Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 1 of 21 PageID #: 7520
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`Case No. 2:16-cv-00741- RWS
`LEAD CASE
`
`Case No. 2:16-cv-00858- RWS
`
`
`JURY TRIAL DEMANDED
`
`
`
`§§§§§§§§§§
`
`UNILOC USA, INC., et al.,
`
`
`Plaintiffs,
`
`
`v.
`
`BIG FISH GAMES, INC.,
`
`
`Defendant.
`
`
`
`DEFENDANT BIG FISH GAMES, INC.’S CORRECTED RESPONSE IN OPPOSITION
`TO PLAINTIFFS’ MOTION TO RECONSIDER A PORTION OF THIS COURT’S
`MEMORANDUM OPINION AND ORDER CONSTRUING CERTAIN CLAIM TERMS
`
`
`
`
`

`

`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 2 of 21 PageID #: 7521
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`TABLE OF CONTENTS
`
`PRELIMINARY STATEMENT .........................................................................................1 
`
`BACKGROUND .................................................................................................................2 
`
`ARGUMENT .......................................................................................................................4 
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`Uniloc Waived Its Right To Seek Reconsideration .................................................4 
`
`Uniloc’s Motion For Reconsideration Is An Improper Attempt To Redo
`Claim Construction And Should Be Denied Without Further Consideration ..........4 
`
`Uniloc’s Expert Declaration is Untimely, Improper, and Unpersuasive .................5 
`
`Uniloc Does Not Provide Any Valid Basis Justifying Reconsideration
`Under The Applicable Standard ...............................................................................7 
`
`Even If The Court Were To Treat Uniloc’s Arguments As Claims Of Clear
`Error, It Is Plain That No Such Error Exists In The Claim Construction
`Order ........................................................................................................................8 
`
`A.
`
`The Court Properly Construed “Application Launcher Program” ...............9 
`
`1.
`
`2.
`
`The Court Properly Considered The Prosecution History Of
`The ’766 Patent ..............................................................................10 
`
`The Court Properly Considered The ’466 Patent When
`Construing “Application Launcher Program” ................................12 
`
`B.
`
`The Court Properly Construed “Application Program” .............................15 
`
`CONCLUSION ..................................................................................................................15 
`
`
`
`
`
`
`
`
`
`i
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 3 of 21 PageID #: 7522
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Abbott Labs. V. Dey, L.P.,
`287 F.3d 1097 (Fed. Cir. 2002)..........................................................................................13, 14
`
`Advanced Mktg. Sys., LLC v. CVS Pharmacy, Inc.,
`6:15-cv-134-JRG-KNM, 2016 WL 1741396 (E.D. Tex. May 3, 2016) ....................................6
`
`Alexam, Inc. v. Best Buy Co., Inc.,
`No. 2:10CV93, 2012 WL 1188406 (E.D. Tex. April 9, 2012) ................................................10
`
`Andersen Corp v. Fiber Composites, LLC,
`474 F.3d 1361 (Fed. Cir. 2007)................................................................................................15
`
`Capital Mach. Co., Inc., v. Miller Veneers, Inc.,
`524 Fed. Appx. 644 (Fed. Cir. 2013) (unpublished) ................................................................11
`
`Doe v. U.S.,
`463 F.3d 1314 (Fed. Cir. 2006)..................................................................................................4
`
`eTool Dev., Inc. v. Nat’l Semiconductor Corp.,
`881 F. Supp. 2d 745 (E.D. Tex. 2012) ...............................................................................1, 4, 5
`
`Gen. Protecht Grp., Inc. v. Int’l Trade Comm’n,
`619 F.3d 1303 (Fed. Cir. 2010)..................................................................................................6
`
`Goldenberg v. Cytogen, Inc.,
`373 F.3d 1158 (Fed. Cir. 2004)................................................................................................14
`
`Innovative Display Techs. LLC v. Acer Inc.,
`No. 2:13–cv–00522–JRG, 2014 WL 3402529 (E.D. Tex. Jul. 11, 2014)..................................6
`
`Invitrogen Corp. v. Clontech Labs., Inc.,
`429 F.3d 1052 (Fed. Cir. 2005)..................................................................................................4
`
`Med. Ctr. Pharmacy v. Holder,
`634 F.3d 830 (5th Cir. 2011) .....................................................................................................4
`
`Microsoft Corp. v. Multi-Tech Sys., Inc.,
`357 F.2d 1340 (Fed. Cir. 2004)..............................................................................10, 11, 12, 13
`
`Omega Eng’g, Inc. v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003)................................................................................................10
`
`
`
`ii
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 4 of 21 PageID #: 7523
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`TABLE OF AUTHORITIES (CONTINUED)
`
`
`
`Page(s)
`
`Cases
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..................................................................................................6
`
`Smartflash LLC v. Apple Inc.,
`No. 6:13-CV-447-JRG-KNM, 2015 WL 4208754 (E.D. Tex. July 7, 2015) ........................5, 7
`
`Symantec Corp. v. Computer Assocs. Int’l, Inc.,
`522 F.3d 1279 (Fed. Cir. 2008)..................................................................................................6
`
`Teva Pharms USA, Inc. v. Sandoz, Inc.,
`789 F.3d 1335 (Fed. Cir. 2015)................................................................................................11
`
`Uniloc USA, Inc. v. NetSuite, Inc.,
`Case No. 2:16-cv-00862-RWS ..................................................................................................3
`
`Verizon Servs. Corp. v. Vonage Holdings Corp.,
`503 F.3d 1295 (Fed. Cir. 2007)..........................................................................................11, 13
`
`Rules
`
`Fed. R. Civ. P. 54(b) ........................................................................................................................4
`
`Fed. R. Civ. P. 59(e) ........................................................................................................................4
`
`
`
`iii
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 5 of 21 PageID #: 7524
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`Big Fish Games, Inc. (“Big Fish”) hereby opposes the Motion to Reconsider a Portion of
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`this Court’s Memorandum Opinion and Order Construing Certain Terms (“Motion”) filed by
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`Plaintiffs Uniloc USA, Inc., and Uniloc Luxembourg, S.A. (together, “Uniloc”).
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`PRELIMINARY STATEMENT
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`Uniloc previously waived its right to contest the Memorandum Opinion and Order
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`construing claim terms (“Claim Construction Order”) when it failed to appeal that order to the
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`Federal Circuit at the time it appealed this Court’s final judgment dismissing the action. But even
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`if not waived, this Court has previously admonished that “motions for reconsideration should not
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`be used to raise arguments that could, and should, have been made before entry of judgment or to
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`re-urge matters that have already been advanced by a party.”1
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`Here, Uniloc simply rehashes prior arguments and resorts to derivative arguments
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`predicated on previously raised or available case law, in contravention of this Court’s admonition.
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`Uniloc supports its position with the untimely submission of a new expert declaration, constituting
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`extrinsic evidence,2 the introduction of which at this point in the litigation is yet another example
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`of Uniloc’s ongoing and flagrant disregard of this Court’s Patent Rules, as laid out in other pending
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`motions before this Court. See, e.g., Dkt. Nos. 348, 349 (Defendant’s Motion to Strike and Reply).
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`But even if the Court were to consider Uniloc’s newly submitted evidence, none of
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`Uniloc’s arguments warrant reconsideration of the Court’s decision, which correctly relied on
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`statements made during prosecution of U.S. Patent Nos. 6,510,466 (“the ’466 Patent”) and
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`
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`1 eTool Dev., Inc. v. Nat’l Semiconductor Corp., 881 F. Supp. 2d 745, 749 (E.D. Tex. 2012)
`(internal quotation omitted).
`2 In fact, the declaration contains only attorney argument disguised as expert testimony, which
`the Federal Circuit repeatedly has warned is inappropriate.
`
`
`1
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 6 of 21 PageID #: 7525
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`6,728,766 (“the ’766 patent”) as part of the basis for construing common terms that appeared
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`across all the patents-in-suit. Uniloc does not and cannot establish any legitimate basis to
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`reconsider the Claim Construction Order. Uniloc does not identify any intervening change in law
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`or new evidence that was previously unavailable during claim construction. Uniloc’s insinuation
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`(note that it never actually claims “clear error”) that the Claim Construction Order is legally
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`erroneous fails when considering the Court’s actual reasoning and removing Uniloc’s
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`mischaracterizations of Federal Circuit authority.
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`No legitimate basis exists to reconsider the Court’s claim constructions. Accordingly, the
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`Court should deny Uniloc’s Motion as an improper request for a do-over to unjustifiably enlarge
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`the scope of its patent rights and sustain its recently expanded litigation campaign.
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`BACKGROUND
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`Uniloc filed a rash of lawsuits against nearly twenty unrelated companies in 2016 asserting
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`infringement of myriad claims in U.S. Patent Nos. 7,069,293 (“the ’293 Patent”) and 6,324,578
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`(“the ’578 Patent”), and the ’466 and ’766 Patents (collectively, the “patents-in-suit”). The parties
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`submitted extensive claim construction briefing. See Dkt. 151, 159, 165. The Court allowed the
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`parties to file supplemental briefs related to two terms, including the term “application launcher
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`program” at issue here. See Dkt. 199, 210, 216, 220. The Court held a claim construction hearing
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`on August 10, 2017, and on August 16, 2017, the Court issued its Claim Construction Order. See
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`Dkt. 233. The parties completed fact discovery on September 18, 2017, and submitted opening
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`expert reports on September 22, 2017, which included Uniloc’s expert report on infringement.
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`Shortly thereafter, on September 27, 2017, Uniloc filed its original motion for
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`reconsideration. See Dkt. 266. That motion was mooted the following day when the Court granted
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`pending motions to dismiss and invalidated all four patents-in-suit. See Dkt. 267. The Federal
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`Circuit subsequently affirmed the invalidation of the ’466 and ’766 patents, but remanded on the
`2
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 7 of 21 PageID #: 7526
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`’578 and ’293 patents. See Dkt. 317. On remand, only the following asserted claims remain:
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`claims 1, 8, 17, 27, and 30 of the ’578 patent, and claims 1, 12, and 17 of the ’293 patent.
`
`While Big Fish is the last defendant remaining in the cases consolidated under lead case
`
`No. 2:16-cv-00741, Uniloc has re-commenced lawsuits against a number of defendants from the
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`initial wave of lawsuits and also filed new lawsuits against a host of new defendants for alleged
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`infringement of the ’578 and ’293 patents. There are over a dozen potentially related cases that
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`will be impacted by the outcome of the Court’s decision on Plaintiffs’ Motion.
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`In the parties’ Joint Status Report, submitted on August 16, 2019, Uniloc indicated that it
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`intended to “resubmit” its original motion to reconsider the Claim Construction Order “with two
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`modifications: (1) deletion of any requests as to the ’466 or ’766 patents, as those patents are no
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`longer in the case; and (2) update as to developments in the law since its filing.” Dkt. 323 at 4.
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`Instead of those two straightforward modifications, however, the motion seeks a do-over in order
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`to avoid the consequences of the Claim Construction Order in the related cases, which would be
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`detrimental to Uniloc’s litigation campaign. As Big Fish cautioned in the Joint Status Report:
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`Uniloc seeks to undo one of the Court’s constructions in order to obtain a more
`advantageous position regarding its infringement contentions in the later-filed
`cases, which Uniloc expressly mentions above. In fact, Uniloc has asserted the
`same claim construction position it now seeks from this Court in one of the later-
`filed cases. See Dkt. No. 233 (discussing Uniloc’s claim construction briefing in
`Uniloc USA, Inc. v. NetSuite, Inc., Case No. 2:16-cv-00862-RWS). Thus, Uniloc’s
`motion is not intended to aid the courts in the later-filed cases, but is meant to avoid
`having those courts reject Uniloc’s new position as inconsistent with the positions
`it took before this Court in this case.
`
`Id. at 5.
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`
`
`
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`3
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 8 of 21 PageID #: 7527
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`I.
`
`Uniloc Waived Its Right To Seek Reconsideration
`
`ARGUMENT
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`Uniloc failed to raise a challenge to the Claim Construction Order during Uniloc’s appeal
`
`of the Court’s dismissal order, which merged the previously issued interlocutory Claim
`
`Construction Order into the final appealed judgment, rendering it subject to appellate review at
`
`that time. See Invitrogen Corp. v. Clontech Labs., Inc., 429 F.3d 1052, 1069 (Fed. Cir. 2005). By
`
`failing to raise the issue during the appeal, Uniloc has waived the matter. See Med. Ctr. Pharmacy
`
`v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (stating that “an issue that could have been but was
`
`not raised on appeal is forfeited and may not be revisited by the district court on remand.”); see
`
`also Doe v. U.S., 463 F.3d 1314, 1326-27 (Fed. Cir. 2006) (“[A]fter a first appeal, any issue that
`
`could have been but was not raised on appeal is waived . . . .”) (internal quotation omitted).
`
`II.
`
`Uniloc’s Motion For Reconsideration Is An Improper Attempt To Redo Claim
`Construction And Should Be Denied Without Further Consideration
`
`The Court, however, need not decide this procedural issue to easily dispose of the Motion.
`
`The courts in this Circuit clearly and unequivocally hold that “motions for reconsideration should
`
`not be used to raise arguments that could, and should, have been made before entry of judgment
`
`or to re-urge matters that have already been advanced by a party.” eTool, 881 F. Supp. 2d at 749
`
`(internal quotation omitted). Rather, motions for reconsideration are reserved for the “narrow
`
`purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered
`
`evidence.” Id. (internal quotation omitted); see also id. at 748-49 (collecting cases holding that
`
`the standards for reconsideration under Fed. R. Civ. P. 59(e) also apply to interlocutory orders
`
`under Fed. R. Civ. P. 54(b)).
`
`On its face, Uniloc’s Motion simply reargues positions that Uniloc already raised and lost,
`
`or could have raised, during the original claim construction process. Following a thorough
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`4
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 9 of 21 PageID #: 7528
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`evaluation of the claims, specifications, and prosecution histories of the patents-in-suit, the Court
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`construed the two terms that Uniloc now seeks to have re-construed – “application launcher
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`program” and “application program”/“application.” The Court construed the terms uniformly
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`across each of the patents-in-suit, expressly rejecting Uniloc’s arguments that (1) the prosecution
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`histories of the ’466 and ’766 patents were “irrelevant,” or (2) should be treated as extrinsic
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`evidence, concluding instead that “the prosecution histories of the ’466 and ’766 Patents are
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`relevant to the construction of identical terms used in the related ’578 and ’293 Patents.” See Dkt.
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`233 at 11-14 & n.4; see also Dkt. 220 at 4; Markman Hr’g. Tr. (Aug. 10, 2017) at 11:21-13:22.
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`The Court further stated that Uniloc failed to cite any “relevant authority to support their position
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`that the prosecution history of a sibling application that is incorporated by reference should
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`automatically be considered extrinsic evidence.” Dkt. 233 at 14, n.4.
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`Nothing has changed since the Court’s prior analysis of these issues. The arguments in
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`Uniloc’s Motion are merely variations on its prior arguments or new arguments based on then-
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`existing case law, all of which was fully available to Uniloc at the time of the original claim
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`construction briefing process. Uniloc could and should have raised those case-law arguments at
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`that time. The same holds true for the statements contained in the untimely and improper expert
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`declaration accompanying the Motion. That Uniloc failed to raise these arguments previously is
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`not a valid basis for seeking reconsideration. See eTool, 881 F. Supp. 2d at 749. Uniloc’s “[m]ere
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`disagreement with [the] district court’s order does not warrant reconsideration of that order.”
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`Smartflash LLC v. Apple Inc., No. 6:13-CV-447-JRG-KNM, 2015 WL 4208754, at *1 (E.D. Tex.
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`July 7, 2015). For this reason alone, the Court should deny the Motion.
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`III. Uniloc’s Expert Declaration is Untimely, Improper, and Unpersuasive
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`Uniloc’s attempt to buttress its Motion with an expert declaration, which relies upon eight
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`extrinsic prior art references that Uniloc never previously disclosed or otherwise referenced during
`5
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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 10 of 21 PageID #: 7529
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`claim construction, is a yet another example of Uniloc’s violation of the Patent Rules governing
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`cases before this Court.3 See P.R. 4-2(b) (requiring that “extrinsic evidence, including . . .
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`testimony of percipient and expert witnesses” be disclosed well in advance of claim construction
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`briefing) (emphasis added); see also P.R. 4-3(a)(2) (requiring each party to identify “any extrinsic
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`evidence . . . to support its position or to oppose any other party’s position, including . . . testimony
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`of percipient and expert witnesses” in the Joint Claim Construction and Prehearing Statement)
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`(emphasis added); P.R. 4-3(b). For this reason alone, Uniloc’s expert declaration and attached
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`exhibits should be stricken. See Innovative Display Techs. LLC v. Acer Inc., No. 2:13–cv–00522–
`
`JRG, 2014 WL 3402529, at *2 (E.D. Tex. Jul. 11, 2014); Advanced Mktg. Sys., LLC v. CVS
`
`Pharmacy, Inc., 6:15-cv-134-JRG-KNM, 2016 WL 1741396, at *5-6 (E.D. Tex. May 3, 2016).
`
`Regardless, the expert declaration is substantively improper. Expert testimony is unhelpful
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`where the expert “simply recites how [he] would construe [a claim term] based on his own reading
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`of the specification.” Symantec Corp. v. Computer Assocs. Int'l, Inc., 522 F.3d 1279, 1290–91
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`(Fed. Cir. 2008); Phillips v. AWH Corp., 415 F.3d 1303, 1318 (Fed. Cir. 2005) (“[C]onclusory,
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`unsupported assertions by experts as to the definition of a claim term are not useful to a court.”);
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`Gen. Protecht Grp., Inc. v. Int’l Trade Comm’n, 619 F.3d 1303, 1310–11 (Fed. Cir. 2010) (“[A]n
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`expert’s subjective understanding of a patent term is irrelevant.”). Uniloc’s newly-submitted
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`expert declaration is rife with unsupported, subjective, legal conclusions about the purported
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`meaning of claim terms.4 Even the section of the declaration entitled “Background of the
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`
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`3 Uniloc’s disregard of the Patent Rules is a consistent theme of its litigation conduct before this
`Court. See Dkt. Nos. 348, 349. Respectfully, the Court should not permit Uniloc alone to flout
`the rules by which all litigants are expected to abide in the thousands of other patent cases in this
`District.
`4 The expert’s review of the intrinsic evidence is also incomplete, as he admits he did not consider
`the full prosecution history. See Dkt. 344-1 at ¶ 9.
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`6
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 11 of 21 PageID #: 7530
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`Technology” provides nothing more than unsupported and improper conclusions regarding quotes
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`taken directly from the specification of the ’578 patent. See Dkt. 344-1, at ¶¶ 19-24.
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`Likewise, the declaration’s conclusory allegations regarding the term “application
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`launcher” are facially deficient. The declaration does not articulate how the previously
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`undisclosed prior art exhibits attached to the declaration support the newly-disclosed expert’s
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`interpretation of “application launcher.” See id. at ¶¶ 28-32. Indeed, the declaration only addresses
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`two of the eight references; the first (the ’027 patent) does not even include the term “application
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`launcher” – it refers to a “module” that launches a program – and the second (Novell Application
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`Launcher) says nothing about an allegedly understood meaning of the term in the field at the time.
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`The untimely declaration provides no legitimate basis for reconsideration. Id.
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`IV. Uniloc Does Not Provide Any Valid Basis Justifying Reconsideration Under The
`Applicable Standard
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`Putting aside Uniloc’s procedural and evidentiary violations, which alone merit denial of
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`Uniloc’s motion, reconsideration would only be warranted by: “(1) an intervening change in
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`controlling law; (2) the availability of new evidence not previously available; or (3) the need to
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`correct a clear error of law or to prevent manifest injustice.” Smartflash, 2015 WL 4208754, at *1
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`(applying this standard to a motion to reconsider a claim construction order). Uniloc makes no
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`mention of this standard and fails to articulate any argument that would satisfy it.
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`First, Uniloc is not basing its Motion on an intervening change in the controlling law.
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`Uniloc points to no intervening change and every case that Uniloc cites was decided before Uniloc
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`filed its first claim construction brief on May 18, 2017. In fact, the most recent authority Uniloc
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`cites was decided in 2007. As such, no intervening change in law warrants reconsideration.
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`Second, Uniloc is not asserting that new, but previously unavailable evidence justifies
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`reconsideration. Uniloc does not point to a single new fact or a single new piece of evidence.
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`7
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 12 of 21 PageID #: 7531
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`Uniloc’s untimely expert declaration, and the statements made in that declaration, could have been
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`presented during the original claim construction process, while each of the references attached to
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`the expert declaration are prior art to the patents-in-suit and were thus also readily available during
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`claim construction. Accordingly, no evidentiary basis exists to support reconsideration.
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`Third, Uniloc does not argue that reconsideration is necessary to correct a clear error of
`
`law or to prevent manifest injustice. While Uniloc argues generally that the Court erred, at no
`
`point does Uniloc ever refer to the “clear error” standard or establish how the Claim Construction
`
`Order constitutes a clear error. Accordingly, Uniloc cannot satisfy this prong of the standard either.
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`As a result of Uniloc’s failure to satisfy its burden under the applicable standard, its Motion
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`should be denied.
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`V.
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`Even If The Court Were To Treat Uniloc’s Arguments As Claims Of Clear Error, It
`Is Plain That No Such Error Exists In The Claim Construction Order
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`Uniloc mischaracterizes the Claim Construction Order and distorts Federal Circuit
`
`authority regarding the relationship between related patents. As described by the Court, the
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`patents-in-suit are related and the specifications incorporate each other’s disclosures by reference.
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`See Dkt. 233 at 11-12. The lineage is illustrated below:5
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`5 See Defendants’ Technical Tutorial, submitted May 25, 2017, at slide 4.
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`8
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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 13 of 21 PageID #: 7532
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`The Court performed claim construction across the patents-in-suit with the full understanding of
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`these relationships and how the law treats those relationships for purposes of claim construction.
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`Uniloc’s attempts to argue otherwise are without merit, and its Motion should be denied.
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`A.
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`The Court Properly Construed “Application Launcher Program”
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`Following a detailed and careful consideration of the intrinsic record, the Court correctly
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`construed “application launcher program” as “a program distributed to a client to initially populate
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`a user desktop and to request an instance of the application for execution at the client.” Dkt. 233
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`at 31. The Court began its analysis by thoroughly reviewing the portions of the ’578 patent
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`specification demonstrating that the “application launcher program” “requests an instance of the
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`selected one of the plurality of application programs” and “then populates clients … with the
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`instance of the selected application program for execution.” Id. at 28-29 (citing ’578 patent at
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`11:60-12:1). The Court further noted that the specification of the ’466 patent, which is
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`incorporated by reference into the ’578 patent at 7:12-17, establishes that the “application
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`launcher” “requests an instance of the selected one of the plurality of application programs
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`associated with the icon from the server system” and then populates the client “with the instance
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`of the selected application program for execution.” Id. at 29 (citing ’466 patent at 16:18-25).
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`Further, the Court considered the prosecution history from both branches of patent lineage –
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`9
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`

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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 14 of 21 PageID #: 7533
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`including the ’466 patent and the ’766 patent – and found consistent representations regarding the
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`proper construction of the term “application launcher program.”6
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`Accordingly, the Court’s uniform construction of “application launcher program” across
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`the patents-in-suit is amply supported by their specifications, standing alone.7 The prosecution
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`histories of the patents, which are cumulative to this evidence, simply confirm that the Court’s
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`construction of “application launcher” is correct. This construction is also consistent with the
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`principle that “[t]he same terms in related patents are presumed to carry the same meaning.”
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`Alexam, Inc. v. Best Buy Co., Inc., No. 2:10CV93, 2012 WL 1188406, at *4 (E.D. Tex. April 9,
`
`2012); Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed. Cir. 2003) (“[W]e presume,
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`unless otherwise compelled, that the same claim term in the same patent or related patents carries
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`the same construed meaning.”).
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`1.
`
`The Court Properly Considered The Prosecution History Of The ’766
`Patent
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`Uniloc asserts that the Court should not have considered statements made during
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`prosecution of the ’766 patent relating to “application launcher program” when construing the
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`identical term in the ’578 patent. See Dkt. 344 at 6-8. Uniloc’s position is based on a fundamental
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`mischaracterization of the law and should be rejected.
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`Uniloc argues, based on a footnote in Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.2d
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`1340, 1349 n.5 (Fed. Cir. 2004), that “statements in the prosecution history of the ’766 Patent that
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`6 See, e.g., id. at 29 (noting that the patentee distinguished prior art systems during prosecution of
`the ’766 patent on the ground that “they do not request a configurable instance of an application
`from a server for execution at the client”); id. at 29-30 (noting similar arguments distinguishing
`the prior art cited during prosecution of the ’466 patent).
`7 The fact that Uniloc made consistent statements during the prosecution of both branches of patent
`lineage also confirms that the Court properly determined that the term “application launcher
`program” should have a common meaning across all patents-in-suit.
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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 15 of 21 PageID #: 7534
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`refer to references cited only against claims of the ’766 Patent cannot be cited to construe other
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`patents, however related.” Dkt. 344 at 6-7.8 Microsoft announces no such rule. To the contrary,
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`since its decision in Microsoft, the Federal Circuit repeatedly has affirmed that “[a] statement made
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`during prosecution of related patents may be properly considered in construing a term common to
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`those patents, regardless of whether the statement pre- or post-dates the issuance of the particular
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`patent at issue.” Teva Pharms USA, Inc. v. Sandoz, Inc., 789 F.3d 1335, 1343 (Fed. Cir. 2015)
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`(emphasis added); Capital Mach. Co., Inc., v. Miller Veneers, Inc., 524 Fed. Appx. 644, 649 (Fed.
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`Cir. 2013) (unpublished) (“We have held that the prosecution history regarding a claim term is
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`pertinent when interpreting the same term in both later-issued and earlier-issued patents in the
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`same family.”) (emphasis added).
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`Additionally, the Federal Circuit has held that statements made during the prosecution of
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`a later-filed divisional are relevant to the construction of common claim terms even though such
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`statements were made to distinguish specific prior art references asserted by the examiner in the
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`later-filed divisional. See Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1306-
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`07 (Fed. Cir. 2007) (relying on statements made with respect to “prior art references,” “[a] prior
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`art reference,” and a “prior art system” to “gain[] allowance of the claims”); see also Capital
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`Mach., 524 Fed. Appx. at 648-49 (finding that statements made to overcome an anticipation
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`rejection applied consistently to both parent and child applications). Accordingly, Uniloc’s
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`attempt to impose an artificial limitation on the use of prosecution statements made to distinguish
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`prior art asserted against a particular patent is not supported by Federal Circuit authority.
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`8 This contention is inconsistent with Uniloc’s concession that, “under the authority of both
`Microsoft and Verizon, the prosecution history of the ’766 Patent could have relevance to
`construction of the ’578 Patent.” Dkt. 344 at 6.
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`Case 2:16-cv-00741-RWS Document 352 Filed 11/27/19 Page 16 of 21 PageID #: 7535
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`Likewise, Uniloc’s arguments regarding estoppel have no impact on the relevance of the
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`’766 patent’s prosecution history. Uniloc cites Microsoft for the proposition that “Georgia Pacific
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`would hold that . . . statements in the ’766 prosecution cannot bind, or estop, the patentee of an
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`earlier patent.” Dkt 344 at 7. Yet, the very next sentence of the Microsoft decision, which Uniloc
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`omits from its block quote, explicitly provides that such statements are relevant to construing
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`claims of an earlier patent: “We did not suggest, however, that such a statement of the patentee as
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`to the scope of the disclosed invention would be irrelevant. Any statement of the patentee in the
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`prosecution of a related application as to the scope of the invention would be relevant to claim
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`construction . . . .” Microsoft, 357 F.3d at 1350 (emphasis added). Here, consistent with Federal
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`Circuit authority, the Court found that the prosecution history of the ’766 patent was “relevant to
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`the construction of identical terms in the related ’578 and ’293 patents.” Dkt. 233 at 14 & n.4
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`(emphasis added). The Court committed no error, clear or otherwise, in this conclusion.
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`2.
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`The Court Properly Considered The ’466 Patent When Construing
`“Application Launcher Program”
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`Uniloc’s allegation that the Court erred by considering the prosecution history of the ’466
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`Patent, which also recites an “application launcher program,” is similarly baseless. As noted
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`above, the Court’s construction of “application launcher program” is well-supported by the weight
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`of all the intrinsic evidence analyzed by the Court, including the specification of the ’578 patent.
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`See Dkt. 233 at 28-31. Because the prosecution history of the ’466 patent is cumulative of that
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`evidence, it simply provides further confirmation that the Court correctly construed the term. Id.
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`Regardless, the Court did not commit legal error in considering the ’466 patent and its
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`prosecution history when construing the term “application launcher program,” which appears in
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`numerous claims in the ’466 patent, the ’766 patent, and the ’578 patent. As the Court explained,
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`“the specification of the ’578 Patent incorporates by reference the ’466 Patent, and explicitly states
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`Case 2:16-