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TQ Delta, LLC v. ZYXEL Communications Inc.

United States District Court, D. Delaware

May 8, 2018

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. (argued), MCANDREWS, HELD & MALLOY, Chicago, IL; Paul W. McAndrews, Esq. (argued), MCANDREWS, HELD & MALLOY, Chicago, IL; David Prange, Esq., ROBINS KAPLAN LLP, Minneapolis, MN; Attorneys for TQ Delta, LLC.

          Kenneth L. Dorsney, Esq., MORRIS JAMES LLP, Wilmington, DE; Scott Burnett Smith, Esq., BRADLEY ARANT, Huntsville, AL; Ross Barton, Esq. (argued), ALSTON & BIRD LLP, Charlotte, NC; Garland T. Stephens, Esq. (argued), WEIL, GOTSHAL & MANGES LLP, Houston, TX. Attorney for 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, 796, 705 ("the '705 patent"), 8, 335, 956 ("the '956 patent"), 8, 407, 546 ("the '546 patent"), 8, 468, 411 ("the '411 patent"), 8, 595, 577 ("the '577 patent"), and 8, 645, 784 ("the '784 patent"). The Court has considered the Parties' Joint Claim Construction Brief for Family 8 (Civ. Act. No. 13-02013-RGA, D.I. 449; Civ. Act. No. 14-00954-RGA, D.I. 305; Civ. Act. No. 15-00121-RGA; D.I. 305) and for Family 9 (Civ. Act. No. 13-02013-RGA, D.I. 447; Civ. Act. No. 14-00954-RGA, D.I. 302; Civ. Act. No. 15-00121-RGA; D.I. 303).[1] The Court heard oral argument on February 1, 2018. (D.I. 485 ("Tr.")). In Family 9, the '577 patent and '784 patent are only asserted against ADTRAN, claim 28 of the '956 patent is only asserted against ZyXEL, and claim 31 of the '956 patent is only asserted against ADTRAN. (D.I. 447 at 1).

         I. BACKGROUND

         The patents-in-suit represent "Family 8" and "Family 9" of the patents that Plaintiff has asserted against ADTRAN and ZyXEL ("Defendants").[2] (D.I. 449 at 1; D.I. 447 at 1). The parties divide the contested patents into ten patent families, (e.g. D.I. 269). Family 8 is the '705 patent, and Family 9 consists of the '956, '546, '411, '577, and '784 patents. The Family 8 patent relates to "impulse noise management during initialization in xDSL systems." (D.I. 449 at 1). The Family 9 patents are "directed to various aspects of packet retransmission and memory sharing in communications systems." (D.I. 447 at 1).

         Plaintiff offered proposed "compromise" constructions for the Family 9 terms on January 25, 2018. (D.I. 466-1).

         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. AWHCorp., 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 '705 patent claims cover a Discrete Multi-Tone (DMT) transceiver. They are independent claims 13 and 14 and dependent claims 19 and 24, [3] which read as follows:

13. A Discrete Multi-Tone (DMT) transceiver that is capable of improving initialization in the presence of impulse noise comprising:
a transmitter or a receiver module, capable of transmitting or receiving, respectively, during an initialization procedure of the DMT transceiver, wherein the initialization procedure occurs prior to Showtime, a first initialization message indicating an Impulse Noise Protection (INP) value, wherein the INP value is used for DMT symbols transmitted during Showtime and the INP value specifies a number of consecutive DMT symbols that, when completely corrupted by impulse noise, can be corrected; and the transmitter module capable of transmitting, during the initialization procedure of the DMT transceiver, wherein the initialization procedure occurs prior to Showtime, a second initialization message by modeling at least one message bit of the second initialization message onto a DMT symbol and repeatedly transmitting the DMT symbol N times, wherein N=A*INP, where A and B are integers and INP is the impulse noise protection value.
14. A Discrete Multi-Tone (DMT) transceiver that is capable of improving initialization in the presence of impulse noise comprising:
a transmitter or a receiver module, capable of transmitting or receiving, respectively, during an initialization procedure of the DMT transceiver, wherein the initialization procedure occurs prior to Showtime, a first initialization message indicating an Impulse Noise Protection (INP) value, wherein the INP value is used for DMT symbols transmitted during Showtime and the INP value specifies a number of consecutive DMT symbols that, when completely corrupted by impulse noise, can be corrected; and
the receiver module capable of receiving, during the initialization procedure of the DMT transceiver, wherein the initialization procedure occurs prior to Showtime, a second initialization message, wherein at least one message bit of the second initialization message was modulated onto a DMT symbol and the DMT symbol repeatedly transmitted N times, wherein N=A*INP, where A and B are integers and INP is the impulse noise protection value.
19. The transceiver of claim 13, wherein A=2 and B=l.
24. The transceiver of claim 14, wherein A=2 and B=l.

         (D.I. 450-1 ("the '705 patent") at Al-15) (disputed terms italicized). The asserted claims for Family 9[4] read as follows:

28. A system to share memory between an interleaving function and a packet retransmission function comprising:
a transceiver capable of:
transmitting to another transceiver or receiving from another transceiver a message indicating:
an amount of the shared memory is to be allocated to the interleaver function;
an amount of the shared memory is to be allocated to the packet retransmission function;
allocating a first portion of the shared memory to the interleaving function; and allocating a second portion of the shared memory to the packet retransmission function, wherein the first allocated portion of the shared memory is no more than the amount of memory indicated in the message for the interleaving function and the second allocated portion of the shared memory is no more than the amount of memory indicated in the message for the retransmission function.
31. A system to share memory between an interleaving function and a packet retransmission function comprising:
a transceiver capable of:
transmitting to another transceiver or receiving from another transceiver a message indicating:
an amount of the shared memory is to be allocated to the deinterleaver function;
an amount of the shared memory is to be allocated to the packet retransmission function; allocating a first portion of the shared memory to the deinterleaving function; and
allocating a second portion of the shared memory to the packet retransmission function, wherein the first allocated portion of the shared memory is no more than the amount of memory indicated in the message for the deinterleaving function and the second allocated portion of the shared memory is no more than the amount of memory indicated in the message for the retransmission function.

         (D.I. 448-1 at Al-21 ("the '956 patent)) (disputed terms italicized).

         1. A method to share memory between a deinterleaving function and a packet retransmission function in a communications transceiver comprising:

transmitting or receiving, by the transceiver, a message indicating:
how much of the memory is to be allocated to the deinterleaver function, and how much of the shared memory is to be allocated to the packet retransmission function;
allocating a first portion of the shared memory to the deinter leaving function; and allocating a second portion of the shared memory to the packet retransmission function, wherein the first allocated portion of the shared memory is no more than the amount of memory indicated in the message for the deinterleaving function and the second allocated portion of the shared memory is no more than the amount of memory indicated in the message for the retransmission function.

(D.I. 448-1 at ¶ 22-37 ("the '546 patent)) (disputed terms italicized).

         1. A transceiver capable of packet retransmission comprising:

         a transmitter portion capable of:

transmitting a plurality of packets, identifying at least one packet of the plurality of packets as a packet that should be retransmitted and allocating a memory between a retransmission function and an interleaving and/or deinterleaving function, wherein at least a portion of the memory maybe allocated to the retransmission function or to the interleaving and/or deinterleaving function at any one particular time, and wherein a message transmitted during initialization indicates how the memory has been allocated between the retransmission function and the interleaving and/or deinterleaving function in the transceiver.
18. A transceiver capable of packet retransmission comprising:
a receiver portion capable of:
receiving a plurality of packets, identifying at least one packet of the plurality of packets as a packet that should be retransmitted and allocating a memory between a retransmission function and an interleaving and/or deinterleaving function,
wherein the memory is allocated between the retransmission function and the interleaving and/or deinterleaving 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 between the retransmission function and the interleaving and/or deinterleaving function at any one particular time depending on the message.

(D.I. 448-1 at ¶ 43-61 ("the '411 patent)) (disputed terms italicized).

1. A method, in a multi carrier communications transceiver, comprising:
sharing a memory in the transceiver between a packet retransmission function and one or more of interleaving and deinterleaving functions; and transmitting or receiving a message indicating how the shared memory is to be allocated to the packet retransmission function and to one or more of interleaving and deinterleaving functions.
7. A multi carrier communications transceiver with a shared memory, the transceiver operable to:
share the memory between a packet retransmission function and one or more of interleaving and deinterleaving functions; and
transmit or receive a message indicating how the shared memory in the transceiver is to be allocated to the packet retransmission function and to one or more of interleaving and deinterleaving functions.

(D.I. 448-1 at ΒΆ 83-101 ("the '784 patent)) (disputed terms ...


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