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TQ Delta LLC v. 2Wire, Inc.

United States District Court, D. Delaware

January 29, 2018

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 DEL TA, LLC, Defendant.

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

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

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

          Paul M. Sykes, Esq. (argued), BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham, AL; Benn C. Wilson, Esq. (argued), BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham, AL. Attorneys for Defendant Adtran Inc.

          Elizabeth Rader, Esq., ALSTON & BIRD LLP, Washington, DC. Attorney for Defendant 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, 292, 627 ("the '627 patent"), 8, 073, 041 ("the '041 patent"), 8, 090, 008 ("the '008 patent"), 8, 218, 610 ("the '610 patent"), and 8, 355, 427 ("the '427 patent"). The Court has considered the parties' joint claim construction brief. (Civ. Act. No. 13-01835-RGA, D.I. 362; Civ. Act. No. 13-02013-RGA, D.I. 348; Civ. Act. No. 14-00954-RGA, D.I. 202; Civ. Act. No. 15-00121-RGA, D.I. 204).[1] The Court heard oral argument on November 30, 2017. (D.I. 452) ("Tr.").

         I. BACKGROUND

         The patents-in-suit represent "Family 4" of the patents that Plaintiff has asserted against Defendants. (D.I. 362 at 8). They all share a common specification. (Id. at 18). They relate to a system and method for scrambling the phase characteristics of carrier signals.

         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). '"[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, 979-80 (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.

         "[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. "[T]he ordinary meaning of a claim term is its meaning to [an] ordinary artisan after reading the entire patent." Id. at 1321. "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 Pharms. 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).

         III. PATENTS-AT-ISSUE

         Claim 1 from the '041 patent and claim 1 from the '008 patent are relevant for the purposes of claim construction. Claim 1 of the '041 patent reads as follows:

1. A method, in a first multicarrier transceiver that uses a plurality of carrier signals for receiving a bit stream, wherein each carrier signal has a phase characteristic associated with the bit stream, the method comprising:
receiving the bit stream, wherein:
each carrier signal is associated with a value determined independently of any bit value of the bit stream carried by that respective carrier signal, the value associated with each carrier signal determined by a pseudo-random number generator,
a phase shift for each carrier signal is based on:
the value associated with that carrier signal, and
the combining of a phase for each carrier signal with the phase characteristic of that respective carrier signal so as to substantially scramble the phase characteristics of the plurality of carrier signals, and
multiple carrier signals corresponding to the plurality of phase shifted and scrambled carrier signals are used by the first multicarrier transceiver to demodulate a same bit value of the received bit stream

('041 patent, claim 1) (disputed terms italicized). Claim 1 of the '008 patent reads:

1. A method for scrambling phase characteristics of carrier signals in a first multicarrier transceiver that uses a plurality of carrier signals for modulating a bit stream, wherein each carrier signal has a phase characteristic associated with the bit stream, the method comprising:
associating each carrier signal with a value determined independently of any bit value of the bit stream carried by that respective carrier signal, the value associated with each carrier signal determined using a pseudorandom number generator; computing a phase shift for each carrier signal based on the value associated with that carrier signal; and
combining the phase shift computed for each respective carrier signal with the phase characteristic of that carrier signal so as to substantially scramble the phase characteristics of the plurality of carrier signals, wherein multiple carrier signals corresponding to the scrambled carrier signals are used by the first multicarrier transceiver to modulate the same bit value.

('008 patent, claim 1) (disputed terms italicized).

         IV. CONSTRUCTION OF DISPUTED TERMS

         1. "transceiver" ('627 patent, claims 20 and 26; '041 patent, claims 1 and 14; '008 patent, claims 1 and 14; '610 patent, claims 7 and 31; '427 patent, claims 7 and 29)

         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' Family 4 arguments for "transceiver" appear to be more or the less the same as those made for Families 1, 2, and 3. I will construe "transceiver" as I do for those Families.

         2. "scramble the phase characteristics of the plurality of carrier signals" ('627 patent, claims 20 and 26; '041 patent, claims 1 and 14; '008 patent, claims 1 and 14; '610 patent, claims 7 and 31; '427 patent, claims 7 and 29)

         a. Plaintiff's proposed construction: "adjust the phase characteristics of the carrier signals by ...


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