Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 1 of 24 PageID #: 485
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`TECHNO VIEW IP, INC.,
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`OCULUS VR, LLC, and
`FACEBOOK, INC.,
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`v.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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` Plaintiff,
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`Defendants.
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`C.A. No. 17-386 (VAC) (CJB)
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`DEFENDANTS OCULUS VR, LLC AND FACEBOOK, INC.’S
`INITIAL CLAIM CONSTRUCTION BRIEF
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Karen Jacobs (#2881)
`Jennifer Ying (#5550)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@mnat.com
`kjacobs@mnat.com
`jying@mnat.com
`
`Attorneys for Defendants Oculus VR, LLC and
`Facebook, Inc.
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`
`
`OF COUNSEL:
`
`Heidi L. Keefe
`Mark R. Weinstein
`Elizabeth L. Stameshkin
`Philip H. Mao
`COOLEY LLP
`3175 Hanover Street
`Palo Alto, CA 94304
`(650) 843-5000
`
`DeAnna Allen
`COOLEY LLP
`1299 Pennsylvania Avenue, NW
`Washington, DC 20004-2400
`(202) 842-7800
`
`April 20, 2018
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`

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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 2 of 24 PageID #: 486
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`I. 
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`II. 
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`TABLE OF CONTENTS
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` Page
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`BACKGROUND OF THE PATENTS ............................................................................... 1 
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`DISPUTED CLAIM TERMS ............................................................................................. 2 
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`A. “videogame” (’096, claims 1, 5, 8, 12, 16; ’218, claims 1, 2, 7, 8) ..................................... 2 
`
`B. “left backbuffer” and “right backbuffer”
`(’096, claims 1, 2, 3, 6, 7; ’218, claims 1, 6) ...................................................................... 4 
`
`C. “storing a[n] [videogame] image into the [left/first] [back]buffer; determining [if/when]
`the [videogame] image is [in] a two-dimensional [format] or a three-dimensional
`[format/image]” (’096, claims 1, 8, 16) .............................................................................. 6 
`
`D. “storing a[n] . . . image into the . . . [back]buffer”
`(’096, claims 1, 8, 16; ’218, claims 1, 7, 12) .................................................................... 10 
`
`E.  “spatial coordinates,” “spatial coordinates (x,y,z),” “position coordinates” and
`“coordinates of [a/the] . . . view position”
`(’096, claims 1, 4, 5, 8, 12, 16; ’218, claims 1, 3, 4, 5, 7, 9, 10, 13, 14) .......................... 11 
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`F.  “frontbuffer” (’096, claim 14) ............................................................................................ 13 
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`G. “with a processor” terms (’218, claims 1, 7) ..................................................................... 15 
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`H. “buffer” (’096, claims 8-11, 13, 14, 16-19; ’218, claims 7, 8, 11-13) ............................... 18 
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`III. 
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`CONCLUSION ................................................................................................................. 18 
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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 3 of 24 PageID #: 487
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`TABLE OF AUTHORITIES
`
`Cases ..................................................................................................................................... Page(s)
`
`Altiris, Inc. v. Symantec Corp.,
`318 F.3d 1363 (Fed. Cir. 2003)..............................................................................................6, 7
`
`Andersen Corp. v. Fiber Composites, LLC,
`474 F.3d 1361 (Fed. Cir. 2007)..................................................................................................6
`
`Edwards Lifesciences LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009)................................................................................................12
`
`France Telecom, S.A. v. Marvell Semiconductor, Inc.,
`No. 12-cv-04967-WHO, 2014 U.S. Dist. LEXIS 33608
`(N.D. Cal. Mar. 12, 2014) ..........................................................................................................2
`
`GoDaddy.com, LLC v. RPost Commc’ns Ltd.,
`No. CV-14-00126-PHX-JAT, 2016 WL 212676 (D. Ariz. Jan. 19, 2016) ........................16, 17
`
`Graphics Props. Holdings v. Asus Computer Int’l, Inc.,
`No. 12-cv-210-LPS, 2014 U.S. Dist. LEXIS 137776 (D. Del. Sept. 29, 2014) ....................2, 3
`
`Hockerson-Halberstadt, Inc. v. Avia Grp. Int’l, Inc.,
`222 F.3d 951 (Fed. Cir. 2000)....................................................................................................5
`
`Hynix Semiconductor Inc. v. Toshiba Corp.,
`No. C-04-04708 VRW, 2006 WL 2547463 (N.D. Cal. Sept. 1, 2006) ......................................8
`
`In re Katz Interactive Call Processing Patent Litig.,
`639 F.3d 1303 (Fed. Cir. 2011)................................................................................................16
`
`Intellectual Ventures II, LLC v. AT&T Corp.,
`No. 1:13–CV–116–LY, 2015 WL 4138590 (W.D. Tex. July 8, 2015) .....................................8
`
`Loral Fairchild Corp. v. Sony Corp.,
`181 F.3d 1313 (Fed. Cir. 1999)..................................................................................................7
`
`MacroSolve, Inc. v. Antenna Software, Inc.,
`No. 6:11-cv-287 MHS–KNM, 2014 WL 243429 (E.D. Tex. Jan. 21, 2014) ............................7
`
`Martek Biosciences Corp. v. Nutrinova, Inc.,
`579 F.3d 1363 (Fed. Cir. 2009)..................................................................................................2
`
`Media Rights Techs., Inc. v. Capital One Fin. Corp.,
`800 F.3d 1366 (Fed. Cir. 2015)................................................................................................16
`
`i
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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 4 of 24 PageID #: 488
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`SCVNGR, Inc. v. DailyGobble, Inc.,
`No. 6:15-CV-493-JRG-KNM, 2017 WL 4270200 (E.D. Tex. Sept. 26, 2017) .........................8
`
`Seachange Int’l, Inc. v. C-COR, Inc.,
`413 F.3d 1361 (Fed. Cir. 2005)..............................................................................................5, 6
`
`Sinorgchem Co. v. Int’l Trade Comm’n,
`511 F.3d 1132 (Fed. Cir. 2007)..............................................................................................2, 3
`
`Spreadsheet Automation Corp. v. Microsoft Corp.,
`No. 2:05-CV-127 DF, 2006 WL 6143063 (E.D. Tex. Nov. 9, 2006) ........................................8
`
`Velocity Patent LLC v. Mercedes-Benz USA LLC,
`No. 13-cv-8413, 2016 WL 5234110 (N.D. Ill. Sept. 21, 2016) .........................................16, 17
`
`Wi-Lan, Inc v. Apple Inc.,
`811 F.3d 455 (Fed. Cir. 2016)....................................................................................................7
`
`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015) (en banc) ....................................................................15, 16, 17
`
`Statutes
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`35 U.S.C. § 112 ¶ 6 ......................................................................................................15, 16, 17, 18
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`Other Authorities
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`AMERICAN HERITAGE COLLEGE DICTIONARY (2004) ......................................................................3
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`MICROSOFT COMPUTER DICTIONARY (2002) .................................................................................12
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`ii
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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 5 of 24 PageID #: 489
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`INTRODUCTION
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`
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`Defendants Oculus VR, LLC and Facebook, Inc. (“Defendants”) propose constructions
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`for the disputed terms that are consistent with how a person of ordinary skill in the art would
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`have understood the terms of the patents-in-suit after having reviewed the intrinsic record. The
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`proposals from plaintiff Techno View IP, Inc. (“Plaintiff”), on the other hand, ignore explicit
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`definitions set forth in the specification, improperly attempt to broaden claim terms, and ignore
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`key aspects of the intrinsic record. Defendants’ proposed constructions should therefore be
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`adopted.
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`I.
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`
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`BACKGROUND OF THE PATENTS
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`Plaintiff asserts two patents in this action: U.S. Patent No. 7,666,096 (the “’096 patent”)
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`and U.S. Patent No. 8,206,218 (the “’218 patent”), which is a continuation of the ’096 patent.
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`Both patents purport to disclose a “videogame system” that enables display of 3D stereoscopic
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`images,1 including specific steps and requirements set forth in the claims. (’096 patent, Abstract;
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`’218 patent, Abstract.) Each asserted independent claim of the ’096 patent includes a step of
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`determining whether an image is in a two-dimensional or three-dimensional format, and only
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`calculating and displaying an image for a second eye view if the image is three-dimensional.
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`(’096 patent, claims 1, 8, 16.) Each asserted independent claim of the ’218 patent includes a step
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`of calculating a left or second eye view using the coordinates of a right or first eye view. (’218
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`1
`The term “stereoscopic” generally refers to a technique for creating the illusion of three
`dimensional depth. When a human being views objects or a scene, each eye captures a slightly
`different image because of the separation between the viewer’s left and right eyes. The human
`brain uses the differences between these two views (along with other information) to create a
`sensation of three-dimensional depth. As explained in the Technology Tutorial, stereoscopic
`techniques have been known and have existed for more than a century. In computers,
`stereoscopic 3D techniques attempt to take advantage of human visual processing by presenting
`a slightly different image to the viewer’s left eye and right eye, thus attempting to simulate what
`the person would see if she viewed the scene or object real space. Computer-based stereoscopic
`3D often requires that the viewer wear some kind of head-mounted display device (such as 3D
`glasses for a VR headset), which is used to present the slightly different images to each eye.
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`1
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`

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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 6 of 24 PageID #: 490
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`patent, claims 1, 7.)
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`II.
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`DISPUTED CLAIM TERMS
`A.
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`“videogame” (’096, claims 1, 5, 8, 12, 16; ’218, claims 1, 2, 7, 8)
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`Plaintiff’s Construction
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`Defendants’ Construction
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` a software program written in some computer
`language, with its objective to simulate a non-
`existent world and take a player or user into
`this world
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`a process which starts by providing a plurality
`of independently related logical states which
`include a set of programming options, where
`each programming option corresponds
`to
`different image characteristics
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`
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`Here, the key dispute is whether to adopt the patent’s explicit definition of “videogame”
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`found in the “Detailed Description of the Invention” in the patents-in-suit, as Defendants
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`propose. This section explicitly defines the plural term “videogames” as follows:
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`Videogames are processes which start by providing a plurality of
`independently related logical states which include a set of
`programming options, where
`each programming option
`corresponds to different image characteristics.
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`(’096 patent, 5:64-67.2) Federal Circuit law is clear that “[w]hen a patentee explicitly defines a
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`claim term in the patent specification, the patentee’s definition controls.” Martek Biosciences
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`Corp. v. Nutrinova, Inc., 579 F.3d 1363, 1380 (Fed. Cir. 2009). Here, the syntax of the
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`statement, i.e. “[v]ideogames are,” is a classic signal of an explicit definition. See Sinorgchem
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`Co. v. Int’l Trade Comm’n, 511 F.3d 1132, 1136 (Fed. Cir. 2007) (“the word ‘is,’. . . used here in
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`the specification, may signify that a patentee is serving as its own lexicographer”) (citation and
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`quotation omitted); see also, e.g., France Telecom, S.A. v. Marvell Semiconductor, Inc., No. 12-
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`cv-04967-WHO, 2014 U.S. Dist. LEXIS 33608, at *12 (N.D. Cal. Mar. 12, 2014) (holding that
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`the phrase “[c]onvolutional codes are . . .” constituted an explicit definition for “convolutional
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`code”); Graphics Props. Holdings v. Asus Computer Int’l, Inc., No. 12-cv-210-LPS, 2014 U.S.
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`2 This brief generally cites to the ’096 specification for brevity.
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`2
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`

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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 7 of 24 PageID #: 491
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`Dist. LEXIS 137776, at *48 (D. Del. Sept. 29, 2014) (holding that the phrase, “an aspect ratio
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`greater than 1.3:1 is considered to be a wide aspect ratio,” constituted explicit definition for
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`“wide aspect ratio”).
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`The patentee’s desire to provide an explicit definition is further underscored by the fact
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`that the definition in the specification differs from the ordinary meaning of “videogame.” For
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`example, the American Heritage College Dictionary from 2004 defines “video game” as “an
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`electronic or computerized game played by manipulating images on a display screen.”
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`(Declaration of Elizabeth Stameshkin in Support of Defendants Oculus VR, LLC and Facebook,
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`Inc.’s Initial Claim Construction Brief (“Stameshkin Decl.”) Ex. 1 at 1528.) Because the
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`patentee acted as its own lexicographer by providing its own definition for “videogame,” the
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`Court should adopt that definition. See Sinorgchem, 511 F.3d at 1136 (“As such, the patentee
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`must be bound by the express definition.”).
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`
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`Plaintiff’s proposed construction ignores the specific definition set forth in the “Detailed
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`Description of the Invention” portion of the specification, which describes the alleged invention.
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`Plaintiff instead derives its definition from a portion of the “Background” section that canvasses
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`and discusses the prior art:
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`Any videogame is a software program written in some computer
`language. Its objective is to simulate a non-existent world and take
`a player or user into this world.
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` (’096 patent, 3:53-55, emphasis added.) This statement is not definitional for purposes of the
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`claimed “videogame” of the alleged invention. The sentence above makes this clear by
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`beginning with the word “any,” indicating that it is simply describing “any” videogame of the
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`prior art – not the “videogame” of the alleged invention, which is explicitly defined in the next
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`section aptly entitled, “Detailed Description of the Invention.” (’096 patent, 5:64-67.) See also
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`Graphics Props., 2014 U.S. Dist. LEXIS 137776, at *41 (“[A] discussion in the prior art section
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`3
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`

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`of a patent on what ‘some computer systems utilize’ does not necessarily limit the claims of this
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`patent.”). In other words, the patentee’s explicit definition for the term “videogame” set forth in
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`the “Detailed Description” section explains to one of ordinary skill in the art how the
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`videogames of this patent differ from generic videogames of the prior art. It is that definition
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`that must be given meaning.
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`B.
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`“left backbuffer” and “right backbuffer” (’096, claims 1, 2, 3, 6, 7; ’218,
`claims 1, 6)
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`Plaintiff’s Construction
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`Defendants’ Construction
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`“left backbuffer”: a memory location where the
`left image to be displayed is temporarily stored
`“right backbuffer”: a memory location where
`the right image to be displayed is temporarily
`stored
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`backbuffers that are separate from each other
`such that left and right independent images
`could be generated and stored therein3
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`
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`The primary distinction between the parties’ competing constructions is that Defendants’
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`requires that the left and right backbuffers be “separate” from each other. That distinction comes
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`directly from the file history and statements made by the patentee in order to overcome prior art
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`during prosecution. In an attempt to improperly expand the scope of the claim terms, Plaintiff
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`seeks to run away from those narrowing statements. Plaintiff should not be permitted to do so,
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`and Plaintiff should be held to its words.
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`
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`In a December 11, 2008 office action, the Examiner rejected pending claims as obvious
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`over U.S. Patent No. 5,801,717 to Engstrom et al. (Stameshkin Decl. Ex. 2, Office Action at 7-
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`8.) The Examiner subsequently held a telephonic interview with the applicant on September 18,
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`2009 to discuss the applicant’s arguments for distinguishing the Engstrom reference.
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`3 Defendants’ proposal provides a single definition for both terms. In the event the Court desires
`separate definitions for two terms, the “left backbuffer” could be construed as “a backbuffer that
`is separate from the right backbuffer and that stores a left image,” and “right backbuffer” would
`be “a backbuffer that is separate from the left backbuffer and that stores a right image.”
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`4
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`

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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 9 of 24 PageID #: 493
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`(Stameshkin Decl. Ex. 3, Interview Summary at 1.) The Examiner’s Interview Summary
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`explains that:
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`Applicants argued that the two back buffers disclosed in Engstrom
`were connected and not separate therefrom such that to [sic] left
`and right independent images could be generated and stored
`therein. Examiner argued that even though the backbuffers of
`Engstrom were connected in that data could be transferred
`therebetween, the buffers were still independent buffers.
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`(Id. at 3 (emphasis added).) The applicant never objected to the Interview Summary or asserted
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`that it inaccurately presented the applicant’s position.
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`The summary above makes clear that the separateness of the backbuffers was a critical
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`basis for the applicant’s attempt to distinguish Engstrom. The applicants argued that (unlike the
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`claims), the backbuffers in Engstrom were connected and not separated from each other; the
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`Examiner responded by suggesting that the Engstrom backbuffers were still independent buffers.
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`(Id.) Nevertheless, the patentee’s representation to the Examiner that the claimed backbuffers
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`are separate from each other was critical to its argument against the Engstrom reference. Only
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`Defendants’ construction properly takes this argument into account.
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`
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`“Where an applicant argues that a claim possesses a feature that the prior art does not
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`possess in order to overcome a prior art rejection, the argument may serve to narrow the scope of
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`otherwise broad claim language.” Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1372-73
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`(Fed. Cir. 2005); see also Hockerson-Halberstadt, Inc. v. Avia Grp. Int’l, Inc., 222 F.3d 951, 957
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`(Fed. Cir. 2000) (“The prosecution history constitutes a public record of the patentee's
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`representations concerning the scope and meaning of the claims, and competitors are entitled to
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`rely on those representations when ascertaining the degree of lawful conduct, such as designing
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`around the claimed invention.”).
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`
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`Plaintiff will likely try to minimize the importance of the September 18, 2009 interview
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`5
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`

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`by pointing to later events, such as further arguments and amendments made during prosecution.
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`But the applicant never rescinded its argument about Engstrom, or made any amendments to the
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`claims or arguments that would diminish its representation that the claimed backbuffers are
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`separate. Federal Circuit law is clear that subsequent events in prosecution cannot undo the
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`impact of the applicant’s earlier argument regarding Engstrom. See Andersen Corp. v. Fiber
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`Composites, LLC, 474 F.3d 1361, 1374 (Fed. Cir. 2007) (“[W]e have made clear . . . [that] an
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`applicant’s argument that a prior art reference is distinguishable on a particular ground can serve
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`as a disclaimer of claim scope even if the applicant distinguishes the reference on other grounds
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`as well.”); see also Seachange Int’l, 413 F.3d at 1374 (“An applicant’s argument made during
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`prosecution may lead to a disavowal of claim scope even if the Examiner did not rely on the
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`argument.”). Plaintiff’s constructions should be rejected.
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`C.
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`[back]buffer;
`[left/first]
`the
`into
`image
`[videogame]
`“storing a[n]
`determining [if/when] the [videogame] image is [in] a two-dimensional
`[format] or a three-dimensional [format/image]” (’096, claims 1, 8, 16)
`
`Plaintiff’s Construction
`
`Defendants’ Construction
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`The steps do not have to be performed in the
`order recited – no construction necessary
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`The steps must be performed in the order
`recited
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`
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`The sole dispute here focuses on whether these two steps must be performed in the order
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`in which they appear in the claim. Defendants’ proposal is required by grammar and claim
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`construction principles, and is consistent with the pertinent embodiments in the specification.
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`
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`When the steps of a method do not “otherwise recite an order,” a two-part test determines
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`if they “must nonetheless be performed in the order in which they are written.” Altiris, Inc. v.
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`Symantec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003). The first step is to “determine if, as a
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`matter of logic or grammar, they must be performed in the order written.” Id. If the answer to
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`this threshold question is “yes,” then the inquiry ends – the terms must be performed in the order
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`6
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`

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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 11 of 24 PageID #: 495
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`recited. Id. (citing Loral Fairchild Corp. v. Sony Corp., 181 F.3d 1313, 1322 (Fed. Cir. 1999)).
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`If the answer is initial question is “no,” the Court must “look to the rest of the specification to
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`determine whether it ‘directly or implicitly requires such a narrow construction.’” Altiris, 318
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`F.3d at 1370.
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`
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`Here, there is no need to proceed beyond the first step because the grammar and logic of
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`the claims clearly require that the steps be performed in the order recited. Claim 1 of the ’096
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`patent, for example, recites in part (with relevant steps labeled [b] and [c]):
`
`1. A method of displaying images in a videogame system that
`supports two-dimensional and three-dimensional display of the
`images, said method comprising the computer implemented steps
`of:
`
`[a] clearing left and right backbuffers in the videogame system;
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`[b] storing an image into the left backbuffer;
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`[c] determining if the image is in a two-dimensional format or a
`three-dimensional format, wherein when the image is in a three-
`dimensional format, calculating the coordinates of a second view
`position of the image and storing a second view position image
`into the right backbuffer …
`
`(’096, claim 1 (emphasis added).) The language above is crystal clear that step [b] must precede
`
`step [c]. Not only do the claims recite them in that order, but the two steps build upon each
`
`other. Step [b] recites “storing an image,” and step [c] recites “determining if the image,” the
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`word “the” referring back to the particular image previously stored in step [b]. See, e.g., Wi-Lan,
`
`Inc v. Apple Inc., 811 F.3d 455, 462 (Fed. Cir. 2016) (“Subsequent use of the definite articles
`
`‘the’ or ‘said’ in a claim refers back to the same term recited earlier in the claim.”).
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`The “determining” step [c] thus operates on “the image” that was previously stored in
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`step [b]. The “storing” step thus precedes the “determining” step as a matter of grammar and
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`logic. See, e.g., MacroSolve, Inc. v. Antenna Software, Inc., No. 6:11-cv-287 MHS–KNM, 2014
`
`7
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`

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`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 12 of 24 PageID #: 496
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`WL 243429, at *11-13 (E.D. Tex. Jan. 21, 2014) (“step (g) must occur after step (c), because
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`step (g) relies on step (c) to provide the antecedent basis for ‘said remote computing device’” and
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`thus “the plain claim language requires that step (g) follow step (c)”); SCVNGR, Inc. v.
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`DailyGobble, Inc., No. 6:15-CV-493-JRG-KNM, 2017 WL 4270200, at *10 (E.D. Tex. Sept. 26,
`
`2017) (“Step (b) recites ‘transmitting ... the code’ generated in step (a), so step (a) must be
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`performed before step (b).”); Intellectual Ventures II, LLC v. AT&T Corp., No. 1:13–CV–116–
`
`LY, 2015 WL 4138590, at *13-14 (W.D. Tex. July 8, 2015) (“In view of the antecedent basis
`
`issue… a plain reading of the claims is that the order of performance is limited.”); Hynix
`
`Semiconductor Inc. v. Toshiba Corp., No. C-04-04708 VRW, 2006 WL 2547463, at *6 (N.D.
`
`Cal. Sept. 1, 2006) (“claim 1’s use of antecedent basis makes clear that step b must occur before
`
`step c”). Substantially similar language also appears in independent claims 8 and 16. (’096,
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`claims 8, 16.)4
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`In fact, if the “storing” and “determining” steps were not performed in the order recited in
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`the claim, the claim might be indefinite. This is because at the time of performance of step [c],
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`“determining if the image is in a two-dimensional format or a three-dimensional format,” there
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`would be no way to know what “image” is being operated on because the term would have no
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`antecedent basis. See, e.g., Spreadsheet Automation Corp. v. Microsoft Corp., No. 2:05-CV-127
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`DF, 2006 WL 6143063, at *17 (E.D. Tex. Nov. 9, 2006) (“Because Claim 1 would fail for
`
`indefiniteness if ‘the pattern and variable data’ in Step 3 were to be placed before
`
`the antecedent bases in Step 1 and Step 2, such a construction is disfavored.”).
`
`The specification and prosecution history also confirm that the “storing” and
`
`
`4 Claim 16 discloses a “processor configured to run instructions that when executed perform” a
`method, including the same steps as claim 8. Even though this is a system claim, the same
`reasoning applies as when a method claim is performed – that the “storing” step must occur prior
`to the “determining” step when they are carried out by the instructions.
`
`8
`
`

`

`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 13 of 24 PageID #: 497
`
`“determining” steps be performed in the order recited. For example, in describing Figure 4b
`
`(which shows a flowchart describing an embodiment of the alleged invention), the specification
`
`explains:
`
`FIG. 4b shows the flowchart for the discrimination and display of
`the left camera and right camera image; the left view is set in
`(410), the image is drawn in the left backbuffer (411) as a function
`of the camera position, the image is displayed in the left screen
`(412), then it is discriminated if it has TDVision format in (413)
`and in the affirmative case the right view position coordinates are
`calculated (414)…
`
` (’096 patent, 8:56-62 (underlining added).) Step (411), in which “the image is drawn in the left
`
`backbuffer,” corresponds to the step [b] of claim 1, “storing an image into the left backbuffer.”
`
`The specification makes clear that this takes place before Step (413), in which “it is
`
`discriminated if [the image] has TDVision format,” which corresponds to the determination in
`
`step [c], “determining if the image is in a two-dimensional format or a three-dimensional
`
`format.”5
`
`
`
`Critically, the specification discloses no embodiment in which the “discrimination” or
`
`“determination” step occurs prior to storing the first/left image in an appropriate buffer. (See
`
`generally ’096 patent.) Thus, Defendants’ proposed construction that the “storing” step must be
`
`performed prior to the “determining” step should be adopted.
`
`
`
`
`5 The “determining” step was the result of an amendment made during prosecution. In order to
`argue that the “determining” step was supported by the specification, the applicant relied on
`Figures 4a and 4b. (See Stameshkin Decl. Ex. 4, 2009-11-02 Applicant Arguments/Remarks at 2
`(citing to Figures 4A and 4B as support for amendments); 2009-11-02 Amendments to the
`Claims at 2, 4-5, 6-7
`(demonstrating addition of
`two-dimensional/three-dimensional
`determination step in amended and new claims).) This further confirms that the “discrimination”
`described in the specification was supposed to correspond to the claimed “determining” step.
`
`9
`
`

`

`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 14 of 24 PageID #: 498
`
`D.
`
`“storing a[n] . . . image into the . . . [back]buffer” (’096, claims 1, 8, 16; ’218,
`claims 1, 7, 12)
`
`Plaintiff’s Construction
`
`Defendants’ Construction
`
`storing an image at a memory location where
`the image to be displayed is temporarily
`“drawn”
`
`temporarily “drawing” an
`[back]buffer
`
`image
`
`into
`
`the
`
`
`
`Here, the primary disputes between the parties are (1) whether the term “storing” requires
`
`construction and (2) whether the term “the” must appear before the term “[back]buffer” as set
`
`forth in the patent. Plaintiff’s construction improperly repeats the word “storing” without
`
`definition and adds an incomplete construction of the terms “backbuffer” and “buffer.”
`
`Plaintiff’s construction also seems to imply that an image can be stored in any [back]buffer, not
`
`necessarily the one previously introduced in the claim as having been set, opened, or provided.
`
`(See ’096, claims 1, 7, 16; ’218, claims 1, 8.) Defendants’ construction defines the entire phrase
`
`of “storing an image into the [back]buffer” based on its actual usage in the patent specification
`
`and claims, properly refers to the previously introduced “[back]buffer,” and refers the fact-finder
`
`to the terms “buffer” and “backbuffer” for their constructions.
`
`
`
`The term “storing” and related words such as “store” appear sparingly in the patents-in-
`
`suit, and do not provide any context for what it means to “store” an image in a buffer as used in
`
`the context of the claims. Rather, the specification explains that an “image” is “temporarily
`
`‘drawn’” into a backbuffer located “within the physical RAM memory of the video or graphics
`
`acceleration card.” (’096 patent, 6:40-47.) As this is the step whereby the image is placed into
`
`the backbuffer, this is the appropriate construction for the phrase “storing a[n] . . . image into
`
`the… [back]buffer.” The specification does not provide any other description or explanation for
`
`how an image comes to be stored or placed into the backbuffer.
`
`
`
`Plaintiff’s proposed construction of “a memory location where the image to be displayed
`
`10
`
`

`

`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 15 of 24 PageID #: 499
`
`is temporarily ‘drawn’” is problematic for two reasons. First, as noted above, it fails to account
`
`for the fact that the claim term refers to a specific, previously introduced “[back]buffer,” not any
`
`backbuffer. Thus, it is inappropriate to insert the generic “a” into this phrase in place of the
`
`specific “the” as doing so would impermissibly broaden the claim. Second, Plaintiff’s proposed
`
`construction does not reflect the parties’ agreed upon construction for “backbuffer” or Plaintiff’s
`
`proposed construction for the term “buffer,” as it omits the phrase “without outputting it to the
`
`video card.” This is improper and does not make sense in light of these other constructions. In
`
`contrast, Defendants’ construction both provides guidance to the jury as to what the “storage”
`
`step means, and is consistent with the plain meaning of the claim and other terms’ constructions.
`
`The Defendants’ construction should be adopted.
`
`E.
`
`“spatial coordinates,” “spatial coordinates (x,y,z),” “position coordinates”
`and “coordinates of [a/the] . . . view position” (’096, claims 1, 4, 5, 8, 12, 16;
`’218, claims 1, 3, 4, 5, 7, 9, 10, 13, 14)
`
`Plaintiff’s Construction
`
`Defendants’ Construction
`
`points in space that are located by their
`positions in relation to intersecting x, y, and z
`axes
`
`“coordinates”: the set of values in an (x, y, z)
`coordinate system.
`Plaintiff’s Comment
`Plaintiff understands Defendants’ term to be
`construed as “coordinates,” and proposes its
`counterconstruction based on
`that belief.
`Plaintiff respectfully submits that the various
`modifiers of the term “coordinates,” are
`different
`terms
`that
`require
`different
`constructions based on the intrinsic evidence
`and the context of use in the claims. Since
`Defendants’ proposed a construction is of what
`appears to be just the term “coordinates,”
`Plaintiff is responding to that construction, but
`respectfully reserves the right to propose
`counterconstructions to the full phrases in its
`brief,
`if necessitated by
`the Defendants’
`position and arguments.
`
`11
`
`

`

`Case 1:17-cv-00386-VAC-CJB Document 53 Filed 04/20/18 Page 16 of 24 PageID #: 500
`
`
`
`The primary dispute here appears to be whether all of the terms at issue (i.e. “spatial
`
`coordinates,” “spatial coordinates (x,y,z),” “position coordinates,” “coordinates…”)