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Inc. v. Gopro, Inc.

United States District Court, D. Delaware

October 4, 2019

360HEROS, INC., Plaintiff,
v.
GOPRO, INC., Defendant.

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE, UNITED STATES MAGISTRATE JUDGE

         In this action filed by Plaintiff 3 60Heros, Inc. ("Plaintiff) against Defendant GoPro, Inc. ("Defendant"), presently before the Court is the matter of claim construction. The Court recommends that the District Court adopt the constructions as set forth below.

         I. BACKGROUND

         Plaintiff filed the instant case on September 13, 2017. (D.I. 1) The case was thereafter referred to the Court to hear and resolve all pretrial matters, up to and including case-dispositive motions. (D.I. 5)

         In the currently-operative First Amended Complaint, Plaintiff is alleging that Defendant's Omni device, Abyss device and Odyssey device (the "accused products"), which are devices that hold configurations of a number of cameras in particular orientations to capture full spherical/360 degree video images, infringe certain claims of Plaintiff s United States Patent No. 9, 152, 019 (the "'019 patent" or the "asserted patent" or the "patent-in-suit"). (D.I. 23) The '019 patent, entitled "360 Degree Camera Mount and Related Photographic and Video System," relates to systems and methods for releasably retaining a plurality of cameras in predetermined orientations, to allow for capturing of 360 degree composite images or 360 degree by 180 degree full spherical images. (Id. at ¶¶ 13-15)

         The parties filed simultaneous opening claim construction briefs on October 5, 2018 and simultaneous responsive briefs on November 7, 2018. (D.I. 74; D.I. 76; D.I. 85; D.I. 86) The Court held a Markman hearing on November 27, 2018. (D.I. 102 (hereinafter, "Tr.")) Thereafter, the case was stayed for a number of months due to inter partes review ("IPR") proceedings occurring before the United States Patent and Trial Appeal Board ("PTAB"). (D.I. 132) On September 5, 2019, in light of recent PTAB proceedings that had the effect of terminating the IPR, (D.I. 133), the Court lifted the stay in this case, (D.I. 134).

         II. STANDARD OF REVIEW

         It is 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).

         The 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).

         In 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.

         In 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.

         Extrinsic 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).

         In 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).

         III. DISCUSSION

         The parties currently have disputes regarding seven terms or sets of terms (hereafter, "terms''/''term sets"). In this Report and Recommendation, the Court will address the first three term sets. The Court will address the remaining four terms/term sets in one or more subsequently-issued Report and Recommendation(s).

         A. "extending outwardly and radially"/"outwardly and radially extending"

          The "extending outwardly and radially''/''outwardly and radially extending" terms appear in claims 1 and 30 of the asserted patent, respectively. Claim 1 reads as follows:

1. A holding assembly configured to releasably retain a plurality of photographic cameras in a predetermined orientation, said holding assembly comprising:
a support including a support body having a plurality of support arms extending outwardly and radially from the support body; and
each of the support arms including a receptacle disposed thereon and in which a plurality of the receptacles are disposed radially about the exterior of said support body, each of said receptacles defining an open-ended enclosure having at least one latching feature for enabling a photographic camera to be releasably retained within the defined enclosure wherein the receptacles are oriented about said support such that each retained camera provides an overlapping field of view, the cameras being disposed on the support to create either a 360 degree by 180 degree full spherical composite image or a 360 degree composite image.

('019 patent; col. 22:24-41 (emphasis added)) Claim 30 reads as follows:

30. A holding fixture configured to retain a plurality of photographic cameras in a predetermined orientation, the holding fixture comprising:
a support including a center support body and a plurality of support arms outwardly and radially extending from the support body; and
a plurality of receptacles disposed about the exterior of the support and at the extending ends of each support arm, each of the receptacles defining an open-end enclosure sized for retaining a photographic camera and in which the receptacles are oriented about the support such that each retained photographic camera provides an overlapping field of view, the cameras being disposed such that a centerline of the lens barrel of each retained camera is configured to intersect at a common center apex ...

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