Buyerleverage Email Solutions, LLC, a Delaware Limited Liability Company, Plaintiff;
SBC Internet Services, Inc., AT&T Services, Inc., Comcast Cable Communications LLC, Microsoft Corporation, Time Warner Cable, Inc., Yahoo! Inc. and Return Path, Inc., Defendants.
Daniel P. Murray, Esq., O'Kelly Ernst & Bielli, LLC, Wilmington, DE; Frederick C. Laney, Esq. (argued), Niro, Haller & Niro, Chicago, IL; Timothy J. Haller, Esq., Niro, Haller & Niro, Chicago, IL; Daniel R. Ferri, Esq., Niro, Haller & Niro, Chicago, IL, attorneys for Plaintiff.
Alisa E. Moen, Esq., Blank Rome LLP, Wilmington, DE; Kenneth L. Bressler, Esq. (argued), Blank Rome LLP, New York, NY; Peter S. Weissman, Esq., Blank Rome LLP, Washington, DC; Kevin R. Doherty, Esq., Blank Rome LLP, New York, NY, attorneys for Defendants SBC Internet Services, et al.
Brian E. Farnan, Esq., Farnan LLP, Wilmington, DE; Chad S. Campbell, Esq., Perkins Coie, Phoenix, AZ, attorneys for Defendant Microsoft Corporation.
Kelly E. Farnan, Esq., Richards, Layton & Finger, Wilmington, DE; Lawrence J. Gotts, Esq., Latham & Watkins LLP, Washington, DC; James R. Bender, Latham & Watkins LLP, Washington, DC, attorneys for Defendants Time Warner Cable, Inc. and Comcast Cable LLC.
RICHARD G. ANDREWS, District Judge.
Pending before this Court is the issue of claim construction of various disputed terms found in U.S. Patent No. 7, 072, 943, U.S. Patent No. 7, 636, 756, U.S. Patent No. 7, 725, 546, and U.S. Patent No. 7, 962, 561.
On July 21, 2011, Buyerleverage Email Solutions LLC ("Plaintiff') filed a patent infringement action (D.I. 1) against AT&T, Inc., Cisco Systems, Inc., Comcast Corporation, Microsoft Corporation, Surewest Communications,  Time Warner Cable, Inc., Yahoo! Inc., and Knology, Inc. On November 9, 2011, Return Path, Inc. filed a motion to intervene in the suit. (D.I. 27). On December 8, 2011 Buyerleverage amended the complaint to name SBC Internet Services, Inc. (D.I. 32). The Court has considered the Parties' Joint Claim Construction Brief. (D.I. 178). The Court held oral argument on the disputed claim terms on September 26, 2013. (D.I. 182).
The parties have identified about fifteen disputed terms. At least one was resolved by the parties. (D.I. 182 at 113). The Court now resolves the disputes that appear to be most important. (D.I. 182 at 122).
II. LEGAL STANDARD
"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) (internal quotation marks omitted). "[T]here is no magic formula or catechism for conducting claim construction.' Instead, the court is free to attach the appropriate weight to appropriate sources in light of the statutes and policies that inform patent law.'" Soft View LLC v. Apple Inc., 2013 WL 4758195 (D. Del. Sept. 4, 2013) (quoting Phillips, 415 F.3d at 1324). When construing patent claims, a court considers the literal language of the claim, the patent specification, and the prosecution history. Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-80 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). of these sources, "the 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." Phillips, 415 F.3d at 1315 (internal quotations and citations omitted).
Furthermore, "the words of a claim are generally given their ordinary and customary meaning... [which 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." Phillips, 415 F.3d at 1312-13 (internal citations and quotation marks omitted). "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id at 1321 (internal quotation marks omitted). "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." Id at 1314 (internal citations omitted).
A court may consider extrinsic evidence, which "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises, " in order to assist the court in understanding the underlying technology, the meaning of terms to one skilled in the art and how the invention works. Id at 1317-19 (internal quotation marks and citations omitted). However, extrinsic evidence is less reliable and less useful in claim construction than the patent and its prosecution history. !d.
Finally, "[a] claim construction is persuasive, not because it follows a certain rule, but because it defines terms in the context of the whole patent." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998). It follows that "a claim interpretation that would exclude the inventor's device is rarely the correct interpretation." Osram GmbH v. Jnt'l ...