Case 1:17-cv-00386-VAC-CJB Document 59 Filed 05/18/18 Page 1 of 24 PageID #: 658
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Case No. 17-cv-386-VAC-CJB
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`TECHNO VIEW IP, INC.,
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`OCULUS VR, LLC, and
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`FACEBOOK, INC.,
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`Plaintiff,
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`v.
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`Defendants.
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`PLAINTIFF’S ANSWERING CLAIM CONSTRUCTION BRIEF
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`HARRY JERNIGAN CPA ATTORNEY, P.C.
`Michael K. Botts (Pro Hac Vice)
`5101 Cleveland Street, Suite 200
`Virginia Beach, VA 23462
`mbotts@hjlaw.com
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`Dated: May 18, 2018
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`O’KELLY ERNST & JOYCE, LLC
`Sean T. O’Kelly (No. 4349)
`Daniel P. Murray (No. 5785)
`901 N. Market Street, Suite 1000
`Wilmington, DE 19801
`(302) 778-4000
`(302) 295-2873 (facsimile)
`sokelly@oelegal.com
`dmurray@oelegal.com
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`Attorneys for Plaintiff Techno View IP, Inc.
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`i
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`Case 1:17-cv-00386-VAC-CJB Document 59 Filed 05/18/18 Page 2 of 24 PageID #: 659
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`TABLE OF CONTENTS
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`A. BUFFER RELATED CLAIM TERMS .................................................................................... 1
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`1. Introduction ............................................................................................................................ 1
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`2. “Buffer”................................................................................................................................... 1
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`3. “Backbuffer,” “Left Backbuffer,” and “Right Backbuffer” ................................................... 2
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`4. “Storing an Image [in a “Buffer” or “Backbuffer”]” and Whether the Claims Require the
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`Step of “Storing” to Occur Before the Step of “Determining” ................................................... 8
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`5. “Storing” .............................................................................................................................. 10
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`6. “Frontbuffer”........................................................................................................................ 12
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`B. NON-BUFFER RELATED CLAIM TERMS: ....................................................................... 12
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`1. “Videogame”........................................................................................................................ 12
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`2. “Coordinates” in Various Coordinate Systems .................................................................... 16
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`3. “With a Processor” ............................................................................................................... 18
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`ii
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`Case 1:17-cv-00386-VAC-CJB Document 59 Filed 05/18/18 Page 3 of 24 PageID #: 660
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`Cases
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`TABLE OF AUTHORITIES
`
`Altiris, Inc. v. Symantec Corp.,
`318 F.3d 1363 (Fed. Cir. 2003)................................................................................................... 8
`
`Epcon Gas Sys., Inc. v. Bauer Compressors, Inc.,
`279 F.3d 1022 (Fed. Cir. 2002)................................................................................................. 19
`
`Graphics Props. Holdings, Inc. v. ASUS Computer Int'l, Inc.,
`No. 12-CV-1394-LPS, 2014 WL 4929340 (D. Del. Sept. 29, 2014)........................................ 15
`
`Greenberg v. Ethicon Endo–Surgery, Inc.,
`91 F.3d 1580 (Fed. Cir. 1996)................................................................................................... 19
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`Hynix Semiconductor Inc. v. Toshiba Corp.,
`No. C-04-04708 VRW, 2006 WL 2547463 (N.D. Cal. Sept. 1, 2006) ....................................... 9
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`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004) ................................................................................................. 16
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`Martek Biosciences Corp. v. Nutrinova, Inc.,
`579 F.3d 1363 (Fed. Cir. 2009)................................................................................................. 14
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`Masco Corp. v. United States,
`303 F.3d 1316 (Fed. Cir. 2002)................................................................................................. 20
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`O.I. Corp. v. Tekmar Co. Inc.,
`115 F.3d 1576 (Fed. Cir. 1997)........................................................................................... 19, 20
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`Sage Prods., Inc. v. Devon Indus., Inc.,
`126 F.3d 1420 (Fed. Cir. 1997)................................................................................................. 19
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`Sinorgchem Co. v. Int’l Trade Comm’n,
`511 F.3d 1132 (Fed. Cir. 2007)................................................................................................. 14
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`York Prods., Inc. v. Central Tractor Farm & Family Ctr.,
`99 F.3d 1568 (Fed.Cir.1996)..................................................................................................... 19
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`Statutes
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`35 U.S.C. § 112 ............................................................................................................................. 19
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`Other Authorities
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`
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`MPEP 2173.05(e) ............................................................................................................................ 9
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`Case 1:17-cv-00386-VAC-CJB Document 59 Filed 05/18/18 Page 4 of 24 PageID #: 661
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`A. BUFFER RELATED CLAIM TERMS
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`1. Introduction
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`Defendants both misunderstand and misrepresent the meaning of the term “buffer” and
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`related buffer terms. Six of Defendants’ nine proposed constructions concern either a “buffer” or
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`related sub-types of buffers: 1) “left backbuffer;” 2) “right backbuffer;” 3) “left frontbuffer;” 4)
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`“right frontbuffer;” 5) “first buffer;” and 6) “second buffer.”
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`A “buffer” is a commonly understood term that has no special definition in the Asserted
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`Patents aside from the commonly understood definition. Plaintiff submits that one of ordinary
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`skill in the art at the time of the invention would have understood the term “buffer” to mean:
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`A region of memory reserved for use as an intermediate repository in which data is
`temporarily held while waiting to be transferred between two locations or devices.
`For instance, a buffer is used while transferring data from an application, such as a
`word processor, to an input/output device, such as a printer.1
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`“Backbuffers” and “frontbuffers” are subsets, or special cases, of the broader temporary
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`memory storage location known as “buffers.” The key difference between these terms is that a
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`“buffer” may store any type of data, whereas the data temporarily stored in “backbuffers” or
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`“frontbuffers” is limited to “image” data. After the programmer assigns a function for image
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`storage to a specific block of memory, that portion of memory may be used as “backbuffers” or
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`“frontbuffers.” The claims of the Asserted Patents only make sense with this distinction.
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`2. “Buffer”
`(See Defendants’ Initial Claim Construction Brief (“ICCB”), p. 18)
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`Defendants propose “buffer” to be construed in the ‘096 Patent, Claims 8-11, 13, 14, 16-
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`19; and ‘218 Patent, Claims 7, 8, and 11-13, each claiming “First” and “Second” “Buffers.”2
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`1 See Decl. of Michael Botts, Ex. A, Microsoft Computer Dictionary, Fifth Ed., Microsoft Press,
`2002, definition of “buffer.”
`2 See Section H of Defendants’ ICCB.
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`1
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`Defendants incorrectly conflate the terms “buffer,” “backbuffer” and “frontbuffer.” The
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`differences between these terms are expressly illustrated in the claims themselves, as well as in
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`the Specification. For example, in the ‘096 Patent, independent Claim 8 specifies “first and
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`second buffers,” and dependent Claim 13 further limits the “buffers” to be “backbuffers,” as
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`follows: “The method of claim 8, wherein the first and second buffers are backbuffers.”3
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`Clearly, the “buffers” of Claim 8 are not “backbuffers” until they are made so in Claim
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`13. Prior to the limitations of Claim 13, the “buffers” of Claim 8 are fully functional as
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`independent temporary storage locations for the data specified in the claim – an “image”
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`temporarily stored in the “first buffer” and the “second camera position view image” temporarily
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`stored in the “second buffer.”
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`The use of “frontbuffers” to store images received from “buffers” is similarly and clearly
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`specified in dependent Claim 14, which specifically limits independent Claim 8 as follows:
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`“The method of claim 8, wherein simultaneously displaying the images in the first
`and second buffers comprises storing the images in the first and second buffers
`to first and second frontbuffers, and wherein the images in the first and second
`frontbuffers are simultaneously displayed to the user.”4
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`Defendants incorrectly limit a “buffer” to being construed as either a Backbuffer or a
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`Frontbuffer. Defendants’ construction is contrary to the claims language and should be rejected.
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`Plaintiff’s construction is consistent with the accepted definition and the use of a “buffer” in the
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`context of the claims and specification, and is both technically and contextually correct:
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`A memory location where data may be temporarily stored.
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`3. “Backbuffer,” “Left Backbuffer,” and “Right Backbuffer”
`(See Defendants’ ICCB, p. 4)
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`Defendants propose to construe a “backbuffer” as it is defined in a section of the Patents
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`3 See ‘096 Patent, Claim 13
`4 See ‘096 Patent, Claim 14 (emphasis added).
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`2
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`Specification, and the parties originally agreed on the definition, as follows: “A memory location
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`where the image to be displayed is temporarily ‘drawn’ without outputting it to the video card.”5
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`It is apparent, however, that while the parties agree on the words they have disagreement on what
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`the words actually mean. The context in which the term is described is important:
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`A backbuffer is used, which is a memory location where the image to be
`displayed is temporarily “drawn” without outputting it to the video card. If this is
`done directly on the video memory screen, a flicker on the screen would be
`observed; therefore the information is drawn and processed quickly in the
`backbuffer. This backbuffer is usually located within the physical RAM memory
`of the video or graphics acceleration card.6
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`First, while this reference for backbuffer specifies a memory location where an image is
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`drawn “without outputting it to the video card,” the reference itself makes clear that this is not
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`true in every instance. As the last sentence in the quote clearly states, the backbuffer is “usually
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`located within the ... memory of the video or graphics acceleration card.” Obviously, an image
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`cannot be output to something – the video card – when it is already located on the video card.
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`Also, Defendants do not acknowledge that a “backbuffer” or a “frontbuffer” are areas of
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`memory allocated from a “buffer.” The Specification clearly states: “Load characters, objects,
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`textures and sounds into memory. Create a memory location for temporary processing, called
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`doublebuffer or backbuffer.”7 The load instruction shows that several types of data are stored
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`in the memory. The create instruction is well known as a command to allocate a portion of
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`memory for a specific function, such as a doublebuffer or backbuffer.
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`In an effort towards agreement between the Parties on the meaning of the Specification’s
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`definition of “backbuffer,” Plaintiff has offered construction of the term as follows:
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`A memory location for the temporary storage of an image.
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`5 See ‘096 Patent, col. 6: 40-45, and ‘218 Patent, col. 6: 40-45.
`6 ‘096 Patent, col. 6:40-47.
`7 ‘096 Patent, Col. 6:51-53 (emphasis added).
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`3
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`Plaintiff’s construction is consistent with the Asserted Patents’ use of the term and with
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`the distinctions between a “backbuffer” (or “frontbuffer”) and a “buffer.” Plaintiff respectfully
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`submits this construction to the Court.
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`Defendants also propose faulty constructions for the terms “left backbuffer” and “right
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`backbuffer” in the following claims: ‘096 Patent Claims 1, 2, 3, 6, and 7; and ‘218 Patent
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`Claims 1 and 6.8 Defendants’ proposed construction of both left and right backbuffers is as
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`follows: “backbuffers that are separate from each other such that left and right independent
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`images could be generated and stored therein.”
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`This construction is flawed for several reasons. First, it introduces the limitation that
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`independent images could both be “generated” and stored in the same location. There is no basis
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`for the limitation of the images being “generated” in the backbuffers. Indeed, there is no context
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`whatsoever in the Specification for using the term “generated” in such a construction. The terms
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`“generated” and “generating” do appear in the ‘096 and ‘218 Patent Specifications, but nowhere
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`with regard to images being created in the backbuffers. Moreover, Defendants’ construction is
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`not a definition at all, but rather a description of a particular characteristic of some as yet
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`unknown definition.
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`Claim 6, for example, of the ‘096 Patent specifies a limitation of the element,
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`“simultaneously displaying”, of independent Claim 1, wherein the images in the left and right
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`backbuffers “comprises generating left and right images on different video channels.”9 In Claim
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`6, the images already exist and are being temporarily stored in the left and right backbuffers to be
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`8 See Section B of Defendants’ ICCB.
`9 See ‘096 Patent, Claim 6, quoted in full: “The method according to claim 1, wherein
`simultaneously displaying the images in the left and right backbuffers comprises generating left
`and right images on different video channels.”
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`later simultaneously displayed by “generating” or sending them to the display via “different
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`video channels.” ‘096 Patent Claim 7, which depends from Claim 6, similarly does not claim
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`“generating images”, but rather increasing the backbuffer memory prior to “generating the left
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`and right images on different video channels.”10 Defendants alternatively propose separate
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`constructions for “left” and “right” “backbuffers” that eliminate the “generating” limitation,11 but
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`retain the flaw of the “separate” limitation, discussed below.
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`A second flaw in Defendants’ proposed construction is that the backbuffers “are separate
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`from each other.” This limitation on the claim element is vague and ambiguous. It is vague
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`because it relies and acts upon an unknown definition of what a backbuffer actually is. The
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`phrase “separate from each other” does not appear as a claim limitation, and it is not mentioned
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`in the Specifications of either Asserted Patent.
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`Defendants’ proposed construction that backbuffers are “separate from either other” is
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`also inherently ambiguous limitation. Are the backbuffers in different physical memory
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`locations on the same memory circuit, or are they totally different circuits? Or do Defendants
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`mean the backbuffers are merely programmatically separated? We cannot know based on their
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`construction. A videogame system may be configured with only internal memory or it may have
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`external memory boards. Also, memory may be allocated temporally wherein the same physical
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`location has different uses at different cycles of the processor.
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`It is true that two existent backbuffers, left and right, must inherently be “different” -
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`unique memory locations - because they are separately identified claim elements. However,
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`Defendants appear to intend a further limitation by imposing the limitation that the two
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`10 See ‘096 Patent, Claim 6, quoted in full: “The method according to claim 6, further
`comprising increasing the left and right backbuffer memory prior to generating the left and right
`images on different video channels.”
`11 See Defendants’ ICCB, p. 4, fn 3.
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`backbuffers be physically “separate from each other,” which is supported neither by the
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`Prosecution History nor Defendants’ arguments. The word “separate” implies the buffers must
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`be physically or geographically separated. This is simply incorrect, as the backbuffers can
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`inhabit the same physical locations but be separated only in time for a particular programming
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`cycle. Defendants are confusing the concept of “different” backbuffers with a previously
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`undisclosed additional limitation that they are “separate,” and in a manner that is undefined.
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`In support of their “separate” limitation, Defendants cite to, but misrepresent, the
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`prosecution history of the ‘096 Patent. Defendants recite an interview summary in which the
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`Examiner notes the Applicant’s argument that a cited reference, Engstrom, failed to teach two
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`backbuffers because, although it had two backbuffers, they were connected and therefore not
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`able to contain two independent images as specified in the application.12 Defendants erroneously
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`conclude from this terse summary by the Examiner: “the separateness of the backbuffers was a
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`critical basis for the applicant’s attempt to distinguish Engstrom.”13 This is wrong.
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`In its entirety, the interview summary shows the normal back-and-forth discussions
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`between Applicant’s attorney and Examiner:
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`Applicants argued that the two back buffers disclosed in Engstrom were connected and
`not separate therefrom such that to 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. Applicants described the invention as providing images in the left
`backbuffer only for 2-D views and providing left images in the left backbuffer for left eye
`3-D views and right images in the right backbuffer for right eye 3-D views . . . .14
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`The Examiner believed that two connected backbuffers that could transfer data between
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`each location should be considered independent buffers.
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`12 See Defendants’ ICCB, p. 4, quoting the Examiner’s Interview Summary, dated Sept. 18,
`2009.
`13 See Defendants’ ICCB, p. 5.
`14 See Defendants’ ICCB, Exhibit 3.
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`Defendants further impugn Plaintiff by baselessly asserting: “In an attempt to improperly
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`expand the scope of the claim terms, Plaintiff seeks to run away from those narrowing
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`statements.”15 Defendants accuse Plaintiff of wrongdoing by “improperly expand[ing] the scope
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`of the claim terms.” However, during prosecution, the Applicant distinguished the Engstrom
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`reference because it did not have two buffers capable of storing independent images.16 All of the
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`backbuffer-related three-dimensional image claims require left and right backbuffers temporarily
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`storing different images. Defendants’ accusations of wrongdoing against Plaintiff are
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`unfounded. Now, as always, Plaintiff maintains that the backbuffers required a “left backbuffer”
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`and a “right backbuffer” to temporarily store images to be eventually displayed to a user.
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`Defendants also misrepresent the prosecution history record by failing to tell the Court
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`that in the Reasons for Allowance, the Examiner agreed with the Applicant’s argument, stating
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`that Engstrom, in combination with other prior art references, failed to teach or make obvious a
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`method whereby it is determined that an image is in two-dimensions or three-dimensions, and
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`when in three-dimensions, different images are stored on different backbuffers.17
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`Defendants’ proposed claim construction baselessly specifies that images be “generated”
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`in the “left backbuffer” and the “right backbuffer,” and needlessly adds an ambiguous limitation
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`15 See Defendants’ ICCB, p. 4.
`16 See Defendants’ ICCB, Exhibit 3: “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.”
`17 See Declaration of Michael Botts, Exhibit B, Examiner’s Interview Summary (October 29,
`2009), Allowance, and Reasons for Allowance, p. 2, recorded November 18, 2009, stating in
`relevant part: “The closest prior art for the features of the claimed invention are Alamparambil
`... Engstrom ... Naske ... and Bar-Nahum.... However [the combined prior art references] does
`not disclose an apparatus and a method of operating the apparatus that determines when an
`image is in two-dimensional or three-dimensional format, an image stored in a left backbuffer is
`is [sic] displayed onto at least one display, and when the image is in three-dimensional format,
`coordinates of an image in a second view position is calculated and the image is stored in a right
`backbuffer so as to simultaneously display the images of the left and right backbuffers onto a
`least on display creating a three-dimensional perspective of the image to a user.”
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`that they be “separate” from each other. This Court should deny the proposed construction.
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`Plaintiff’s constructions below are consistent with the fact that backbuffers are buffers
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`that store images, and that left and right backbuffers temporarily store left and right images:
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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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`4. “Storing an Image [in a “Buffer” or “Backbuffer”]” and Whether the Claims Require
`the Step of “Storing” to Occur Before the Step of “Determining”
`(See Defendants’ ICCB, p. 6-11)
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`Defendants propose the term “storing an image” to be construed in the following claims:
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`‘096 Patent, independent Claims 1, 8, and 16; and, ‘218 Patent, independent Claims 1, 7, and 12.
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`Defendants seek to have this Court construe that the claim step of “determining” whether an
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`image is in 2D or 3D format must occur temporally after the step of “storing the image.” For the
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`reasons stated below, Plaintiff maintains that the “determining step” is not required to follow the
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`claim elements preceding it. In relevant part, ‘096 Claim 1 specifies:
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`[a] clearing left and right backbuffers in the videogame system;
`[b] storing an image into the left backbuffer;
`[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;
`[d] displaying the image stored in the left backbuffer onto one or more displays when
`the image is in a two-dimensional format; and simultaneously displaying the images
`stored in the left and right backbuffers onto the one or more displays to create a three
`dimensional perspective of the image to a user when the image is in a three-dimensional
`format.18
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`Defendants recite portions of the test set out in Altiris, noting that “the first step is to
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`‘determine if, as a matter of logic or grammar, they must be performed in the order written.’”19
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`18 ‘096 Patent, Claim 1 (emphasis added).
`19 Dkt. 53, p. 6 (citing Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369 (Fed. Cir. 2003)).
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`Defendants then state that “there is no need to proceed beyond the first step.”20 However,
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`Defendants are relying solely on the antecedent basis language without considering the entirety
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`of the claim.
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`First, the cases cited to by the Defendants all have other language that clearly limits the
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`order. For example, in Hynix, the steps at issue clearly spelled out the forming of a polysilicon
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`film, and then depositing something onto that polysilicon film: “step b: ‘annealing said silicon
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`film to form a polysilicon film …;’ step c: ‘depositing a … film on said polysilicon film …’”21
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`There, the antecedent basis clearly limited the order. That is not the case with the present
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`“storing” and “determining” steps. While the “determining” step does refer to “the image,”
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`and the “storing” step does refer to “an image,” this is merely done to satisfy the antecedent basis
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`requirements when an element is referred to in a later claim limitation. Because one claim
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`limitation had to be written first, and the other written second, one of them must use the “an
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`image” language, while the other uses of “the image.”22
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`When the patentee wished to specify a particular order, the patentee used language that
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`clearly indicated such was required. For example, the claim limitation - [d] - immediately
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`following the “determining” step reads, in part, “displaying the image stored in the left
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`backbuffer …” (emphasis added). This was deliberate. Much like in Hynix, the displaying step
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`clearly must follow the storing step, as evidenced by the antecedent basis and the other language
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`describing the “image.” By contrast, the determining – [c] -step does not indicate whether the
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`image being determined was the one stored in the left backbuffer.
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`Defendants further point to Figure 4b in the Specification to demonstrate their contention
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`20 Dkt. 53, p. 7.
`21 Hynix Semiconductor Inc. v. Toshiba Corp., No. C-04-04708 VRW, 2006 WL 2547463, at *6
`(N.D. Cal. Sept. 1, 2006) (emphasis added).
`22 See MPEP 2173.05(e).
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`that the claim elements must be followed in order; however, and as Defendants themselves aver,
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`this flowchart describes merely “an embodiment of the alleged invention.”23
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`Since Defendants have failed to meet their burden of proof, Plaintiff’s construction
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`should be adopted, as follows:
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`The steps do not have to be performed in the order recited.
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`5. “Storing”
`(See Defendants’ ICCB, p. 10)
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`Defendants consider the perceived issue as follows: “Here, the primary disputes between
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`the parties are (1) whether the term ‘storing’ requires construction and (2) whether the term ‘the’
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`must appear before the term ‘[back]buffer’ as set forth in the patent.”24 Defendants’ propose the
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`following construction for “Storing”: “temporarily “drawing” an image into the
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`[back]buffer.”25 Defendants’ construction contains an undefined term, in quotation marks,
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`thereby indicating that it has a particular meaning, which Defendants’ fail to specify. Plaintiff
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`submits that Defendants’ proposed construction should be denied because it is undefined, vague,
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`and more confusing than the term it claims to construe – “storing” data to a buffer memory
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`location.
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`Defendants also confuse the use of the term “[back]buffer.” In an attempt to remedy this
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`confusion, Plaintiff offered its alternative constructions in its Opening Claim Construction
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`Brief,26 and in this Responsive Brief. Defendants’ confusion is caused by conflating “buffers”
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`with “backbuffers.” The quoted step is more accurately read: “storing an image into the
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`backbuffer,” because backbuffers only store a special type of data - images.
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`23 See Dkt 53, page 9, line 2.
`24 See Defendants’ ICCB, p. 10.
`25 See Defendants’ICCB, p. 10.
`26 See Plaintiff’s Opening Claim Construction Brief, Doc. 52, pp. 1-2, 4-5, 7-10, and 15-16.
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`Case 1:17-cv-00386-VAC-CJB Document 59 Filed 05/18/18 Page 14 of 24 PageID #: 671
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`Plaintiff submits that the term “storing,” in context of the claim limitations, is abundantly
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`clear to one of ordinary skill in the art at the time of the invention. But in the context of the
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`claims, the “storing” step is always paired with what is to be stored; e.g., an “image,” a “second
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`view position image,”27 a “videogame image,” a “second camera position view image,”28 a “first
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`eye view image” and a “second eye view image.”29 Also, in context of the claim limitations, the
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`“storing” step always identifies where the specified items are to be stored – left and right
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`backbuffers,30 first and second buffers,31 and first and second frontbuffers.32 Hence, in the
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`context of the claims, the “storing” step is complete and clearly stated.
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`Defendants argue that the action of “storing” data on a memory buffer requires
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`construction. In Defendants’ Initial Brief, they cite the Microsoft Computer Dictionary as
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`acceptable extrinsic evidence for the construction of the term “Cartesian coordinates.”33 If
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`Defendants had also looked up the accepted definition for “buffer storage”, they would have
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`discovered the definition: “buffer storage n. 1. The use of a special area in memory to hold data
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`temporarily for processing until a program or operating system is ready to deal with it.”34
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`Plaintiffs respectfully submit that the term “storage” of data onto a buffer is clearly understood
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`even by a layperson, and would have also been clearly understood by one of ordinary skill in the
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`art at the time of the invention, consistent with the 2002 Microsoft Computer Dictionary, and
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`therefore the term needs no construction.
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`27 See ‘096 Patent, independent Claim 1.
`28 See ‘096 Patent, independent Claims 8, 15, and 16.
`29 See ‘218 Patent, independent Claims 1, 7, and 16.
`30 See ‘096 Patent, independent Claim 1; and ‘218 Patent, independent Claims 1
`31 See ‘096 Patent, independent Claims 8, 15, and 16; and ‘218 Patent, independent Claims, 7
`and 8.
`32 See ‘096 Patent, Claim 14.
`33 See Defendants’ ICCB, p. 12, referencing Exhibit 5 thereto.
`34 See Declaration of Michael Botts, Exhibit A, Microsoft Computer Dictionary, Fifth Ed., 2002,
`“buffer storage.”
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`Case 1:17-cv-00386-VAC-CJB Document 59 Filed 05/18/18 Page 15 of 24 PageID #: 672
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`If a “storing” construction is deemed necessary, this Court should adopt Plaintiff’s
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`construction, which identifies the contextual elements of “storing” data in the context of the
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`claims – what is stored (claimed data or an image), where it is stored (i.e., a memory location
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`identified in the claims as either a buffer or a backbuffer), and how long it is stored
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`(temporarily). Plaintiff’s construction accounts for these variables as follows:
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`Temporarily moving data or an image into a memory location.
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`6. “Frontbuffer”
`(See Defendants’ ICCB, p. 13)
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`Defendants propose that the term “frontbuffer” requires construction in the ‘096 Patent.
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`Claim 14 is instructive, which states as follows:
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`The method of claim 8, wherein simultaneously displaying the images in the first and
`second buffers comprises storing the images in the first and second buffers to first and
`second frontbuffers, and wherein the images in the first and second frontbuffers are
`simultaneously displayed to the user.35
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`It should be noted in Claim 14, and in the independent claim from which it depends, the
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`claims specify a “first buffer” and a “second buffer.” Both the first and second “buffers” then
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`store images in “first and second frontbuffers.” Defendants’ proposed construction fails to
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`include the characteristic of a buffer as “temporary” storage, instead proposing: “a memory
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`location for outputting an image to the display.” At least because Defendants’ proposed
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`construction is incomplete, it should be denied. Plaintiff’s construction incorporates the
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`temporary storage characteristic, as follows:
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`
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`A memory location where an image to be displayed may be temporarily stored.
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`B. NON-BUFFER RELATED CLAIM TERMS:
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`1. “Videogame”
`(See Defendants’ ICCB, p. 2)
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`35 ‘096 Patent, Claim 14.
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