Personalized Media Commc'ns, LLC v. Apple, Inc., Case No. 2:15-cv-01366-JRG-RSP (Lead)

• Decision Date: 25 October 2016
• Docket Number: Case No. 2:15-cv-01366-JRG-RSP (Lead),Case No. 2:15-cv-01754-JRG-RSP,Case No. 2:15-cv-01206-JRG-RSP (Consolidated)
• Parties: PERSONALIZED MEDIA COMMUNICATIONS, LLC Plaintiff, v. APPLE, INC., Defendant. PERSONALIZED MEDIA COMMUNICATIONS, LLC Plaintiff, v. TOP VICTORY ELECTRONICS (TAIWAN) CO. LTD., ET AL., Defendants. PERSONALIZED MEDIA COMMUNICATIONS, LLC Plaintiff, v. SAMSUNG ELECTRONICS AMERICA, INC. and SAMSUNG ELECTRONICS CO., LTD. Defendants.
• Court: U.S. District Court — Eastern District of Texas

PERSONALIZED MEDIA COMMUNICATIONS, LLC Plaintiff,
v.
APPLE, INC., Defendant.

PERSONALIZED MEDIA COMMUNICATIONS, LLC Plaintiff,
v.
TOP VICTORY ELECTRONICS (TAIWAN) CO. LTD., ET AL., Defendants.

PERSONALIZED MEDIA COMMUNICATIONS, LLC Plaintiff,
v.
SAMSUNG ELECTRONICS AMERICA, INC. and SAMSUNG ELECTRONICS CO., LTD. Defendants.

Case No. 2:15-cv-01366-JRG-RSP (Lead)
Case No. 2:15-cv-01206-JRG-RSP (Consolidated)
Case No. 2:15-cv-01754-JRG-RSP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

October 25, 2016

MEMORANDUM OPINION AND ORDER

On September 23, 2016, the Court held a hearing to determine the proper construction of the disputed terms in six patents. The Court has considered the parties' claim construction briefing (Dkt. Nos. 69, 78, 196 and 83)¹ and arguments. Based on the intrinsic and extrinsic evidence, the Court construes the disputed terms in this Memorandum Opinion and Order. See Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005); Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (2015).

BACKGROUND AND THE ASSERTED PATENTS

Personalized Media Communications, ("PMC") brought multiple actions alleging patent infringement. One action was brought against Apple, Inc. ("Apple"). Another action was brought against Top Victory Electronics (Taiwan) Co. Ltd., TPV Int'l (USA), Inc., Envision Peripherals, Inc., Top Victory Electronics (Fujian) Co. Ltd., TPV Electronics (Fujian) Co. Ltd., TPV Technology Ltd., Hon Hai Precision Industry (Taiwan) Co., Ltd., Wistron Corp., Wistron Infocomm Technology (Texas) Corp., Wistron Infocomm Technology (America) Corp., and Vizio (collectively, "Vizio"). Those two actions have been consolidated for pre-trial purposes. Further, the claim construction terms in those two actions has been separated into two phases. This Court has already issued an Opinion and Order on the Phase 1 terms ("Phase 1 Order").² Resolution of the Phase 2 terms is provided in this Opinion and Order. Apple is not a participant in the Phase 2 dispute. A third action was brought against Samsung Electronics America, Inc.

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and Samsung Electronics Co., Ltd. (collectively "Samsung").³ In addition to the Phase 2 disputes, this order addresses the Samsung action claim construction disputes.

This Opinion and Order includes the construction of terms found in six patents: U.S. Patent Nos. 7,747,217 ("'217 Patent"), 7,752,649 ("'2,649 Patent"), 7,752,650 ("'650 Patent"), 7,856,649 ("'6,649 Patent"), 8,675,775 ("'775 Patent"), and 8,711,885 ("'885 Patent") (collectively, "the Asserted Patents"). The '2,649 Patent is also asserted against the Apple. The '2,649 Patent claim terms that overlap both actions are included in the Phase 1 construction. Some disputed terms addressed herein relate to both the Samsung and Vizio actions, some relate to only the Samsung action and some relate to only the Vizio action.

The Asserted Patents are part of patent family which has extensive prosecution and litigation history, including multiple prior litigations, reexaminations and IPRs. The Asserted Patents were originally filed in May and June 1995 and are part of a chain of continuation applications filed from U.S. Patent 4,965,825 ("the '825 Patent). The '825 Patent issued from an application filed in 1987. The '825 Patent was a continuation-in-part application of another application first filed in 1981 (now U.S. Patent No. 4,694,490).⁴

The disputed terms fall into 33 term groupings. A discussion of the technology of the Asserted Patents is found in the Phase 1 Order.

LEGAL PRINCIPLES

"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.,

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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.

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"[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").

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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 fact finding must be reviewed for clear error on appeal.

Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).

A. 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...