Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 1 of 62
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`COMCAST CABLE
`COMMUNICATIONS, LLC, TV WORKS,
`LLC, and COMCAST MO GROUP, INC.,
`Plaintiffs,
`
`CIVIL ACTION
`
`v.
`
`NO. 12-859
`
`SPRINT COMMUNICATIONS
`COMPANY, LP, SPRINT SPECTRUM,
`LP, and NEXTEL OPERATIONS, INC.,
`Defendants.
`
`SPRINT COMMUNICATIONS
`COMPANY, LP, and SPRINT
`SPECTRUM, LP,
`Counterclaim-Plaintiffs,
`
`v.
`
`COMCAST CABLE
`COMMUNICATIONS, LLC, COMCAST
`IP PHONE, LLC, COMCAST BUSINESS
`COMMUNICATIONS, LLC, and
`COMCAST CABLE COMMUNICATIONS
`MANAGEMENT, LLC,
`Counterclaim-Defendants.
`
`DuBois, J.
`
` August 15, 2014
`
`I.
`
`INTRODUCTION
`
`M E M O R A N D U M
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`Plaintiffs and counterclaim-defendants, Comcast Communications, LLC and related
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`corporate entities (collectively “Comcast”), brought this action against defendants and
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`counterclaim-plaintiffs, Sprint Communications Co., LP and related corporate entities
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`(collectively “Sprint”), alleging infringement of its U.S. Patent No. 6,885,870 (“the ‘870
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`patent”) and U.S. Patent 5,987,323 (“the ‘323 patent”). Sprint filed a Counterclaim alleging
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`infringement of its U.S. Patent No. 6,754,907 (“the ‘4,907 patent”), U.S. Patent No.
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`Charter Ex. 1010, Page 1
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 2 of 62
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`6,757,907 (“the ‘7,907 patent”), and U.S. Patent No. 6,727,916 (“the ‘916 patent”). After a
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`five-day pre-Markman and Markman hearing, the Court construes the disputed claim terms
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`identified by the parties in each of the remaining patents-in-suit.
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`II.
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`PROCEDURAL BACKGROUND
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`Comcast filed the instant patent-infringement suit on February 17, 2012 against
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`Sprint, alleging infringement of four of its U.S. Patents. 1 On May 14, 2012, Sprint filed an
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`Answer and a Counterclaim, alleging infringement of seven of its U.S. Patents. 2 On June 6,
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`2012, Comcast filed a First Amended Complaint for Patent Infringement. 3 Sprint filed an
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`Amended Answer and Counterclaim on June 25, 2012. 4
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`
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`Pursuant to Case Management Order No. 1, the parties submitted a Joint Claim
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`Construction Chart on October 4, 2013, setting forth their proposed constructions.
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`Thereafter, on November 1, 2013, Comcast and Sprint each filed an Opening Claim
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`Construction Brief, addressing the construction of the disputed terms in its own patents,
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`and, on November 22, 2013, an Answering Claim Construction Brief, addressing the
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`1 In its Complaint, Comcast alleged infringement of its U.S. Patent No. 7,684,391
`(“the ‘391 patent”), U.S. Patent No. 6,885,870 (“the ‘870 patent”), U.S. Patent No.
`5,987,323 (“the ‘323 patent”), U.S. Patent No. 6,112,305 (“the ‘305 patent”).
`2 In its Counterclaim, Sprint alleged infringement of its U.S. Patent No. 6,754,907
`(“the ‘4,907 patent”), U.S. Patent No. 6,757,907 (“the ‘7,909 patent”), U.S. Patent No.
`7,602,886 (“the ‘886 patent”), U.S. Patent No. 7,043,241 (“the ‘241 patent”); U.S. Patent
`No. 7,054,654 (“the ‘654 patent”), U.S. Patent No. 6,727,916 (“the ‘916 patent”), and U.S.
`patent No. 6,965,666 (“the ‘666 patent”).
`3 In its First Amended Complaint, Comcast alleged infringement of the ‘870 patent,
`the ‘323 patent, the ‘305 patent, and U.S. Patent No. 5,991,271 (“the ‘271 patent”).
`Comcast has since withdrawn its allegations of infringement with respect to the ‘305 patent
`and ‘271 patent.
`4 In its Amended Counterclaim, Sprint alleged infringement of the same s even
`patents included in its initial Counterclaim. Sprint has since withdrawn its allegations of
`infringement with respect to the ‘886 patent, the ‘241 patent, the ‘654 patent, and the ‘666
`patent.
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`2
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`Charter Ex. 1010, Page 2
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 3 of 62
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`construction of the disputed terms in each other’s patents. Through the meet-and-confer and
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`briefing process, the parties significantly narrowed the number of terms , claims, and patents
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`in dispute.
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`
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`On January 22, 23, and 24, 2014, the Court held the first part of a pre-Markman and
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`Markman hearing, which included technology tutorials and oral argument on the proper
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`construction of the disputed claim terms in Sprint’s ‘4,907, ‘7,907, and ‘916 patents and
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`Comcast’s ‘323 and ‘870 patents.5 During that hearing, it became apparent that the parties’
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`initial Joint Claim Construction Chart was deficient.
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`At the conclusion of the third day of the Markman hearing on January 24, 2014, the
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`Court issued an Order requiring that the parties submit an amended joint claim construction
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`chart. In this Order, the parties were directed to include in that updated chart, inter alia,
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`(1) a statement of the impact of each disputed claim term on the parties’ infringement and
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`invalidity contentions in order to place claim construction in proper context, and (2) with
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`respect to those terms as to which a party asserts that “the plain and ordinary meaning of the
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`term should control,” a statement of “precisely what that ‘plain and ordinary meaning’ is in
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`the form of a proposed alternative construction.” After submission of the Amended Joint
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`Claim Construction Chart on February 14, 2014, the Court conducted the second part of the
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`Markman hearing on February 24 and 25, 2014, at which it briefly returned to Sprint’s ‘916
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`patent to ask several follow-up questions, which had been left unanswered.6
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`5 The Court also heard argument on Sprint’s ‘886 patent at the hearing on January
`24, 2014. By letter dated June 17, 2014, counsel for Sprint and Comcast notified the Court
`that Sprint withdrew its infringement allegations with respect to this patent.
`6 The Court also heard argument on Comcast’s ‘271 patent at the hearing on
`February 25, 2014 and Comcast’s ‘654 patent at the hearing on February 26, 201 4. By letter
`dated June 17, 2014, counsel for Sprint and Comcast jointly notified the Court that “Sprint
`has agreed to withdraw from this case [inter alia] all claims based on Sprint’s U.S. Patent
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`3
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`Charter Ex. 1010, Page 3
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`Finally, given the complexity of the issues presented in this case and by agreement of
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`the parties, on March 20, 2014, the Court appointed Dr. A. J. Nichols as technical advisor to
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`assist the Court by explaining, when requested, the relevant technology required for claim
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`construction with respect to the patents-in-suit. His role has been limited to that
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`contemplated by the Memorandum and Order dated April 1, 2014, as revised by the Order
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`dated April 21, 2014, setting forth the authority for, and terms and conditions of, his
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`appointment.
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`III. LEGAL STANDARD
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`Construction of disputed patent claims is a question of law and is therefore the
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`province of the court, not the jury. Markman v. Westview Instruments, Inc., 517 U.S. 370,
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`389-91 (1996). The Court is not bound by the proposed constructions presented and argued
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`by the parties. See Marine Polymer Techs., Inc. v. HemCon, Inc., 672 F.3d 1350, 1359 n.4
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`(Fed. Cir. 2012) (en banc).
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`In construing claim terms, a court may look to any “source[] available to the public
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`that show[s] what a person of skill in the art would have understood disputed claim
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`language to mean.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d
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`1111, 1116 (Fed. Cir. 2004). “It is well-settled that, in interpreting an asserted claim, the
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`court should look first to the intrinsic evidence of record . . . .” Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). “Such intrinsic evidence is the
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`most significant source of the legally operative meaning of disputed claim language.” Id.
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`There are three primary sources of “intrinsic evidence”: (1) the claims, (2) the specification,
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`and (3) the prosecution history. The Court addresses each category of intrinsic evidence in
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`No. . . . 7,054,654,” and “Comcast has agreed to withdraw from this case all claims based
`on Comcast’s U.S. Patent No. 5,991,271.”
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`4
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`Charter Ex. 1010, Page 4
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 5 of 62
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`turn.
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`First, a court must examine the language of the claims, as “[i]t is a ‘bedrock
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`principle’ of patent law that ‘the claims of a patent define the invention to which the
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`patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water, 381 F.3d 1111 at 1115). “[W]ords
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`of a claim ‘are generally given their ordinary and customary meaning.’”7 Id. (quoting
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`Vitronics, 90 F.3d at 1582). In examining the claims of the patent, both “the context in
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`which a term is used in the asserted claim” and “[o]ther claims of the patent in question”
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`“provide substantial guidance as to the meaning of particular claim terms.” Id. at 1314.
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`“Differences among claims also can be a useful guide in understanding the meaning of
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`particular claim terms.” Id. For example, under the doctrine of claim differentiation, “the
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`presence of a dependent claim that adds a particular limitation gives rise to a presumption
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`that the limitation in question is not present in the independent claim.” Id. at 1315.
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`The second source of intrinsic evidence is the patent specification, which “contains a
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`written description of the invention that must enable one of ordinary skill in the art to make
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`and use the invention.” Markman, 52 F.3d at 979. “In light of the statutory directive that
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`the inventor provide a ‘full’ and ‘exact’ description of the claimed invention, the
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`specification necessarily informs the proper construction of the claims.” Phillips, 415 F.3d
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`at 1316. For example, the specification may reveal “a special definition given to a claim
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`term by the patentee that differs from the meaning it would otherwise possess” or “an
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`7 As reiterated by the U.S. Court of Appeals for the Federal Circuit in Phillips v.
`AWH Corp., “the ordinary and customary meaning of a claim term is the meaning that the
`term would have to a person of ordinary skill in the art in question at the time of the
`invention, i.e., as of the effective filing date of the patent application.” 415 F.3d 1303, 1313
`(Fed. Cir. 2005) (en banc).
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`5
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`Charter Ex. 1010, Page 5
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`intentional disclaimer, or disavowal, of claim scope by the inventor.” Id. Not only is “[t]he
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`specification . . . always highly relevant to claim construction,” but “[u]sually, it is
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`dispositive.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002)
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`(quoting Vitronics, 90 F.3d at 1582). The U.S. Court of Appeals for the Federal Circuit has
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`described the specification as “the single best guide to the meaning of a disputed term.” Id.
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`(quoting Vitronics, 90 F.3d at 1582); see also, e.g., Standard Oil Co. v. Am. Cyanamid Co.,
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`774 F.3d 448, 452 (Fed. Cir. 1995) (“The specification is, thus, the p rimary basis for
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`construing the claims.”).
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`The third source of intrinsic evidence is the patent’s prosecution history, which
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`consists of “the complete record of proceedings before the [Patent and Trademark Office
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`(PTO)] and includes the prior art cited during the examination of the patent.” Phillips, 415
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`F.3d at 1317. Like the specification, the prosecution history may be useful in revealing
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`either a special meaning assigned by the patentee to the term or a disclaimer clarifying what
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`the claims do not cover. Id. That said, “because the prosecution history represents an
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`ongoing negotiation between the PTO and the applicant, rather than the final product of that
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`negotiation, it often lacks the clarity of the specification and thus is [typically] less useful
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`for claim construction purposes.” Id.
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`While the intrinsic record is most “significant . . . in determining the legally
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`operative meaning of claim language,” the Court also may examine extrinsic evidence
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`during the claim-construction process. Id. (quoting C.R. Bard, Inc. v. U.S. Surgical Corp.,
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`388 F.3d 858, 862 (Fed. Cir. 2004)) (internal quotation marks omitted). “Extrinsic evidence
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`consists of all evidence external to the patent and prosecution history, including expert and
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`inventor testimony, dictionaries, and learned treatises.” Markman, 52 F.3d at 980.
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`6
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`Charter Ex. 1010, Page 6
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`“Because dictionaries, and especially technical dictionaries, endeavor to collect the accepted
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`meanings of terms used in various fields of science and technology, [they] have been
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`properly recognized as among the many tools that can assist the court in determining the
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`meaning of particular terminology to those of skill in the art of the invention.” Phillips, 415
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`F.3d at 1318. Further, “it is entirely proper for . . . trial . . . judges to consult these materials
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`at any stage of a litigation, regardless of whether they have been offered by a party in
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`evidence or not.” Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1203 (Fed. Cir.
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`2002), overruled on other grounds by Phillips, 415 F.3d 1303.
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`Finally, there is no precise formula for how a court should weigh the different
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`sources of evidence. Nor is “[t]he sequence of steps used by the judge in consulting various
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`sources . . . important.” Phillips, 415 F.3d at 1324. Instead, “in weighing all the evidence
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`bearing on claim construction, the court should keep in mind the flaws inherent in each type
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`of evidence and assess that evidence accordingly.” Id. at 1319; see also id. at 1324
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`(“[W]hat matters is for the court to attach the appropriat e weight to be assigned to those
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`sources in light of the statutes and policies that inform patent law.”).
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`IV.
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`‘916 PATENT
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`Sprint’s ‘916 Patent, entitled “Method and System for Assisting User to Engage in a
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`Microbrowser-Based Interaction Chat Session,” was filed on December 21, 2000 and issued
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`on April 27, 2004. Described in general terms, the patented invention consists of “a method
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`and system for assisting a user to engage in an interactive chat session on a wireless
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`handheld device,” which eliminates unnecessary keystrokes and reduces the need to switch
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`back and forth between multiple screens while chatting. ‘916 patent at 1:10-12.
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`The parties have asked the Court to construe six terms in the ‘916 patent: (1) “card,”
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`7
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`Charter Ex. 1010, Page 7
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 8 of 62
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`(2) “choice card,” (3) “choice-items,” (4) “choice-item segment,” (5) “actuator,” and
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`(6) “scrolling.”
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`A.
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`“card”
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`COMCAST
`at least one tag that describes the layout of
`one display screen
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`“Tag” is defined as an instruction of a
`markup language, such as WML or HDML
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`SPRINT
`the layout of a display screen
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`The first term that the Court must construe is “card.” Although “card” is not found
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`as a stand-alone term in the claims, the Court agrees with the parties that construction of the
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`term is nonetheless appropriate to provide necessary context for the jury to understand the
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`meaning of “choice card,” which does appear in the language of several of the claims. Cf.
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`Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1373 (Fed.
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`Cir. 2012) (noting that, “in those cases in which the correct construction of a claim term
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`necessitates a derivative construction of a non-claim term, a court may perform the
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`derivative construction in order to elucidate the claim’s meaning”).
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`Comcast proposes a two-part construction, defining “card” as “at least one tag that
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`describes the layout of one display screen,” and “tag” as “an instruction of a markup
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`language, such as WML or HDML.” Sprint asserts that “card” should be defined as “the
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`layout of a display screen.” During oral argument, counsel clarified the issues in dispute.
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`The parties are now in agreement that the term “card” refers to computer instructions called
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`“tags,” which describe the layout of a display screen, rather than to the layout of the display
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`screen itself.8 However, the parties’ positions diverge as to (1) whether the tags must be
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`8 See, e.g., Tr. 1/23/14 at 90:5-6 (Counsel for Sprint: “It certainly is that you have
`instructions that have to generate the display screen. We’re not going to dispute that.”); id.
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`8
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`Charter Ex. 1010, Page 8
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 9 of 62
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`written in a markup language, see Tr. 2/26/14 at 85:23-24 (counsel for Sprint); id. at 87:8-
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`11 (counsel for Sprint); id. at 87:20-24 (counsel for Sprint); and (2) whether “the jury
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`need . . . be burdened with the interpretation step,” see Tr. 1/23/14 at 91:12-13 (counsel for
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`Sprint); id. at 90:7-11 (counsel for Sprint). The Court addresses each dispute in turn.
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`First, the Court concludes that the tags must be encoded in a markup language.9 The
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`specification defines “tags” when it states: “‘Tags’ are generally the instructions of the
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`markup language.”10 ‘916 patent at 2:26-27. The patentee’s uses of the verb “are” and of
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`quotation marks around “tags” are classic hallmarks of a patentee’s lexicography. See
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`Sinorgchem Co., Shandong v. Int’l Trade Comm’n, 511 F.3d 1132, 1136 (Fed. Cir. 2007);
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`at 91:1-13 (Counsel for Sprint: “We are not disputing that the tags are displayed, that the
`cards were referred to as tags. The other way around.” Court: “That the tag is referred to as
`a card?” Counsel for Sprint: “That’s right and that’s true. We’re not disput ing
`that . . . . And so it’s true that . . . you can refer to these as cards . . . .”).
`9 Although the doctrine of claim differentiation counsels against this construction
`with respect to dependent claims 7 and 8, Sprint’s definition of “card” similarly violates the
`doctrine, but with respect to independent claim 1 and dependent claim 7. During oral
`argument, the Court pointedly asked counsel for Sprint to identify how, under its definition
`of “card,” dependent claim 7 adds any limitation not recited in independent claim 1. In
`response, counsel for Sprint stated only that “the concept of a card . . . ha[s] a set of
`requirements about [how] cards interact on the screen,” without further elaboration. Tr.
`1/23/14 at 99:25-100:1 (counsel for Sprint).
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`More importantly, however, “claim differentiation is ‘not a hard and fast rule and
`will be overcome by a contrary construction dictated by the written description or
`prosecution history.’” Marine Polymer Techs., Inc. v. HemCon, Inc., 672 F.3d 1350 (Fed.
`Cir. 2012) (en banc) (quoting Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1368-69
`(Fed. Cir. 2005)); Laitram Corp. v. Rexnord, Inc., 939 F.3d 1533, 1538 (Fed. Cir. 1991)
`(“Claim differentiation is a guide, not a rigid rule.”). While the doctrine of claim
`differentiation creates a presumption that a limitation included in a dependent claim is not
`also recited in the claim from which that claim depends, that presumption is overcome in
`this instance by the weight of the intrinsic evidence.
`10 During the Markman hearing, counsel for Sprint also characterized this statement
`as defining “what a tag is.” See Tr. 1/23/14 at 88:19-24 (Counsel for Sprint: “Going back to
`slide 15, it walks through the progression of what a tag is and how it relates to the display of
`a card. . . . . Column 2, lines 26 through 32, tags are generally the instructions o[f] the
`mark-up [sic] language.”).
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`9
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`Charter Ex. 1010, Page 9
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 10 of 62
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`see also Netscape Commc’ns Corp. v. ValueClick, Inc., 684 F. Supp. 2d 678, 688 (E.D. Va.
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`2009) (“Significantly, the patentee’s intention to act as lexicographer is evidenced by two
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`recognized indicators: (i) the use of quotation marks around the claim term and (ii) the
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`patentee’s use of the word ‘are.’”). Because the patentee “has elected to be a lexicographer
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`by . . . explicit[ly] defin[ing]” “tags” in the specification, “th[is] definition . . . controls.”
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`Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir. 1998).11
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`Also highly instructive is the patentee’s statement that “[t]he conversation choice
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`card may be encoded in a markup language such as WML or HDML, for instance. But other
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`markup languages and other ‘non-cards’ constructs may be used instead.” ‘916 patent at
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`4:56-59. A person of ordinary skill in the art would understand the juxtaposition between
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`the description of a “choice card . . . encoded in a markup language” and the statement that
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`“‘non-cards’ constructs may be used instead” to mean that cards are encoded in markup
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`languages. The permissive word “may” in the first sentence does not alter this conclusion.
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`Applying conventional rules of grammar, the reader can infer from the absence of a comma
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`11 That the patentee used the word “generally” in this sentence does not alter the
`Court’s conclusion. It is true that the word “generally” can be used to mean “usually,” but
`the most natural meaning in this context is, instead, “without reference to specific details or
`facts.” Collins English Dictionary 493 (21st century ed. 2000); see The American Heritage
`Dictionary of the English Language 732 (4th ed. 2000) (defining “generally,” as, inter alia,
`“[w]ithout reference to particular instances or details; not specifically; generally speaking”);
`Random House Webster’s College Dictionary 544 (2d Random House ed. 1999) (defining
`“generally” as, inter alia, “in a general way: in a way that is not detailed or specific”);
`Webster’s Third New International Dictionary of the English Language Unabridged 945
`(2002) (defining “generally,” as, inter alia, “in a general manner” and “on the whole: as a
`rule”); see also Negotiated Data Solutions, LLC v. Dell, Inc., 596 F. Supp. 2d 949, 972
`(E.D. Tex. 2009) (noting that the patentee “defin[ed] the [given] term in a broad, high -level
`manner” by using the introductory phrase “in general terms”).
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`Moreover, the meaning that the Court ascribes to the word “generally” in this
`sentence is consistent with the only other use of the word “generally” in the specification:
`“The title segment may generally describe the category of items in the at least one choice-
`item segment, e.g. Menu.” ‘916 patent at 9:61-63 (citations omitted) (emphasis added).
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`10
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`Charter Ex. 1010, Page 10
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 11 of 62
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`between “markup language” and “such as” that the patentee used the term “such as” in a
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`restrictive manner to convey that a choice card may be encoded in a markup language of this
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`type.12 See, e.g., The Chicago Manual of Style § 6.27 (16th ed. 2010) (explaining that “such
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`as,” when not set off by commas, introduces a restrictive clause (e.g., “Words such as
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`matutinal and onomatopoetic are best to be avoided in everyday speech.”)). Thus, this
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`sentence in no way implies that a card may be used in the absence of a markup language.13
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`The Court next turns to the parties’ second dispute, which pertains not to the
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`meaning of the term “card,” but how it should be presented to the jury. During the
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`Markman hearing, counsel for Sprint repeatedly argued that Sprint’s construction is superior
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`to Comcast’s because of its potential to facilitate juror comprehension. See, e.g., Tr.
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`1/23/14 at 90:7-11 (counsel for Sprint); id. at 93:12-15 (counsel for Sprint). Specifically,
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`counsel for Sprint stated that, while “technically, it might be right,” Comcast’s “tag
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`construction . . . will do nothing but introduce confusion” because “if the[ jury is] told that a
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`card is instructions,” when a card is shown to the jurors, “they’re going to be looking for
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`instructions,” not how those instructions are interpreted to generate the display. Id. at 87:9-
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`12 The specification explains that WML and HDML are similar markup languages, as
`they both can be interpreted by a microbrowser. See ‘916 patent at 2:22-25. However,
`because the patent does not require use of a microbrowser, it is logical that other types of
`markup languages “may be used instead.” See, e.g., id. at 4:56-59.
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`Moreover, the patentee appears to have understood this rule of grammar, as is
`evidenced by his use of “such as” in conjunction with a comma elsewhere in the
`specification. Compare ‘916 patent at 4:56-59, with id. at 12:21-24 (“The Quick Text
`Choice card may allow the conversation participant to readily select a canned tex t message,
`such as ‘Hello’ or ‘How are you?’ in a specific category.” (citation omitted)).
`13 The same is true for other statements in the specification describing the encoding
`of a choice card in a markup language of this type. See, e.g., ‘916 patent at 5:35-36 (“Still
`further, the choice cards may be encoded in a markup language such as WML, HDML, or
`cHTML.” (emphasis added)); id. at 6:7-9 (“The method may also include encoding the
`choice card in a markup language such as WML, HDML, or cHTML.”); id. at 7:36-37 (“The
`tag documents may be written in a markup language such as WML, HDML, or cHTML.”).
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`11
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`Charter Ex. 1010, Page 11
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 12 of 62
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`11, 90:9-11 (counsel for Sprint). Sprint’s proposal, he further explained, “skips the
`
`confusing interpretation[ step and] . . . go[es] straight to the concept that . . . tags are
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`interpreted to create a display.” See id. at 93:12-15 (counsel for Sprint).
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`The Court declines to read the choice-card limitation out of the claims on the ground
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`advanced by Sprint. The claims that use the term “choice card” do not define a display
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`screen, but, rather, inter alia, “a choice card defining [a] user interface.” See, e.g., ‘916
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`patent at 14:13-14. Sprint cannot rewrite and broaden these claims under the guise of
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`simplifying their language for the jury. Halo Elecs., Inc. v. Bel Fuse Inc., No. 07-cv-06222,
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`2010 WL 4774774, at *3 (N.D. Cal. Nov. 16, 2010) (“The court fails to see why such a
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`construction would be confusing to the jury, particularly since it would clarify a l imitation
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`of the claimed invention that the parties agree exists.”).
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`For these reasons, the Court adopts Comcast’s proposed construction and construes
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`“card” as “at least one tag that describes the layout of the display screen” and “tag” as “an
`
`instruction of a markup language, such as WML or HDML.”
`
`B.
`
`“choice card”
`
`COMCAST
`a card that has at least one title segment and
`at least one choice-item segment
`
`
`SPRINT
`Plain and ordinary meaning, or
`
`Should the Court deem a construction of the
`ordinary meaning necessary: a display
`screen that includes at least one history-of-
`communications segment and at least one
`choice-item segment
`
`The parties also disagree as to the meaning of “choice card,” which is included in
`
`claims 7, 16, 22, and 23 of the ‘916 patent. For example, claim 23 recites:
`
`A method of assisting a user to engage in an interactive chat session via a
`device coupled with a telecommunications network, the device having a
`display screen and at least one actuator, the method comprising:
`
`12
`
`Charter Ex. 1010, Page 12
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`

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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 13 of 62
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`
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`(a) scrollably displaying a display block of a choice card on the
`display screen such that only a portion of the display block is viewable on the
`display screen at a given time, the display block of the choice card
`comprising:
`
`(1) at least one history-of-communication segment having a
`history-of-communications between the first device and at least one remote
`entity; and
`
`(2) at least one choice-item segment having a plurality of
`choice-items each (i) selectable by the user through actuation of the at least
`one actuator and (ii) defining an action item related to the interactive chat
`session;
`
`(b) in response to an indication from the user, scrolling some of the
`choice-items into view on the display screen while scrolling some of the
`communications out of view.
`
`‘916 patent at 16:7-28 (emphasis added).
`
` Comcast contends that the specification defines a “choice card” as “a card that has at
`
`least one title segment and at least one choice-item segment.” Sprint rejects Comcast’s
`
`proposal, arguing that a choice card with a title segment is only one embodiment of the
`
`choice card that is claimed. See, e.g., Tr. 1/23/14 at 94:7-9 (counsel for Sprint); id. at
`
`94:19-20 (counsel for Sprint); id. at 95:19-22 (counsel for Sprint). Sprint asserts that
`
`“choice card” requires no construction; but if construction is necessary, the Court should
`
`define “choice card” as “a display screen that includes at least one history-of-
`
`communications segment and at least one choice-item segment.”
`
`The Court agrees with Comcast that the specification explicitly defines the term
`
`“choice card” as containing two elements: (1) “a title segment” and (2) “a list of selectable
`
`options” (i.e., a “choice-item segment”). See ‘916 patent at 3:42-44 (“Like the entry card,
`
`the choice card has a title segment, which usually identifies the subject matter of the card.
`
`The choice card, however, has a list of selectable options instead of a text -entry segment.”).
`
`Again, because the “patentee [has] explicitly define[d the] claim term in the patent
`
`13
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`Charter Ex. 1010, Page 13
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`

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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 14 of 62
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`
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`specification, the patentee’s definition controls.” Martek Biosciences Corp. v. Nutrinova,
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`Inc., 579 F.3d 1363, 1380 (Fed. Cir. 2009).
`
`Further, the Court rejects Sprint’s argument that Figure 6-A in the specification
`
`illustrates “an example of an embodiment that does not . . . display a title segment,” see Tr.
`
`1/23/14 at 96:8-10 (counsel for Sprint). One of ordinary skill in the art would have
`
`understood that the title segment of the choice card shown in Figure 6-A is the part of the
`
`drawing in which the history of communications is displayed. See, e.g., ‘916 patent at 4:49-
`
`52 (“The choice card may conveniently. [sic] include, as its title segment, a history-of-
`
`communications, and conveniently include, as its choice-items, a number of functional
`
`choices related to the chat session.”); id. at 8:61-64 (“[T]he title segment of the text-entry
`
`card may be set as a history-of-communications and the text-entry segment may be set as a
`
`response-entry field.” (citations omitted)). Thus, contrary to Sprint’s contention, Comcast’s
`
`proposed construction does not exclude an embodiment disclosed in the specification.
`
`Finally, the Court rejects Sprint’s argument that the danger of confusing the jury
`
`outweighs the utility of construction. During the Markman hearing, counsel for Sprint
`
`argued that if the Court instructs the jury that a “choice card” must have a title segment,
`
`jurors will be confused if that title segment is used to display a history of communications
`
`instead of a subject heading. Jurors can easily grasp, however, that, while a title segment is
`
`“usually [used to] identif[y] the subject matter of the choice card,” see id. at 3:42, it also can
`
`be used to display a history of communications.
`
`For the stated reasons, the Court construes “choice card” as “a card that has at least
`
`one title segment and at least one choice-item segment.”
`
`14
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`Charter Ex. 1010, Page 14
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`Case 2:12-cv-00859-JD Document 162 Filed 08/15/14 Page 15 of 62
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`C.
`
` “choice-items” and “choice-item segment”
`
`COMCAST
`
`“choice-items” options selectable by a user and
`listed in a choice-item segment of a
`choice card
`
`“choice-item
`segment”
`
`a segment of a choice card listing
`one or more choice-items
`
`SPRINT
`Plain and ordinary meaning, or
`
`Should the Court deem a
`construction of the ordinary
`meaning nec