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` Case 3:18-cv-02838-K Document 234 Filed 10/16/19 Page 1 of 23 PageID 20333 Case 3:18-cv-02838-K Document 234 Filed 10/16/19 Page 1 of 23 PageID 20333
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`
`FRACTUS, S.A.
`
`Plaintiff,
`
`v.
`
`ZTE CORPORATION,
`ZTE (USA), INC., and
`ZTE (TX), INC.,
`
`
`
`
`Defendants.
`
`
` CIVIL ACTION NO.
` 3:18-CV-2838-K
`
`§
`§
`§
`
`§
` §
`§
`§
`§
`§
`§
`
`MEMORANDUM OPINION AND ORDER
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`Before the Court is the Defendants’ Motion for Partial Summary Judgment
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`
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`(Doc. Nos. 190 & 197) (the “Motion”)(The same motion was filed twice, once public
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`and once under seal). After considering the briefs, the arguments of the parties, the
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`evidence of record, and the applicable law, the Court DENIES the Motion. The Court
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`also issues a clarification of a claim construction dispute implicated by the parties in
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`their briefing of the Motion.
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`A. Background.
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`This is a patent infringement case in which the Plaintiff, Fractus, S.A.
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`("Fractus"), alleges that the Defendants, ZTE Corporation, ZTE (USA), Inc., and ZTE
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`(TX), Inc. (collectively "ZTE"), have infringed a number of patents owned by Fractus.
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`The patents in suit all relate to the invention of what the patents call "multilevel"
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`antennas. The case originated in the Eastern District of Texas, Marshall Division and
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`was assigned to the Honorable Rodney Gilstrap. The Defendants moved that Court to
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`transfer venue to the Northern District of Texas, which Judge Gilstrap granted. Before
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`venue was transferred, the parties filed claim construction briefing in which the parties
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`presented a number of patent claim phrases that the parties asserted required
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`construction. Judge Gilstrap issued a Memorandum Opinion and Order (Doc. No. 93)
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`which construed the disputed terms and phrases. This Court reviewed the claim
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`constructions of Judge Gilstrap and adopted all agreed claim constructions and all but
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`one disputed claim terms and phrases. Amended Markman Order (Doc. No. 159). The
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`construction of the one disputed claim phrase that was not adopted by this Court was
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`modified by the Court. Id. That construction is not relevant to the issues presented in
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`the Motion.
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`B. The Motion.
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`In the Motion, ZTE raises several grounds as to why it is entitled to summary
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`judgment of non-infringement for several accused devices. Three of the arguments
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`assert that Fractus has not properly applied the construed terms of the patent claims
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`correctly to the accused devices. According to ZTE, since Fractus’ experts incorrectly
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`applied these constructions, Fractus has no credible evidence to prove that certain
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`accused devices meet these limitations. ZTE also argues that it is entitled to summary
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`judgment on the issue of infringement under the doctrine of equivalents because
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`Fractus has failed to present credible evidence to prove infringement on that ground.
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`Regarding ZTE’s first asserted misapplication of a claim construction, ZTE
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`asserts that it is entitled to summary judgment of non-infringement for 56 accused
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`devices because these devices cannot be shown to meet the “multilevel structure,”
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`“structure for multi-band antenna,” or “antenna element having a multi-band
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`behavior” limitation of the asserted patent claims. Each asserted claim contains one of
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`these limitations. The Court construed each of these phrases to mean:
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`A structure for an antenna useable at multiple frequency bands with at
`least two levels of detail, wherein one level of detail makes up another
`level. These levels of detail are composed of polygons (polyhedrons) of
`the same type with the same number of sides (faces) wherein most of the
`polygons (polyhedrons) are clearly visible and individually distinguishable
`and most of the polygons (polyhedrons) having an area of contact,
`intersection or interconnection with other elements (polygons or
`polyhedrons) that is less than 50% of the perimeter or area.
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`Amended Markman Order (Doc. No. 159). The dispute raised in the Motion is
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`only over a portion of this construction, which is “polygons (polyhedrons) of the same
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`type with the same number of sides (faces).”
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`ZTE argues that the “same type” requirement of this portion of the construction
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`means that the polygons must all be triangles, squares, rectangles, rhombi, etc.. The
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`Plaintiff and the Plaintiff’s expert assign a different meaning to “same type,” which
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`essentially is that polygons having the same number of sides are of the same type
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`regardless of whether or not they could otherwise be classified as different types. Under
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`Fractus’ understanding of “same type,” a square and a rectangle would be the same
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`type because they both have four sides. Under ZTE’s understanding of “same type,” a
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`square and rectangle would not be the same type. Even though they both have the same
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`number of sides, they are different types of four-sided polygons.
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`When applied to the accused devices, these two different understandings of the
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`meaning of “same type” result in very different conclusions on whether or not these
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`accused devices meet this limitation. If they do not meet this limitation, they do not
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`infringe the asserted claims. Fractus’ expert applied the understanding that same type
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`means same number of sides to the accused devices. In this analysis, for 56 accused
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`devices, Fractus’ expert identified a number of four-sided polygons in each antenna.
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`But these four-sided polygons were not all squares, all rhombi, or all rectangles, etc.
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`Instead they were combinations of different four-sided polygons.
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`According to the ZTE, this cannot be used to prove that these antennas infringe
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`the asserted claims of the patents in suit because the polygons must all be squares, all
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`rhombi, or all rectangles, etc.. For this reason, ZTE asserts that it is entitled to summary
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`judgment on the issue of infringement for these 56 accused because there is no evidence
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`to prove infringement.
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`In the Motion, ZTE also asserts that the Plaintiff’s expert also misapplied the
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`constructions of “geometric element” and “polygon.” According to ZTE, this entitles
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`ZTE to summary judgment on the issue of non-infringement because Fractus cannot
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`prove that any of the accused devices meet these required limitations of the asserted
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`claims. The Court construed “geometric element” and “polygon” to mean "a closed
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`plane figure bounded by straight sides, further including circles and ellipses, where a
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`portion of a circle or ellipse is counted as one side." Amended Markman Order (Doc.
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`No. 159). ZTE argues that Fractus’ expert misapplied this construction when analyzing
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`the accused devices because he identified polygons in antennas of the accused devices
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`that were not "closed plane figures." Instead, the portions of the antennas identified
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`contained curved surfaces, some of which are relatively sharp bends and some of which
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`are slight or gradual bends. ZTE argues that since these are not flat, they are not
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`"planer," as required by the claim construction. According ZTE, since they are not
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`planer, they do not infringe the claims because they do not meet this claim limitation.
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`Fractus responds that this issue cannot be resolved on summary judgment
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`because the issue raised by ZTE is an issue of fact and not an issue of law. According
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`to Fractus, the issue is whether or not the identified polygons are sufficiently flat to be
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`considered planer by a person of ordinary skill in the art. Fractus argues that its expert
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`provided evidence as to how both the antennas with sharp bends and those with
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`gradual curves could be considered to be planer by a person of ordinary skill in the art.
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`For example, for the antennas having sharp bends, this portion of the antenna was
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`divided into different polygons with each being planer and joined at the bent edge. For
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`the antennas having gradual curves, the expert asserted that while these areas were not
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`perfectly flat, they were not curved enough to not be considered planer and this curve
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`did not affect the performance of the antenna. According to Fractus, this is a fact issue
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`that prevents the Court from granting summary judgment on this issue.
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`ZTE also argues that Fractus' expert misapplied the construction of "monopole
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`configuration," which is used in claims 17 and 19 of the '617 patent. According to ZTE,
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`this entitles them to summary judgment of non-infringement of the asserted claims of
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`the '617 patent. The Court construed "monopole configuration" to mean "an antenna
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`comprising a radiating element and a ground plane, wherein a practical application, the
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`ground plane is not infinite, and further where the antenna would produce a radiation
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`pattern approximating that of an electric dipole in the half-space above the ground
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`plane if the ground plane was infinite." Amended Markman Order (Doc. No. 159).
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`ZTE argues that the Fractus’ expert misapplied this construction in the analysis
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`of the antennas of the accused devices because the expert did not test the antennas in
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`the configuration in which they are installed in the phones. Instead, Fractus’ expert
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`rotated the antennas before testing them. ZTE argues that since the antennas were
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`modified before they were tested to see if they meet the monopole configuration
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`limitation, Fractus' expert's opinion that the antennas are monopole antennas is not
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`evidence that the accused devices actually meet this limitation because the accused
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`devices must meet the limitation in the configuration that they are actually used in the
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`accused devices. For this reason, ZTE argues that Fractus does not have any credible
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`evidence to support this limitation and that ZTE is entitled to summary judgment that
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`the accused devices do not infringe the asserted claims of the '617 patent.
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`Fractus argues that this issue is not a question of law and must be decided by
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`the trier of fact. Fractus asserts that its expert explained that they way the monopole
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`antenna test was performed is the way that a person in ordinary skill in the art would
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`understand that the test must be performed under the construction of "monopole
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`antenna." In addition, Fractus points to other evidence that these antennas are
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`monopole antennas, which includes ZTE's own documentation of these antennas that
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`describes them as being monopole antennas.
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`ZTE also asserts that it is entitled to summary judgment for 14 accused devices
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`for which Fractus cannot prove meet the "overall structure" limitation of the asserted
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`claims of the '432 patent and the '431 patent. This was a disputed claim phrase. The
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`Court construed this claim to have its plain and ordinary meaning. Amended Markman
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`Order (Doc. No. 159). ZTE asserts that Fractus' expert applied a plain and ordinary
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`meaning to this phrase that was rejected by the Court during claim construction and is
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`therefore an incorrect construction. According to ZTE, Fractus’ expert asserted that the
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`overall structure of the antenna only includes the portions of the antennas that radiate
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`at one of three chosen frequency bands. According to ZTE, since this was the proposed
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`construction offered by Fractus and the Court did not adopt that construction, Fractus'
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`expert should not apply this meaning to the phrase. Therefore, Fractus does not have
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`evidence to prove the overall structure limitation, and ZTE is entitled to summary
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`judgment of non-infringement of the asserted claims that have the "overall structure"
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`limitation.
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`Fractus argues that this is an issue of fact that prevents summary judgment.
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`Fractus asserts that there is sufficient evidence provided by Fractus' expert that the
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`plain and ordinary meaning given to the phrase by Fractus' expert is the meaning that
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`a person of ordinary skill in the art would apply to the phrase. Fractus also points out
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`that the claims' reference to an overall structure is not to the overall structure of the
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`antenna. Instead, the "overall structure" of claims is a reference to the overall structure
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`of the radiating element of the antenna, and Fractus' expert provided testimony as to
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`the overall structure of the radiating element of the antenna. For these reasons, Fractus
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`asserts that ZTE is not entitled to summary judgment on this issue.
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`The final basis for summary judgment presented by ZTE in the Motion is that
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`ZTE is entitled to summary judgment on the issue of infringement under the doctrine
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`of equivalents because Fractus' expert failed to provide the evidence required to prove
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`infringement under that doctrine.
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`Fractus responds that ZTE's assertion is incorrect because Fractus' expert
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`provided evidence of infringement under the doctrine of equivalents. Fractus then
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`points to various assertions and opinions offered by its expert that Fractus asserts is
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`evidence of infringement under the doctrine of equivalents.
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`C. Legal Standards for Summary Judgment.
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`Summary judgment is proper under Federal Rule of Civil Procedure 56 if the
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`movant shows that there is no genuine dispute as to any material fact and the movant
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`is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A factual dispute is
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`genuine if the evidence is sufficient that a reasonable trier of fact could return a verdict
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`for the nonmoving party. Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997). If the
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`moving party seeks summary judgment as to an opponent’s claims or defenses, the
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`“moving party bears the initial burden of identifying those portions of the pleadings
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`and discovery in the record that it believes demonstrate the absence of a genuine issue
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`of material fact, but is not required to negate elements of the nonmoving party’s case.”
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`Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998). Once the
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`moving party meets this burden, the non-moving party must set forth specific facts
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`showing a genuine issue for trial. Little v Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
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`1994) ( en banc). When a party bears the burden of proof of an essential element and
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`that party fails to make a showing sufficient to establish the existence of the essential
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`element there is no dispute of material fact regarding the essential element and it is
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`proper to grant summary judgment against the party with the burden of proof. Celotex
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`Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
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`D. Legal Standards for Claim Construction.
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`Claim construction is a matter of law. Markman v. Westview Instruments, Inc., 52
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`F.3d 967, 979 (Fed. Cir. 1995). The Federal Circuit has held that “the claims of a
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`patent define the invention to which the patentee is entitled the right to exclude.”
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`Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). The Supreme Court has
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`stated that the claims are “of primary importance, in the effort to ascertain precisely
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`what it is that is patented.” Phillips, 415 F.3d at 1312 (citing Merrill v. Yeomans, 94 U.S.
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`568, 570 (1876)). A court looks to three primary sources when determining the
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`meaning of claims: (1) the claims, (2) the specification, and (3) the prosecution history.
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`Markman, 52 F.3d at 979. The claims of the patent must be read in view of the
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`specification of which they are a part. Id. The specification consists of a written
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`description of the invention which allows a person of ordinary skill in the art to make
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`and use the invention. Id. This description may act as a dictionary explaining the
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`invention and defining terms used in the claims. Id. Although a court should generally
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`give such terms their ordinary meaning, a patentee may choose to be his own
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`lexicographer and use terms in a manner other than their ordinary meaning, so long as
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`the special definition of the term is clearly stated in the patent specification or file
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`history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
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`The court starts with the claim itself, read in light of the specification. See Vivid
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`Technologies, Inc. v. American Sci. & Eng’g, Inc., 200 F.3d 795, 804 (Fed. Cir. 1999).
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`While the claims themselves provide significant guidance as to the meaning of a claim
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`term, the specification is generally dispositive as “it is the single best guide to the
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`meaning of a disputed term.” Phillips, 415 F.3d at 1314–1315. In addition to the claim
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`language and specification, the prosecution history is often helpful in understanding
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`the intended meaning, as well as the scope of technical terms in the claims. See Vivid,
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`200 F.3d at 804. In particular, the prosecution history is relevant in determining
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`whether the patentee intends the language of the patent to be understood in its
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`ordinary meaning. Id. Using these tools, the court construes only the claims that are in
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`controversy and only to the extent necessary to resolve the dispute. Id. at 803.
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`The words of a claim are usually given their ordinary and customary meaning.
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`See Phillips, 415 F.3d at 1312. Ordinary and customary meaning is the meaning the
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`claim term would have to a person of ordinary skill in the art (e.g., field of the
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`invention). See id. at 1313; Markman, 52 F.3d at 979. A person of ordinary skill in the
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`art would read the claim term in the context of the entire patent, including the
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`specification, not just the particular claim where the term appears. Phillips, 415 F.3d at
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`1313. There are instances where the ordinary meaning of claim language, as a person
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`of skill in the art would understand it, “may be readily apparent even to lay judges,”
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`thereby requiring “little more than the application of the widely accepted meaning of
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`commonly understood words.” Phillips, 415 F.3d at 1314. In these situations, general
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`purpose dictionaries are useful. Id.
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`Often, the court must determine the ordinary and customary meaning of the
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`claim terms which have a certain meaning in a field of art. Id. The court can look to
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`“those sources available to the public that show what a person of skill in the art would
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`have understood disputed claim language to mean.” Id. These sources can include “the
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`words of the claims themselves, the remainder of the specification, the prosecution
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`history, and extrinsic evidence concerning relevant scientific principles, the meaning of
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`the technical terms, and the state of the art.” Id. Aside from the written description
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`and the prosecution history, the claims themselves also offer assistance as to the
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`meaning of certain claim terms. Id.
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`When the intrinsic evidence, which is the patent specification and prosecution
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`history, unambiguously describes the scope of a patented invention, reliance on
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`extrinsic evidence, which is everything outside the specification and prosecution
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`history, is improper. See Vitronics, 90 F.3d at 1583. While the Court may consult
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`extrinsic evidence to educate itself about the invention and relevant technology, it may
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`not rely upon extrinsic evidence to reach a claim construction that is clearly at odds
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`with a construction mandated by the intrinsic evidence. See Key Pharm. v. Hercon Lab.
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`Corp., 161 F.3d 709, 716 (Fed. Cir. 1998).
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`E. Clarification of “polygons (polyhedrons) of the same type with the
`same number of sides (faces)”.
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`The Court finds that a claim construction dispute exists between the parties as
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`to the meaning of "polygons (polyhedrons) of the same type with the same number of
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`sides (faces)." This phrase is part of the construction of "multilevel structure" and other
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`related phrases that the parties agree should have the same construction as "multilevel
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`structure." The dispute presented in claim construction briefing over the meaning of
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`"multilevel structure" was a dispute that related to whether or not the polygons of the
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`multilevel structure were distinguishable and whether "most" meant half or seventy-five
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`percent. The parties' proposed constructions varied as to these disputed points, and the
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`parties' briefing focused on the disputed portions of the construction. The portion that
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`is at issue now was not presented as a disputed portion of the construction. It was
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`presented as an agreed portion in which the parties proposed the exact same language
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`for this portion. For these reasons, the Court was not made aware that there was a
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`dispute as to the meaning of "polygons (polyhedrons) of the same type with the same
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`number of sides (faces)," and the Court did not further clarify the meaning of this
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`construction beyond the agreed language.
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`It is apparent from the parties' summary judgment briefing on this issue that the
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`parties dispute the meaning of "multilevel structure" and the "of the same type" portion
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`of the construction of "multilevel structure." While the parties present this issue as a
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`question of fact involving the application of the accused devices to the asserted claims
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`under the Court's construction of those claims, the Court disagrees that this dispute is
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`a question of fact. The meaning of this claim phrase and its construction is an issue of
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`law to be decided by the Court. Phillips, 415 F.3d at 1314-1315. This is a question of
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`law and of claim construction since it involves the question of what the language of the
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`claims means to a person of ordinary skill in the art considering the appropriate
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`intrinsic and extrinsic evidence. Id. For this reason, the Court hereby issues a
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`clarification of the meaning of "multilevel structure" and the agreed "of the same type"
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`portion of the construction of "multilevel structure."
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`While the parties agree that multilevel structures are made from polygons of the
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`same type, the parties dispute what is meant by "of the same type." ZTE asserts that
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`polygons are not determined to be of the same type based on the number of sides of
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`the polygon. Under ZTE's meaning of "of the same type," the polygons should be
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`classified in a more specific manner than by the number of sides. For example, squares
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`and rectangles should be considered two different types of polygons. Fractus asserts
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`that "of the same type" is defined only by the number of sides of the polygon. Under
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`this meaning, squares and rectangles would be of the same type.
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`In support of its argument that "of the same type" is more specific than having
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`the same number of sides, ZTE argues that the specifications and figures of the patents
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`support this conclusion. In particular, ZTE focuses on the examples of multilevel
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`structures provided by Figures 3-6. These figures provide multiple examples of what
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`the specification describes as multilevel structures. Each page provides examples in
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`which all of the examples of that page have the same number of sides. In Figure 3, all
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`examples are made from triangles. Some of these examples have triangles that vary only
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`in size. Other examples have triangles that vary in what the Defendant refers to as the
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`aspect ratio of the triangles, meaning that some of the lengths of the sides of triangles
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`vary from the lengths of the sides of other triangles. In Figure 5 all the examples are
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`made from five sided polygons, with most examples being made from polygons that
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`vary in size but do not vary in aspect ratios. There are, however, some examples of five
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`sided structures where the polygons vary in what the Defendant refers to as the aspect
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`ratio of the polygon. In these examples, the same basic five-sided polygon is used, but
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`some ratios between the lengths of the polygons are larger or smaller compared to the
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`same ratios of the lengths of the sides of other polygons of the same antenna. Figures
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`4 and 6 contain similar examples for four and six-sided polygon based multilevel
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`antennas. ZTE asserts that these examples support its meaning of "of the same type"
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`because all examples of Figure 3 contain only variations of triangles, all examples of
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`Figure 4 contain either only squares, rectangles, or rhombi; all examples of Figure 5
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`contain only pentagons; and all examples of Figure 6 contain only hexagons. According
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`to ZTE, the only variation between the polygons of each example is a variation in the
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`"aspect ratio" of the shape or size. ZTE argues that this supports their meaning of "of
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`the same type."
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`Fractus argues that "of the same type" refers only to polygons having the same
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`number of sides and points to the example antennas provided in Figures 1 and 2 of the
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`patents. The figures show a triangular antenna made from a collection of triangles.
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`However, according to Fractus, the triangles used to form this example are not the same
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`type of triangle, which is inconsistent with ZTE's understanding of "of the same type."
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`There are at least equilateral triangles, scalene triangles, and right triangles in one
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`example antenna. According to Fractus, ZTE's understanding of "of the same type"
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`cannot be correct because it excludes the example of Figures 1 and 2.
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`Both parties also assert that the other party's meaning of "of the same type" is
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`inconsistent with the remainder of the disputed phrase, which is "with the same number
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`of sides." ZTE argues that Fractus' assertion that "of the same type" means having the
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`same number of sides makes the second half of the phrase redundant with no meaning
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`because the second half simply repeats that the polygons have the same number of
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`sides. Fractus argues that ZTE's proposed meaning renders "with the same number of
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`sides" pointless because if the polygons are exactly the same except by size or aspect
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`ratio the polygons will all have the same number of sides.
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`The Court agrees with Fractus that the patent does not contemplate limiting
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`polygons of the same type to the specific type limitation argued by ZTE. The Court
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`first notes that in geometry there are various levels of polygons that could be considered
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`to be a "type" of polygon. For example, four sided structures are all quadrilaterals and
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`five sided polygons are all pentagons. So, one level to type polygons at could be based
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`on the number of sides. On the other hand, particular polygons having the same
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`number of sides can be sorted or classified by type also. This is most clear in the case
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`of four-sided polygons because many of the different types of four sided polygons have
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`distinctly different names. For example, squares, rectangles, and rhombi are all types
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`of the quadrilateral type of polygon. Therefore, simply describing polygons of "of the
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`same type" is insufficient to specify what level of description of the polygons should be
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`used to determine if they are the same type or not.
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`The Court also notes that the language that forms the basis of the dispute
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`between the parties is not actually claim language. Instead, this is claim construction
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`language that was agreed to by the parti