Case 1:14-cv-00130-GMS Document 161 Filed 06/15/15 Page 1 of 6 PageID #: 7610
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ADIDAS AG and ADIDAS AMERICA, INC.,
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`Plaintiffs,
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`v.
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`UNDER ARMOUR, INC. and
`MAPMYFITNESS, INC.,
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`Defendants,
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`Civil Action No. 14-130-GMS
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`ORDER CONSTRUING THE TERMS OF U.S. PATENT NOS.
`7,957,752; 8,244,226; 8,068,858; 7,905,815; 7,931,562; 8,652,009; 8,725,276; 8,579,767;
`8,721,502
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`The court having considered the submissions of the parties and having heard oral
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`argument on the matter-IT IS HEREBY ORDERED, ADJUDGED, and DECREED that, as
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`used in the asserted claims of U.S. Patent Nos. 7,957,752 ("the '752 Patent"); 8,244,226 ("the
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`'226 Patent")· 8 068 858 (''the '858 Patent")· 7 905 815 ("the '815 Patent")· 7 931 562 ("the '562
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`Patent"); 8,652,009 ("the '009 Patent"); 8,725,276 ("the '276 Patent"); 8,579,767 (''the '767
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`Patent"); 8,721,502 ("the '502 Patent"):
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`The '752 Patent
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`1. The term "at least one of a set including" is construed to mean "a set including at
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`least one of."1
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`1 The parties' dispute focuses primarily on the grammar of the claims, with each side accusing the other of
`improperly rewriting the claim language. But the court agrees that the claim phrase, in isolation, possibly permits
`either viewpoint. As such, construction is necessary. See 02 Micro Int 'I Ltd. v. Beyond Innovation Tech. Co.,
`521F.3d1351, 1360 (Fed. Cir. 2008) ("When the parties raise an actual dispute regarding the proper scope of these
`claims, the court, not the jury, must resolve that dispute.").
`The disputed phrase is used several times in the patent, but its first use in Claim 1 is illustrative: "serving a
`graphical representation of the route to a user device in association with a toolset including at least one of a set
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`Case 1:14-cv-00130-GMS Document 161 Filed 06/15/15 Page 2 of 6 PageID #: 7611
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`2. The term "rating tool" is construed to mean "a tool allowing a user to assign a user
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`rating."2
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`3. The term ''user rating" is construed to mean "relative rank assigned by a user."3
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`including an annotation tool, a rating tool, and a review tool." '7S2 Patent, claim 1. Depending on how this is read,
`the claim may be interpreted as "at least one set including" (defendants' view), versus "a set including at least one
`of' (plaintiffs' view). Either interpretation does some violence to the original language, but such a result is
`unavoidable in light of the awkward claim drafting. The court finds that the plaintiffs' interpretation is most
`consistent with the remainder of the claim language, as well as the teachings of the specification. See Interval
`Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1374 (Fed. Cir. 2014) ("Claim language must be viewed in light of the
`specification, which is 'the single best guide to the meaning of a disputed term."' (quoting Phillips v. A WH Corp.,
`41S F.3d 1303, 1312-13 (Fed. Cir.200S))).
`As can be seen from the parties' proposals, the dispute is essentially over whether the claims require at least
`one set or at least one component within the set. Focusing on the excerpted claim language above, the court finds
`that only the plaintiffs' view lends meaning to claim. Claim 1 already notes that there must be a "toolset" present;
`thus, interpreting "at least one of' to modify "set" adds nothing new to the claim. Indeed, the word "set" serves very
`little purpose in the claims other than signaling that the components are somehow associated with one another. In
`contrast, reading "at least one of' as modifying the tools within the set does add new, meaningful information. Such
`a result is preferred. See Frans Nooren Afdichtingssystemen B. V v. Stopaq Amcorr Inc., 744 F.3d 71S, 722 (Fed.
`Cir. 2014) ("It is the usual (though not invariable) rule that, in patent claims as elsewhere, the construction of a
`clause as a whole requires construction of the parts, with meaning to be given to each part so as to avoid rendering
`any part superfluous.").
`The specification supports this view. The defendants can point to no disclosure in the written description
`requiring all of the components (i.e., annotation tool, rating tool, and review tool). Rather, the defendants contend
`that the only embodiment disclosed does have each of the components. See '7S2 Patent, fig. SB. Even if the court
`accepts that Figure SB illustrates the only relevant ·embodiment, courts "have expressly rejected the contention that
`if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that
`embodiment." Phillips, 41S F.3d at 1323. Moreover, the specification language used to describe Figure SB makes
`clear that it is only an "exemplary'' embodiment, not meant to be limiting. See, e.g., '7S2 Patent, col. 2 1. 37.
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`2 "Rating tool" appears in exemplary Claim 1, as one of the possible tools of the "toolset" included with the
`'7S2 Patent, claim 1. The plaintiffs argues no construction is needed, whereas the defendants
`"user device."
`maintain that a rating tool allows a user to assign a rating. The court agrees with the defendants. The claims
`provide all the evidence necessary to construe this term. The rating tool is part of the user device-logically, it
`makes sense that the rating tool is to be used by the user. Moreover, dependent claims 16 and 17 claim the "method
`of claim 1, wherein the rating tool is adapted to allow the user'' to assign particular types of ratings.
`'7S2 Patent,
`claims 16 & 17 (emphasis added). Thus, it is clear that the rating tool, as part of the user device, allows a user
`specifically to assign user ratings. The plaintiffs can point to no evidence that the rating tool can be used in any
`other manner. The court, however, specifies that the rating tool allows the user to assign a user rating. As notes 3-
`S, infra, make clear, the term "rating" takes on different meaning in different contexts.
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`3 The court's construction contains two added limitations. The first-that the rating is assigned to a route
`by a user-flows naturally from the previous term, "rating tool." See supra note 2. The "user rating" is the "route(cid:173)
`'7S2 Patent, claim 1. The plaintiffs do not contest this
`related information" that results from using the rating tool.
`limitation. (D.I. 1S9 at 16.)
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`2
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`UA-1010.002
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`Case 1:14-cv-00130-GMS Document 161 Filed 06/15/15 Page 3 of 6 PageID #: 7612
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`The '226 Patent
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`4. The term "individual rating" is construed to mean "evaluative assessment assigned to
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`a route by a user."4
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`5. The term "route rating" is construed to mean "evaluative assessment assigned to a
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`route."5
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`The second limitation stems from disagreement over the meaning of "rating." The court agrees with the
`defendants that "user rating" is unquestionably distinguished from "user review" in the claims. See, e.g., '752
`Patent, claim 1. In the context of the term "user rating," "rating" is construed to mean a "relative rank," in order to
`make clear that it differs from a ''user review" (which the court has not been asked to construe). "Relative rank" is
`among the accepted dictionary definitions for rating, and the court finds it applicable in this instance. The court
`emphasizes that this construction is only in the context of the '752 Patent's use of"user rating." As explained infra,
`the use of "rating" in the related '226 Patent differs. The court is convinced that the differing usage across both
`patents is sufficient to overcome the presumption that "the same claim term in the same patent or related patents
`carries the same construed meaning." See Omega Eng'g, Inc, v. Raytek Corp., 334 F.3d 1314, 1334 (Fed. Cir.
`2003).
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`Figure 5B and its accompanying description in the specification confirm the court's construction:
`. GUI window 440 preferably includes a GUI component that permits the user to
`review and/or rate the route. For example, in the exemplary embodiment, GUI
`window 440 contains a second text box 492 in which the user can compose a
`review of the route and a ratings section 494 in which the user can award the
`route between one and four "stars."
`'752 Patent, col. 15 11. 8-14 & fig. 5B. In the context of the '226 Patent's claim terms, "rating" has a different
`usage.
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`4 The plaintiffs concede that an "individual rating" is provided "by the user." (D.I. 159 at 16.) Unlike the
`claims of the '752 Patent, however, the '226 Patent does not draw the clear distinction between rating and review in
`this context. The claims describe a number of data from which the individual rating can be derived: "the individual
`rating is based on the second user's assessment of the quality of the route" (claim 33); "the individual rating is based
`on the second user's athletic performance while traversing the route" (claim 34); "individual rating is determined
`based on feedback from one or more sensors" (claim 35). Thus, the individual rating need not be limited to a user's
`relative rank of a route. It may take the form of a relative rank, but it may also include a review-the '226 Patent
`does not limit the term as narrowly the '752 Patent.
`There is additional support for this broader characterization. The route rating-which is "based upon at
`'226 Patent, claims 1 & 16. By extension, the
`least one individual rating"--can incorporate "written feedback."
`individual writing must also be capable of incorporating written feedback. Moreover, Figure 4F shows a route
`rating and the number of reviews from which it was determined. '226 Patent, col. 12 11. 47 - 49 & fig. 4F. Knowing
`from claim 1 that a route rating is based on individual ratings, the court is lead to the conclusion that the '226 Patent
`interchanged "review" for "individual rafing" in Figure 4F.
`Construing an "individual rating" the same as a ''user rating" would seem to restrict the broad usage of the
`term in the '226 Patent claims and specification. The court's construction offers an alternative accepted plain
`meaning definition of rating that accounts for this broader usage. As indicated supra note 3, the court finds that the
`presumption that the same claim term should carry the same construed meaning across related patents has been
`rebutted. See Omega Eng 'g, 334 F.3d at 1334.
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`5 The court's reasoning largely tracks that offered for "individual rating." Supra note 4. The parties agree
`that a "route rating" need not be assigned by a user, but may in fact be a composite of "individual ratings."
`'226 Patent, claim 1. Thus, the entity assigning/creating the route rating is not material. Rather, the parties dispute
`the type of information contained in a route rating. The intrinsic evidence reveals that "route rating" encompasses
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`3
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`UA-1010.003
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`Case 1:14-cv-00130-GMS Document 161 Filed 06/15/15 Page 4 of 6 PageID #: 7613
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`The '858 Patent
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`6. The term "route path" 1s construed to mean "geographical representation of the
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`route."6
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`7. The term "while the user is engaged in the physical activity'' is construed to have its
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`plain and ordinary meaning. 7
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`The '815 Patent
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`8. The court declines to construe the term "base station" at this time.8
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`more than "user rating." See supra note 3. Claim 16, for example, claims "[t]he method of claim 1, wherein the
`'226 Patent, claim 16 (emphasis added). Moreover, Figure 4F and its
`route rating includes written feedback.
`description in the specification are illuminating:
`As ... shown in FIG. 4F, window 380 ... includes a rating of the route, which
`in this case includes between one and four "stars" and an indication of a
`number of reviews. In addition, window 380 may optionally include a number of
`written reviews, for example, displayed within text box 402.
`The comma structure of the first sentence shows the rating of the route (i.e., route rating) includes both the star
`rating and the review count. Thus, as explained supra note 4, the '226 Patent's usage of"rating" indicates a broader
`conception than that of the '752 Patent.
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`6 The court's construction is taken from a disclosure in the specification: "[T]he training journal entry
`presented within GUI window 440 includes a route map 442 having terminal points 444 a-band a route path 446
`showing the geographical path traversed by the route." '858 Patent, col. 14 11. 6-9. The disclosure notes a subtle
`distinction between the route and the route path.
`The defendants present compelling arguments for adding a limitation requiring the route path to be
`"predetermined," in order to allow comparison between a user's location and the route path. See, e.g., '858 Patent,
`claim 1 ("[T]he visual display further includes an indication of the first user's location with respect to the route
`path."). Ultimately, however, the court is not persuaded that the intrinsic evidence clearly supports the importation
`of this limitation. See Omega Eng'g, 334 F.3d at 1329 ("It is axiomatic that, unless expressly compelled by the
`intrinsic evidence, courts must avoid the addition of a novel limitation." (emphasis added)). The defendants' second
`proposed limitation-that the route path be represented by a "series of geographic points"-finds even less support
`in the intrinsic record.
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`7 The plaintiffs seek to substitute the claim term with the phrase "in substantially real time," apparently to
`give meaning to the claimed invention. The court is not convinced that such a substitution is appropriate. The
`claims, the Abstract, and the Summary of the Invention for the '858 Patent all use the claim term repeatedly. While
`"in substantially real time" does appear in the body of the common specification, nowhere does the '858 Patent
`expressly indicate that the two phrases are interchangeable. The court construes claim terms to have their plain and
`ordinary meaning "unless the patentee explicitly redefines the term or disavows its full scope." Thorner v. Sony
`Computer Entm't Am. LLC, 669 F.3d 1362, 1367 (Fed. Cir. 2012). The patentee did not do so here. Although the
`plaintiffs may believe their proposed construction better captures the patentees' intent, ultimately the language
`actually used in the claims is most persuasive. See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875
`(Fed. Cir. 2004) ("The written description ... is not a substitute for, nor can it be used to rewrite, the chosen claim
`language."); see also Acumed LLC v. Stryker Corp., 483 F.3d 800, 807 (Fed. Cir. 2007). The court refuses to accept
`a revision of the claims, simply for the purpose of aiding litigation efforts. See Nike Inc. v. Wolverine World Wide,
`Inc., 43 F.3d 644 (Fed. Cir. 1994) ("[Plaintiff] cannot, in effect, rewrite its patent claims to suit its needs in this
`litigation.").
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`4
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`UA-1010.004
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`Case 1:14-cv-00130-GMS Document 161 Filed 06/15/15 Page 5 of 6 PageID #: 7614
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`The '562 Patent
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`9. The term "separate input device" (claim 1) is construed to mean "an input device that
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`is a physically independent unit from the position monitoring device."9
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`10. The term "separate device" (claim 10) is construed to mean "an input device that is a
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`physically
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`independent unit from
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`the device collecting position or speed
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`information." 10
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`The '562, '009 & '276 Patents
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`11. The terms ''position data" and "position information" are construed to mean "data
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`relating to geographic position" and "information relating to geographic position,"
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`respectively. 11
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`8 "A determination that a claim term 'needs no construction' or has the 'plain and ordinary meaning' may
`be inadequate when a term has more than one 'ordinary' meaning or when reliance on a term's 'ordinary' meaning
`does not resolve the parties' dispute." 02 Micro, 521 F.3d at 1361. As explained during the hearing, the court is
`convinced that extrinsic evidence is necessary to determine how one skilled in the art would understand the term
`"base station." (D.I. 159 at 71-73.) The court will hear testimony on this issue at trial.
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`9 The court's construction clarifies a disagreement between the parties as to what components of the system
`need to be "separate," i.e., physically independent. The structure of claim 1 provides all the necessary evidence: "A
`modular mobile position logging system configured to be worn by a user comprising: (a) a position monitoring
`'562 Patent, claim 1. The plaintiffs purport to
`device, (b) a separate input device for creating annotations .... "
`urge a "plain and ordinary'' construction, yet their reasoning indicates that they actually seek to argue a position that
`is at odds with the plain English reading-that the "separate input device" limitation is satisfied so long as it is
`separate from any other single component. But the elements of claim 1 are to be read in their natural order, and the
`sequence from (a) to (b) illustrates that the input device is separate from the position monitoring device.
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`10 The court's reasoning mirrors that of note 9. Claim 10 claims "[a] method of collecting mobile position
`from a user comprising: (a) collecting position or speed information in a device worn or carried by the user, (b)
`collecting user entered annotations from a separate device worn or carried by the user .... "
`'562 Patent, claim 10.
`Claim l 0 is even clearer than claim 1, as there are only two possible devices in the claim elements.
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`11 The defendants seek construction of these terms to clarify that "position," as used throughout the '562,
`'009, and '276 Patents, refers only to "geographic position," and not other possible understandings relating to a
`person's orientation or physical form. The court agrees that such a construction is warranted; a plain and ordinary
`meaning construction alone would be insufficient.
`The claims provide considerable evidence supporting the defendants' view. Claim 20 of the '009 Patent
`claims a method "wherein the position data is received with a global positioning satellite receiver."
`'009 Patent,
`claim 20. Global positioning makes clear that geographic position is what is recorded.
`The claims of the '562 Patent refer to a "position monitor" that gathers both position and speed
`data/information.
`'562 Patent, claims 1--4, 10. Basic physics teaches that speed and position (in the locational
`sense) are closely linked, and that speed can be calculated as the distance between two positions, per unit time. As
`such, these claims also support the defendants' geographic position proposal.
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`Case 1:14-cv-00130-GMS Document 161 Filed 06/15/15 Page 6 of 6 PageID #: 7615
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`The '767 & '502 Patents
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`12. The term "positions points" is construed to mean "geographic position points."12
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`13. The term "during the physical activity" is construed to have its plain and ordinary
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`meaning. 13
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`Dated: June JZ__, 2015
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`The remainder of the intrinsic record is in accord. Indeed, the common specification uses the term "form"
`specifically when discussing the user's body orientation, rather than "position." See, e.g., '562 Patent, col. 11 ll. 14.
`The specification uses "position" consistently to refer to geographic position or location. See id. col. 40 11.38-44
`(distinguishing "position" data from other metrics like speed, elevation, and direction).
`The plaintiffs point to claim 1 of the '276 Patent as evidence that the defendants' proposal creates a
`redundancy: "A method for monitoring an athletic activity, comprising: receiving position data relating to the
`geographical positions of an individual during the athletic activity with a global positioning satellite receiver .... "
`'276 Patent, claim 1. While it is true that substituting the defendants' proposal perhaps leads to some awkward and
`even redundant phrasing, the court is not convinced that it is reason enough to reject the well-supported
`construction. See OJ Communique Lab., Inc. v. LogMein, Inc., 687 F.3d 1292, 1296 (Fed. Cir. 2012) ("[Plaintiff]
`has not cited, and we have not discovered, any authority for the proposition that construction of a particular claim
`term may not incorporate claim language circumscribing the meaning of the term.").
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`12 The court's construction stems from its previous construction, supra note 11, only clarifying that
`"position" refers to "geographic position." The term "point" requires no construction. The court does not see
`support for the defendants' additional proposed limitation requiring that location be defined in terms of coordinates.
`The intrinsic record makes no mention of coordinates. Although, practically, a point (or location) is often associated
`with geographic coordinates, the court does consider it necessary to make it a limitation of the claims. U.S. Surgical
`Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) ("Claim construction is a matter of resolution of
`disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the
`claims, for use in the determination of infringement. It is not an obligatory exercise in redundancy.").
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`13 The plaintiffs again present the court with arguments that a term should be construed to mean "in
`substantially real time." For the same reasons outlined in note 7, the court declines to do so. The plaintiffs' position
`is even more untenable in this context-the phrase "in substantially real time" never appears in the claims or the
`common specification. The plaintiffs' proposal would "impermissibly rewrite[] the patent[s'] claims." See GE
`Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1317 (Fed. Cir. 2014).
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`6
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`UA-1010.006