Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 1 of 79 PageID #: 4948
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
`
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` CASE NO. 2:12-CV-832-JRG-RSP
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` CASE NO. 2:13-CV-258-JRG-RSP
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` CASE NO. 2:13-CV-259-JRG-RSP
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`§§§§§§§§§§§§§§§§§§§§§§§
`
`
`MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC,
`
`v.
`
`SPRINT NEXTEL CORP.
`___________________________________
`
`MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC,
`
`v.
`
`APPLE INC.
`___________________________________
`
`MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC,
`
`v.
`
`SAMSUNG TELECOMMUNICATIONS
`AMERICA, LLC.
`
`
`
`CLAIM CONSTRUCTION
`MEMORANDUM AND ORDER
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`
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`On March 7, 2014, the Court held a hearing to determine the proper construction of the
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`disputed claim terms in United States Patents No. 5,590,403, 5,659,891, 5,754,946, 5,786,748,
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`5,809,428, 5,894,506, and 5,915,210. After considering the arguments made by the parties at the
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`hearing and in the parties’ claim construction briefing (Dkt. Nos. 107-2, 110, and 115),1 the
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`Court issues this Claim Construction Memorandum and Order.
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`
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`1 Citations to documents (such as the parties’ briefs and exhibits) in this Claim Construction
`Memorandum and Order shall refer to the page numbers of the original documents rather than
`the page numbers assigned by the Court’s electronic docket. Also, citations are to Civil Action
`No. 2:12-CV-832 unless otherwise indicated.
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`APPLE 1008
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 2 of 79 PageID #: 4949
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`Table of Contents
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`BACKGROUND ........................................................................................................................... 4 
`LEGAL PRINCIPLES ................................................................................................................. 4 
`THE PARTIES’ STIPULATED TERMS ................................................................................... 6 
`CONSTRUCTION OF DISPUTED TERMS ............................................................................. 7 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,590,403 ..................... 8 
`A. “transmitter[s]” and “base transmitter[s]” ............................................................................ 9 
`B. “set[s] of transmitters” and “set of base transmitters” ........................................................ 10 
`C. “transmit . . . in simulcast,” “transmitted . . . in simulcast,” and “transmitting . . . in
`simulcast” ............................................................................................................................ 15 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,659,891 ................... 16 
`A. “paging carrier” and “paging system” ................................................................................ 16 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,754,946 ................... 19 
`A. “switch actuatable,” “only upon actuation of the switch,” and “only upon receipt of the
`indication” ........................................................................................................................... 20 
`B. “a portion of the displayed message,” “a portion of a displayed message,” and “a
`portion of the message” ...................................................................................................... 21 
`C. “means for retransmitting . . .” and “means for transmitting . . .” ...................................... 25 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,786,748 ................... 32 
`A. “wireless page message,” “page number,” and “paging operations center” ....................... 33 
`B. “notifying recipient that the express mailing has not been delivered by the appointed
`time” .................................................................................................................................... 36 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,809,428 ................... 38 
`A. “network operation(s) center” ............................................................................................. 38 
`B. “probe message” .................................................................................................................. 43 
`C. “means for determining whether an acknowledgment message is an acknowledgment
`to a data message or an acknowledgment to a probe message” .......................................... 48 
`D. “means for generating, upon power restoration to the transmitter, a registration
`message if a probe message has been received while the transmitter was powered off,
`said registration message being transmitted by said transmitter” ....................................... 56 
`E. “means for powering the transmitter on and off” ................................................................ 61 
`F. Additional Means-Plus-Function Terms ............................................................................. 61 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,894,506 ................... 64 
`A. “canned message” and “canned multiple response options” .............................................. 65 
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`B. “message code” and “response code” ................................................................................. 71 
`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,915,210 ................... 74 
`CONCLUSION ........................................................................................................................... 74 
`APPENDIX A .............................................................................................................................. 76 
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 4 of 79 PageID #: 4951
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`BACKGROUND
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`
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`Plaintiff brings suit alleging infringement of United States Patents No. 5,590,403 (“the
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`‘403 Patent”), 5,659,891 (“the ‘891 Patent”), 5,754,946 (the ‘946 Patent”), 5,786,748 (“the ‘748
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`Patent”), 5,809,428 (“the ‘428 Patent”), 5,894,506 (“the ‘506 Patent”), and 5,915,210 (“the ‘210
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`Patent”) (collectively, the “patents-in-suit”). In general, the patents-in-suit relate to wireless
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`messaging systems. The Court addresses each patent-in-suit separately herein.
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`
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`Plaintiff asserts all of the patents-in-suit against Defendant Apple Inc. Plaintiff asserts
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`only the ‘946 Patent, the ‘428 Patent, and the ‘506 Patent against Defendant Samsung
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`Telecommunications America, LLC. For convenience, even as to patents that are asserted only
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`against Defendant Apple Inc., the Court refers to the positions and arguments of “Defendants.”
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`LEGAL PRINCIPLES
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`
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,
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`Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start
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`by considering the intrinsic evidence. See id. at 1313; see also C.R. Bard, Inc. v. U.S. Surgical
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`Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns
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`Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims
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`themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R.
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`Bard, 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as
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`understood by one of ordinary skill in the art at the time of the invention in the context of the
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`entire patent. Phillips, 415 F.3d at 1312-13; accord Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d
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`1361, 1368 (Fed. Cir. 2003).
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`
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`The claims themselves provide substantial guidance in determining the meaning of
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`particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
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`can be very instructive. Id. Other asserted or unasserted claims can aid in determining the
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`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
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`Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
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`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
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`the independent claim does not include the limitation. Id. at 1314-15.
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`
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
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`at 1315 (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en
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`banc)). “[T]he specification ‘is always highly relevant to the claim construction analysis.
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`Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’” Phillips,
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`415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir.
`
`1996)); accord Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This
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`is true because a patentee may define his own terms, give a claim term a different meaning than
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`the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d
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`at 1316. In these situations, the inventor’s lexicography governs. Id. The specification may also
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`resolve the meaning of ambiguous claim terms “where the ordinary and accustomed meaning of
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`the words used in the claims lack sufficient clarity to permit the scope of the claim to be
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`ascertained from the words alone.” Teleflex, 299 F.3d at 1325. But, “[a]lthough the
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`specification may aid the court in interpreting the meaning of disputed claim language, particular
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`embodiments and examples appearing in the specification will not generally be read into the
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`claims.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998)
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 6 of 79 PageID #: 4953
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`(quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988));
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`accord Phillips, 415 F.3d at 1323.
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`
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`The prosecution history is another tool to supply the proper context for claim
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`construction because a patent applicant may also define a term in prosecuting the patent. Home
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`Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`specification, a patent applicant may define a term in prosecuting a patent.”). “[T]he prosecution
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`history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that
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`may have been disclaimed or disavowed during prosecution in order to obtain claim allowance.”
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`Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985).
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`
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`Although extrinsic evidence can be useful, it is “less significant than the intrinsic record
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`in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317
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`(citations and internal quotation marks omitted). Technical dictionaries and treatises may help a
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`court understand the underlying technology and the manner in which one skilled in the art might
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`use claim terms, but technical dictionaries and treatises may provide definitions that are too
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`broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly,
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`expert testimony may aid a court in understanding the underlying technology and determining
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`the particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
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`assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`THE PARTIES’ STIPULATED TERMS
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`The parties have reached agreement on constructions for certain terms, as stated in their
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`Joint Claim Construction and Prehearing Statement (Dkt. No. 72 at Ex. A), their briefing (see,
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`e.g., Dkt. No. 107 at App’x 1), their Joint Claim Construction Chart (Dkt. No. 116 at Ex. A), and
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`at the March 7, 2014 hearing. The parties’ agreements are set forth in Appendix A to this Claim
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`Construction Memorandum and Order.
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`CONSTRUCTION OF DISPUTED TERMS
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`
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`As a threshold matter, Plaintiff submits: “For several terms drafted in means-plus-
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`function format, Defendants dispute [Plaintiff’s] inclusion of ‘and equivalents’ into the identified
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`structure. It would be helpful to the jury to include this statutory phrase in each relevant
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`construction. It is also commonplace to include this phrase—Markman Orders often
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`acknowledge the statutory mandate of 35 U.S.C. §112.” Dkt. No. 107-2 at 30. In accordance
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`with this Court’s standard practice, the Court includes “equivalents” as part of the corresponding
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`structure for means-plus-function terms. See 35 U.S.C. § 112(f).
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`
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`The Court herein addresses the disputed terms on a patent-by-patent basis. Terms that
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`appear in more than one patent are noted accordingly but are not reproduced in multiple
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`discussion sections below. The parties’ briefing, as well as their arguments at the March 7, 2014
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`hearing, have indicated that the parties agree that disputed claim terms appearing in more than
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`one patent should be given the same meaning for all such patents.
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`
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`Finally, shortly before the start of the March 7, 2014 hearing, the Court provided the
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`parties with preliminary constructions of the disputed terms with the aim of focusing the parties’
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`arguments and facilitating discussion. Those preliminary constructions are set forth within the
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`discussion of each term, below.
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`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,590,403
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`
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`The ‘403 Patent is titled “Method and System for Efficiently Providing Two Way
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`Communication Between a Central Network and a Mobile Unit.” The ‘403 Patent issued on
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`December 31, 1996, and bears a filing date of November 12, 1992. In general, the ‘403 Patent
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`relates to dynamic reassignment of transmitters from one zone to another. The Abstract of the
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`‘403 Patent states:
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`A two-way communication system for communication between a system network
`and a mobile unit. The system network includes a plurality of base transmitters
`and base receivers included in the network. The base transmitters are divided into
`zonal assignments and broadcast in simulcast using multi-carrier modulation
`techniques. The system network controls the base transmitters to broadcast in
`simulcast during both systemwide and zonal time intervals. The system network
`dynamically alters zone boundaries to maximize information throughput. The
`preferred mobile unit includes a noise detector circuit to prevent unwanted
`transmissions. The system network further provides an adaptive registration
`feature for mobile units which controls the registration operations by the mobile
`units to maximize information throughput.
`
`The Court previously addressed the ‘403 Patent in Mobile Telecommunications
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`
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`Technologies, LLC v. Clearwire Corp., No. 2:12-CV-308-JRG-RSP, Dkt. No. 72, 2013 WL
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`3339050, at *2-*3 (E.D. Tex. July 1, 2013) (referred to as the “Clearwire Order” or simply
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`“Clearwire”).
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`A. “transmitter[s]” and “base transmitter[s]”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`No construction necessary; plain and ordinary
`meaning.
`
`
`“plain and ordinary meaning, with the
`understanding that the Court has rejected
`[Plaintiff’s] implication that transmitting
`multiple signals or outputs from a single
`structural unit can suffice as multiple
`transmitters”
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`Alternatively:
`“plain and ordinary meaning, with the
`understanding that transmitting multiple
`signals or outputs from a single structural unit
`cannot suffice as multiple transmitters”
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`
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`Dkt. No. 107-2 at 14; Dkt. No. 110 at 19; Dkt. No. 116, Ex. A at 23, 24 & 27. These terms
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`appear in Claims 1, 10, and 11 of the ‘403 Patent. These terms also appear in Claim 5 of the
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`‘891 Patent.
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`
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`In Clearwire, the Court construed the terms “transmitter” and “base transmitter” in the
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`‘403 Patent to have their plain and ordinary meaning. Clearwire, 2013 WL 3339050, at *2. The
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`Court also found:
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`Although the Court recognizes that claims 1 and 10 are method claims, a person
`of ordinary skill in the art would understand the terms “transmitter” and “base
`transmitter” to refer to a structural unit, and thus, the number of transmitters in a
`given system or method is dependent on structure, not function. . . . [T]he Court
`rejects [Plaintiff’s] implication that transmitting multiple signals or outputs from a
`single structural unit can suffice as multiple transmitters.
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`Id. (citing ‘403 Patent at 15:42-44). Nonetheless, the Court also “reject[ed] Clearwire’s
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`proposition that a ‘transmitter’ must be spatially separated or geographically dispersed from
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`other transmitters, because Clearwire has provided no evidence to support reading such a
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`limitation into the claims.” Id. at *3.
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`
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`Shortly before the start of the March 7, 2014 hearing, the Court provided the parties with
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`the following preliminary construction for these disputed terms: “Plain [meaning] ([e]xpressly
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`adopt the Clearwire findings but do not provide them to the jury as part of a constr[uction].” At
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`the March 7, 2014 hearing, all parties agreed to the Court adopting its preliminary construction,
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`including as to the ‘210 Patent, which at the hearing the parties submitted also uses the term
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`“transmitter[s].”
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`
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`The Court therefore hereby construes “transmitter[s]” and “base transmitter[s]” to
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`have their plain meaning. The Court further hereby adopts the above-quoted conclusions
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`reached in Clearwire and orders that at trial the parties shall not present any arguments
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`inconsistent with those conclusions.
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`B. “set[s] of transmitters” and “set of base transmitters”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`“set[s] of at least two [base] transmitters”
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`No construction
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`Alternatively:
`“one or more [base] transmitters”
`
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`Dkt. No. 107-2 at 17; Dkt. No. 110 at 20; Dkt. No. 116, Ex. A at 23. These terms appear in
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`Claims 1 and 10 of the ‘403 Patent.
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`
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`Clearwire construed “set of transmitters” to mean “a set of at least two transmitters” and
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`“set of base transmitters” to mean “a set of at least two base transmitters.” 2013 WL 3339050,
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`at *3. Shortly before the start of the March 7, 2014 hearing, the Court preliminarily proposed the
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`same constructions that the Court reached in Clearwire.
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`
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`(1) The Parties’ Positions
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`Plaintiff argues that Defendants’ proposal excludes the embodiment illustrated in
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`Figures 6 and 7 that “us[es] only a single transmitter in each set.” Dkt. No. 107-2 at 17. Plaintiff
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`also argues that the disputed terms “are used according to their plain and ordinary meaning to
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`indicate a logical grouping and not necessarily numerical limitation.” Id. at 18. Plaintiff cites a
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`dictionary definition of “set” as “a number of things of the same kind that belong or are used
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`together.” Dkt. No. 107, Ex. 6, Merriam Webster’s Collegiate Dictionary 1071 (10th ed. 1993).
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`Plaintiff further submits that Claim 10 separately recites a requirement of at least two base
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`transmitters by virtue of requiring simulcasting within each set of base transmitters. Id. at 19.
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`
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`Defendants respond that they are proposing the Clearwire construction. Dkt. No. 110
`
`at 20. Defendants also submit that the word “transmitters” is plural and that “there is not one
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`example in the [‘]403 Patent where a ‘set of transmitters’ consists of a single transmitter.” Id.
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`Defendants urge that Plaintiff misreads its relied-upon figures, namely Figures 6 and 7, which
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`Defendants argue use the word “transmitters,” plural, and illustrate multiple transmitters. Id.
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`Finally, Defendants argue that Plaintiff has improperly equated the words “set” and “zone.” Id.
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`at 20-21.
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`
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`Plaintiff replies: “A preferred embodiment of the ’403 Patent discloses that a single
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`transmitter meets the claim element ‘set of transmitters.’” Dkt. No. 115 at 6 (citing ‘403 Patent
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`at 10:50-54). Plaintiff “maintains that the proper course most consistent with the intrinsic record
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`may be to remove the numerosity requirement from the set of transmitters element, recognize that
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`‘set’ simply implies shared characteristics, and decline to construe the term which is non-
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`technical and will not confuse the jury.” Dkt. No. 115 at 6.
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`(2) Analysis
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`Claims 1 and 10 of the ‘403 Patent recite (emphasis added):
`
`1. A method for information transmission by a plurality of transmitters to provide
`broad communication capability over a region of space, the information
`transmission occurring during at least both a first time period and a second time
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`period and the plurality of transmitters being divided into at least a first and
`second set of transmitters, the method comprising the steps of:
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`(a) generating a system information signal which includes a plurality of
`blocks of information;
`
`(b) transmitting the system information signal to the plurality of
`transmitters;
`(c) transmitting by the first and second sets of transmitters a first block of
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`information in simulcast during the first time period;
`(d) transmitting by the first set of transmitters a second block of
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`information during the second time period; and
`(e) transmitting by the second set of transmitters a third block of
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`information during the second time period.
`
` *
`
` * *
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`10. A method of communicating messages between a plurality of base
`transmitters and mobile receivers within a region of space divided into a plurality
`of zones with each zone having at least one base transmitter assigned thereto, the
`communication method comprising the steps of:
`
`(a) transmitting substantially simultaneously a first information signal and
`a second information signal to communicate messages to the mobile receivers, the
`first information signal being transmitted in simulcast by a first set of base
`transmitters assigned to a first zone, and the second information signal being
`transmitted in simulcast by a second set of base transmitters assigned to a second
`zone;
`(b) dynamically reassigning one or more of the base transmitters in the
`
`first set of base transmitter [sic, transmitters] assigned to the first zone to the
`second set of base transmitters assigned to the second zone as a function of the
`messages to be communicated in an area, thereby creating an updated first set of
`base transmitters and an updated second set of base transmitters; and
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`(c) transmitting substantially simultaneously a third information signal and
`a fourth information signal, the third information signal being transmitted in
`simulcast by the updated first set of base transmitters, and the fourth information
`signal being transmitted in simulcast by the updated second set of base
`transmitters to communicate additional messages to said mobile receivers.
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`On one hand, the specification discloses an embodiment in which each “set” could
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`
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`include only one transmitter (one in each zone):
`
`At this point, the exemplary communication system shown in FIG. 6 may transfer
`the message to the mobile unit during one of two time intervals. In the first time
`interval, both base transmitter 612 and base transmitter 614 transmit data via
`antenna 620 and antenna 622, respectively, in simulcast to be received by mobile
`unit 624, which corresponds to step 706 in FIG. 7. This first alternative may be
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 13 of 79 PageID #: 4960
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`useful to deliver the message if, for example, the location of mobile unit 624 in
`zone 1 or zone 2 is unknown and broad coverage is desired.
`
`In the second time interval, base transmitter 614 transmits a block of information
`including the message data . . . and base transmitter 612 transmits another block
`of information, which corresponds to steps 708 and 710 of FIG. 7.
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`‘403 Patent at 10:39-54 (emphasis added); see id. at Figs. 6 & 7. Likewise, whereas Claim 10
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`(quoted above) explicitly recites “simulcast by a first set of base transmitters assigned to a first
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`zone” and “simulcast by a second set of base transmitters assigned to a second zone,” Claim 1
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`requires simulcast only by “the first and second sets of transmitters,” together. See Phillips, 415
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`F.3d at 1314 (“Because claim terms are normally used consistently throughout the patent, the
`
`usage of a term in one claim can often illuminate the meaning of the same term in other claims.
`
`Differences among claims can also be a useful guide in understanding the meaning of particular
`
`claim terms.”) (citations omitted).
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`
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`On the other hand, above-quoted Claim 10 recites “dynamically reassigning one or more
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`of the base transmitters,” plural.
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`
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`In some cases, a plural term does not necessarily require two or more. For example:
`
`In the phrase “[plurality of . . .] projections with recesses therebetween,” the use
`of “recesses” can be understood to mean a single recess where there are only two
`projections and more than one recess where there are three or more projections.
`Indeed, . . . if the patentees had wanted to require . . . more than one recess, it
`would have been natural to limit the claimed invention to an insert means with a
`“plurality of recesses.”
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`Dayco Prods, Inc. v. Total Containment, Inc., 258 F.3d 1317, 1328 (Fed. Cir. 2001); see Versa
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`Corp. v. Ag-Bag Int’l Ltd., 392 F.3d 1325, 1330 (Fed. Cir. 2004) (as to the term “means . . . for
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`creating air channels,” noting that “in context, the plural can describe a universe ranging from
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`one to some higher number, rather than requiring more than one item”).
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 14 of 79 PageID #: 4961
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`In general, however, the plural form of a noun refers to two or more, as found in
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`Markem-Imaje Corp. v. Zipher Ltd., 657 F.3d 1293, 1297 (Fed. Cir. 2011), and Leggett & Platt,
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`Inc. v. Hickory Springs Manufacturing Co., 285 F.3d 1353, 1357 (Fed. Cir. 2002). The Court
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`addressed these and other relevant cases in Calypso Wireless, Inc., et al. v. T-Mobile USA, Inc.,
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`No. 2:08-CV-441, Dkt. No. 281 at 27-32 (E.D. Tex. Dec. 3, 2012) (discussing Flash Seats, LLC
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`v. Paciolon, Inc., No. 07-575-JJF, 2010 WL 184080 (D. Del. Jan. 19, 2010), aff’d, 469 Fed.
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`App’x 916 (Fed. Cir. 2012), Every Penny Counts, Inc. v. Bank of Am. Corp., No. 2:07-CV-42-
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`FTM-29SPC, 2008 WL 4491113 (M.D. Fla. Sept. 29, 2008), and MOAEC, Inc. v. Pandora
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`Media, Inc., No. 07-CV-654-BBC, 2008 WL 4500704 (W.D. Wis. Sept. 30, 2008)).
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`On balance, the use of the plural form of “transmitters” demonstrates that a “set of
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`transmitters” requires two or more transmitters. See, e.g., Leggett & Platt, 285 F.3d at 1357 (“At
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`the outset, the claim recites ‘support wires’ in the plural, thus requiring more than one welded
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`‘support wire.’”). The Court thus reaches the same conclusion here as in Clearwire.
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`The Court accordingly hereby construes the disputed terms as set forth in the following
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`chart:
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`Term
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`Construction
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`“set[s] of transmitters”
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`“set[s] of at least two transmitters”
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`“set of base transmitters”
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`“a set of at least two base transmitters”
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 15 of 79 PageID #: 4962
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`C. “transmit . . . in simulcast,” “transmitted . . . in simulcast,” and “transmitting . . . in
`simulcast”
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`“transmitting the same information at the same
`time”
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`“transmitting the same information at the same
`time, with the understanding that the Court has
`rejected [Plaintiff’s] argument that a single
`transmitter can operate in simulcast with itself
`by using multi-carrier modulation”
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`Alternatively:
`“transmitting the same information at the
`same time, with the understanding that a single
`transmitter cannot operate in simulcast with
`itself by using multi-carrier modulation”
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`Dkt. No. 107-2 at 20; Dkt. No. 110 at 23; Dkt. No. 116, Ex. A at 23-24, 25 & 27-28. These
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`terms appear in Claims 1, 10, and 11 of the ‘403 Patent and Claims 1, 10, and 19 of the ‘210
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`Patent.
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`
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`Clearwire construed these disputed terms in Claims 1 and 10 of the ‘403 Patent as
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`meaning “transmitting the same information at the same time.” Clearwire, 2013 WL 3339050,
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`at *4. The Court also rejected any argument “that a single transmitter can operate in simulcast
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`with itself by using multi-carrier modulation.” Clearwire, 2013 WL 3339050, at *5.
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`Shortly before the start of the March 7, 2014 hearing, the Court provided the parties with
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`the following preliminary construction for these disputed terms: “‘transmitting the same
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`information at the same time’ ([e]xpressly adopt the Clearwire findings but do not provide them
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`to the jury as part of a constr[uction].” At the March 7, 2014 hearing, all parties agreed to the
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`Court adopting its preliminary construction.
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`The Court therefore hereby construes “transmit . . . in simulcast,” “transmitted . . . in
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`simulcast,” and “transmitting . . . in simulcast” to mean “transmitting the same information
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`at the same time.” The Court further hereby adopts the above-quoted conclusion reached in
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 16 of 79 PageID #: 4963
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`Clearwire and orders that at trial the parties shall not present any arguments inconsistent with
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`that conclusion.
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`CONSTRUCTION OF DISPUTED TERMS IN U.S. PATENT NO. 5,659,891
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`The ‘891 Patent is titled “Multicarrier Techniques in Bandlimited Channels.” The ‘891
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`Patent issued on August 19, 1997, and bears a filing date of June 7, 1995. In general, the ‘891
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`Patent relates to operating more than one carrier within a single channel. The Abstract of the
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`‘891 Patent states:
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`A method of multicarrier modulation using co-located transmitters to achieve
`higher transmission capacity for mobile paging and two-way digital
`communication in a manner consistent with FCC emission mask limits.
`Co-location of the transmitters obviates the need for stringent, symmetrical
`subchannel interference protection and provides for a wider range of operating
`parameters, including peak frequency deviation, bit rate, and carrier frequencies,
`to obtain optimal transmission performance.
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`A. “paging carrier” and “paging system”
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`“paging carrier” (‘891 Patent, Claims 1 & 3)
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`No construction necessary; plain and ordinary
`meaning.
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`“transmission signal modulated to carry
`information to one or more pagers”
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`“paging system” (‘891 Patent, Claim 5)
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`Plaintiff’s Proposed Construction
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`Defendants’ Proposed Construction
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`“wireless message system”2
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`“system for communicating with one or more
`pagers”
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`Dkt. No. 107-2 at 12; Dkt. No. 110 at 24-25; Dkt. No. 116, Ex. A at 32 & 33.
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`2 Plaintiff previously proposed: “No construction necessary; plain and ordinary meaning. In the
`alternative: ‘wireless message system.’” Dkt. No. 107-2 at 12.
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`Case 2:12-cv-00832-JRG-RSP Document 162 Filed 05/02/14 Page 17 of 79 PageID #: 4964
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`
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`Shortly before the start of the March 7, 2014 hearing, the Court provided the parties with
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`the following preliminary constructions for these disputed terms: “paging carrier” m