SuperSpeed, L.L.C. v. Google, Inc., CIVIL ACTION NO. H-12-1688

• Decision Date: 14 January 2014
• Docket Number: CIVIL ACTION NO. H-12-1688
• Parties: SUPERSPEED, L.L.C., Plaintiff, v. GOOGLE, Inc., Defendant.
• Court: U.S. District Court — Southern District of Texas

SUPERSPEED, L.L.C., Plaintiff,
v.
GOOGLE, Inc., Defendant.

CIVIL ACTION NO. H-12-1688

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Date: January 14, 2014

MEMORANDUM OPINION ON CLAIM CONSTRUCTION

This is a patent infringement suit filed by SuperSpeed, L.L.C. ("SuperSpeed") against Google, Inc. ("Google"), involving United States Patent Nos. 5,577,226 ("'226 patent") and 5,918,244 ("'244 patent"). Both patents were applied for and received by SuperSpeed's predecessor in interest, EEC Systems, Inc. ("EEC"). The '226 patent is the parent application to the '244 patent, and both patents claim priority to U.S. Application No. 08/238,815, filed on May 6, 1994. The plaintiff, SuperSpeed, and the defendant, Google, disagree about the meaning of several terms used in the patents and, therefore, ask the court to construe the disputed terms. See Markman v. Westview Instruments, Inc., 116 S. Ct. 1384, 1387 (1996) ("the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.").

In support of its preferred constructions, SuperSpeed has filed SuperSpeed, LLC's Opening Brief Regarding Claim Construction

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("SuperSpeed's Opening Brief") (Docket Entry No. 84), SuperSpeed, LLC's Opening Brief Regarding Claim Construction ("SuperSpeed's Opening Brief") (Docket Entry No. 100),¹ SuperSpeed, LLC's Reply Brief Regarding the Claim Construction of U.S. Patent Nos. 5,577,226 & 5,918,244 ("SuperSpeed's Reply Brief") (Docket Entry No. 107), and SuperSpeed, LLC's Reply Brief Regarding Claim Construction ("SuperSpeed's Reply Brief") (Docket Entry No. 110). In support of its preferred constructions, Google has filed Google Inc.'s Opening Claim Construction Brief ("Google's Opening Brief") (Docket Entry No. 85), Google Inc.'s Opening Claim Construction Brief for U.S. Patent No. 5,577,226 ("Google's Opening Brief") (Docket Entry No. 101), Google Inc.'s Responsive Claim Construction Brief ("Google's Responsive Brief") (Docket Entry No. 106), and Google Inc.'s Reply Brief Regarding the Claim Construction of U.S. Patent Nos. 5,577,226 and 5,918,244 ("Google's Reply Brief") (Docket Entry No. 108).

The parties have also presented a Joint Claim Construction and Prehearing Statement (Docket Entry No. 66), Google's Corrected Proposed Constructions and Evidence (Docket Entry No. 78), Second Joint Claim Construction and Prehearing Statement (Docket Entry No. 99), and a Joint Claim Construction Chart (Docket Entry No. 111-1), pursuant to which the parties have agreed to the construction of the following terms:

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Terms to be Construed	Agreed Construction
Cache driver:	A software program that creates or controls a cache.
Executable interception code:	Software that performs interception.
Executable invalidate code:	Software that performs invalidation.
Intercepting:	To stop, deflect, or interrupt the progress or intended course of.
Invalidate data:	To indicate the modification of previously cached data.2
Network:	Communication facilities that link points at which computers or devices may be connected.
Means for reading data from the cache when the read instruction relates to addresses corresponding to data in the cache:	Subject to 3 5 U.S.C. § 112, ¶ 6; Function: Reading data from the cache when the read instruction relates to addresses corresponding to data in the cache; Corresponding structure: The "read data" and "read cache hit" program flow, steps, and data structures disclosed or referred to by Figs. 5c, 5e, and 5i, col. 17, 1.46 - col. 19, 1.10; and col. 20, 1.60-col. 21, 1.20 of the '244 patent.
Means for writing data into the cache when the read instruction relates to addresses that do not correspond to any data in the cache:	Subject to 35 U.S.C. § 112, ¶ 6 ; Function: Writing data into the cache when the read instruction relates to addresses that do not correspond to any data in the cache; Corresponding structure: The "read data" and "read miss" program flow, steps, and data structures disclosed or referred to by Figs. 5c, 5e, and 5f-5h, col. 17, 1.46-col. 19, 1.10; and col. 19, 1.17-col. 20, 1.58 of the '244 patent, and equivalents thereof.
Write instruction:	an operation that initiates a transfer of data to an I/O device

On November 7, 2013, the court held a hearing on the claim construction issues. After carefully considering the parties' arguments, the evidence, and the applicable law, the court construes the disputed claim terms as stated below.

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I. Background

SuperSpeed alleges that Google infringes the '226 and the '244 patents. Both of the patents-in-suit have been the subject of prior litigation: SuperSpeed v. Oracle Corporation, 4:04-cv-3409, and SuperSpeed v. IBM Corporation, 2:07-cv-89. In both of these prior cases Markman hearings were held and claim construction orders were issued that addressed some of the terms now at issue.³ See SuperSpeed v. Oracle Corporation 447 F. Supp. 2d 672 (S.D. Tex. 2006), and SuperSpeed v. IBM Corporation, 2009 WL 383255 (E.D. Tex. February 11, 2009).

II. Legal Standard for Claim Construction

In Markman, 116 S. Ct. at 1387, the United States Supreme Court held that the construction of patent claims is a matter of law exclusively for the court. Accordingly, when the parties dispute the meaning of particular claim terms, the court should consider the parties' proposed definitions, but must independently assess the claims, the specification, and if necessary the prosecution history and relevant extrinsic evidence, and declare the meaning of the disputed terms. Exxon Chemical Patents, Inc. v. Lubrizol Corp., 64 F.3d 1553, 1556 (Fed. Cir. 1995), cert. denied, 116 S. Ct. 2554 (1996).

Courts begin claim construction inquiries by ascertaining the "ordinary and customary meaning" of the disputed claim terms.

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Phillips v. AWH Corporation, 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc), cert. denied, 126 S. Ct. 1332 (2006) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). "[T]he 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. "[T]he 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.

In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges, and claim construction in such cases involves little more than the application of the widely accepted meaning of commonly understood words. . . . In such circumstances, general purpose dictionaries may be helpful. In many cases that give rise to litigation, however, determining the ordinary and customary meaning of the claim requires examination of terms that have a particular meaning in a field of art. Because the meaning of a claim term as understood by persons of skill in the art is often not immediately apparent, and because patentees frequently use terms idiosyncratically, the court looks to "those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean." . . . Those sources include "the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art."

Id. at 1314 (citations omitted).

Ascertaining a term's ordinary and customary meaning is the starting point for claim construction, but may not be the ending

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point. For example, a term may not carry its ordinary and customary meaning "if the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in either the specification or prosecution history." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002). See Hormone Research Foundation, Inc. v. Genentech, Inc., 904 F.2d 1558, 1563 (Fed. Cir. 1990), cert. dismissed. 111 S. Ct. 1434 (1991) ("It is a well-established axiom in patent law that a patentee is free to be his or her own...