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TQ Delta LLC v. Zyxel Communications Inc.

United States District Court, D. Delaware

June 27, 2018

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

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

          Kenneth L. Dorsney, MORRIS JAMES LLP, Wilmington, DE; Ross Barton (argued), Brianna Ford Kadjo (argued), and H. James Abe, ALSTON & BIRD LLP, Charlotte, NC; Benn C. Wilson, BRADLEY ARANT BOULT CUMMINGS LLP, Birmingham, AL. 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. 6, 445, 730 ("the "730 patent"); 7, 978, 753 ("the '753 patent"); 8, 437, 382 ("the '382 patent"); and 8, 611, 404 ("the '404 patent"). The Court has considered the Parties' Joint Claim Construction Brief (Civ. Act. No. 13-02013-RGA, D.I. 441; Civ. Act. No. 14-00954-RGA, D.I. 297; Civ. Act. No. 15-00121-RGA, D.I. 297).[1] The Court heard oral argument on January 19, 2018. (D.I. 513).

         I. BACKGROUND

         The patents-in-suit represent "Family 7" of the patents that Plaintiff has asserted against Defendants, and they share a common specification. (D.I. 441, p. 1 n.l). The Family 7 patents relate to multicarrier transmission systems with low power mode or sleep mode and rapid-on capabilities.

         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) (citation 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, 979-80 (Fed. Cir. 1995) (en banc), affd, 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. . . . [This 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 Phann. 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. CONSTRUCTION OF DISPUTED TERMS

         The asserted patents claim both an apparatus and a method for the reliable exchange of diagnostic and test information over a multicarrier communications system.

         Plaintiff asserts claims 1, 4, 6, and 10 of the '404 patent. They read as follows:

         1. An apparatus comprising a transceiver operable to:

transmit, in a full power mode, a plurality of superframes, wherein the superframe comprises a plurality of data frames followed by a synchronization frame;
transmit, in the full power mode, a synchronization signal;
receive a message to enter into a low power mode; enter into the low power mode by reducing a power consumption of at least one portion of a transmitter;
store, in the low power mode, at least one parameter associated with the full power mode operation wherein the at least one parameter comprises at least one of a fine gain parameter and a bit allocation parameter;
transmit, in the low power mode, a. synchronization signal; and
exit from the low power and restore the full power mode by using the at least one parameter and without needing to reinitialize the transceiver.
4. The apparatus of claim 1, wherein the apparatus is a CO device that is capable of transmitting internet and video data.
6. An apparatus comprising a transceiver operable to:
receive, in a full power mode, a plurality of superframes, wherein the superframe comprises a plurality of data frames followed by a synchronization frame; receive, in the full power mode, a synchronization signal; transmit a message to enter into a low power mode; store, in a low power mode, at least one parameter associated with the full power mode operation wherein the at least one parameter comprises at least one of a fine gain parameter and a bit allocation parameter; receive, in the low power mode, a. synchronization signal; and exit from the low power and restore the full power mode by using the at least one parameter and without needing to reinitialize the transceiver.
10. The apparatus of claim 6, wherein the apparatus is a customer premises equipment that is capable of transmitting internet and video data.

('404 patent, claims 1, 4, 6, 10) (disputed terms italicized). The '404 patent is asserted against Defendant Adtran only. (D.I. 441, p. 1 n.2).

         Plaintiff asserts claims 18 and 22 of the '730 patent. They read as follows:

18. A multicarrier transceiver having a sleep mode capability, comprising: memory that stores at least one parameter representative of an operating mode of said multicarrier transceiver; a controller that places at least one component of said multicarrier transceiver in a sleep mode responsive to a sleep mode signal and restores said at least one component of said multicarrier transceiver to the operating mode in response to an awaken signal, the restoration to the operating mode occurring without needing to reinitialize said multicarrier transc[ei]ver by recovering said at least one stored parameter from the memory; and a synchronizer module that uses a synchronization signal to maintain synchronization between said multicarrier transceiver and a second multicarrier transceiver while said at least one component of said multicarrier transceiver is in the sleep mode.
22. The multicarrier transceiver of claim 18 wherein said at least one parameter comprises at least one of a frequency-domain equalizer coefficient, a time-domain equalizer coefficient, an echo canceller tap, a data rate, a coding parameter, an interleaving parameter, a fine gain parameter, a subchannel gain parameter, and a bit allocation table.

('730 patent, claims 18, 22) (disputed terms italicized).

         Plaintiff asserts claims 1 and 2 of the '753 patent. They read as follows:

1. A multicarrier transceiver having a sleep mode capability, comprising A. means responsive to a sleep mode command for:
(1) storing selected state parameters characteristic of the communications channel over which the transceiver is operating; and
(2) reducing power to selected portions of transceiver circuitry; and B. means responsive to a wake-up command for:
(1) restoring power to said transceiver;
(2) restoring the state of said transceiver from said sleep mode by means of said stored parameters; and C. means for maintaining a common, synchronized data frame count between said transceiver and a remote transceiver with which it communicates, to thereby facilitate restoration of communication without reinitialization of said transceiver, wherein the state parameters include one or more parameters selected from the group comprising frequency-domain equalizer coefficients, time domain equalizer coefficients, echo canceller coefficients, bit allocations, coding parameters, fine gains, and subchannel gains.
2. A multicarrier transceiver according to claim 1 in which the means for maintaining said frame count comprises a signal defining a timing reference during at least the time when said first transceiver is in sleep mode.

('753 patent, claims 1, 2) (disputed terms italicized).

         Plaintiff asserts claim 14 of the '382 patent, which reads as follows:

14. A multicarrier transceiver having a sleep mode capability comprising: a transmitter or receiver portion capable of:
placing at least one component of a first multicarrier transceiver in a sleep mode;
storing at least one parameter representative of a full power mode of the at least one component of the first multicarrier transceiver;
maintaining synchronization between the first multicarrier transceiver and a second multicarrier transceiver using a synchronization signal while the at least one component of the first multicarrier transceiver is in the sleep mode; using the at least one stored parameter, for transmission or reception, in response to a signal to awaken from the sleep mode; and
restoring the at least one component of the first multicarrier transceiver from the sleep mode to the full power mode, without needing to reinitialize the first multicarrier transceiver, by using the at least one recovered parameter, wherein the transceiver is used for communications over an internet.

('382 patent, claim 14) (disputed terms italicized).

         1."low power mode"

         a. Plaintiff's proposed construction: "a state of operation in which power is consumed, but the amount of power consumed is less than when operating in a state with full data transmission capabilities"

         b. Defendant Adtran 's proposed construction: "a mode in which the circuitry is not transmitting or receiving content and the circuitry consumes power, but the amount of power consumed is less than the full power mode"

         c. Court's construction: '"a mode in which the circuitry consumes power, but the amount of power consumed is less than the full power mode"

         This term appears in each of the asserted claims of the '404 patent. Although the parties agree that less power is consumed in the low power mode than in full power mode, they disagree regarding how to characterize this reduction in power. (D.I. 441, p. 15). They also disagree regarding whether the "low power mode" requires that no content is transmitted or received. (Id.).

         With respect to how to characterize the reduction in power associated with the "low power mode," Plaintiff asserts that its construction is proper because it makes clear that in the "low power mode, less power is consumed than in a full power mode but power is still being consumed." (Id. p. 16). As support, Plaintiff cites claims 1 and 6, which recite transmitting and receiving, respectively, "in the low power mode, a synchronization signal." (Id.). Plaintiff also cites portions of the specification discussing maintaining synchrony in "sleep mode" that recite maintaining power to certain portions of the transceiver circuitry. (Id. (citing '404 patent at 7:21-25, 7:42-44)). It is proper to characterize the power consumed in low power mode as being "less than when operating in a state with full data transmission capabilities," Plaintiff argues, because the specification explains (1) "that transceivers in the 'on* state 'consume a significant amount of power, even when they are not actively transmitting or receiving data."'* and (2) that the ""on* state (or full power mode) is a state where the transceiver has 'full data transmission capabilities.'*" (Id. p. 15 (citing '404 patent at 2:59-60, 8:21-23)).

         Defendant counters that its construction should be adopted because its construction "'is drawn directly from the claims' comparison of a 'low power mode' and 'full power mode.'" (Id. p. 20). Plaintiff contends that Defendant's proposed construction is "unhelpful" because it compares "low power mode" to "full power mode" without clarifying what "full power mode" means. (Id. p. 25). Plaintiff also takes issue with Defendant's proposed construction because "it could be interpreted to read on a state in which a transceiver receives no power. (Id. pp. 16-17). Defendant disclaims any reading of its proposed construction that covers such a state, and offers an alternate construction that clarifies that "the circuitry consumes power, but the amount of power consumed is less than the full power mode." (Id. p. 32 (emphasis omitted)).

         On this point I agree with Defendant. Defendant's alternate construction addresses Plaintiffs primary opposition to Defendant's characterization of the reduction in power by clarifying that power is consumed in the "low power mode."

         Plaintiff equates the "on" state with the "full power mode" recited in the claims, and has not offered a compelling reason to define "low power mode" in terms of data transmission capabilities. (See Id. p. 15). Though the specification describes a transceiver in "sleep mode" as "consum[ing] reduced power when it is not needed for transmission or reception," the claims themselves do not recite any data transmission limitation for "low power mode." ('404 patent, 6:1-6, 10:2-12:21). Instead, as Defendant points out the claims compare "low power mode" to "full power mode.'* (D.I. 441. p. 20; see, e.g.. '404 patent at 10:2-18).

         I do not find compelling Plaintiffs criticism that comparing "'low power mode" to "full power mode" in defining "low power mode" has no meaning. To the contrary, I think that the meaning of "full power mode'" is readily understandable and requires no construction, and that the claims' definition of "low power mode" with reference to "full power mode" provides ample guidance that a transceiver in "low power mode" consumes some power, but consumes less power than a transceiver in full power mode. ('404 patent at 10:6-9 (reciting "enter[ing] into the low power mode by reducing a power consumption of at least one portion of the transmitter" following "transmission], in the full power mode, [of] a synchronization signal")). Rather than clarifying meaning, Plaintiffs proposed construction seeks to replace "full power mode" with, "a state of full data transmission capabilities." In context, I do not think that "a state with full data transmission capabilities" imparts any more meaning than "full power mode." I find that Plaintiffs proposed construction amounts to a substitution of the words the patentee chose without adequate justification. See Interactive Gift Exp., Inc. v. CompuServe, Inc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) ("In construing claims, the analytical focus must begin and remain centered on the language of the claims themselves, for it is that language that the patentee chose to use to 'particularly point[] out and distinctly claim[] the subject matter which the patentee regards as his invention."' (citation omitted) (brackets in original)).

         The parties also dispute whether "low power mode" should be limited to a mode in which no content is transmitted or received. Plaintiff urges that importing any limitation defining "low power mode" with respect to the transfer of content is improper because doing so would import a limitation to the claims from an embodiment. (D.I. 441, pp. 17, 28) According to Plaintiff, the specification discloses embodiments that contemplate the transmission of content during "low power mode." (Id. (citing '404 patent at 8:47-55 (disclosing '"partial" sleep mode, in which only part of each transceiver is powered down," for example '"where data transfer is one-way"), 5:54 (disclosing that the [fast Fourier transform] is dormant during ''sleep mode"), 7:21 (disclosing "reduce[d] power to parts of the analog circuitry" during '"sleep mode")). Plaintiff further asserts that Defendant's proposed use of the word "content" introduces ambiguity to the term, since the specification does not use the word "content." (Id. p. 18). Additionally, Plaintiff points to U.S. Patent No. 9, 094, 268 ("the "268 patent"), a member of the same patent family as the '404 patent with the same inventorship. (D.I. 441, pp. 29-30). According to Plaintiff, the '268 patent provides evidence that when the patentee intended to claim "low power mode" in terms of content transmission, the patentee explicitly did so. (Id.; D.I. 513 at 25:6-26:6). In relevant part, the '268 patent claims "entering the low power mode, wherein a transmitter portion of the transceiver does not transmit data during the low power mode." ('268 patent at 10:9-11). Therefore, Plaintiff argues, no content or data limitation should be imported into this term in the '404 patent, because the patentee did not expressly include it in the claims, and the '404 patent does not contain disclosures that preclude data transmission in a low power mode. (D.I. 513 at 26:3-6, 40:2-9).

         According to Defendant, descriptions of "the present invention" in the Abstract, Figure 2, the specification, and provisional application No. 60/072, 447 (to which the Family 7 patents claim priority) support a construction that precludes content transmission or reception during "low power mode." (D.I. 441, pp. 21-22). For example, the Abstract discloses, "A multicarrier transceiver is provided with a sleep mode in which it idles with reduced power consumption when it is not needed to transmit or receive data." ('404 patent, Abstract). Defendant also points to the specification's disclosure of a "partial sleep mode," in which content can be communicated in a "one-way' mode.'' as consistent with the limitation that no content is transmitted during '"sleep mode." (Id. p. 23). According to Defendant, the specification's disclosure that content may be transmitted during '"partial sleep mode" provides evidence of a common understanding that no content is transmitted during "sleep mode.'* (Id. pp. 23-24). Therefore, Defendant contends, "Plaintiff cannot now construe the claims as if 'partial' had been included." (Id. p. 24).

         On this point I agree with Plaintiff. The claims of the related '268 patent demonstrate that the patentee knew how to draft claims that define "low power mode" in terms of data transmission, and the claims of the '404 patent contain no such limitation. Though Defendant points to examples in the specification that are consistent with its proposed content limitation, Defendant has not provided convincing evidence that the examples it cites preclude any content transmission during "low power mode." Indeed, the parties each identify some of the same embodiments (such as the specification's discussion of "partial sleep mode") to support their positions. (Id. pp. 17, 23-24). Accordingly, I decline to import a limitation into this term that would preclude the transmission of content.

         Therefore, I will construe "low power mode" to mean "a mode in which the circuitry consumes power, but the amount of power consumed is ...


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