United States District Court, D. Delaware
Edmond D. Johnson, Esq., James G. McMillan, III, Esq., PEPPER HAMILTON LLP, Wilmington, DE; William D. Belanger, Esq. (argued), Noah V. Malgeri, Esq., Leah R. McCoy, Esq., Christopher Boundy, Esq., Suparna Datta, Esq., L. Andrew Tseng, Esq., PEPPER HAMILTON LLP, Boston, MA; Gregory S. Bishop, Esq. (argued), Charles F. Koch, Esq., PEPPER HAMILTON LLP, Redwood City, CA, Attorneys for Plaintiff Call Wave Communications, LLC.
Jack B. Blumenfeld, Esq., Paul Saindon, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE; Scott R. Samay, Esq. (argued), Howard I. Shin, Esq., Krishnan Padmanabhan, Esq. (argued), WINSTON & STRAWN LLP, New York, NY, Attorneys for Defendant Google, Inc.
Karen Jacobs, Esq., Stephen J. Kraftschik, Esq., Eleanor G. Tennyson, Esq., MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE, Attorneys for Defendants Sprint Spectrum L.P., et al.
Benjamin J. Schladweiler, Esq., SEITZ ROSS ARONSTAM & MORITZ LLP, Wilmington, DE; Robert J. Scheffel, Esq., WILEY REIN LLP, Washington, DC, Attorneys for Defendants Verizon Services Corp., et al.
John G. Day, Esq., Tiffany Geyer Lydon, Esq., Andrew C. Mayo, Esq., ASHBY & GEDDES, Wilmington, DE; Peter Yi, Esq., COOLEY LLP, Reston, VA, Attorneys for Broadsoft, Inc.
RICHARD G. ANDREWS, District Judge.
Pending before the Court is the issue of claim construction for the disputed terms found in U.S. Patent Nos. 7, 397, 910 ("the '910 patent"); 7, 555, 110 ("the '110 patent"); 7, 636, 428 ("the '428 patent"); 7, 822, 188 ("the '188 patent"); 8, 064, 588 ("the '588 patent"); 8, 325, 901 ("the '901 patent"); and 8, 351, 591 ("the '591 patent") (collectively, the "Call Processing Patents").
CallWave Communications, LLC ("CallWave") filed the instant actions for patent infringement against Defendants on December 12, 2012. (D.I. I). Broadsoft, Inc. ("Broadsoft") filed an action for declaratory judgment against CallWave on April 23, 2013. (C.A. No. 13-711, D.I. 1). The Court has considered the parties joint claim construction brief (D.I. 216), joint appendix (D.I. 217), and oral argument. (D.I. 254). The parties also filed subsequent letters addressing issues raised at oral argument. (D.I. 243, 245-48 & 253).
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." Phillipsv. 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.'" SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (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 quotation marks and citations omitted).
"[T]he 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." Id. at 1312-13 (internal quotation marks and citations 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).
When a court relies solely upon the intrinsic evidence-the patent claims, the specification, and the prosecution history-the court's construction is a determination of law. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015). The court may also make factual findings based upon consideration of extrinsic evidence, which "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Phillips, 415 F.3d at 1317-19 (internal quotation marks and citations omitted). Extrinsic evidence may assist the court in understanding the underlying technology, the meaning of terms to one skilled in the art, and how the invention works. Id. Extrinsic evidence, however, is less reliable and less useful in claim construction than the patent and its prosecution history. Id.
"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. Int 7 Trade Comm n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (internal quotation marks and citation omitted).
III. CONSTRUCTION OF DISPUTED TERMS
a. Plaintiff's proposed construction:  No construction is necessary. If the Court determines construction is necessary: Connection or request for connection.
b. Defendants proposed construction: A voice path and associated signaling information.
c. Court's construction: Telephone call.
CallWave argues that no construction is necessary because the term "call" is readily understood to mean "a phone call." (D.I. 216 at 18). During oral argument, CallWave agreed that "telephone call" was a "perfectly appropriate" construction of the term "call." (D.I. 254 at 11:1-5). Defendants note in their briefing that "[t]he asserted patents are expressly directed toward call processing systems and consistently use the term call' in the sense of a phone call." (D.I. 216 at 15). Defendants, however, argue that a "call" requires both a voice path and signaling. (D.I. 254 at 23:2-4). I disagree. The '188 patent specification provides that "[t]he present invention relates generally to telecommunications, and more particularly to telephone call processing." (D.I. 171-2 at 47, 2:7-8). Common usage of the term "call" does not require a voice path and signaling, as one can place a call without establishing a connection with the intended call recipient. Thus, Defendants' proposed construction is not consistent with the plain and ordinary meaning of the term, and is narrower than the claims and specification envision. Therefore, the Court construes the term as "telephone call."
2. "outcall from the call processing system" and "outcall"
a. Plaintiff's proposed construction: No construction is necessary. If the Court determines construction is necessary: Outgoing call.
b. Defendants proposed construction: A call originated from the call processing system.
c. Court's construction: An outgoing call from the call processing system.
Defendants argue that the usage of "outcall" in the claims of the '188 patent makes clear that it must be "originated from the call processing system." (D.I. 216 at 23). CallWave objects to the use of the word "originated" (D.I. 254 at 45:3-13), arguing that it may exclude embodiments disclosed in the specification. ( Id. at 46:1-13). CallWave also argues that Defendants' proposed construction would render the language "from a call processing system" in claim 1 of the '188 patent superfluous. (D.I. 216 at 25). The Court recognizes that certain claims refer to an "outcall from the call processing system, " but other claims do not. Defendants, in turn, propose to construe "outcall" uniformly throughout the patent as originating from the call processing system. (D.I. 254 at 21:4-14). Where the claims use the word "outcall, " alone, the term has an antecedent basis in the term "outcall from the call processing system." To make this clear, I have construed the term "outcall" to mean "an outgoing call from the call processing system." In instances where "outcall" is followed by "from the call processing system, " the term "outcall" is construed as "an outgoing call."
CallWave also points out that the specifications of the '188 and '591 patents refer to "outcalls placed by the subscriber." (D.I. 243; 171-2 at 73, 53:5 & 171-3 at 1, 52:67). Defendants note, however, that the full sentence cited by CallWave states that "[t]he transfer and conferencing call management functions are optionally made available by the system on inbound calls to the subscriber and on outcalls placed by the subscriber." (D.I. 171-2 at 73, 53:2-5). Defendants highlight the passage immediately preceding this sentence, which makes clear that the sentence relates to an embodiment of the patent involving a virtual telephone number (VTN): "As similarly described herein, optionally, a single phone number (e.g., a VTN) associated with a subscriber can be used to reach communication devices (e.g., a mobile phone, a work fixed, landline phone, a home fixed, landline phone, a VoIP phone, etc.) associated with different lines and/or carriers." ( Id. at 72, 52:59-63). Defendants also point to earlier passages describing the same embodiment, explaining that "when a call is placed to the VTN, the call is optionally connected to the call processing system. The call can then be connected by the call processing system to the user (e.g., by placing an outcall to a terminal associated with the user and bridging the incoming call and the out call)." ( Id. at 72, 52:24-28). The context of the sentence cited by CallWave makes clear that a call placed by the ...