Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1691 Page 1 of 15
`
`
`
`Ryan J. Williams (Bar. No. 228925)
`rjwilliams@shb.com
`SHOOK, HARDY & BACON, L.L.P.
`5 Park Plaza, Suite 1600
`Irvine, CA 92614
`Telephone: (949) 475-1500
`Facsimile: (949) 475-0016
`B. Trent Webb
`Missouri Bar No. 40778 (pro hac vice)
`bwebb@shb.com
`SHOOK, HARDY & BACON L.L.P.
`2555 Grand Boulevard
`Kansas City, MO 64108
`Telephone: 816-474-6550
`Facsimile: 816-421-5547
`
`
`Robert H. Reckers
`Texas Bar No. 24039520 (pro hac vice)
`rreckers@shb.com
`Fiona A. Bell
`Texas Bar No. 24052288 (pro hac vice)
`fbell@shb.com
`Sharon A. Israel
`Texas Bar No. 00789394 (pro hac vice)
`sisrael@shb.com
`Kyle E. Friesen
`Texas Bar No. 24061954 (pro hac vice)
`SHOOK, HARDY & BACON L.L.P.
`600 Travis Street, Suite 3400
`Houston, Texas 77002-2926
`Telephone: 713-227-8008
`Facsimile: 713-227-9508
`Attorneys for Defendant,
`CERNER CORPORATION
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`CLINICOMP INTERNATIONAL,
`INC.,
`
`
`vs.
`
`Plaintiff,
`
`CERNER CORPORATION,
`
`Defendant.
`
` CASE NO. 17-cv-2479-GPC-DEB
`
`Hon. Gonzalo P. Curiel
`
`DEFENDANT CERNER
`CORPORATION’S RESPONSIVE
`CLAIM CONSTRUCTION BRIEF
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1692 Page 2 of 15
`
`
`
`I.
`
`TABLE OF CONTENTS
`
`RESPONSE TO CLINICOMP’S USE OF THE ATHENAHEALTH
`LITIGATION .................................................................................................... 1
`
`II.
`
`ARGUMENTS .................................................................................................. 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`“[first/second] portion of the database . . .” ........................................... 1
`
`“configuring the database to accept legacy information derived
`from a legacy application” ...................................................................... 4
`
`“wherein the functions in the healthcare application are not
`duplicative of the legacy application” ..................................................... 5
`
`“generating a query to extract information from the database . . .
`derived from the healthcare data and the legacy information for
`managing and tracking a performance of the respective one of
`the first and second healthcare enterprise facilities” .............................. 6
`
`“wherein healthcare data in the first portion of the database is
`only accessible to the first end user device and healthcare data in
`the second portion of the database is only accessible to the
`second end user device” .......................................................................... 7
`
`F.
`
`“operating at” ........................................................................................ 10
`
`III. CONCLUSION ............................................................................................... 10
`
`
`
`
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`i
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1693 Page 3 of 15
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Altiris, Inc. v. Symantec Corp.,
`318 F.3d 1363 (Fed. Cir. 2003) .............................................................................. 7
`
`Aylus Networks, Inc. v. Apple Inc.,
`856 F.3d 1353 (Fed. Cir. 2017) .............................................................................. 4
`
`Bicon, Inc. v. Straumann Co.,
`441 F.3d 945 (Fed. Cir. 2006) ................................................................................ 6
`
`Elekta Intr. S.A. v. O.U.R. Sci. Int’l, Inc.,
`214 F.3d 1302 (Fed. Cir. 2000) .............................................................................. 8
`
`Eon Corp. IP Holdings LLC v. Silver Springs Networks, Inc.
`815 F.3d 1314 (Fed. Cir. 2016) .............................................................................. 5
`
`Eon-Net LP v. Flagstar Bancorp,
`653 F.3d 1314 (Fed. Cir. 2011) .............................................................................. 7
`
`In re Qualcomm Litig.,
`No. 17-cv-00108-GPC-MDD, 2018 WL 1406944 (S.D. Cal. Mar.
`21, 2018) ................................................................................................................. 1
`
`Openwave Sys., Inc. v. Apple Inc.,
`808 F.3d 509 (Fed. Cir. 2015) ................................................................................ 8
`
`Perfect Web Techs., Inc. v. InfoUSA, Inc.,
`587 F.3d 1324 (Fed. Cir. 2009) .............................................................................. 8
`
`Shire Dev., LLC v. Watson Pharms., Inc.,
`787 F.3d 1359 (Fed. Cir. 2015) .............................................................................. 6
`
`Wasica Fin. GmbH v. Cont’l Automotive Systems, Inc.,
`853 F.3d 1272 (Fed. Cir. 2017) .............................................................................. 6
`
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`ii
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1694 Page 4 of 15
`
`
`
`CliniComp’s Opening Brief (“CliniComp’s Brief”) reveals its intention to
`
`assert infringement against acts not covered by the plain language of the claims and
`
`beyond the claim scope CliniComp itself argued for during the IPR. Cerner opposes
`
`this effort and respectfully requests that this Court resolve the disputed claim scope
`
`by adopting Cerner’s proposed constructions. See In re Qualcomm Litig., No. 17-cv-
`
`00108-GPC-MDD, 2018 WL 1406944, at *20–21 (S.D. Cal. Mar. 21, 2018)
`
`(declining to adopt a “plain and ordinary meaning” construction that would “fail to
`
`resolve the parties’ active dispute over the scope of the [claim] terms”).
`
`I.
`
`RESPONSE TO CLINICOMP’S USE OF THE ATHENAHEALTH LITIGATION
`
`CliniComp’s Brief begins by overstating the claim construction proceedings in
`
`the athenahealth litigation. Notably, the claim construction process in athenahealth
`
`occurred before CliniComp made most of the relevant IPR arguments. See Dkt. 71-1
`
`¶¶ 4–9, 12. As set forth in Cerner’s opening brief and herein, those IPR arguments
`
`were critical to allowing CliniComp’s claims to survive the IPR, and the claims must
`
`now be construed in light of those arguments to prevent infringement allegations
`
`against subject matter disclaimed in the IPR.
`
`Instead of completing the claim construction process in athenahealth, the
`
`parties negotiated a stipulation under which CliniComp dismissed with prejudice
`
`several claims not asserted in this case in exchange for an agreement that the claim
`
`terms would take their plain and ordinary meaning. See Dkt. 70-2 at 2. As a result,
`
`the athenahealth court did not issue a Markman decision and only addressed certain
`
`claim construction issues, in a limited fashion, in ruling on summary judgment
`
`motions. See Dkt. 70-3 at 6–7. Given this history, Cerner submits that little, if any,
`
`weight should be afforded to the claim construction results in athenahealth.
`
`II. ARGUMENTS
`
`A.
`
`“[first/second] portion of the database . . .”
`
`In its brief, CliniComp challenges both the first and second parts of Cerner’s
`
`proposed construction. As to the first part, CliniComp argues Cerner’s proposal is
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`1
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1695 Page 5 of 15
`
`
`
`unhelpful and that the claim language needs no clarification. But the IPR record
`
`demonstrates the need for this Court to construe the phrase given the drastically
`
`different interpretations of this claim language taken by the parties and their technical
`
`experts. Indeed, both parties’ experts considered the precise quote cited in
`
`CliniComp’s Brief at page 6 regarding “logical or physical” partitions and came to
`
`opposite conclusions as to the scope of the claim language. See Dkt. 71-2 at D-85–
`
`86. The PTAB resolved this dispute in CliniComp’s favor, adopting a narrower view
`
`of the claimed “portion.” Id. The first part of Cerner’s proposal incorporates the
`
`PTAB’s holding nearly verbatim (see id.), and CliniComp’s attempt to recapture a
`broader “plain and ordinary” meaning for this claim term should be rejected.1
`
`As to the second part of Cerner’s proposal, CliniComp concedes Cerner’s
`
`proposal is “not incorrect” but proposes a new alternative for completeness: “the
`
`claimed ‘portion’ is not created by merely identifying data or associating subsets of
`
`data with common values (i.e., indexing by an identifier) [and] these portions are
`
`created, as set forth in the claim, to protect one healthcare enterprise facility’s data
`
`from access by the other healthcare enterprise facility.” CliniComp’s Br. at 7–8. While
`
`this helps narrow the issues, CliniComp’s proposal does not resolve the dispute.
`
`First, CliniComp’s proposal that the claimed portions are created “as set forth
`
`in the claims” ignores the specific requirements CliniComp advanced in the IPR
`
`governing how the “portions” are created. As detailed in Cerner’s opening brief,
`
`CliniComp argued in the IPR that the claimed “portions” must be created in the
`
`database before “storing the data.” See, e.g., Dkt. 71-2 at E-7, ll. 13–15 (“Once that
`
`partition is done, and it’s associated with that particular enterprise, only then do you
`
`
`1 A simple, non-substantive edit fixes the “grammatical error” CliniComp
`identifies, and Cerner modifies the first portion of its proposal to read: “a specific data
`structure in the database that separates the data associated with the [first/second]
`healthcare enterprise facility from data associated with any other healthcare enterprise
`facility.”
`
`
`Case No. 17-cv-2479-GPC-DEB
`2
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1696 Page 6 of 15
`
`
`
`. . . store that data in that portion of the database.”) (emphasis added); see also Dkt.
`
`71 at 5–8 (quoting numerous IPR disclaimers). By CliniComp’s own admissions, the
`
`portions must be distinct, independently managed compartments for separating data.
`
`Dkt. 71-2 at E-17, ll. 13–14 (“[Partitioning] means separate and distinct and having
`
`your own management.”); id. at E-12, ll. 1–3 (“You have to create that compartment
`
`for a particular service provider before you can put the data in, before you can do that
`
`search.”).
`
`Second, CliniComp’s proposed alternative incorrectly indicates that any
`
`arrangement whose intended purpose is “to protect one healthcare enterprise facility’s
`
`data from access by the other healthcare enterprise facility” satisfies the “portion”
`
`limitation. For example, it suggests that adding the described “protection” to data
`
`stored in the database creates a “portion.” This would allow a “portion” to be created
`
`by “merely identifying data or associating subsets of data with common values (i.e.,
`
`indexing by an identifier)” and then adding functionality to protect against improper
`
`access. This would be contrary to the intrinsic evidence because the Johnson prior art
`
`CliniComp distinguished in the IPR discloses using identifiers to restrict access. See
`
`Ex. L, Johnson, at 30:54-63; Ex. M, Sujansky IPR Decl., ¶ 319. Such a construction
`
`would also be contrary to CliniComp’s numerous disclaimers, as discussed.
`
`Given the foregoing, Cerner proposes the below modifications to CliniComp’s
`
`alternative proposal (illustrated with underlines and strikethroughs):
`
`“wherein the claimed [first/second] ‘portion’ is not created
`by merely identifying data or associating subsets of data
`with common values (i.e., indexing by an identifier), and
`these [first/second] portions is are created in the database
`before the claimed ‘storing’ of ‘data’ occurs, is a separately-
`managed and distinct compartment created for the purpose
`of separating data, and restricts access to data therein, as set
`forth in the claim, to protect one healthcare enterprise
`facility’s data associated with the [first/second] healthcare
`enterprise facility from access by the any other healthcare
`enterprise facility.”
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`3
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1697 Page 7 of 15
`
`
`
`These modifications capture the IPR disclaimers embodied by Cerner’s
`
`proposed construction (see Dkt. 71 at 4–12), ensure grammatical consistency, and will
`
`appropriately inform the jury of the proper scope of this claim element. Cerner
`
`respectfully requests adoption of its proposal with the discussed modifications.
`
`B.
`
`“configuring the database to accept legacy information . . .”
`
`As set forth by Cerner’s proposed construction, the claims require a change to
`
`the database’s configuration to enable acceptance of the “legacy information,” and,
`
`thus, a system that relies on a database’s existing configuration/capabilities would not
`
`infringe. CliniComp concedes this limitation “is directed to an action taken on the
`
`database” but attempts to avoid any further limitations. In so doing, CliniComp seeks
`
`to preserve its ability to allege infringement without identifying any affirmative action
`
`performed on the database to allow for acceptance of an enterprise’s legacy
`
`information, apparently attempting to accuse systems that do not use legacy
`
`information. See CliniComp Brief at 14. In its opening brief, Cerner discussed why
`
`the claims should not be read so broadly. For example, CliniComp expressly
`
`distinguished its claims from the Evans prior art in the IPR, arguing that Evans “only
`
`accepts data that has already [been] converted into ‘the proper format.’” Dkt. 72-2 at
`I-32. In so doing, CliniComp clearly and unmistakably disclaimed systems that rely
`
`on the conversion or translation of legacy information into the format required by the
`
`database (rather than on configuring the database to accept the legacy information).
`
`Aylus Networks, Inc. v. Apple Inc., 856 F.3d 1353, 1363 (Fed. Cir. 2017). While the
`
`legacy application may transmit “raw or processed information” to the server, the
`
`intrinsic record repeatedly requires that “the database … [be] configured to accept the
`
`information as transmitted from the legacy application.” ‘647 patent at 13:12-19
`
`
`2 Cerner inadvertently omitted a specific citation to this IPR document in its listing
`of intrinsic evidence; however, CliniComp acknowledges it was on notice of this
`document’s relevance to this claim construction dispute. See CliniComp’s Br. at 10.
`
`Case No. 17-cv-2479-GPC-DEB
`4
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1698 Page 8 of 15
`
`
`
`(emphasis added).3
`
`Because the intrinsic record is clear that the patented system relies on
`
`affirmative changes to the database’s configuration to account for a particular set of
`
`legacy data and not the use of a conversion program, Cerner respectfully submits it
`
`would be error to leave this phrase without construction, as CliniComp proposes. At
`
`a minimum, the claim should be construed to make clear that converting the format
`
`of legacy information to meet the database’s existing configuration falls outside the
`
`scope of this claim. Any other interpretation would improperly permit this limitation
`
`to be satisfied without any affirmative action performed on the database to allow for
`
`acceptance of an enterprise’s legacy information.
`
`C.
`
` “wherein the functions in the healthcare application are not
`duplicative of the legacy application”
`
`In opposing Cerner’s construction, CliniComp primarily takes issue with the
`
`extent of overlap in functions permitted under the claim’s requirement that the
`functions of the healthcare and legacy applications are “not duplicative.”4 However,
`
`as the claim clearly states, there cannot be duplicated functions between these
`
`applications, and CliniComp fails to cite any support for its view that two applications
`
`with common or overlapping functions nevertheless satisfy this “non- duplicative”
`
`requirement. On this point, CliniComp’s citations to the specification merely reflect
`
`that certain applications disclosed in the specification have a number of functions.
`
`CliniComp Brief at 12. This disclosure does not alter the claim’s requirement that
`legacy and healthcare applications cannot have “duplicative” functions.5 Cerner’s
`
`
`3 Dkt 71-2, Ex. A (’647 patent), 13:12–19, Fig. 7 at 358-359; Dkt. 71-2 at D-37.
`4 CliniComp raises misplaced arguments about the term “functions,” citing
`common software processes. Cerner’s proposal does not redefine “functions” to
`encompass basic software processes “such as those that control memory or how data
`is transferred,” as CliniComp implies. Dkt. 70 at 12.
`5 Cerner also showed in its opening brief how CliniComp’s IPR arguments support
`Cerner’s understanding of the claims. See Dkt. 71 at 15. CliniComp offers no support
`
`Case No. 17-cv-2479-GPC-DEB
`5
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1699 Page 9 of 15
`
`
`
`proposal will inform the jury of the meaning of this claim language and is necessary
`
`to avoid any improper contentions that the claims cover systems where legacy and
`
`healthcare applications perform the same functions.
`
`D.
`
`“generating a query to extract information from the database . . .
`derived from the healthcare data and the legacy information for
`managing and tracking a performance of the respective one of the
`first and second healthcare enterprise facilities”
`
`CliniComp’s Brief exposes its impermissibly broad reading of the “generating”
`
`clause that would remove express claim requirements. This demonstrates the parties’
`
`starkly different interpretations of this claim language and the need for a construction.
`
`CliniComp makes clear its intent to accuse systems that do not include “legacy
`
`information” from a “legacy application.” Specifically, CliniComp argues claim 1
`
`does not require there be any actual legacy data and that the generating step is satisfied
`
`if the query is written to extract information from “those places” where the healthcare
`
`data and the legacy data are stored if present. CliniComp Brief at 14. However,
`
`“legacy information” from a “legacy application” is not an optional claim element,
`
`and they cannot be read out of claims. See Wasica Fin. GmbH v. Cont’l Automotive
`
`Systems, Inc., 853 F.3d 1272, 1288 n.10 (Fed. Cir. 2017). By the claim’s express
`
`language, the “generating” step requires generating “a query to extract information
`
`from the database . . . derived from the healthcare data and the legacy information.”
`
`It is impossible to generate a query to extract information that does not exist, and the
`
`claim language does not merely require the querying of “those places” where data
`
`would be stored if present, as CliniComp suggests.
`
`The only viable reading of the claim language is one in which the query is
`
`generated to extract legacy information that actually exists in the database. Bicon,
`
`
`
`for its incorrect assertion that its arguments were not disclaimers. Dkt. 70 at 12–13.
`Moreover, even if they were not disclaimers, they support Cerner’s proposed
`construction because they evidence the patentee’s understanding of the claims. See
`Shire Dev., LLC v. Watson Pharms., Inc., 787 F.3d 1359, 1366 (Fed. Cir. 2015).
`
`Case No. 17-cv-2479-GPC-DEB
`6
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1700 Page 10 of 15
`
`
`
`Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (“[C]laims are interpreted
`
`with an eye toward giving effect to all terms in the claim”). If there is no legacy
`
`information, it cannot be extracted from the database, nor can any query be generated
`
`to do so. Likewise, generating a query that extracts only healthcare data (and not
`
`legacy data) does not satisfy the express claim language. As the claim language
`
`dictates, Cerner’s proposal will appropriately instruct the jury that the generated query
`
`must extract information derived from both the healthcare data and the legacy
`
`information, foreclosing any suggestion that legacy information is not necessary.
`
`CliniComp fails to advance any support from the specification in support of its
`
`strained reading of this claim step but resorts to claim differentiation arguments based
`on dependent claims.6 As the Federal Circuit has explained, claim differentiation is
`
`merely “a rule of thumb that does not trump the clear import of the specification” and
`
`other intrinsic evidence. Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1323
`
`(Fed. Cir. 2011). The intrinsic evidence demonstrates that there must be “legacy
`information” in the database so a query can be generated to extract it,7 and
`
`CliniComp’s attempt to read these requirements out of the claims should be rejected.
`
`E.
`
`“wherein healthcare data in the first portion of the database is only
`accessible to the first end user device and healthcare data in the
`second portion of the database is only accessible to the second end
`user device”
`
` Though CliniComp argues all the other claim requirements should be afforded
`
`their plain and ordinary meanings, for this “wherein” clause, CliniComp proposes a
`
`two-part construction that rewrites this clause in a manner not supported by the
`
`evidence and contrary to Federal Circuit authority.
`
`Beginning with the first portion of CliniComp’s construction, CliniComp’s
`
`
`6 CliniComp also suggest that the steps of dependent claims 20 and 21 must
`occur after the steps of claim 1, but there is no support for requiring that sequence of
`steps. See Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003).
`7 See Dkt. 71 at 16–17.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`7
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1701 Page 11 of 15
`
`
`
`edits to the claim language allow any users associated with a healthcare facility on
`
`any devices to access that facility’s database portion. As the patentee, CliniComp
`
`could have drafted its claims to allow such broader access, but it did not. Rather, the
`
`claims expressly limit access to “only . . . the [first/second] end user device” for a
`
`given facility. This claim language should not be re-written as CliniComp suggests.
`
`Elekta Intr. S.A. v. O.U.R. Sci. Int’l, Inc., 214 F.3d 1302, 1308 (Fed. Cir. 2000).
`
`CliniComp advances no evidence that support its expansion of the access requirement.
`
`First, CliniComp suggests that Judge Yeakel in athenahealth accepted this
`
`construction as how a POSITA would have understood the claim language. But he
`
`did not adopt the language now advanced in the first portion of CliniComp’s current
`
`proposal, and he otherwise “declin[ed] to rewrite this clause.” Dkt.. 70-3 at 7.
`
`Second, contrary to CliniComp’s argument, its construction is not consistent
`
`with the claim language. Claim 1 is clear that “healthcare data in the first portion of
`
`the database is only accessible to the first end user device.” Absent is any suggestion
`
`that other users or other devices can access the database. CliniComp also submits no
`
`evidence in support of its contention that its proposal reflects how a POSITA would
`
`have understood this clause. See Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d
`
`1324, 1332 (Fed. Cir. 2009).
`
`Third, CliniComp fails to identify specification support for its proposal. The
`
`specification never discloses granting access to a facility’s healthcare data to users
`
`based on their association with that facility, no matter which device they use.
`
`Certainly nothing in the specification justifies re-drafting this claim language. See
`
`Openwave Sys., Inc. v. Apple Inc., 808 F.3d 509, 513 (Fed. Cir. 2015).
`
`Finally, CliniComp fails to show the first portion of its proposed construction
`
`is necessary to avoid an inoperable system. CliniComp Brief at 22–23. Figure 1 of
`
`the ’647 patent illustrates healthcare facilities that each use only a single device
`
`(network devices labeled 83–88, the only devices connected to the Internet) to access
`
`the remote healthcare database. Block 14 of Figure 1 shows that network device 83
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`8
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1702 Page 12 of 15
`
`
`
`communicates with other devices in the facility, which the claim language allows.
`
`Thus, personnel at the facility do not all need to use the same device. The claims are
`
`operable as written, and CliniComp is wrong to suggest otherwise. Indeed, the patent
`
`even discloses using a single networked device at each facility to access the remote
`
`database. Thus, the first portion of CliniComp’s proposal should be rejected.
`
`Turning to the second portion of CliniComp’s construction, CliniComp
`
`contends that access to a facility’s healthcare data should be given broadly to anyone
`
`not associated with that facility that would like to, e.g., improve the system or collect
`
`data for reports. There is no basis to allow such broad access to this healthcare data.
`
`As an initial matter, Cerner does not dispute that using the database software to
`
`query across multiple partitions to generate aggregate healthcare reports does not
`
`violate the claim’s access restrictions. See, e.g., ’647 patent, 10:6–15. According to
`
`the ’647 patent, these reports are generated using the database engine and without
`
`making individuals’ healthcare data accessible to anyone. See ’647 patent, 11:9–13.
`
`Thus, aggregation and performance reporting does not violate the “wherein” clause’s
`
`access restrictions, and these functions do not support CliniComp’s construction.
`
`Notwithstanding CliniComp’s focus on aggregate performance reports, the
`
`second portion of CliniComp’s construction would allow access far beyond such
`
`reports. CliniComp fails to justify any of this extended access. “[A]ggregate
`
`performance reports” were the only activity mentioned by Judge Yeakel for this term,
`
`and such reporting is the only basis for CliniComp’s “preferred embodiment” and
`
`dependent claim arguments. As noted, the ’647 patent describes how the aggregation
`
`reports are created using the database engine software and without violating the
`
`“wherein” access clause as written, and, thus, CliniComp’s “preferred embodiment”
`
`and dependent claim arguments fail. CliniComp does not even attempt to support the
`
`full scope of its requested construction, and nothing in the records supports re-writing
`
`the claim, as CliniComp proposes, to allow anyone “not directly associated with the
`
`healthcare enterprise facility, such as those tasked with maintaining or improving the
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`9
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1703 Page 13 of 15
`
`
`
`system, assisting users in using the system, or collecting data for reports or research”
`
`to access a facility’s healthcare data. Both portions of CliniComp’s construction
`
`should be rejected in favor of Cerner’s plain and ordinary meaning proposal.
`
`F.
`
`“operating at”
`
`The claim construction dispute for “operating at” is focused on the parties’
`
`differing views regarding whether the legacy application must be currently “operating
`
`at” the healthcare facility (as Cerner alleges) or whether a discontinued/retired
`
`application can still be considered “operating at” a facility (as CliniComp alleges).
`
`With conflicting views as to the scope of this claim language, adjudication of this
`
`claim construction dispute is warranted.
`
`As set forth in Cerner’s opening brief, the intrinsic evidence uniformly supports
`
`Cerner’s view that claimed legacy information come from a retained legacy
`
`application, not from an application no longer in service. This includes the claim’s
`
`use of the present tense, the patentee’s repeated discussion of “retained” legacy
`
`applications, and its distinguishing of prior art with applications no longer in use. See
`
`Cerner Brief at 23–25. CliniComp’s Brief provides no support for considering a
`
`retired application to be “operating at” a facility. Contrary to CliniComp’s
`
`suggestion, the claim’s use of the present tense provides a temporal limitation under
`
`which the application must be “operating” at the facility (consistent with the written
`
`description and IPR arguments), not merely that it “operated” there in the past. Cerner
`
`respectfully submits that this claim term should be construed to reject CliniComp’s
`
`incorrect reading of this term.
`
`III. CONCLUSION
`
`Cerner respectfully requests this Court adopt Cerner’s proposed constructions.
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`10
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1704 Page 14 of 15
`
`
`
`DATED: April 11, 2022
`
`SHOOK, HARDY & BACON L.L.P.
`
`
`By: /s/ Robert H. Reckers
`Attorney for Defendant Cerner Corporation
`Email: rreckers@shb.com
`
`
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`11
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`

`

`Case 3:17-cv-02479-GPC-DEB Document 73 Filed 04/11/22 PageID.1705 Page 15 of 15
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the above and
`
`foregoing document has been served on April 11, 2022 to all counsel of record who
`
`are deemed to have consented to electronic service via the Court’s CM/ECF system
`
`per Civil Local Rule 5.4. Any other counsel of record will be served by electronic
`
`mail, facsimile and/or overnight delivery.
`
`Dated: April 11, 2022
`
`
` /s/ Robert H. Reckers
`Robert H. Reckers
`
`
`
`
`
`
`
`
`Case No. 17-cv-2479-GPC-DEB
`12
`DEFENDANT CERNER CORPORATION’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`