Case 6:21-cv-00642-ADA Document 32 Filed 01/07/22 Page 1 of 30
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`FLYPSI, INC. (D/B/A FLYP),
`
`
`Civil Action No. 6:21-cv-642-ADA
`
`Plaintiff,
`
`vs.
`
`DIALPAD, INC.,
`
`Defendant.
`
`JURY TRIAL DEMANDED
`
`REDACTED FOR PUBLIC
`FILING
`
`PLAINTIFF FLYPSI, INC.’S
`RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`Page 1 of 382
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`GOOGLE EXHIBIT 1009 (Part 1 of 2)
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`

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`Case 6:21-cv-00642-ADA Document 32 Filed 01/07/22 Page 2 of 30
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`TABLE OF CONTENTS
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`Page
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`Introduction ............................................................................................................................. 1
`I.
`II. Background ............................................................................................................................. 3
`A. Flyp ..................................................................................................................................... 3
`B. The Asserted Patents ........................................................................................................... 5
`C. The Declaration of Dr. Nettles ............................................................................................ 7
`D. Level of Ordinary Skill in the Art ....................................................................................... 8
`III.
`Argument ............................................................................................................................ 8
`A. Primary Telephone Number ................................................................................................ 8
`B. Voice Channel ................................................................................................................... 11
`C. Switch and Associated With ............................................................................................. 14
`IV.
`Conclusion ........................................................................................................................ 24
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`i
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Alexam, Inc. v. Best Buy Co.,
`Case No. 2:10-cv-93, 2012 WL 1188406 (E.D. Tex. Apr. 9, 2012) ........................................14
`
`Ancora Techs., Inc. v. LG Electronics Inc.,
`Case No. 1:20-cv-34, 2020 WL 4825716 (W.D. Tex. Aug. 19, 2020)
`(Albright, J.) .............................................................................................................9, 11, 12, 21
`
`Azure Networks, LLC v. CSR PLC,
`771 F.3d 1336 (Fed. Cir. 2014)................................................................................................12
`
`Barkan Wireless IP Holdings, L.P. v. Samsung Elecs. Co., Ltd.,
`2:18-CV-28-JRG, 2019 WL 497902 (E.D. Tex. Feb. 7, 2019) .........................................22, 23
`
`BASF Corp. v. Johnson Matthey Inc.,
`875 F.3d 1360 (Fed. Cir. 2017)..........................................................................................19, 24
`
`CloudofChange, LLC v. NCR Corp.,
`Case No. 6:19-cv-523, 2020 WL 4004810 (W.D. Tex. July 15, 2020)
`(Albright, J.) .............................................................................................................9, 11, 12, 18
`
`Comark Commc’ns, Inc. v. Harris Corp.,
`156 F.3d 1182 (Fed. Cir. 1998)..................................................................................................9
`
`Delta T LLC v. MacroAir Techs., Inc.,
`No. 20-728-GW-JPRX, 2021 WL 3721455 (C.D. Cal. Mar. 29, 2021) ..................................22
`
`Digital Biometrics, Inc. v. Identix, Inc.,
`149 F.3d 1335, 47 U.S.P.Q.2d 1418 (Fed. Cir. 1998) .............................................................20
`
`Digital Retail Apps, Inc. v. H-E-B, LP,
`Case No. 6:19-cv-167, 2020 WL 376664 (Jan. 23, 2020) (Albright, J.) .......................9, 11, 12
`
`eCeipt LLC v. Victoria Secret Stores, LLC,
`Case No. 6:20-cv-747, 2021 WL 4037599 (W.D. Tex. Sept. 3, 2021)
`(Albright, J.) .......................................................................................................................11, 12
`
`J & M Mfg. Co., Inc. v. Unverferth Mfg. Co., Inc.,
`1:12-CV-931, 2014 WL 6684714 (S.D. Ohio Nov. 25, 2014) ................................................22
`
`K–2 Corp. v. Salomon S.A.,
`191 F.3d 1356 (Fed. Cir. 1999)................................................................................................14
`ii
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`Leupold & Stevens, Inc. v. Lightforce USA, Inc.,
`No. 3:16-CV-01570-HZ, 2018 WL 648362 (D. Or. Jan. 31, 2018) ........................................22
`
`Liebel-Flarsheim Co. v. Medrad, Inc.,
`358 F.3d 898 (Fed. Cir. 2004)....................................................................................................9
`
`Mylan Institutional LLC v. Aurobindo Pharma Ltd.,
`857 F.3d 858 (Fed. Cir. 2017)..................................................................................................15
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .................................................................................................................15
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..........................................................................................11, 18
`
`Pisony v. Commando Constr., Inc.,
`Case No. W-17-cv-55, 2019 WL 928406 (W.D. Tex. Jan. 23, 2019) (Albright,
`J.) ........................................................................................................................................10, 13
`
`Quest Diagnostics Invs., LLC, v. Lab. Corp. of Am. Holdings,
`Case No. 18-1436, 2020 WL 210799 (D. Del. Jan 14, 2020) ..................................................20
`
`Sonix Tech. Co., Ltd. v. Publ’ns Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017)................................................................................................15
`
`Thorner v. Sony Computer Entm’t Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012)....................................................................................12, 18, 21
`
`U.S. Surgical Corp. v. Ethicon, Inc.,
`103 F.3d 1554 (Fed. Cir. 1997)..........................................................................................10, 13
`
`Whirlpool Corp. v. Ozcan,
`No. 2:15-CV-2103-JRG, 2016 WL 7474517 (E.D. Tex. Dec. 29, 2016) ....................15, 18, 19
`
`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015)................................................................................................21
`
`
`
`iii
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`Pursuant to the Court’s Order Governing Proceedings – Patent Cases (“OGP”) (Dkt. No.
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`20), and the Court’s Scheduling Order (Dkt. No. 23), Plaintiff Flypsi, Inc. (“Flyp”) hereby responds
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`to Defendant Dialpad, Inc.’s (“Dialpad”) Opening Claim Construction Brief (Dk. No. 24)
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`(“Opening Brief”) and submits its Responsive Claim Construction Brief. Here, the disputed terms
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`of the Asserted Patents do not require construction and should be given their plain-and-ordinary
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`meaning to a person of ordinary skill in the art.
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`As the Court is familiar with general claim construction standards and related legal
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`precedents, Flyp will refrain from reciting them. Rather, Flyp will focus on the legal precedents
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`specific to the Parties’ claim construction positions as they arise.
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`I.
`
`INTRODUCTION
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`Dialpad’s claim construction arguments can be summarized into three groups. First,
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`Dialpad requests construction of the term “primary telephone number.” Second, Dialpad requests
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`construction of the term “voice channel.” Third and finally, Dialpad argues that the terms “switch”
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`and “associated with” are indefinite or subject to means-plus-function treatment (and similarly
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`indefinite as a result). But Dialpad’s arguments in support of these positions either ignore axioms
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`of claim construction to re-write the claims or ignore a wealth of evidence (including Dialpad’s
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`own history and internal documents) about the well-understood terms within the art. Each of
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`Dialpad’s arguments should be rejected as inconsistent with both the law and the evidence.
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`Both “primary telephone number” and “voice channel” are well-understood terms to both
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`a person of ordinary skill and lay members of the jury. The intrinsic record for both does not
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`indicate any attempt by the patentee to act as its own lexicographer or disavow any scope with
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`respect to either term. As such, both terms should be afforded a heavy presumption that they are
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`given their plain-and-ordinary meaning. Dialpad’s arguments utterly fail to rebut this presumption.
`
`For “primary telephone number,” Dialpad’s construction attempts to improperly limit the term to
`1
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`what is expressly described in the patents as a preferred embodiment and also attempts to rewrite
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`the term in contravention to its well-understood meaning in the art. For “voice channel,” Dialpad
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`makes no attempt to argue lexicography or disavowal, and instead merely attempts to rewrite two
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`words into ten, using phrases found nowhere in the patents. Dialpad’s arguments should be
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`rejected, and both of these terms should be given their plain-and-ordinary meaning.
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`Dialpad’s arguments regarding “switch” and “associated with” fail to carry its burden to
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`prove indefiniteness by clear and convincing evidence. To meet its burden, Dialpad relies on mere
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`attorney argument (supplied in the form of rhetorical questions) and a single piece of evidence (a
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`dictionary from the previous millennium). An updated version of that same dictionary from this
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`decade, other technical dictionaries, Dialpad’s own internal documents, Dialpad’s prior company
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`name (Switch.co), a qualified expert, and the remainder of the intrinsic and extrinsic record all
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`demonstrate that “switch” is a term that is understood with reasonable certainty in the art. In
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`addition, Dialpad offers no explanation why “associated with” is indefinite when used in
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`connection with the term “switch,” but somehow not indefinite when it is used elsewhere in the
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`claims. To the contrary, the evidence demonstrates that “associated with” is a readily understood
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`term.
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`Dialpad’s mean-plus-function argument fares no better. Because “switch” and “associated
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`with” are terms that are understood with reasonable certainty in the art, they are not nonce terms.
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`Dialpad’s mere attorney argument cannot overcome the wealth of evidence discussed throughout
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`this response, which demonstrates that “switch” refers to a known class of structures in the art. As
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`a result, Dialpad cannot overcome the presumption against mean-plus-function treatment here.
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`2
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`II.
`
`BACKGROUND
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`A.
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`Flyp
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`Long before the COVID-19 pandemic, the explosion of Internet-connected mobile devices
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`changed the way many, even most, in the United States communicate with their family, their
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`friends, and their work colleagues. Throughout the 2010s and continuing into the 2020s, personal
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`and professional communications coalesced around the smartphone. While some chose to
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`segregate their personal and professional communications with multiple devices, that solution was
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`both financially and physically cumbersome. Rather, a technological need arose to segregate such
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`communications within a single device and to manage multiple numbers in a clean, centralized
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`environment. And within this field, there was a particular need for a device that would maintain
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`caller identification (“caller ID”) and properly identify a call as originating from the secondary
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`phone number of the caller with multiple numbers, rather than a conference line number or a
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`randomly generated number.
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`Flyp invented a technological solution that fulfills this technological need in a particular,
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`inventive way. Flyp owns a patent portfolio directed to innovations that claim a particular way of
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`setting up and connecting telephone calls, and delivering information related to such telephone
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`calls using an Internet Protocol (IP) or other data channels, while delivering the voice portion of
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`the call in accordance with telecom voice channel delivery standards. As opposed to the standard
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`mobile phone that is connected to a single phone number, Flyp’s patented systems and methods
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`enable a particular way for mobile-phone users to create and own multiple phone numbers on a
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`single mobile device while maintaining the integrity of caller-identification functions. Thus, from
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`a single mobile phone utilizing Flyp’s app (and patented methods), users can add new phone
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`numbers and control various streams of outbound and inbound calls to those numbers. Users can
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`select the area code of their choice for local calling in the United States and create alternative and
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`dedicated numbers for business, social activities, shopping, dating, and any other aspect of life.
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`This invention is unlike—and constituted a technological advance over—other methods
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`for using alternative phone numbers. Many of those methods utilized call forwarding or call
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`conferencing solutions—rather than connecting the call at the switch. In these solutions, caller ID
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`was not maintained, and the recipient caller ID would appear to the one receiving the call as a
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`conference line number or randomly generated number—rather than properly identifying the call
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`as originating from the secondary phone number of the caller with multiple numbers. The need for
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`alternative numbers that identified calls as originating from the secondary phone number was a
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`long-felt need and unique technological problem that Flyp’s invention provides a particular way
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`of solving, thereby improving the functionality of the phone beyond the mere advantages of
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`implementing phone technology using computers. This is also a feature that cannot be
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`implemented manually.
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`This need to segregate communications within a single device and to manage multiple
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`numbers in a centralized environment was reinforced during the sudden and rapid shift to a “work
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`from anywhere” ethos brought on by the COVID-19 pandemic. The pandemic reinforced the
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`essential role that the Internet and our Internet-connected mobile devices occupy in day-to-day
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`work and life. That is particularly true regarding cloud-based telephone service. Indeed, amid the
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`COVID-19 crisis, the global market for cloud telephony service, estimated at $13.5 billion in the
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`year 2020, is projected to reach a revised size of $40 billion by 2027, growing at a compound
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`annual growth rate of 16.8% over the period 2020–2027. (See “$13.5 Billion Worldwide Cloud
`
`Telephony Service Industry to 2027 – Impact of COVID-19 on the Market,” Research & Markets,
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`https://www.globenewswire.com/en/news-release/2020/10/14/2108292/28124/en/13-5-Billion-
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`Worldwide-Cloud-Telephony-Service-Industry-to-2027-Impact-of-COVID-19-on-the-
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`Market.html).
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`But for rampant infringement of its patented technology, Flyp would be well positioned to
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`play a role in this growing market. Simply put, Flyp has developed a unique and inventive
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`technology that enables a particular way for a user to gain access to an additional, alternative phone
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`number on his or her mobile device—as opposed to being bound to the single carrier-assigned
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`number on a mobile device.
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`B.
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`The Asserted Patents
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`In this case, Flyp asserts U.S. Patent Nos. 9,667,770 (the “’770 Patent), 10,051,105 (the
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`“’105 Patent”), 10,334,094 (the “’094 Patent”), and 11,012,554 (the “’054 Patent”) (collectively,
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`the “Asserted Patents”). The Asserted Patents are all entitled “Telephone Network System and
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`Method” and issued to inventors Ivan Zhidov, Peter Rinfret, and Sunir Kochhar. The Asserted
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`Patents all share the same specification and all claim priority to a provisional application filed on
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`July 17, 2013. True and correct copies of the Asserted Patents are attached hereto as Exhibit A, B,
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`C, and D, respectively.
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`At present, Flyp has asserted the following claims from each patent: ’770 Patent, Claims
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`1–6; ’105 Patent, Claims 1–11; ’094 Patent, Claims 1–4; and ’554 Patent, Claims 1–4 (collectively,
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`the “Asserted Claims”).
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`
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`As previewed above, the Asserted Claims all set forth methods for providing telephone
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`service using multiple (“secondary”) phone numbers on a single device while maintaining the
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`integrity of caller-identification functions. Broadly, the claims of the ’770 and ’105 Patents address
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`inbound calls to a secondary number, while the claims of the ’094 and ’554 Patents address
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`outbound calls made from the secondary number.
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`
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`For inbound calls, claim 1 of the ’770 Patent is representative for claim construction
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`purposes:
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`1. A method of providing telephone service, the method comprising:
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`associating a secondary telephone number with a primary telephone
`number in at least one computer memory device, the primary
`telephone number being assigned to a handset;
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`acquiring first digital information from the handset over at least one
`data channel, the first digital information indicating primary call
`processing rules for handling calls directed to the primary telephone
`number;
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`storing the primary call processing rules in the at least one computer
`memory device;
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`acquiring second digital information from the handset over the at
`least one data channel, the second digital information indicating
`secondary call processing rules for handling calls directed to the
`secondary telephone number;
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`storing the secondary call processing rules in the at least one
`computer memory device;
`
`receiving an incoming call over at least one voice channel at a
`switch, the switch being associated with a bridge telephone number
`such that calls directed to the bridge telephone number are
`automatically routed to the switch, the incoming call being directed
`to a handset-associated telephone number, the handset-associated
`telephone number being the primary telephone number or the
`secondary telephone number, and;
`
`based on the primary call processing rules or the secondary call
`processing rules:
`
`transmitting pre-call information to the handset over the at least one
`data channel the pre-call information including the bridge telephone
`number and the handset-associated telephone number, such that the
`handset is capable of displaying the handset-associated telephone
`number to a user and, based on user input, accepting the incoming
`call by connecting with the switch over the at least one voice channel
`using the bridge telephone number.
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`
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`For outbound calls, claim 1 of the ’554 Patent is representative for claim construction
`
`purposes:
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`1. A method of providing telephone service, comprising:
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`automatically storing electronic information that indicates an
`association of a secondary telephone number and a primary
`telephone number with a mobile device in a computer memory
`associated with a server;
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`automatically transmitting information that indicates an access
`telephone number to the mobile device via a data channel;
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`automatically associating the telephone access number with a switch
`associated with the server;
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`receiving, at the switch associated with the server, an outgoing call
`from the mobile device to the access telephone number via a second
`channel;
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`receiving, at the server, information from the switch indicating the
`outgoing call is being made to the access telephone number from the
`primary telephone number; and
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`receiving, at the switch, information from the server directing the
`switch to:
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`(a) connect the outgoing call to a contact telephone number
`indicated by the mobile device, and
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`(b) identify a telephone number from which the outgoing call
`is being made as the secondary telephone number.
`
`C.
`
`The Declaration of Dr. Nettles
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`As required in the Court’s Scheduling Order, Flyp properly and timely identified Dr. Scott
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`Nettles as an expert witness on whom Flyp may rely with respect to claim construction and also
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`identified the scope of the topics for which Flyp expected testimony from Dr. Nettles. See Flyp’s
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`Disclosure of Extrinsic Evidence.1
`
`
`
`1 A true and correct copy of Flyp’s Disclosure of Extrinsic Evidence is attached hereto as Exhibit
`S. True and correct copies of the Extrinsic Evidence relied upon herein are attached hereto as
`Exhibits F through R.
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`Dr. Nettles is qualified to opine on the terms in dispute here based on his industry and
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`academic experience. Such experience includes over 40 years of industry and academic experience
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`as a professor at the University of Texas and various other universities, as a researcher in fields of
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`wireless and mobile networking and in the design and implementation of router, switch, firewall,
`
`and wireless node prototypes, as well as being a testifying expert in numerous patent cases.
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`A true and correct copy of Dr. Nettles Declaration in Support of Flyp’s Claim Construction
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`positions is attached hereto as Exhibit E (“Nettles Decl.”).
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`D.
`
`Level of Ordinary Skill in the Art
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`A person of ordinary skill in the art (“POSITA”) would have a Bachelor of Science degree
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`in electrical engineering, computer science, computer engineering, and/or a closely related field,
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`and at least two years of work or research in telecommunications, telephone networks, and/or the
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`development of mobile applications related to the same. More work experience could compensate
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`for less education, and vice versa. Nettles Decl. at ¶¶ 18–22.
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`III. ARGUMENT
`
`A.
`
`Primary Telephone Number
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`Dialpad’s proposed construction, “a telephone number or identifier that is assigned to a
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`handset or a mobile device at activation,” improperly attempts to limit the term to an explicitly
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`preferred embodiment and must be rejected. Instead, the term should be given its plain-and-
`
`ordinary meaning to a POSITA.
`
`In essence, Dialpad reads the term “primary” to mean “assigned … at activation.” The
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`remainder of Dialpad’s construction, “a telephone number or identifier assigned to a handset or
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`mobile device,” does not deviate meaningfully from the common-sense and plain meaning of
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`“telephone number.” As a result, this dispute boils down to two basic questions: (1) is it accurate
`
`to construe “primary” to mean “assigned … at activation,” and (2) is it necessary to further
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`construe telephone number as “a telephone number or identifier assigned to a handset or mobile
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`device”? In both cases, the answer is resoundingly “no.”
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`As this Court has repeatedly recognized, “[a]lthough the specification may aid the court in
`
`interpreting the meaning of disputed claim language, particular embodiments and examples
`
`appearing in the specification will not generally be read into the claims.” Comark Commc’ns, Inc.
`
`v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998). Accordingly, it is well established that “it
`
`is improper to read limitations from a preferred embodiment described in the specification—even
`
`if it is the only embodiment—into the claims absent a clear indication in the intrinsic record that
`
`the patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
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`898, 913 (Fed. Cir. 2004).2
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`Here, the sole evidence relied on by Dialpad for its assertion that a primary telephone
`
`number is assigned at activation is found in the Detailed Description of Embodiments of the
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`Invention. There, the patentee explicitly limits its statement to a preferred embodiment stating,
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`“the primary telephone number, preferably, may be a SIM number or ESN which is assigned to
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`the handset 340 at the time of activation.” ’770 Patent at 5:2-4.3 The patentee did not present any
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`indication, much less a clear indication, that it intended the claims to be limited to this embodiment.
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`Rather, the patentee explicitly indicated otherwise—that “the primary telephone number
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`preferably, may be” assigned at the time of activation. Dialpad has not even attempted to argue
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`
`
`2 See Ancora Techs., Inc. v. LG Electronics Inc., Case No. 1:20-cv-34, 2020 WL 4825716, at *2
`(W.D. Tex. Aug. 19, 2020) (Albright, J.) (citing Comark and Liebel-Flarsheim for these
`established tenants of claim construction); CloudofChange, LLC v. NCR Corp., Case No. 6:19-cv-
`523, 2020 WL 4004810, at *2 (W.D. Tex. July 15, 2020) (Albright, J.) (same); and Digital Retail
`Apps, Inc. v. H-E-B, LP, Case No. 6:19-cv-167, 2020 WL 376664, at *2 (Jan. 23, 2020) (Albright,
`J.) (same).
`3 See also ’105 Patent at 5:2-4, ’094 Patent at 5:11-13, and ’554 Patent at 5:13-15.
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`that such a statement evinces a clear indication of an intent to limit the claims, as any such
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`argument would strain credulity and border on objective frivolousness.
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`Indeed, the patentee’s expression that assignment at time of activation was merely a
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`preferred embodiment is entirely consistent with the knowledge of a POSITA and common sense.
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`Quite often, a primary telephone number is assigned at the time of a phone’s activation. All major
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`carriers, however, allow a user to change his or her primary phone number at some point after
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`activation. Nettles Decl. at ¶ 30. While such a change may have required an in-store visit at the
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`time of filing in 2014, today many carriers allow a user to change his or her primary telephone
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`number online. Id. In such a case, it would be impermissible to limit the claims only to the number
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`assigned at the time of activation.
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`Thus, “primary” should not be construed to mean “assigned … at activation.” The
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`remaining question is then whether the remainder of Dialpad’s proposed construction is necessary.
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`It is not.
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`Both a POSITA and the ultimate fact finder in this case would have a clear understanding
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`of the plain-and-ordinary meaning of “telephone number.” Once the timing portion of Dialpad’s
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`proposed construction is rejected, the remainder of Dialpad’s construction is entirely unhelpful.
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`As this Court has recognized in the past, where “there is nothing about the claim term that is
`
`confusing … the term requires no construction.” Pisony v. Commando Constr., Inc., Case No. W-
`
`17-cv-55, 2019 WL 928406, at *5 (W.D. Tex. Jan. 23, 2019) (Albright, J.). Here, there is nothing
`
`confusing about the term “primary telephone number.” The remainder of Dialpad’s construction—
`
`a telephone number or identifier assigned to a handset or mobile device—does nothing to clarify
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`the meaning of the term. Expanding an understandable term from three words to 12 words does
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`nothing to resolve disputed meaning or technical scope and is instead “an obligatory exercise in
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`Case 6:21-cv-00642-ADA Document 32 Filed 01/07/22 Page 15 of 30
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`redundancy” that should be rejected. Id. (citing U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d
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`1554, 1568 (Fed. Cir. 1997)).
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`Finally, Dialpad’s assertion that without its construction “it would be difficult or
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`impossible to distinguish a primary telephone number from a secondary telephone number” is
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`without merit. This assertion is unsupported by any evidence whatsoever. Moreover, this assertion
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`is undercut by Dialpad’s acquiescence that “secondary telephone number” needs no construction.
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`If “secondary telephone number” needs no construction, then “primary telephone number”
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`likewise requires no construction. Dialpad similarly does not request construction for any other
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`telephone number within the claims—like “bridge telephone number,” “handset-associated
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`telephone number,” or “originating telephone number”—which suggests a similar conclusion. No
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`construction is necessary for any of the telephone number terms within the claim.
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`For these reasons, Dialpad’s proposed construction should be rejected. No construction is
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`necessary and the term “primary telephone number” should be given its plain-and-ordinary
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`meaning.
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`B.
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`Voice Channel
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`Dialpad’s proposed construction for voice channel, “a communications path used for voice
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`information and voice calls,” should also be rejected and the term should be given its plain-and-
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`ordinary meaning to a POSITA.
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`As this Court has also repeatedly recognized, “[t]he general rule is that claim terms are
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`generally given their plain-and-ordinary meaning.” Ancora, 2020 WL 4825716, at *2 (citing
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`Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005)).4 Moreover, both this Court and the
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`
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`4 See also CloudofChange, 2020 WL 4004810, at *2 (same); and Digital Retail Apps, Case No.
`6:19-cv-167, 2020 WL 376664, at *2 (same).
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`Case 6:21-cv-00642-ADA Document 32 Filed 01/07/22 Page 16 of 30
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`Federal Circuit apply a “heavy presumption” in favor of construing terms according to their plain-
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`and-ordinary meaning. eCeipt LLC v. Victoria Secret Stores, LLC, Case No. 6:20-cv-747, 2021
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`WL 4037599, at *1 (W.D. Tex. Sept. 3, 2021) (Albright, J.) (quoting Azure Networks, LLC v. CSR
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`PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption that claim terms carry
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`their accustomed meaning in the relevant community at the relevant time.”).
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`The “‘only two exceptions to [the] general rule’ that claim terms are construed according
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`to their plain-and-ordinary meaning are when the patentee (1) acts as his/her own lexicographer or
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`(2) disavows the full scope of the claim term either in the specification or during prosecution.”
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`Ancora, 2020 WL 4825716, at *2 (citing Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d
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`1362, 1365 (Fed. Cir. 2012)). To act as its own lexicographer, “the patentee must ‘clearly set forth
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`a definition of the disputed claim term,’ and ‘clearly express an intent to define the term.’” Id. To
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`disavow the full scope of a term, “the patentee’s statements in the specification or prosecution
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`history must represent ‘a clear disavowal of claim scope.’” Id.5
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`Neither of these two exceptions apply here. Indeed, Dialpad has not even attempted to
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`argue that the patentee acted as its own lexicographer to define “voice channel,” or attempted to
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`argue disavowal. Because no argument or evidence has been presented satisfying either exception,
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`the heavy presumption in favor of the general rule should govern here.
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`Here, rather than attempting to argue lexicography or disavowal, Dialpad misleadingly
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`quotes one clause from the specification while failing to cite the full sentence and context in which
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`the clause arises. See Opening Brief at 5 (stating “The Asserted Patent specifications provide that
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`
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`5 See also CloudofChange, 2020 WL 4004810, at *2 (recognizing same two limited exceptions to
`general rule); Digital Retail Apps, Case No. 6:19-cv-167, 2020 WL 376664, at *2 (same); and
`eCeipt, 2021 WL 4037599, at *1 (same).
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`Case 6:21-cv-00642-ADA Document 32 Filed 01/07/22 Page 17 of 30
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`‘communications, when used to carry voice information, are referred to herein as being conducted
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`over a “voice channel.’”). In full, that sentence from the specification reads as follows:
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`Such CDMA, GSM or like governed communications, when used to
`carry voice information, are referred to herein as being conducted
`over a “voice channel.”
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`’770 Patent at 4:43-46.6 A POSITA would understand that CDMA, GSM and like governed
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`standards (like LTE and the more recent 5G) can carry data and text information in addition to
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`voice. Nettles Decl. at ¶¶ 36–37. The specification makes clear that such channels are considered
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`“voice channels” when used to carry voice (as opposed to other types of information). But such
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`channels are not limited to voice, and the term “voice channel” is not limited to those channels that
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`only carry voice, as Dialpad’s proposed construction could be re