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TQ Delta LLC v. 2Wire Inc.

United States District Court, D. Delaware

December 18, 2017

TQ DELTA, LLC, Plaintiff,
v.
2WIRE, INC., Defendant. TQ DELTA, LLC, Plaintiff,
v.
ZYXEL COMMUNICATIONS, INC and ZYXEL COMMUNICATIONS CORPORATION, Defendants. TQ DELTA, LLC, Plaintiff,
v.
ADTRAN, INC., Defendant. ADTRAN, INC., Plaintiff,
v.
TQ DELTA, LLC, Defendant.

          Brian E. Farnan, Esq., FARNAN LLP, Wilmington, DE; Michael J. Farnan, Esq., FARNAN LLP, Wilmington, DE; Peter J. McAndrews, Esq., MCANDREWS, HELD & MALLOY, Chicago, IL (argued); Rajendra A. Chiplunkar, Esq., MCANDREWS, HELD & MALLOY, Chicago, IL (argued). Attorneys for Plaintiff

          Colm F. Connolly, Esq., MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE; Jody Barillare, Esq., MORGAN LEWIS & BOCKIUS LLP, Wilmington, DE; Brett M. Schuman, Esq. (argued), GOODWIN PROCTOR LLP, San Francisco, CA; Rachel M. Walsh, Esq., GOODWIN PROCTOR LLP, San Francisco, CA (argued); David L. Simson, Esq., GOODWIN PROCTOR LLP, San Francisco, CA. Attorneys for Defendant 2WIRE, Inc.

          James S. Green, Sr., Esq., SEITZ VAN OGTROP, & GREEN, P.A., Wilmington, DE; Jared T. Green, Esq., SEITZ VAN OGTROP, & GREEN, P.A., Wilmington, DE. Attorneys for Defendant Zhone Technologies, Inc.

          Kenneth L. Dorsney, Esq., MORRIS JAMES LLP, Wilmington, DE. Attorney for Defendants Adtran Inc. and Zyxel Communications Inc.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Presently before the Court is the issue of claim construction of multiple terms in U.S. Patent Nos. 7, 831, 890 ("the '890 patent"), 7, 836, 381 ("the '381 patent"), 7, 844, 882 ("the '882 patent"), 8, 276, 048 ("the'048 patent"), 8, 495, 473 ("the '473 patent"), and 8, 607, 126 ("the '126 patent"). The Court has considered the Parties' Joint Claim Construction Brief. (Civ. Act. No. 13-01835-RGA, D.I. 353; Civ. Act. No. 13-01836-RGA, D.I. 320; Civ. Act. No. 13-02013-RGA, D.I. 339; Civ. Act. No. 14-00954-RGA, D.I. 194; Civ. Act. No. 15-00121-RGA; D.I. 196).[1] The Court heard oral argument on November 13, 2017. (D.I. 430 ("Tr.")). After argument, the parties agreed to dismissal of the case against Zhone. (Civ. Act. No. 13-1836-RGA; D.I. 373).

         I. BACKGROUND

         The patents-in-suit represent "Family 3" of the patents that Plaintiff has asserted against Defendants, and they all share a common specification. (D.I. 353 at 1 n.1). The parties divide the contested patents into ten patent families, (e.g. D.I. 280). The Family 3 patents, at issue here, relate to allocating shared memory used by a digital subscriber line ("DSL") transceiver, or more specifically, allocating shared memory between an interleaver and deinterleaver of a DSL transceiver.

         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.'" SoftView LLC v. Apple Inc., 2013 WL 4758195, at *1 (D. Del. Sept. 4, 2013) (quoting Phillips, 415 F.3d at 1324) (alteration in original). 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 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 (citations and internal 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.

         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. 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'l Trade Comm 'n, 505 F.3d 1351, 1358 (Fed. Cir. 2007) (citation omitted).

         III. TERMS FOR CONSTRUCTION

         The asserted patents claim both an apparatus and a method for allocating shared memory used by a DSL transceiver. Claim 5 of the '890 patent is representative and reads as follows:

1. A method of allocating shared memory in a transceiver comprising:
transmitting or receiving, by the transceiver, a message during initialization specifying a maximum number of bytes of memory that are available to be allocated to a deinterleaver;
determining, at the transceiver, an amount of memory required by the deinterleaver to deinterleave a first plurality of Reed Solomon (RS) coded data bytes within a shared memory;
allocating, in the transceiver, a first number of bytes of the shared memory to the deinterleaver to deinterleave a first plurality of Reed Solomon (RS) coded data bytes for reception at a first data rate, wherein the allocated memory for the deinterleaver does not exceed the maximum number of bytes specified in the message;
allocating, in the transceiver, a second number of bytes of the shared memory to an interleaver to interleave a second plurality of RS coded data bytes transmitted at a second data rate; and
deinterleaving the first plurality of RS coded data bytes within the shared memory allocated to the deinterleaver and interleaving the second plurality of RS coded data bytes within the shared memory allocated to the interleaver,
wherein the shared memory allocated to the deinterleaver is used at the same time as the shared memory allocated to the interleaver.

('890 patent, claim 5) (disputed terms italicized). Claims 1 and 10 of the '126 patent are further representative and read as follows:

         1. An apparatus comprising:

a multicarrier communications transceiver that is configured to perform a first interleaving function associated with a first latency path and perform a second interleaving function associated with a second latency path, the multicarrier communications transceiver being associated with a memory,
wherein the memory is allocated between the first interleaving function and the second interleaving function in accordance with a message received during an initialization of the transceiver and wherein at least a portion of the memory may be allocated to the first interleaving function or the second interleaving function at any one particular time depending on the message.

         10. An apparatus comprising:

a multicarrier communications transceiver that is configured to generate a message during an initialization of the transceiver, perform a first deinterleaving function associated with a first latency path, and perform a second deinterleaving function associated with a second latency path, the transceiver being associated with a memory,
wherein at least & portion of the memory may be allocated to the first deinterleaving function or the second deinterleaving function at any one particular time and wherein the generated message indicates how the memory has been allocated between the first deinterleaving function and the second deinterleaving function.

('126 patent, claims 1, 10) (disputed terms italicized).

         1. "transceiver"

         a. Plaintiff's proposed construction: "communications device capable of transmitting and receiving data wherein the transmitter portion and receiver portion share at least some common circuitry"

         b. Defendants' proposed construction: "communications device capable of transmitting and receiving data"

         c. Court's construction: to be announced

         The parties agree that their Family 3 arguments for "transceiver" are the same as those made for Families 1 and 2. (Tr. at 18:14-22). Therefore, I will construe transceiver as I do for Families 1 and 2.

         2. "shared memory"

         a. Plaintiff's proposed construction: "a common memory space used by at least two functions, where particular memory cells within the common memory space can be used by either one of the functions"

         b. Defendants 'proposed construction: "single common memory in a transceiver used by at least two functions corresponding to at least two latency paths"

         c. Court's construction: "common memory used by at least two functions, where a portion of the memory can be used by either one of the functions"

         Plaintiff argues that "shared memory" should be construed as "a common memory space." (D.I. 353 at 42). The claims do not refer to "a common memory space, " but the specification does at times refer to "common memory space." ('890 patent, 8:2-5). A patentee can be its own lexicographer, but to do so, the patentee "must clearly set forth a definition of the disputed claim term other than its plain and ordinary meaning." Thorner v. Sony Comput. Entm 't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). As Defendants note, the specification never actually defines "common memory space." (D.I. 353 at 46). I therefore do not adopt the term "common memory space." I instead use the agreed-upon "common" to modify "memory."

         Defendants argue that "common memory" is "single." (D.I. 353 at 46). As evidence, Defendants point to the specification, which refers to "a" and "the" shared memory. (D.I. 353 at 38, 47). But the Federal Circuit has held that "a" or "an" is presumed to mean "one or more." Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008). Thus, this language is not dispositive. As further evidence, Defendants point to Figure 1 of the '890 patent, which depicts just one "shared memory." (Tr. at 42:7-10). Indeed, the embodiment highlighted by Defendants shows just one memory. However, "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." Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004).

         Nothing in the patent demonstrates a clear intention to limit "common memory" to a "single" memory. Plaintiff raises the concern that including "single" in the construction might limit "shared memory" to a "single" memory "module, " "block, " or "chip." (D.I. 353 at 35). As discussed at oral argument, memory need not necessarily be a "single" memory "module, " "block, " or "chip" to be "shared." (Tr. at 44:1-50:13). For example, two people can share a "single" large pizza or two small pizzas to the same effect. Defendants agree that "scientifically, " it does not matter if "common memory" comprises one physical memory structure or more than one physical memory structure. (Tr. 44:19-45:2). As a result, my construction does not use "single" to modify "common memory."

         Plaintiff urges that my construction must clarify that "common memory" "can be used by either one of the functions." (D.I. 353 at 35). To support its contention, Plaintiff points to two types of shared memory that are unlike the shared memory described in the patents. First, Plaintiff notes that one type of shared memory involves functions in a single transceiver that use the memory for "interprocess communication." (Tr. at 21:5-22). Second, Plaintiff notes that yet another type of shared memory, known as "ping pang" memory, involves transmission in a single direction and uses a shared memory "exclusively for an interleaver" or "for a deinterleaver" at any one time. (Tr. at 21:23-22:18). Neither of these memories is like the "shared memory" at hand. Defendants do not contest that for these patents, at any one time, a certain part of the memory can be used by one function or the other, but not both. (D.I. 353 at 44, 48). ...


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