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In re Mobile Telecommunications Technologies, LLC

United States District Court, D. Delaware

September 19, 2017

In re Mobile Telecommunications Technologies, LLC
v.
MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Defendant. ARRIS GROUP, INC., Plaintiff, UBEE INTERACTIVE INC., Plaintiff,
v.
MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
TIME WARNER CABLE, INC., ET AL., Defendants. BRIGHT HOUSE NETWORKS, LLC, Plaintiff,
v.
MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
CHARTER COMMUNICATIONS INC., Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
ARUBA NETWORKS, INC., ET AL., Defendants. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
BROCADE COMMUNICATIONS SYSTEMS, INC., Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
JUNIPER NETWORKS, INC., Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
RUCKUS WIRELESS, INC., Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
AEROHIVE NETWORKS, INC., Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
XIRRUS, INC., Defendant. MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC, Plaintiff,
v.
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, Defendant.

          Brian E. Farnan and Michael J. Farnan, FARNAN LLP, Wilmington, DE Henning Schmidt, Daniel R. Scardino, Drew Zerdecki, Anthony D. Seach, and Kyle Harter, REED & SCARDINO LLP, Austin, TX Attorneys for Mobile Telecommunications Technologies, LLC.

          L. Norwood Jameson, Matthew Gaudet, Matthew S. Yungwirth, and Alison Haddock Hutton, DUANE MORRIS LLP, Atlanta, GA Joseph A. Powers, DUANE MORRIS LLP, Philadelphia, PA Joshua B. Long, DUANE MORRIS LLP, Houston, TX Patrick S. Salceda, DUANE MORRIS LLP, San Francisco, CA Richard L. Renck, DUANE MORRIS LLP, Wilmington, DE Attorneys for Time Warner Cable, Inc., Time Warner Cable Enterprises LLC, Time Warner Cable Texas LLC, Bright House Networks, LLC, Ubee Interactive Inc., Arris Group, Inc., and Charter Communications, Inc.

          Denise S. Kraft and Brian A. Biggs, DLA PIPER LLP, Wilmington, DE Sean C. Cunningham, Erin P. Gibson, Tiffany Miller, David R. Knudson, and Amy Walters, DLA PIPER LLP, San Diego, CA Brian K. Erickson, DLA PIPER LLP, Austin, TX Asa Wynn-Grant, DLA PIPER LLP, Palo Alto, CA Attorneys for Aruba Networks, Inc., Hewlett Packard Enterprise Company, and HP Inc.

          Arthur T. Farrell and Ronald R. Wielkopolski, RUY AKCHERIAN LLP, Washington, D.C. Korula T.Cherian, RUYAKCHERIAN LLP, Berkeley, CA Philip A. Rovner and Jonathan A. Choa, POTTER ANDERSON & CORROON LLP, Wilmington, DE Attorneys for Brocade Communications Systems, Inc. and Ruckus Wireless, Inc.

          Jonathan S. Kagan, Rebecca L. Carson, Talin Gordnia, IRELL &MANELLA, Los Angeles, CA Jack B. Blumenfeld, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE Attorneys for Juniper Networks, Inc.

          Madeleine E. Greene and Stefani E. Shanberg, WILSON SONSINI GOODRICH & ROSATI, PC, San Francisco, CA Ryan R. Smith and Mary A. Procaccio-Flowers, WILSON SONSINI GOODRICH & ROSATI, PC, Palo .Alto, CA Ian R. Liston, WILSON SONSINI GOODRICH & ROSATI, PC, Wilmington, DE Attorneys for Aerohive Networks, Inc. and Xirrus, Inc.

          Benjamin J. Schladweiler, ROSS ARONSTAM & MORITZ LLP, Wilmington DE Attorney for Cellco Partnership d/b/a/ Verizon Wireless.

          MEMORANDUM OPINION

         STARK, U.S. District Judge:

         Mobile Telecommunications Technologies, LLC ("MTel") alleges infringement of U.S. Patent Nos. 5, 590, 403 ("the '403 patent"); 5, 915, 210 ("the '210 patent"); and 5, 659, 891 ("the '891 patent, " and collectively with the '403 and '210 patents, the "asserted patents"). The asserted patents relate to a wireless messaging network.

         In a separate but recently-transferred and consolidated case, MTel alleges that Cellco Partnership d/b/a Verizon Wireless ("Verizon") infringed U.S. Patent No. 5, 581, 804 ("the '804 patent"), a divisional of the '403 patent.[1]

         Presently before the Court is the issue of claim construction. The parties - the patentee, MTel, and the accused infringers (hereinafter referred to as "Defendants") - submitted technology tutorials (see C.A. No. 16-md-2722-LPS-CJB D.I. 257, 259[2]) and briefs (see D.I. 258, 261, 283, 284, 305, 397, 398, 417, 418). The Court held a first claim construction hearing on June 26, 2017 (see D.I. 437 ("Tr.")) in In re MTel and a second claim construction hearing on August 28, 2017 in MTel v. Verizon (see D.I. 486 ("Verizon Tr.")).

         I. LEGAL STANDARDS

         The ultimate question of the proper construction of a patent is a question of law. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 837 (2015) (citing Markman v. Westview Instruments, Inc., 517 U.S. 370, 388-91 (1996)). "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) (internal quotation marks omitted). "[T]here is no magic formula or catechism for conducting claim construction." Id. at 1324. Instead, the court is free to attach the appropriate weight to appropriate sources "in light of the statutes and policies that inform patent law." Id.

         "[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 citations and quotation marks omitted). "[T]he ordinary meaning of a claim term is its meaning to the ordinary artisan after reading the entire patent." Id. at 1321 (internal quotation marks omitted). The patent 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." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).

         While "the claims themselves provide substantial guidance as to the meaning of particular claim terms, " the context of the surrounding words of the claim also must be considered. Phillips, 415 F.3d at 1314. Furthermore, "[o]ther claims of the patent in question, both asserted and unasserted, can also be valuable sources of enlightenment... [b]ecause claim terms are normally used consistently throughout the patent.. .." Id. (internal citation omitted).

         It is likewise true that "[differences among claims can also be a useful guide .... For example, the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim." Id. at 1314-15 (internal citation omitted). This "presumption is especially strong when the limitation in dispute is the only meaningful difference between an independent and dependent claim, and one party is urging that the limitation in the dependent claim should be read into the independent claim." SunRace Roots Enter. Co., Ltd. v. SRAM Corp., 336 F.3d 1298, 1303 (Fed. Cir. 2003).

         It is also possible that "the specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess. In such cases, the inventor's lexicography governs." Phillips, 415 F.3d at 1316. It bears emphasis that "[e]ven when the specification describes only a single embodiment, the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using words or expressions of manifest exclusion or restriction." Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014) (quoting Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004)) (internal quotation marks omitted).

         In addition to the specification, a court "should also consider the patent's prosecution history, if it is in evidence." Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995), aff'd, 517 U.S. 370 (1996). The prosecution history, which is "intrinsic evidence, " "consists of the complete record of the proceedings before the PTO [Patent and Trademark Office] and includes the prior art cited during the examination of the patent." Phillips, 415 F.3d at 1317. "[T]he prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Id.

         In some cases, "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." Teva, 135 S.Ct. at 841. Extrinsic evidence "consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Markman, 52 F.3d at 980. For instance, technical dictionaries can assist the court in determining the meaning of a term to those of skill in the relevant art because such dictionaries "endeavor to collect the accepted meanings of terms used in various fields of science and technology." Phillips, 415 F.3d at 1318. In addition, expert testimony can be useful "to ensure that the court's understanding of the technical aspects of the patent is consistent with that of a person of skill in the art, or to establish that a particular term in the patent or the prior art has a particular meaning in the pertinent field." Id. Nonetheless, courts must not lose sight of the fact that "expert reports and testimony [are] generated at the time of and for the purpose of litigation and thus can suffer from bias that is not present in intrinsic evidence." Id. Overall, while extrinsic evidence "may be useful" to the court, it is "less reliable" than intrinsic evidence, and its consideration "is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence." Id. at 1318-19. Where the intrinsic record unambiguously describes the scope of the patented invention, reliance on any extrinsic evidence is improper. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1308 (Fed. Cir. 1999) (citing Vitronics, 90 F.3datl583).

         Finally, "[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." 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'l Trade Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (quoting Modine Mfg. Co. v. U.S. Int'l Trade Comm % 75 F.3d 1545, 1550 (Fed. Cir. 1996)).

         II. CONSTRUCTION OF DISPUTED TERMS[3]

         A. The'891 Patent

         1."paging carriers"/ "paging system"/ "modulated carriers"[4]

MTel "transmission signal that can be modulated to carry paging information" / preamble, not limiting, plain meaning / "transmission signals that are modulated to carry information"

Defendants "carriers within a radio-frequency channel allocated by the Federal Communications Commission (FCC) for mobile paging use" / "a system operating within a radio-frequency channel allocated by the Federal Communications Commission (FCC) for mobile paging use" / "modulated carriers within a radio-frequency channel allocated by the Federal Communications Commission (FCC) for mobile paging use"

Court "carriers within a radio-frequency channel allocated by the Federal Communications Commission (FCC) for mobile paging use" / "a system operating within a radio-frequency channel allocated by the Federal Communications Commission (FCC) for mobile paging use" / "modulated carriers within a radio-frequency channel allocated by the Federal Communications Commission (FCC) for mobile paging use"

         The parties agree that a "carrier" is a "radio frequency signal that is capable of being modulated to carry information." (D.I. 210 Ex. A at 2) MTel contends that it must necessarily follow that a "modulated carrier" is a radio frequency transmission signal modulated to carry information, and that a "paging carrier" is a radio frequency transmission signal modulated to carry paging information. (D.I. 284 at 13) Further, according to MTel, "paging information" "is just digital data." (Tr. at 29) For support, MTel explains that its construction is the construction adopted by another court on two prior occasions.[5]

         Defendants counter that, because the '891 patent is directed to challenges encountered in sending carrier signals within the FCC-allocated channels for mobile paging use, the "paging carriers" term must be read as coming within those FCC-allocated channels - i.e., the channels assigned by the FCC to mobile paging Use. (D.I. 258 at 11-12) Defendants point to the patent's abstract and specification, both of which describe the invention "with repeated reference" to the saturation problem caused by the narrow FCC-designated channels for mobile paging. (Id. at 12)[6]

         The Court agrees with Defendants. While the claims do not specifically mention the FCC requirements, the claims "must be read in view of the specification, of which they are a part, " Phillips, 415 F.3d at 1315, and, contrary to MTel's contention, the specification does not support broadly construing the claims as applying to all "digital data." Instead, the abstract and specification limit the carriers to those within the FCC-allocated mobile paging channels. See '891 patent at Abstract ("The present invention relates generally to multicarrier modulation techniques, and more particularly, to a method of multicarrier modulation using co-located transmitters to achieve higher transmission capacity for mobile paging and two-way digital communication in a manner consistent with FCC emission mask limits") (emphasis added); see also Id. at 1:6-9 (describing invention as "a method for operating more than one carrier in a single mask-defined, bandlimited channel assigned to mobile paging use") (emphasis added); id. at 2:15-17 ("It is an object of this invention to achieve higher capacity over a bandlimited channel for paging without the need for stringent subchannel interference protection.") (emphasis added); id. at 5:10-15 ("Thus, according to the present invention, increased transmission capacity is achieved by operating more than one carrier in a standard bandlimited channel assigned for mobile paging use") (emphasis added); see also Tr. at 45 (MTel counsel: "[P]aging ... is a type of technology that was developed ... for the narrowband PCS spectrum [defined for two-way paging by the FCC]").

         The specification also supports the conclusion that the carriers were intended only to comply with FCC-designated mobile paging channels, not the broader spectrum now sought by MTel (see Tr. at 28). "The written description's detailed discussion of the prior art problem addressed by the patented invention" - here, transmission saturation of the "finite range of air space dedicated to mobile paging use" by the FCC (see, e.g., '891 patent at 1:10-15, 19-21, 36- 42) - further supports the conclusion that the carrier, as claimed, does not apply to all digital data, but instead, is limited to the paging channels allocated by the FCC. See Honeywell Intern., Inc. V. ITT Indus., Inc., 452 F.3d 1312, 1318 (Fed. Cir. 2006).

         While the earlier cases relied on by MTel concluded the specification is not so limiting (see, e.g., T-Mobile at 28), those cases decided different issues.[7] While the Court has considered these analyses and conclusions, the Court declines to adopt their constructions. In this Court's view, as explained above, the specification defines the invention as related to the FCC-allocated channels for mobile paging use and these restrictions must be reflected in the Court's claim constructions.[8]

         2. "mask"[9]

MTel "emission limitation within a channel to prevent interference caused by signals straying or spilling into adjacent channels"

Defendants "emission limitation, imposed by the FCC, both within a channel and in the adjacent spectrum to prevent interference caused by signals straying or spilling into adjacent channels"

Court "emission limitation, imposed by the FCC, both within a channel and in the adjacent spectrum to prevent interference caused by signals straying or spilling into adjacent channels"

         "mask-defined, bandlimited channel"[10]

MTel "a limited frequency range, that is defined by a mask"

Defendants "a channel in a frequency band allocated by the FCC for mobile paging use and to which the mask applies"

Court "a channel in a frequency band allocated by the FCC for mobile paging use and to which the mask applies"

         Two disputes surround the construction of "mask" terms: (1) whether the mask is required by the FCC; and (2) whether the mask applies only to the channel itself or also to the adjacent spectrum.

         Consistent with the Court's construction of "paging carrier" and "modulated carrier, " the Court finds that "mask" and "mask-defined, bandlimited channel" must be construed as being defined by FCC requirements. See '891 patent at Abstract ("A method of multicarrier modulation using co-located transmitters to achieve higher transmission capacity for mobile paging and two-way digital communication in a manner consistent with FCC emission mask limits.") (emphasis added); see also Id. at 4:41-46 ("In accordance with the present invention, these and other parameters can be adjusted so that the carriers generated and transmitted according to the present invention will remain within the FCC emission limits while providing optimal transmission performance.") (emphasis added); id. at 5:11-19 ("In the modulation technique of the present invention, carriers operating at different frequencies axe fit within a single bandwidth allocation in a manner consistent with FCC mask requirements.'") (emphasis added).

         It follows that the Court also agrees with Defendants that the mask must apply both to the channel and the adjacent spectrum. (See D.I. 258 Ex. 12 (FCC Regulations) at 123 (§ 22.99, defining "Emission mask" as "[t]he design limits imposed, as a condition or type acceptance, on the mean power of emissions as a function of frequency both within the authorized bandwidth and in the adjacent spectrum") (emphasis added))

         Turning to the term "mask-defined, bandlimited channel, " the Court again construes the term as limited by FCC requirements. The "bandlimited channel" to which the invention refers is "a channel in a frequency band allocated by the FCC for mobile paging use." (D.I. 258 at 15-16 (citing '891 patent at 5:11-16 ("Thus, according to the present invention, increased transmission capacity is achieved by operating more than one carrier in a standard bandlimited channel assigned for mobile paging use, such as in the Narrowband Personal Communications Service or the Part 22 Service [which is defined by the FCC]."))[11]

         3. "the band edge of [the / said] mask defining said channel"[12]

MTel "the edge of the mask nearest to the outermost carrier"

Defendants Indefinite

Court Indefinite

         Defendants contend that the term "the band edge of the mask" is indefinite. While masks contain multiple points that could be understood to be "a band edge, " Defendants assert that the patent provides no objective boundary by which to discern which edge is "the band edge." (Id. at 23-24) Defendants also contend that "previous courts have struggled mightily with figuring out what this term means."[13] (Tr. at 50) As Defendants view it, not only does MTel rely here on a previous construction questioned by the court that had adopted it, but it changes that construction from "the innermost frequencies at which the mask requires attenuation of the signal" to "the edge of the mask nearest to the outermost carrier." In addition, Defendants contend that MTel's construction improperly bases "the band edge" for a given mask on where the carrier is located, making the term a moving target. (Tr. at 58)

         MTel responds that, for any given mask, there are multiple "band edges" and therefore, the term "band edge" does not refer to a single frequency but, rather, can refer to multiple relevant frequency differences. (D.I. 284 at 24) MTel asserts that the specification provides an "exemplary mask" in Figure 4 (which was not meant to apply to Figures 5-7 (Tr. at 67)) and "specifies exactly where the measurement [for the band edge] should be taken using Fig. 3, " as an example: "the frequency difference between the center frequency of each carrier and the nearest band edge of the mask is greater than half the frequency difference between the center frequencies of the two carriers." (Id. at 25-26) According to MTel, "[i]f the resulting measurement" based on the nearest point of the mask in relation to the outermost carrier "satisfies the claimed spacing relationship, .. . then all points on the band edge of the mask would satisfy the spacing relationship." (Id. at 26) Finally, MTel insists that its proposed construction is "conceptually the same" as that adopted by the court in Leap Wireless. (Id.)[14]

         The Court agrees with Defendants. MTel's construction results in a moving target dependent on where the outermost carrier is located, a result explicitly rejected by the Texas court. (Leap Wireless at 35 ("Plaintiffs reliance on the amplitude of the carrier signals, however, is amorphous and is not supported by the specification. Moreover, such an interpretation would fail to give adequate notice to the public regarding the scope of the claims.")) The specification and "exemplary" figures provide no objective bounds to delineate which edge of the mask is "the band edge." A person of ordinary skill in the art would not know with reasonable certainty which band edge is the band edge of the mask. Furthermore, Dr. Kesan's and Dr. Min's expert declarations do not opine on MTel's current proposed construction, instead adopting the Leap Wireless construction, which was subsequently questioned by the court that adopted it. Moreover, Dr. Kesan's declaration contains nearly no analysis in reaching its conclusion that the ...


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