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Improved Search LLC v. Microsoft Corp.

United States District Court, D. Delaware

March 30, 2018

IMPROVED SEARCH LLC, Plaintiff,
v.
MICROSOFT CORPORATION, Defendant.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         In this patent infringement action filed by plaintiff Improved Search LLC ("Improved Search") against defendant Microsoft Corporation ("Microsoft"), Improved Search alleges infringement of United States Patent Nos. 6, 604, 101 ("the '101 patent") and 7, 516, 154 ("the ' 154 patent") (collectively, the "Asserted Patents"), which are directed to cross-language translation of query and search information as well as retrieval of multilingual information over a computer network. Presently before the court is the matter of claim construction. This decision sets forth the court's recommendations of constructions for the disputed claim terms discussed in the briefing and at the Markman hearing held on February 13, 2018.

         II. BACKGROUND

         A. Parties

         Improved Search is a Florida limited liability company with its headquarters in Fort Lauderdale, Florida. (D.I. 1 at ¶ 3) Improved Search is the assignee of all substantial rights, title, and interest in and to the Asserted Patents. (Id. at ¶ 4)

         Microsoft is a Washington state corporation with its principal place of business in Redmond, Washington. (Id. at ¶ 5) Microsoft manufactures and sells products and services including Bing or Bing Search, an internet search platform through which customers may enter queries with which to search a set of multilingual websites. (Id. at ¶ 6)

         B. The Asserted Patents

         1. The '101 Patent

         The '101 patent, entitled "Method and system for translingual translation of query and search and retrieval of multilingual information on a computer network, " relates to methods of and systems for translating queries from a source language to a target language, and searching and retrieving Web documents in the target language. (D.I. 1 at ¶ 12; '101 patent, Abstract) The '101 patent is directed to solving the problem that most internet search engines "cater to the needs of the English speaking community alone and help in the search and retrieval of monolingual documents only, " rendering the search tools "almost useless to the non-English speaking Internet users who constitute as much as 75% of the Internet user population." ('101 patent, col. 2:10-18)

         2. The'154 Patent

         The ' 154 patent, entitled "Cross language advertising, " is a continuation-in-part of a divisional of the '101 patent, and shares the specification of the '101 patent with some minor additions. The ' 154 patent discloses a method and system to send a user one or more advertisements in a source language, over the Internet, while the user is performing a cross language search. (' 154 patent, Abstract) The server conducts a search in a database of advertisements and returns one or more advertisements relevant to the content word in either the source language or the target language. (Id., col. 4:35-49)

         C. Procedural Posture

         Improved Search filed suit against Microsoft on July 29, 2016, alleging that Microsoft infringes the '101 and ' 154 patents. (D.I. 1) On December 7, 2016, this action was referred by Judge Robinson for discovery and all motions to dismiss, amend, transfer, and any discovery motions permitted. (D.I. 14) The case was subsequently reassigned to Judge Bataillon on August 1, 2017. Judge Bataillon referred this action to the undersigned magistrate judge for all dispositive and nondispositive matters on all issues, including claim construction, except for summary judgment motions, Daubert motions, and pretrial motions in limine. (D.I. 30) The parties completed briefing on claim construction of the '101 and '154 patents on February 5, 2018. (D.I. 42; D.I. 51; D.I. 57; D.I. 60) A Markman hearing was held on February 13, 2018. (D.I. 56; 2/13/18 Tr.)

         III. LEGAL STANDARD

         Construing the claims of a patent presents a question of law, although subsidiary fact finding is sometimes necessary. Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 837-38 (2015) (citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 977-78 (Fed. Cir. 1995), aff'd, 517 U.S. 370, 388-90 (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. AWHCorp., 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 may attach the appropriate weight to appropriate sources "in light of the statutes and policies that inform patent law." Id.

         The words of the claims "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." Phillips, 415 F.3d 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); see also Eon Corp. IP Holdings v. Silver Spring Networks, Inc., 815 F.3d 1314, 1320 (Fed. Cir. 2016). Claim terms are typically used consistently throughout the patent, and "usage of a term in one claim can often illuminate the meaning of the same term in other claims." Phillips, 415 F.3d at 1314 (observing that "[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. . ..").

         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) (citing Ecolab Inc. v. Paraclipse, Inc., 285 F.3d 1362, 1375 (Fed. Cir. 2002).

         Other intrinsic evidence, including 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). "[T]he 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, 4l5F.3datl3l6 (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). 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." Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (internal quotation marks omitted), aff'd, 481 F.3d 1371 (Fed. Cir. 2007). The specification "is not a substitute for, nor can it be used to rewrite, the chosen claim language." SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004).

         In addition to the specification, a court "should also consider the patent's prosecution history, if it is in evidence." Markman, 52 F.3d at 980. The prosecution history, which is also "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.

         A court also may rely on "extrinsic evidence, " which "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. ("[C]onclusory, unsupported assertions by experts as to the definition of a claim term are not useful to a court."). 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.

         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).

         IV. CONSTRUCTION OF DISPUTED TERMS[1]

         A. "dialectal standardization / dialectally standardized / dialectallystandardizing / dialectal standardization of the at least one content word extracted from the query / dialectal standardization of the content word extracted from the query / dialectally standardizing a content word extracted from the query / dialectally ...


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