United States District Court, D. Delaware
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
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.
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
Kenneth L. Dorsney, Esq., MORRIS JAMES LLP, Wilmington, DE.
Attorney for Defendants Adtran Inc. and Zyxel Communications
ANDREWS, U.S. DISTRICT JUDGE.
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). 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).
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.
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).
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.
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.
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
TERMS FOR CONSTRUCTION
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
1. A method of allocating shared memory in a transceiver
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
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
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
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
('890 patent, claim 5) (disputed terms italicized).
Claims 1 and 10 of the '126 patent are further
representative and read as follows:
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.
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).
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"
Defendants' proposed construction:
"communications device capable of transmitting and
Court's construction: to be announced
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.
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"
Defendants 'proposed construction: "single
common memory in a transceiver used by at least two functions
corresponding to at least two latency paths"
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"
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."
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).
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."
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). ...