Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 1 of 21 PageID #: 588
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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
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
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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
`
`May 18, 2018
`
`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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`
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 2 of 21 PageID #: 589
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`
`
`TABLE OF CONTENTS
`
`Table of Authorities ii
`I.
`Introduction ......................................................................................................................... 1
`
`II.
`
`III.
`
`Plaintiff’s Repeated Violations of the Court’s Scheduling Order ...................................... 1
`
`Disputed Claim Terms ........................................................................................................ 3
`
`A.
`B.
`C.
`
`D.
`
`“backbuffer” (’096, claims 1, 2, 3, 6, 7, 13; ’218, claims 1, 6) .............................. 3
`“videogame” (’096, claims 1, 5, 8, 12, 16; ’218, claims 1, 2, 7, 8) ........................ 4
`“left backbuffer” and “right backbuffer”
`(’096, claims 1, 2, 3, 6, 7; ’218, claims 1, 6) .......................................................... 4
`“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
`“storing a[n] . . . image into the . . . [back]buffer”
`(’096, claims 1, 8, 16; ’218, claims 1, 7, 12) .......................................................... 7
`“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) .................................................................. 8
`“frontbuffer” (’096, claim 14) ............................................................................... 10
`G.
`“with a processor” terms (’218, claims 1, 7) ........................................................ 11
`H.
`“buffer” (’096, claims 8-11, 13, 14, 16-19; ’218, claims 7, 8, 11-13) .................. 15
`I.
`Conclusion ........................................................................................................................ 17
`
`E.
`
`F.
`
`IV.
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 3 of 21 PageID #: 590
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`TABLE OF AUTHORITIES
`
`Cases ..................................................................................................................................... Page(s)
`
`Edwards Lifesciences LLC v. Cook Inc.,
`582 F.3d 1322 (Fed. Cir. 2009)................................................................................................10
`
`EON Corp. IP Holdings LLC v. AT&T Mobility LLC,
`785 F.3d 616 (Fed. Cir. 2015)......................................................................................13, 14, 15
`
`Ergo Licensing, LLC v. CareFusion 303, Inc.,
`673 F.3d 1361 (Fed. Cir. 2012)..........................................................................................13, 14
`
`In re Katz Interactive Call Processing Patent Litig.,
`639 F.3d 1303 (Fed. Cir. 2011)................................................................................................13
`
`Martek Biosciences Corp. v. Nutrinova, Inc.,
`579 F.3d 1363 (Fed. Cir. 2009)..............................................................................................4, 5
`
`Mformation Techs., Inc. v. Research in Motion Ltd.,
`764 F.3d 1392 (Fed. Cir. 2014)..................................................................................................6
`
`Seachange Int’l, Inc. v. C-COR, Inc.,
`413 F.3d 1361 (Fed. Cir. 2005)..............................................................................................5, 6
`
`Velocity Patent LLC v. Mercedes-Benz USA, LLC,
`No. 13-cv-8413, 2016 WL 5234110 (N.D. Ill. Sept. 21, 2016) .........................................13, 15
`
`Virginia Innovation Scis., Inc. v. Samsung Elecs. Co. Ltd.,
`614 F. App'x 503 (Fed. Cir. 2015) .............................................................................................7
`
`Statutes
`
`35 U.S.C. § 112 ¶ 6 ............................................................................................................12, 13, 15
`
`Other Authorities
`
`Microsoft Computer Dictionary (2002) ...........................................................................................9
`
`
`
`ii
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 4 of 21 PageID #: 591
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`I.
`
`
`
`INTRODUCTION
`
`Defendants Oculus VR, LLC and Facebook, Inc. (“Defendants”) have consistently
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`proposed well-supported constructions for the disputed terms consistent with the intrinsic record
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`and extrinsic evidence. Plaintiff Techno View IP, Inc. (“Plaintiff”) in contrast has repeatedly
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`and without warning altered its confusing and unsupported constructions, such that neither
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`Defendants nor the Court can even determine what Plaintiff’s position is or upon which evidence
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`it now bases its allegations. Plaintiff has violated both the Court’s scheduling orders and the
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`parties’ stipulations, and made no effort to inform Defendants or meet and confer regarding these
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`new positions. In view of all the evidence and circumstances, Defendants respectfully request
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`the Court adopt their proposed constructions.
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`II.
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`PLAINTIFF’S REPEATED VIOLATIONS OF THE COURT’S SCHEDULING ORDER
`
`Throughout the claim construction exchange process, Plaintiff’s claim construction
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`positions have been a moving target. Plaintiff belatedly introduced and then repeatedly changed
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`its constructions, and has generally ignored deadlines in the Court’s scheduling order, thus
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`necessitating multiple extensions and frustrating the claim construction exchange process. As a
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`result, it has been difficult for Defendants to know the constructions to which it should respond
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`to help the Court understand the true disputes.
`
`Plaintiff originally stated: “it is the position of Techno View that no terms require
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`construction. All terms are believed to be clearly understood by one of ordinary skill in the art at
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`the time of the invention.” (Ex. 1, February 23, 2018 email from M. Botts to counsel for
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`Defendants). In contrast, Defendants identified nine proposed constructions. (Ex. 2, February
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`23, 2018 email from J. Ying to counsel for Plaintiff). Notwithstanding Defendants’ repeated
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`follow ups, Plaintiff maintained that no terms needed construction, and offered no alternatives.
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`(Ex. 3, March 14, 2018 email from M. Botts to counsel for Defendants.) On the same day the
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`1
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 5 of 21 PageID #: 592
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`Joint Claim Construction Chart was originally due, Plaintiff stated, for the first time, that it
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`would now be providing constructions, which it did days later. (Ex. 4, March 16, 2018 email
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`from M. Botts at 9:19 a.m. to counsel for Defendants; Ex. 5, March 20, 2018 email from D.
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`Murray to counsel for Defendants.) The parties filed numerous extension requests in order to
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`develop the Joint Claim Construction Chart required by the scheduling order, which reflected the
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`new proposals as well as a number of agreements.
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`In its opening brief, however, Plaintiff unilaterally changed its proposed constructions for
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`six out of nine claim terms in the Joint Claim Construction Chart, including one on which the
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`parties had earlier agreed. Specifically, Plaintiff changed its constructions for: (1) the
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`previously stipulated term “backbuffer”; (2) “buffer”;1 (3) “frontbuffer”; (4) “storing . . . image”;
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`(5) the “coordinate” terms; and (6) the “calculating” step recited in claims 1 and 7 (including an
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`entirely new proposal for means-plus-function). Even worse, when Defendants sought
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`confirmation that Plaintiff would not further change positions in its responsive claim
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`construction brief, Plaintiff refused to provide such confirmation. (Ex. 7, May 14, 2018 letter
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`from K. Jacobs to counsel for Plaintiff; Ex. 8, May 16, 2018 email from M. Botts to counsel for
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`Defendants.)
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`Defendants object to Plaintiff’s “shifting sands” approach to claim construction, and
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`believe that the new proposals are untimely, and should not be considered, but nevertheless have
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`done their best to address these new proposals below. To the extent Plaintiff’s untimely
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`constructions are considered, they should still be rejected, for the reasons set forth below.
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`
`1
`Defendants had informed Plaintiff that they could agree to Plaintiff’s original proposed
`construction for “buffer.” Rather than inform Defendants that it would be advancing a new
`construction, Plaintiff merely replied that it would “respond to you as soon as possible” to
`Defendants on its “offer.” (Ex. 6, email chain between J. Ying and counsel for Plaintiff.)
`Plaintiff never responded further.
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`2
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 6 of 21 PageID #: 593
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`III. DISPUTED CLAIM TERMS
`A.
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`“backbuffer” (’096, claims 1, 2, 3, 6, 7, 13; ’218, claims 1, 6)
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`Parties’ AGREED-UPON Construction
`
`Plaintiff’s NEWLY PROPOSED
`Construction
`
`a memory location where the image to be
`displayed
`is
`temporarily “drawn” without
`outputting it to the video card
`
`a memory location for the temporary storage of
`an image
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`On March 23, 2018, the parties submitted a Joint Claim Construction Chart in which they
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`informed the Court that the parties agreed on the construction for the term “backbuffer.” In its
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`opening brief, however, Plaintiff backtracked on its agreement and now proposes a new
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`construction for the term “backbuffer.” Plaintiff’s new construction should be rejected and the
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`parties’ previously agreed-upon construction should be adopted. That construction comes
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`directly from the specification’s definition of “backbuffer”: “a memory location where the
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`image to be displayed is temporarily ‘drawn’ without outputting it to the video card.” See ’096,
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`6:40-47. Plaintiff admits this is so. D.I. 52 at 1 (“The term ‘backbuffer’ is specifically defined
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`in the patent specifications . . . .”).
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`Plaintiff offers no compelling reason why the Court should adopt a construction that
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`differs from the explicit definition set forth in the specification. Plaintiff seemingly argues
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`“buffers” store data (not just images) and that “backbuffers” merely store “images.” See, e.g.,
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`D.I. 52 at 2, 4, 8. But that definition is not supported by the patent, which only discloses
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`“buffers” that are limited to “images”. Indeed, Plaintiff does not provide a single evidentiary
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`citation to support it argument.2
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`
`2
`Plaintiff makes passing reference to an alleged “recent conversation between the parties”
`to support the idea that “there is a fundamental disagreement as to the actual meaning of” the
`“words that define ‘backbuffer.’” D.I. 52 at 1-2. Defendants are unaware of any such “recent
`conversation;” indeed, apart from Defendants’ offer to stipulate to Plaintiff’s construction of the
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`3
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 7 of 21 PageID #: 594
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`Accordingly, Plaintiff’s newly proposed construction should be rejected and the parties’
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`previously agreed-upon construction should be adopted. This construction is the express
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`definition provided in the specification of the patents-in-suit.
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`B.
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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
`
`Defendants’ Construction
`
` 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
`
`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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`Defendants agree with Plaintiff that the proper construction of the term “videogame”
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`within the context of the patent is “not just a generic videogame.” D.I. 52 at 3. Despite that,
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`Plaintiff concedes that its own construction is “the more generic idea of a videogame.” Id.
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`The “Detailed Description” expressly distinguished how the videogames of this patent
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`differ from generic videogames of the prior art. (’096 patent, 5:64-67.) It is that definition that
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`must be given meaning. 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). Thus, Defendants respectfully
`
`request the Court adopt the patentee’s express definition in this case – the construction offered
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`by Defendants.
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`C.
`
` “left backbuffer” and “right backbuffer” (’096, claims 1, 2, 3, 6, 7; ’218,
`claims 1, 6)
`
`Plaintiff’s Construction
`
`Defendants’ Construction
`
`“left backbuffer”: a memory location where the backbuffers that are separate from each other
`such that left and right independent images
`
`separate term “buffer,” the parties have not discussed any claim construction-related issues since
`the filing of the Joint Claim Construction Chart on March 23, 2018.
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`4
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 8 of 21 PageID #: 595
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`left image to be displayed is temporarily stored
`“right backbuffer”: a memory location where
`the right image to be displayed is temporarily
`stored
`
`could be generated and stored therein3
`
`
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`Though it is a bit confusing and shifting, Plaintiff appears to raise two arguments against
`
`Defendants’ construction, neither of which is well taken. First, Plaintiff argues that Defendants’
`
`use of the word “generated” is improper. D.I. 52 at 4-5. Although the prosecution history of the
`
`patent provides ample support for Defendants’ construction, Defendants do not oppose a
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`definition that does not include the word “generated” if that will resolve the dispute.
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`
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`Second, Plaintiff baldly asserts that “there is no intrinsic support” for the “separateness”
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`of the backbuffers. See id. Plaintiff is wrong. As discussed in Defendants’ opening brief, the
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`patent owner’s own argument in the prosecution history provides direct support for Defendants’
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`construction. D.I. 53 at 4-5. Specifically, the Examiner’s Interview Summary explains that:
`
`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.
`
`(D.I. 54, Ex. 3, Interview Summary at 1 (emphasis added)). The “separateness” of the
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`backbuffers was critical to the applicant’s attempt to overcome a prior art rejection, and thus the
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`scope of the claim term must be narrowed accordingly. Seachange Int’l, Inc. v. C-COR, Inc.,
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`413 F.3d 1361, 1372-73 (Fed. Cir. 2005) (“Where an applicant argues that a claim possesses a
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`feature that the prior art does not possess in order to overcome a prior art rejection, the argument
`
`
`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.”
`
`5
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 9 of 21 PageID #: 596
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`may serve to narrow the scope of otherwise broad claim language.”).
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`Plaintiff’s stated concern that Defendants’ construction may be “potentially jury-
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`confusing” (D.I. 52 at 5), is unfounded. Indeed, Plaintiff itself concedes that “the right and left
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`backbuffers are separate memory locations.” (Id.) There is no basis to assume that the jury
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`would then somehow import a requirement that the right and left backbuffers “be located on
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`separate parts of the videogame system.” (Id.). Defendants’ proposed construction does no such
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`thing. Instead it is the only one that does not ignore the intrinsic record. Defendants’
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`construction should therefore be adopted.
`
`D.
`
`[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
`
`The steps do not have to be performed in the
`order recited – no construction necessary
`
`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
`
`construction principles, and is consistent with the embodiments described in the specification.
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`D.I. 52 at 6-7 (citing Mformation Techs., Inc. v. Research in Motion Ltd., 764 F.3d 1392, 1398
`
`(Fed. Cir. 2014)). In particular, the determination step must occur after the storage step, as the
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`antecedent basis for the term “image” is found in the storage step. Were the steps not performed
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`in the order recited in the claim, the claim would be indefinite due to a lack of antecedent basis.
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`
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`The specification and prosecution history also confirm that the “storing” and
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`“determining” steps must be performed in the order recited. The specification discloses no
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`embodiment in which the “discrimination” or “determination” step occurs prior to storing the
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`first/left image in an appropriate buffer. (See generally ’096 patent.) Plaintiff speculates about
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`6
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 10 of 21 PageID #: 597
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`purported advantages that might occur if the steps are performed out of order. D.I. 52 at 6-7.
`
`But it provides no support for this allegation apart from attorney argument, which is neither
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`intrinsic nor extrinsic evidence. See Virginia Innovation Scis., Inc. v. Samsung Elecs. Co. Ltd.,
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`614 F. App'x 503, 511 (Fed. Cir. 2015) (“attorney arguments are not relevant intrinsic or
`
`extrinsic evidence”). Thus, Defendants’ proposed construction that the storage step must be
`
`performed prior to the determination step, as the plain language of the claim dictates, should be
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`adopted.
`
`E.
`
`“storing a[n] . . . image into the . . . [back]buffer” (’096, claims 1, 8, 16; ’218,
`claims 1, 7, 12)
`
`Plaintiff’s Original
`Construction
`
`Plaintiff’s NEWLY
`PROPOSED Construction
`
`Defendants’ Construction
`
`image at a
`storing an
`memory
`location where
`the image to be displayed
`is temporarily “drawn”
`
`temporarily storing claimed
`data or an
`image
`into a
`memory location identified in
`the claim as either a backbuffer
`or a buffer
`
`“drawing”
`temporarily
`image into the [back]buffer
`
`an
`
`
`
`Plaintiff proposes an entirely new construction that materially differs from its position in
`
`the Joint Claim Construction Chart, upon which Defendants relied. Plaintiff contends, without
`
`support, that “buffers” store “data” (including images) and “backbuffers” store “images.” But in
`
`the claims at issue, the only thing being stored in any type of buffer – be it a backbuffer, a
`
`frontbuffer, or a buffer – is an image. The word “data” does not appear in the claims. (See
`
`generally ’096 and ’218 patent claims.) Plaintiff’s theory about an alleged difference between
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`“data” vs. “images” is academic argument, and of no relevance to the usage of the terms in the
`
`claims. In contrast, Defendants’ construction appropriately relies on claim language, which
`
`recites that each asserted independent claim includes a step whereby an image is stored in either
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`a backbuffer or a buffer. (See ’096 claims 1, 8, 16; ’218 claims 1, 7; see also ’218 claim 12.)
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`7
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 11 of 21 PageID #: 598
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`
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`Beyond that, the parties now seem to be disputing (1) whether the term “storing” requires
`
`construction; and (2) whether the term “the” must appear before “[back]buffer” as set forth in the
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`patent. With respect to (1), Plaintiff’s (new) construction merely repeats the word “storing”
`
`without explaining what it means, and adds an incomplete definition of the terms “backbuffer”
`
`and “buffer.” (See D.I. 53 at 10-11.) Defendants’ construction, in contrast, is consistent with the
`
`specification, which describes that images are stored or placed in the backbuffer by
`
`“temporar[ily] draw[ing]” into a backbuffer located “within the physical RAM memory of the
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`video or graphics acceleration card.” (’096 patent, 6:40-47.) No other description of how to
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`“store” or place images in the backbuffer is described in the specification.
`
`
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`Defendants’ construction is the proper construction. It provides guidance to the jury as to
`
`what the “storage” step means, does not introduce unclaimed non-image related “data” into the
`
`asserted claims, and is consistent with the plain meaning of the claim and other terms’
`
`constructions. Thus, Defendants’ construction should be adopted.
`
`F.
`
`“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
`
`Plaintiff’s NEWLY
`PROPOSED Construction
`
`Defendants’
`Construction
`
`“coordinates”: the set(s) of
`coordinate values calculated
`for each claimed coordinate
`type (“spatial,” “position,”
`“view position,” etc.)
`
`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
`
`8
`
`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 12 of 21 PageID #: 599
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`Plaintiff’s Construction
`
`Plaintiff’s NEWLY
`PROPOSED Construction
`
`Defendants’
`Construction
`
`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.
`
`
`
`Plaintiff also proposes a new construction for this term in its opening brief. The new
`
`construction differs materially from its position in the Joint Claim Construction Chart.
`
`Defendants’ proposed construction takes into account the common understanding that Cartesian
`
`“coordinates” take the familiar form of (x, y) for two dimensions, and (x, y, z) for three
`
`dimensions. D.I. 54, Ex. 5, Microsoft Computer Dictionary (2002).
`
`Plaintiff’s new proposal, on the other hand, merely repeats the word “coordinate” and
`
`purports to differentiate between “coordinate type.” Plaintiff does not explain the difference
`
`between each of its purported “coordinate types” – “spatial,” “position,” and “view position.”
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`Instead, Plaintiff points to a phrase in the specification – “vectorial coordinates,” and claims that
`
`such coordinates could be expressed “in one way” as “OP = v1i + v2j + v3k.” (D.I. 52 at 12-13.)
`
`But “vectorial coordinates” do not appear in any asserted claim, and vectorial coordinates are not
`
`expressed in that or any other format anywhere in the patents-in-suit.4 Instead, the multitude of
`
`
`4
`Plaintiff confusingly cites to Figure 3 of the patents-in-suit, which shows three examples
`of (x,y,z) coordinates, rather than the equation cited by Plaintiff.
`
`9
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`

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`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 13 of 21 PageID #: 600
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`examples of coordinates set forth in the specification are provided in Cartesian (x, y, z) format.5
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`
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`Plaintiff’s only remaining argument – that “claim differentiation” requires different
`
`definitions for each “coordinate type” – is inapplicable here, where the terms are used
`
`interchangeably. See Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1328 (Fed. Cir.
`
`2009) (construing “graft,” “graft structure,” “bifurcated base structure,” and “bifurcated base
`
`graft structure” to have the same meaning because they were used interchangeably in the
`
`specification and claims). As explained in Defendants’ opening brief, each “coordinate type”
`
`refers to the same thing – a set of points within a three dimensional (x, y, z) coordinate system.
`
`Thus, Plaintiff’s construction should be rejected and Defendants’ construction adopted.
`
`G.
`
`“frontbuffer” (’096, claim 14)
`
`Plaintiff’s Construction
`
`Plaintiff’s NEWLY
`PROPOSED Construction
`
`Defendants’ Construction
`
`a memory location where an
`image to be displayed may
`be “drawn”
`
`a memory location where an
`image to be displayed may
`be temporarily stored
`
`a memory
`outputting an
`display
`
`location
`image
`to
`
`for
`the
`
`Defendants’ construction is supported by the intrinsic evidence as it would be understood
`
`by a person of ordinary skill in the art. The specification states that a “frontbuffer” is a “screen
`
`output buffer.” (’096 patent, 10:4-6.) Plaintiff’s new construction, on the other hand, ignores the
`
`specification’s disclosure, and ignores the differences between two distinct types of buffers – a
`
`frontbuffer and a backbuffer. In fact, there is no meaningful difference between Plaintiff’s new
`
`construction for “frontbuffer” and its new construction for “backbuffer” – “a memory location
`
`5
`(See ’096 patent at Abstract (“xyz coordinates”), Fig. 8 (“get TDVision xyz
`coordinates”), 4:6-7 (“xyz coordinates”), 4:4-41 (“xyz coordinates”), 12:17-18 (“spatial
`coordinates (x,y,z)”), 12:48 (“first coordinates (Xp, Yp, Zp)”), 12:54-56 (“coordinates of the
`secondary camera observing the same objective point, i.e., (Xs, Ys, Zs)”), 12:57-58 (“coordinates
`of the primary camera in the original coordinate system (Xp, Yp, Zp)”), 12:59 (“objective’s
`coordinates (xt, yt, zt)”), 12:63-64 (“coordinates for the primary camera are taken to the (0, ys, 0)
`position”), 13:16 (“XsyZs coordinates”), 13:18-19 (“final coordinates point (Xs, Yp, Zs)”).)
`
`10
`
`

`

`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 14 of 21 PageID #: 601
`
`for the temporary storage of an image” (frontbuffer) vs. “a memory location where an image to
`
`be displayed may be temporarily stored” (backbuffer). But as the specification explains,
`
`“frontbuffers” are buffers that are used to display images, while “backbuffers” are not connected
`
`to a display output. (’096 patent, 10:4-6; Fig. 4b (“Information display in right frontbuffer”).)
`
`Plaintiff’s construction fails to capture this difference, and would confuse the jury into thinking
`
`frontbuffers and backbuffers are interchangeable. As Defendants’ construction properly reflects
`
`the difference between these two types of buffers, it should be adopted.
`
`H.
`
`“with a processor” terms (’218, claims 1, 7)
`
`Plaintiff’s Construction
`
`The claim limitations do
`not recite a “means for”
`or “means plus” claim
`limitation.
` A “means”
`limitation is not invoked.
`
`Plaintiff’s NEWLY
`PROPOSED Construction
`
`that a
`the Court finds
`If
`was
`“means”
`limitation
`invoked, Plaintiff proposes the
`following constructions:
`
`Claim 1 – Structure:
`for
`A videogame
`system
`displaying
`three-dimensional
`images, with a processor of
`the videogame system that is
`capable
`of
`calculating
`coordinate equations at least
`by means of
`the usual
`coordinate
`transform
`(See
`equations.
`the
`‘218
`Patent, Claim 1, col. 13: 44-
`55. See also, col. 11: 46-47.)
`
`Claim 1 – Function:
`Using a videogame system
`processor to calculate second
`position coordinates of a
`second eye view of an object
`in
`three-dimensional
`space
`using
`the calculated
`first
`position coordinates of
`the
`
`Defendants’ Construction
`
`Subject to means plus function
`under applicable case law.
`
`Structure: processor employing
`the algorithm ‘SETXYZTDV( )
`)’ as disclosed
`in columns
`12:17-13:25.
`
`Function (claim 1): calculating
`second position coordinates of a
`second eye view of the object in
`three dimensional space using
`the calculated
`first position
`coordinates of the first eye view
`
`Function (claim 7): calculating
`second spatial coordinates of a
`second eye view of the virtual
`object in the videogame in three
`dimensional space by coordinate
`transformation equations using
`the calculated
`first position
`coordinates of the first eye view
`and the position of the virtual
`object in the videogame
`
`11
`
`

`

`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 15 of 21 PageID #: 602
`
`Defendants’ Construction
`
`Plaintiff’s Construction
`
`Plaintiff’s NEWLY
`PROPOSED Construction
`first eye view of the object in
`three-dimensional space.
`
`Claim 7 – Structure:
`for
`A videogame
`system
`displaying
`three-dimensional
`images, with a processor of
`the videogame system that is
`capable
`of
`calculating
`coordinate equations at least
`by means of
`the usual
`coordinate
`transform
`(See
`equations.
`the
`‘218
`Patent, Claim 7, col. 14: 18-
`31. See also, col. 11: 46-47.)
`
`Claim 7 – Function:
`Using a videogame system
`processor to calculate second
`spatial coordinates of a second
`eye view of a virtual object in
`the videogame
`in
`three-
`dimensional
`space
`by
`coordinate
`transformation
`equations using the calculated
`first position coordinates of
`the first eye view and the
`position of the virtual object
`in the videogame.
`
`Plaintiff now, for the first time, offers function and structure for the claim elements.
`
`Thus, the parties are left with two primary disputes: (1) whether the claims invoke 35 U.S.C. §
`
`112 ¶ 6 and, if so, (2) the appropriate construction for these terms, particularly as to the
`
`“structure” claimed.6 Notably, Plaintiff does not provide any argument that the claims are not, in
`
`
`6
`The Parties appear to agree generally on the construction of the function, with the
`exception of Plaintiff’s preamble of “using a videogame system processor to . . .” and the
`addition of the phrase “of the object in three-dimensional space” at the end of the function for
`Claim 1.
`
`12
`
`

`

`Case 1:17-cv-00386-VAC-CJB Document 57 Filed 05/18/18 Page 16 of 21 PageID #: 603
`
`fact, subject to means-plus-function treatment under 35 U.S.C. § 112 ¶ 6.7 Rather, it now argues
`
`primarily in support of its own purported “construction,” that effectively eviscerates the purpose
`
`underlying section 112 ¶ 6.
`
`As an initial matter, a “videogame system processor” itself cannot serve as a structure.
`
`EON Corp. IP Holdings LL