Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 1 of 8
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`RUSS AUGUST & KABAT
`Marc A. Fenster (CA SBN 181067)
`mfenster@raklaw.com
`Reza Mirzaie (CA SBN 246953)
`rmirzaie@raklaw.com
`Paul A. Kroeger (CA SBN 229074)
`pkroeger@raklaw.com
`Neil A. Rubin (CA SBN 250761)
`nrubin@raklaw.com
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`(310) 826-7474 - Telephone
`(310) 826-6991- Facsimile
`
`Attorneys for Plaintiff
`Oyster Optics, LLC.
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`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`OYSTER OPTICS, LLC,
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`Plaintiff,
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`CIENA CORPORATION,
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`v.
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`Defendant.
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`
` Case No.
`4:20-cv-02354-JSW
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`PLAINTIFF OYSTER OPTICS, LLC’S
`SUPPLEMENTAL CLAIM
`CONSTRUCTION BRIEF ON THE TERM
`MODE
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`PLAINTIFF OYSTER OPTICS, LLC’S SUPPLMENTAL CLAIM CONSTRUCTION BRIEF
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`RUSS AUGUST & KABAT
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`3714-002E
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`Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 2 of 8
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`Pursuant to the Court’s Order dated July 1, 2022, Plaintiff Oyster Optics, LLC, hereby
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`submits its Supplemental Claim Construction Brief directed to the two questions posed by the Court
`in its Order. The Court’s two questions are:
`1. “[H]ow, if at all, the undisputed phrase [“the controller in a second alternate mode
`amplitude-modulating the light from the laser as a function of the electronic data stream”
`meaning “the controller in a second alternating mode amplitude-modulating the light
`from the laser as a function of the same electronic data stream as in the first mode”]
`impacts the respective proposed constructions of the term mode?”
`2. Whether the term ‘mode’ as used in claim 5 may require a different construction than
`the term “mode” as used in claim 16?
`Dkt. No. 162 at 1. The Court also asked the parties to “address their views on whether or not the
`undisputed phrase impacts the persuasiveness of the Cisco court’s analysis of the term ‘mode.’”
`1. Summary Response – The ’500 Patent Teaches Four Exemplary “Modes” Or
`“Manners of Operation” None of Which Are Effected By the Undisputed Phrase
`and “Mode” Should be Construed Consistently for both Claims 5 and 16
`Neither party’s construction is impacted by the undisputed phrase which simply reflects the
`antecedent basis of “electronic data stream” as discussed below. The ‘500 Patent teaches four
`exemplary “Modes”:
`1. Phase Modulation Mode
`2. Direct amplitude modulation
`3. Delayed amplitude modulation without phase modulation
`4. Delayed amplitude modulation with phase modulation
`The three above-identified amplitude modulation modes are referred to in the ‘500 as “amplitude-
`modulated mode” or “amplitude-modulated signals.” Oyster’s proposed construction of “mode,”
`“manner of operation,” allows for all of these exemplary embodiments. In contrast, Ciena’s
`construction “manner of operation during which at least one specific data signal is either amplitude
`modulated or phase modulated, but not both simultaneously” reads out at least one preferred
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`PLAINTIFF OYSTER OPTICS, LLC’S SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF
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`RUSS AUGUST & KABAT
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`3714-002E
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`Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 3 of 8
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`embodiment “delayed amplitude without phase modulation” and is otherwise erroneous for the
`reasons discussed in the prior briefing. That the mode operates on the electronic data stream in Claim
`5, but not in Claim 16, has no impact on the proper construction of “mode.”
`The term “mode” should be construed the same for both Claim 5 and Claim 16. A different
`construction would only be warranted if the specification taught different uses of the term for the
`various different claims. The ’500 Patent contains no such teaching.
`2. The Undisputed Phrase Has No Impact On the Respective Proposed Constructions
`Of The Term “Mode”
`a. The Undisputed Phrase Reflects The Antecedent Basis of “Electronic Data
`Stream”
`The answer to Court’s first question is the undisputed phrase should have no impact on the
`proposed construction of “mode.” The undisputed phrase is simply a recognition of the antecedent
`basis “electronic data stream” as used in Claim 5. Claim 1 (which provides the relevant limitations
`of Claim 5 for this analysis) recites:
`An optical data transmitter comprising:
`a laser;
`a phase modulator for phase modulating light from the light source; and
`a controller having an input for receiving an electronic data stream, the controller
`in a first mode controlling the phase modulator so as to create phase-modulated
`optical signals in the light from the laser as a function of the electronic data
`stream and the controller in a second alternate mode amplitude-modulating the
`light from the laser as a function of the electronic data stream, the first mode and
`the second mode occurring at different times.
`Thus, the undisputed phrase was meant only to recognize that the first mode and the second alternate
`mode operate on data contained in the same electronic data stream that was input to the controller,
`and nothing more. Nothing in this construction requires that the first mode or the second mode
`operate on the same data or optical signals contained within the data stream. Indeed, a requirement
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`PLAINTIFF OYSTER OPTICS, LLC’S SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF
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`Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 4 of 8
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`that the same data or signals be used in both the first and second mode would be impossible given
`the limitation that “the first mode and second mode occur[] at different times” which means that
`different data or signals are used in each of the two different modes.
`b. The Undisputed Phrase Does Not Impact The Proper Construction Of “Mode”
`That the same data stream input to the controller is used in both modes does not have any
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`impact on what types of modulation or modulations is used in that mode—nothing in the claims
`requires the “function of the electronic data stream” to be the same in either mode. The claim only
`requires creating “phase-modulated optical signals” in the first mode and “amplitude-modulating the
`light from the laser as a function of the electronic data stream” in the second alternate mode. This
`requirement is consistent with the teaching of the specification. See ’500 Patent at 2:41-46 (“The
`present invention thus permits a phase-modulated transmission mode or an amplitude-modulated
`transmission mode, or both a phase and amplitude modulated transmission mode, which can permit
`the transmitter to work with different types of receivers.”).
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`Noteworthy, the specification teaches three exemplary types of amplitude-modulation that
`may be used in the second alternate mode: (1) direct amplitude modulation; (2) delayed amplitude
`modulation without phase modulation; and (3) delayed amplitude modulation with phase
`modulation. See, e.g., ‘500 Patent at 2:63-3:3 (“In the second mode, the light may be amplitude
`modulated either in direct relation to an input data stream (known as the direct second or amplitude-
`modulated mode), or as a function of an output of a delayed-feedback exclusive-or gate having the
`electronic data stream as an input (known as the delayed second or amplitude-modulated mode). In
`the delayed second mode, the optical signal may or may not also be phase modulated.”). ‘500 Patent
`at 3:14-18 (“Preferably, a switch, which may be composed of hardware or software, is provided to
`activate the first mode, the delayed second mode, or the direct second mode.”); ’500 Patent at 3:20-
`29 (“Alternately, the switch can be controlled by bit data in a packet of a packet-based data input
`stream. The bit data may be set for example to zero or one or two or three, so that the data contained
`in the packet is sent either via the first mode or via the direct second mode or the delayed second
`mode with no phase modulation or the delayed second mode with phase modulation as a function of
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`PLAINTIFF OYSTER OPTICS, LLC’S SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF
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`3714-002E
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`Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 5 of 8
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`the bit data. The transmitter thus produces an alternating amplitude-modulated and phase-modulated
`data stream, which can be read by a receiver of the present invention.”); Id. at 5:47-54 (“The present
`invention also provides a receiver for receiving optical signals, the optical signals including both
`phase-modulated optical signals and direct amplitude-modulated optical signals. The receiver
`includes an interferometer for reading the phase-modulated signals and a detector to read the direct
`amplitude-modulated optical signals. The receiver also may read delayed amplitude-modulated
`optical signals through the interferometer.”); Id. at 3:61-64 (“The receiver can read a mixed optical
`signal of both phase-modulated and direct and delayed amplitude-modulated signals, with the direct
`amplitude-modulated signals being read off the third path.”); Id. at 3:65-4:3 (“The receiver can be
`set by an operator to receive in one of the three modes, or can be switched to the various receive
`modes by a bit set in a packet.”) Id. at 4:35-37(“under certain circumstances a mixture of phase and
`amplitude modulation could be possible”). Oyster’s proposed construction of “mode” as “plain and
`ordinary meaning, or, in the alternative, ‘manner of operation,’” encompasses all three taught
`examples of the second alternate mode (as well as allows for other examples known in the art). The
`construction is not effected or changed by the undisputed phrase.
`2. “Mode” Should Be Afforded The Same Construction In Both Claim 5 and Claim 16
`“Mode” should be construed similarly for both Claim 5 and Claim 16. Standard claim
`construction principles provide that the same terms in different claims should be construed similarly
`absent clear teaching the specification or prosecution history. Frank's Casing Crew & Rental Tools,
`Inc. v. Weatherford Int'l, Inc., 389 F.3d 1370, 1377 (Fed. Cir. 2004) (“In other words, ‘the same
`terms appearing in different portions of the claims should be given the same meaning unless it is
`clear from the specification and prosecution history that the terms have different meanings at
`different portions of the claims.’ Fin Control Sys. Pty, Ltd. v. OAM, Inc., 265 F.3d 1311, 1318
`(Fed.Cir.2001). If possible, this court construes claim terms ‘in a manner that renders the patent
`internally consistent.’” (quoting Budde v. Harley–Davidson, Inc., 250 F.3d 1369, 1379–80 (Fed.
`Cir. 2001). Cf. Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1330 (Fed. Cir. 2009)
`(‘“When different words or phrases are used in separate claims, a difference in meaning is
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`PLAINTIFF OYSTER OPTICS, LLC’S SUPPLEMENTAL CLAIM CONSTRUCTION BRIEF
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`Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 6 of 8
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`presumed.”’) (quoting Nystrom v. TREX Co., 424 F.3d 1136, 1143 (Fed.Cir.2005)). Here, there is
`no such clear teaching allowing for a different construction between the two claims, and mode
`should be afforded the same construction.
`Claim 16 recites as follows:
`16. A dual-mode optical transmission system comprising:
`a transmitter having a laser for transmitting amplitude-modulated signals in a first
`mode and phase-modulated signals in a second mode and a controller for switching
`an output of the laser between the first mode and the second mode, the second mode
`occurring at a different time than the first mode;
`an optical fiber connected to the transmitter; and
`a receiver having an interferometer being connected to the optical fiber.
`The primary differences between Claims 5 and 16 are that: (1) Claim 16 claims both the transmitter
`and receiver, whereas Claim 5 claims only the receiver; (2) in Claim 16 the receiver has an
`interferometer; and (3) Claim 16 does not have the concept of an “electronic data stream.” None of
`these differences point to clear intent to use the word “mode” differently between the claims.
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`Importantly, the specification teaches that the transmitter may transmit in the same four
`modes referenced above that can be used with the receiver: (1) phase modulation only; (2) direct
`amplitude modulation; (3) delayed amplitude modulation without phase modulation; and (4)
`delayed amplitude modulation with phase modulation. See ’500 Patent at 2:41-46 (“The present
`invention thus permits a phase-modulated transmission mode or an amplitude-modulated
`transmission mode, or both a phase and amplitude modulated transmission mode, which can
`permit the transmitter to work with different types of receivers.”). That Claim 16 is limited to use
`with an interferometer has no bearing on the term “mode” as a receiver with an interferometer could
`still satisfy all limitations of Claim 5.
`Finally, the use of “electronic data stream” in Claim 5 does not change the definition of
`“mode” as between Claims 5 and 16. It only establishes the additional modes can meet the
`limitations of Claim 5 that would not meet the limitations of Claim 16. If anything, this difference
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`Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 7 of 8
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`only reinforces the fact that Oyster’s construction of “manner of operation” is clearly correct in that
`it can be used consistently with both claims, unlike Ciena’s construction that introduces the concept
`of “data streams” into Claim 16.
`3. The Undisputed Phrase Provides No Support to the Cisco Court’s Analysis
`The undisputed phrase has little relevance to the Cisco Court’s analysis for largely the reasons
`set forth in Section 1 above. The Cisco Court’s analysis remains faulty for the reasons set forth in
`Oyster’s prior briefing.
`4. Conclusion
`For the reasons set forth above, as well in Oyster’s prior briefing, Oyster’s construction of
`“mode” should be adopted for the Court. Oyster is available for a further oral hearing on this matter
`(either in-person or via Zoom) if the Court would wish to discuss further.
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`RUSS AUGUST & KABAT
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`Dated: July 22, 2022
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`By:
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`/s/ Paul A. Kroeger
`Marc A. Fenster
`Reza Mirzaie
`Paul A. Kroeger
`Neil A. Rubin
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`Attorneys for Plaintiff
`OYSTER OPTICS, LLC
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`Case 4:20-cv-02354-JSW Document 138 Filed 07/22/22 Page 8 of 8
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`CERTIFICATE OF SERVICE
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` hereby certify that the counsel of record who are deemed to have consented to electronic
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`service are being served on July 22, 2022 with a copy of this document via the Court’s CM/ECF
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`system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic mail,
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`facsimile transmission and/or first-class mail on this same date.
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`/s/ Paul A . Kroeger
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`PLAINTIFF OYSTER OPTICS, LLC’S SUPPLMENTAL CLAIM CONSTRUCTION BRIEF
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