure 50; step 118). Id. at col.6 1.58 - col.9 1.22.

         (Image Omitted)

         The abstracts of the Asserted Patents are identical and provide:

The effects of lighting and resulting shadows within a computer simulated three-dimensional scene are modeled by rendering a light depth image and a light color image for each of the light sources. The light depth images are compared to a camera depth image to determine if a point within the scene is lighted by the various light sources. An accumulated light image is produced by combining those portions of the light color images determined to be lighting the scene. The resulting accumulated light image is then combined with a camera color image to produce a lighted camera image that can be further processed and eventually displayed on a computer display screen. The light color image can be static or dynamic. Transformations between different perspective and/or coordinate systems can be precalculated for fixed cameras or light sources. The various images and manipulations can include individual pixel data values, multiple-pixel values, polygon values, texture maps, and the like.

         Claim 1 of the '822 Patent and Claim 11 of the '488 Patent, exemplary method and system claims respectively, recite as follows:

'822 Patent Claim 1:
A shadow rendering method for use in a computer system, the method comprising the steps of:
providing observer data of a simulated multi-dimensional scene;
providing lighting data associated with a plurality of simulated light sources arranged to illuminate said scene, said lighting data including light image data;
for each of said plurality of light sources, comparing at least a portion of said observer data with at least a portion of said lighting data to determine if a modeled point within said scene is illuminated by said light source and storing at least a portion of said light image data associated with said point and said light source in a light accumulation buffer; and then
combining at least a portion of said light accumulation buffer with said observer data; and
displaying resulting image data to a computer screen.
'488 Patent Claim 11:
An arrangement configured to render shadows in a simulated multidimensional scene, the arrangement comprising:
an output to a display screen configured to display image data;
memory for storing data including observer data associated with a simulated multi-dimensional scene, and lighting data associated with a plurality of simulated light sources arranged to illuminate said scene, said lighting data including light image data, said memory further including a light accumulation buffer portion and a frame buffer portion;
at least one processor coupled to said memory and said output and operatively configured to, for each of said plurality of light sources, compare at least a portion of said observer data with at least a portion of said lighting data to determine if a modeled point within said scene is illuminated by said light source and storing at least a portion of said light image data associated with said point and said light source in said light accumulation buffer, then combining at least a portion of said light accumulation buffer with said observer data, and storing resulting image data in said frame buffer, and outputting at least a portion of said image data in said frame buffer via said output.

         Plaintiffs allege that Activision has infringed Claims 1-9 of the '822 Patent and Claims 1-9 and 27-36 of the '488 Patent by making, using, and selling certain video games and by inducing others to use the games. (Dkt. No. 101 at 11-12.)

         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 has 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."[5] 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).

         III. AGREED CONSTRUCTIONS

         The parties have agreed to the following constructions set forth in their Joint Patent Rule 4-5(d) Claim ...


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