United States District Court, D. Delaware
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE.
action filed by Plaintiff Techno View IP, Inc. ("Techno
View" or "Plaintiff) against Oculus VR, LLC
("Oculus") and Facebook, Inc. ("Facebook"
and collectively with Oculus, "Defendants"),
Plaintiff alleges infringement of United States Patent Nos.
7, 666, 096 (the '"096 patent") and 8, 206, 218
(the "'218 patent" and collectively with the
'096 patent, "the asserted patents"). Presently
before the Court is the matter of claim construction. The
Court recommends that the District Court adopt the
constructions as set forth below.
is a California corporation, and the exclusive licensee of
the asserted patents. (D.I. 8 at ¶¶ 1-2) Defendant
Oculus is a Delaware limited liability company with its
principal place of business in Menlo Park, California.
(Id. at ¶¶ 3, 6; D.I. 12 at ¶¶
3, 6) Defendant Facebook is a Delaware corporation with its
principal place of business in Menlo Park, California. (D.I.
8 at ¶¶ 8, 10; D.I. 12 at ¶¶ 8, 10)
are in the business of making, using, and selling the Oculus
Rift product. (D.I. 8 at ¶ 30; D.I. 17 at 1) In this
action, Plaintiff alleges that Defendants directly and
indirectly infringe the asserted patents by the manufacture,
use, sale, and offers to sell of products, including their
Oculus Rift product. (D.I. 8)
The Asserted Patents
'096 patent is entitled "Method for Generating the
Left and Right Perspectives in a 3D Videogame[, ]" and
was issued on February 23, 2010. (D.I. 8, ex. A (hereinafter,
the "'096 patent")) The '218 patent is
entitled "3D Videogame System" and was issued on
June 26, 2012. (Id., ex. B (hereinafter, the
"'218 patent")) The '218 patent is a
continuation of the '096 patent, and the patents
therefore share a specification. (See '218
patent; D.I. 53 at 1) Both patents claim priority to
application No. PCT/MX03/00112, filed on December 19, 2003.
('096 patent; '218 patent; D.I. 56, Slide 1)
patents relate to "the display of three-dimensional
[hereinafter, '3D'] television images, more
specifically to a hardware and software design for viewing 
3D images, easy to be integrated to the existing
television, personal computer and videogame system
equipment." ('096 patent, col. 1:14-18; see
also D.I. 73 at 8 (Plaintiffs counsel explaining that
the patents "describe ways to efficiently process
information for the generation and display of 3D images used
in video game applications, whether on [personal computers],
televisions, or virtual and augmented reality systems"))
The Abstract of the patents describes the invention as a
"3D videogame system capable of displaying a left-right
sequences through a different, independent VGA or video
channel, with a display device sharing a memory in an immerse
manner." ('096 patent, Abstract)
filed the instant case on April 6, 2017. (D.I. 1) The case
was assigned to the Vacant Judgeship docket on April 12,
2017, and referred to the Court on that date "for
handling through case-dispositive motions[, ]" including
"making recommendations as to the resolution of
parties filed simultaneous opening claim construction briefs
on April 20, 2018 and simultaneous responsive briefs on May
18, 2018. (D.I. 52, 53, 57, 59) The Court held a
Markman hearing on June 19, 2018. (D.I. 73
(hereinafter, "Tr.")) Following the hearing,
Plaintiff submitted a supplemental letter brief to address
caselaw newly disclosed by Defendants during the
Markman hearing. (D.I. 69)
STANDARD OF REVIEW
well-understood that "[a] claim in a patent provides the
metes and bounds of the right which the patent confers on the
patentee to exclude others from making, using, or selling the
protected invention." Corning Glass Works v.
Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed.
Cir. 1989). Claim construction is a generally 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).
Court should typically assign claim terms their
'"ordinary and customary meaning[, ]'"
which is "the meaning that the term[s] 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 v. AWH Corp.,
415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations omitted).
However, when determining the ordinary meaning of claim
terms, the Court should not extract and isolate those terms
from the context of the patent; rather it should endeavor to
reflect their "meaning to the ordinary artisan after
reading the entire patent." Id. at 1321;
see also Eon Corp. IP Holdings LLC v. Silver Spring
Networks, Inc., 815 F.3d 1314, 1320 (Fed. Cir. 2016).
proceeding with claim construction, the Court should look
first and foremost to the language of the claims themselves,
because "[i]t 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, 415 F.3d at 1312 (internal quotation marks
and citations omitted). For example, the context in which a
term is used in a claim may be "highly
instructive." Id. at 1314. In addition,
"[o]ther claims of the patent in question, both asserted
and unasserted, can ... be valuable" in discerning the
meaning of a particular claim term. Id. This is
"[b]ecause claim terms are normally used consistently
throughout the patent, [and so] the usage of a term in one
claim can often illuminate the meaning of the same term in
other claims." Id. Moreover, "[differences
among claims can also be a useful guide[, ]" as when
"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.
addition to the words of the claims, the Court should look to
other intrinsic evidence. For example, the Court should
analyze the patent specification, which "may reveal a
special definition given to a claim term . . . that differs
from the meaning [that term] would otherwise possess" or
may reveal an intentional disclaimer of claim scope.
Id. at 1316. Even if the specification does not
contain such revelations, it "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." Id. at 1315 (internal quotation
marks and citation omitted). That said, however, 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). And a court should also consider
the patent's prosecution history, if it is in evidence,
because it "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[.]" Phillips, 415
F.3d at 1317.
evidence, "including expert and inventor testimony,
dictionaries, and learned treatises[, ]" can also
"shed useful light on the relevant art[.]"
Id. (internal quotation marks and citations
omitted). Overall, while extrinsic evidence may be useful, it
is "less significant than the intrinsic record in
determining the legally operative meaning of claim
language." Id. (internal quotation marks and
citations omitted); accord Markman v. Westview
Instruments, Inc., 52 F.3d 967, 981 (Fed. Cir. 1995).
utilizing these resources during claim construction, courts
should keep in mind that "[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).
parties currently have disputes regarding eight terms or sets
of terms (hereafter, "terms"). This Report and
Recommendation addresses the first four terms, in the order
in which the parties addressed them at the Markman
hearing. The other four terms will be addressed in a
forthcoming Report and Recommendation.
outset, the Court notes that following the submission of
claim construction briefing (but prior to the
Markman hearing) the parties continued to meet and
confer about the appropriate construction for many of the
disputed terms at issue, in an effort to narrow the issues in
dispute. (See Tr. at 5-6) Accordingly, at the
beginning of the Markman hearing, Defendants'
counsel handed up to the Court a June 18, 2018 e-mail
containing a chart of the parties' most recent updated
proposed constructions for the relevant terms. (Id.
at 6) The Court will refer to this e-mail below as the
"June 18 e-mail." Further, during the
Markman hearing, as the nature of certain of their
disputes was brought into further relief, the parties
continued to amend certain of their proposed constructions.
Where applicable, then, the Court will focus below on these
updated proposed constructions in resolving the parties'
claim term "buffer" (or "buffers")
appears in, inter alia, claims 8, 9, 10, 11, 13, 14,
16, 17, 18 and 19 of the '096 patent, and claims 7, 8,
11, 12 and 13 of the '218 patent. The use of the disputed
term in claims 8 and 13 of the '096 patent is
representative. Accordingly, these claims are reproduced
below, with the disputed term highlighted:
8. A method in a videogame system for displaying videogame
images to a user, comprising the computer implemented steps
opening first and second buffers in a memory of the
storing a videogame image in the first buffer;
determining when the videogame image is a two-dimensional
image or a three-dimensional image, wherein when the
videogame image is a two-dimensioned image, displaying the
videogame image stored in the first buffer to a
wherein the videogame image is a three-dimensional image,
calculating a second camera position view image from the
videogame system, storing the second camera position ...