Case 6:21-cv-00642-ADA Document 73 Filed 08/22/22 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Flypsi, Inc.,
` Plaintiff
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`-vs-
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`Dialpad, Inc.,
` Defendant
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`§
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`6:21-CV-00642-ADA
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`CLAIM CONSTRUCTION ORDER
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`Came on for consideration the parties’ claim construction briefs: Plaintiff Flypsi, Inc.’s
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`(“Flyp” or “Plaintiff”) opening and reply briefs (ECF Nos. 26 and 37, respectively), and
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`Defendant Dialpad, Inc.’s (“Dialpad” or “Defendant”) opening and reply brief (ECF Nos. 24 and
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`33, respectively). The Court provided the parties its preliminary constructions in advance of the
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`Markman hearing. After review of the briefing and oral arguments, the Court maintains its
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`preliminary constructions and assigns each of the disputed terms its plain and ordinary meaning.
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`I.
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`BACKGROUND
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`Flyp filed this lawsuit alleging that Dialpad infringed the following patents: U.S. Patent
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`Nos. 10,334,094 (the “’094 patent”), 10,051,105 (the “’105 patent”), 11,012,554 (the “’554
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`patent”), 11,281,585 (the “’585 patent”), and 9,667,770 (the “’770 patent”), (collectively, the
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`“Asserted Patents”). ECF No. 1 (the “Complaint”). These patents and asserted claims generally
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`relate to a method for providing inbound and outbound telephone services using multiple phone
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`numbers on a single device while also maintaining caller-identification protections. ECF No. 26
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`at 4–5.
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`II.
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`LEGAL STANDARD
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`The general rule is that claim terms are given their plain and ordinary meaning. Phillips
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`v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v. CSR
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`PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014), vacated on other grounds by 135 S. Ct. 1846, 1846
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`(2015) (“There is a heavy presumption that claim terms carry their accustomed meaning in the
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`relevant community at the relevant time.”). The plain and ordinary meaning of a term is the
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`“meaning that the term would have to a person of ordinary skill in the art in question at the time
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`of the invention.” Phillips, 415 F.3d at 1313.
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`The “only two exceptions to [this] general rule” are when the patentee (1) acts as their
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`own lexicographer or (2) disavows the full scope of the claim term either in the specification or
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`during prosecution. Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir.
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`2012). To act as its own lexicographer, the patentee must “clearly set forth a definition of the
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`disputed claim term,” and “clearly express an intent to define the term.” Id. To disavow the full
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`scope of a claim term, the patentee’s statements in the specification or prosecution history must
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`represent “a clear disavowal of claim scope.” Id. at 1366. When “an applicant’s statements are
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`amenable to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.”
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`3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
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`“Although the specification may aid the court in interpreting the meaning of disputed
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`claim language, particular embodiments and examples appearing in the specification will not
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`generally be read into the claims.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187
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`(Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed.
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`Cir. 1988)). “[I]t is improper to read limitations from a preferred embodiment described in the
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`specification—even if it is the only embodiment—into the claims absent a clear indication in the
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`intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v.
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`Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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`Although extrinsic evidence can also be useful, it is “less significant than the intrinsic
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`record in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at
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`1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)).
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`Technical dictionaries may be helpful, but they may also provide definitions that are too broad or
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`not indicative of how the term is used in the patent. Id. at 1318. Expert testimony also may be
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`helpful, but an expert’s conclusory or unsupported assertions as to the meaning of a term are not.
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`Id.
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`Generally, a term is indefinite if the challenger of the term can prove, by clear and
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`convincing evidence, that the term would not apprise a person of ordinary skill in the art of the
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`scope of the claim. Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 898–99 (2014). A
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`term may also be defined in terms of means-plus-function if a term lacks specific structure by its
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`language (e.g., a nonce word like “mechanism” or “module”) or if a function is listed without an
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`accompanying term that provides sufficient structure. Williamson v. Citrix Online, LLC, 792
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`F.3d 1339, 1347 (Fed. Cir. 2015). When a term is defined under means-plus-function, it is
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`indefinite if the patent does not properly specify the structure which performs the function and
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`sufficiently tie the structure to that function. Id. at 1350.
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`III. ANALYSIS
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`A. “Primary Telephone Number”
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`Dialpad’s Proposed Construction
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`Flyp’s Proposed Construction
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`A telephone number or identifier that is
`assigned to a handset or mobile device.
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`Plain and ordinary meaning.
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`Defendant argues for a specific construction of “primary telephone number,” claiming
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`that without a specific definition, the plain and ordinary meaning of “primary telephone number”
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`is indistinguishable from the meaning of a “secondary phone number.” ECF No. 33 at 2. Per
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`Defendant, conflation of the terms is inconsistent with the specification’s use of the terms in a
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`manner that carefully distinguishes between “primary” and “secondary” phone numbers. Id. at 3.
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`Finally, Defendant points out the repetition and consistent usage of the terms at issue and cites
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`authority for the proposition that if a phrase is repeatedly used in a certain way, it is proper to
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`construe the claim term “in accordance” with that characterization. ECF No. 33 at 3.
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`Plaintiff counters that, especially after the modification of the proposed construction, the
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`proposed definition would conflate the meanings of primary telephone number and secondary
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`telephone number more than a plain and ordinary meaning. ECF No. 26 at 11. In other words,
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`the plain and ordinary meanings of primary and secondary telephone numbers naturally contrast
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`with each other. So long as “telephone number” is understood, a reasonable juror can distinguish
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`between a “primary” and “secondary” telephone number by plain meaning. If this Court were to
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`construe only the term “primary telephone number” without construing “secondary telephone
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`number,” a jury member may assume unwarranted distinctions between the two. This is even
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`more of an issue after Defendant amended its proposed construction and removed the words “at
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`activation,” which renders the phrase so abstract that it would now confuse members of the jury.
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`Id. at 2. Thus, per Plaintiff, the meanings of these terms become more confusing with a technical
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`construction rather than plain and ordinary meanings.
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`The Court finds that the term “primary telephone number” should have its plain and
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`ordinary meaning that a person of ordinary skill in the art would ascribe to it. Defendant has
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`failed to illustrate that a person of ordinary skill in the art would not know the meaning of this
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`term. This term does not fit the exceptions of lexicography or disclaimer to warrant a departure
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`from the plain and ordinary meaning. See Thorner, 669 F.3d at 1365. The lexicography
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`exception does not apply because the specifications do not define, clearly demonstrate an intent
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`to implicitly define, or otherwise limit the term to a degree that would make this Court ascribe a
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`certain meaning to those terms.
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`While the patent does refer to the terms at issue repeatedly and consistently, that is not
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`the inquiry when deciding whether a term needs construction. In the cases Defendant cites to
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`support this contention, neither party was arguing for use of a term’s plain and ordinary meaning.
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`See, e.g., VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1318 (Fed. Cir. 2014); ICU Med., v.
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`Alaris Med. Sys., Inc., 558 F.3d 1368, 1374 (Fed. Cir. 2009); GPNE Corp. v. Apple, Inc., 830
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`F.3d 1365, 1370 (Fed. Cir. 2016). In other words, the issue was not whether a claim needed
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`construction, but what that construction should be given the parties disputes. While repeated and
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`consistent use may influence how a term should be defined, it does not bear on whether the
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`presumption of plain and ordinary meaning has been overcome in the first place. Thus,
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`Defendant’s argument finds itself without support.
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`Moreover, this term is not difficult or too technical in nature such that a construction
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`would aid the jury in understanding. Kroy IP Holdings, LLC v. Safeway, Inc., No. 2:12-cv-800-
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`WCB, 2014 WL 3735222, at *2 (E.D. Tex., July 28, 2014). It is not necessary to distinguish
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`primary and secondary telephone numbers through construction because these phrases will likely
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`be understood by a person of ordinary skill in the art and the jury will likely not be confused by
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`the terms. Accordingly, the term “primary telephone number” is given its plain and ordinary
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`meaning.
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`B. “Voice Channel”
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`Dialpad’s Proposed Construction
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`Flyp’s Proposed Construction
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`A communications path used for voice
`information and voice calls.
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`Plain and ordinary meaning
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`Defendant argues that the patent contains both explicit and implicit lexicography for the
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`purposes of the term “voice channel.” ECF No. 33 at 3–4. Defendant points to language from the
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`specification that it claims acts as express definitional language for the term “voice channel,”
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`which contrasts with other language defining a “data channel.” Id. at 4. Specifically, Defendant
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`points to the statement that:
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`CDMA, GSM or like governed communication, when used to carry
`voice information, are referred to here as being conducted over a ‘voice
`channel.’” Conversely, when IP is used as the protocol rather than
`CDMA, GSM, or the like, such communications are referred to in the
`specification as being conducted over a “data channel.”
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`’770 Patent, at 4:35–46. In Defendant’s view, this is definitional language for the term “voice
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`channel,” requiring that this Court respect the patent specification’s internal definition of “voice
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`channel” rather than a plain and ordinary meaning. Id. Further, Defendant argues that the
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`frequent statements in the specification that “calls” are made using “voice channels” serves to
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`implicitly reinforce this internal definition for the term at issue. Id. In support of this argument,
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`Defendant cites a fair amount of authority to reiterate that a patentee does not need to explicitly
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`or formally define a term to act as lexicographer, but rather may do so implicitly. Id. at 5 (citing
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`Trs. Of Columbia Univ. in the city of N.Y. v. Symantec Corp., 811 F.3d 1359, 1363 (Fed. Cir.
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`2016), and Astrazeneca AB v. Mut. Pharm. Co., 384 F.3d 1333 (Fed. Cir. 2004)).
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`Plaintiff contends “voice channel” should be given its plain and ordinary meaning. ECF
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`No. 26 at 12. Furthermore, nothing about the term “voice channel” would be inherently
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`confusing for a jury or a reasonable person in the field to understand. When “there is nothing
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`about the claim term that is confusing . . . the term requires no construction.” Pisony v.
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`Commando Construction, Inc., W-17-CV-00055-ADA, 2019 WL 928406, at *5 (W.D. Tex. Jan.
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`23, 2019).
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`Regarding the asserted lexicography, Plaintiff argues that the language pointed to by
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`Defendant is merely exemplary and permissive rather than definitional. ECF No. 37 at 4. In
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`support of this, Plaintiff stresses the patentee’s use of the word “may” when referring to the
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`relevant communications and the broad allowance of “like governed standards.” Id. Finally,
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`Plaintiff argues that if other similar terms in the specification such as “data channel” do not need
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`construction, there is no reason for the phrase “voice channel” to require a specific construction.
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`Id. at 3.
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`Even if the patentee had acted as lexicographer, Plaintiff argues that a person of skill in
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`the art would know that a “voice channel” carries additional data and is generally not limited to
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`voice only. ECF No. 26 at 13. In other words, Defendant’s construction of “voice channel”
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`would serve to artificially narrow the scope of the technology beyond how the technology is
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`understood in the art—as carrying both voice and data.
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`Defendant’s argument that “voice channel” is defined in the specification is unavailing.
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`That language merely establishes a relationship between “CDMA, GSM or like governed
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`communication” and “voice channel” but does not seek to define or limit the phrase “voice
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`channel” itself. ECF No. 37 at 7. “It is not enough for a patentee to simply disclose a single
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`embodiment or use a word in the same manner in all embodiments, the patentee must “clearly
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`express an intent” to redefine the term.” Thorner, 669 F.3d at 1365. Here, Defendant asks the
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`Court to treat the disclosure of exemplary embodiments in the specification—that voice
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`information could be conducted over a voice channel according to certain cellular standards—as
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`a definition. This Court cannot do so. Id.
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`Moreover, the patentee here expressly disclaimed definitional language in the summary
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`of the invention. ’770 Patent at 3:35. By the patent’s own words, “the following detailed
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`description [is] exemplary and explanatory only, and [is] not restrictive of the invention as
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`claimed.” Id. The patentee does not merely fall short of—but rather expressly disclaims—the
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`requisite “clear intent” to narrow the scope of the claimed term in the specification. Thus, this
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`patent does not fit the exceptions of lexicography or disclaimer to warrant a departure from the
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`plain and ordinary meaning of the term at issue. Ultimately, the Court agrees that a person skilled
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`in the art would know what the phrase “voice channel” means and the phrase is unlikely to
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`confuse the jury. Kroy IP Holdings, LLC v. Safeway, Inc., No. 2:12-cv-800-WCB, 2014 WL
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`3735222, at *2 (E.D. Tex., July 28, 2014). Accordingly, “voice channel” is given its plain and
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`ordinary meaning.
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`C. “Switch” and “Switch… associated with”
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`Dialpad’s Proposed Construction
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`Flyp’s Proposed Construction
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`Indefinite.
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`
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`Not indefinite
`Plain and ordinary meaning.
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`Defendant argues that the term “switch” is an indefinite term that invalidates the Asserted
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`Patents. To reach this conclusion, Defendant advances two theories of indefiniteness: the
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`reasonable certainty test under Nautilus, and a means-plus-function inquiry invoked under 35
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`U.S.C. § 112(f).
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`1. Reasonable Certainty
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`The test for whether a term is indefinite is whether the patent claim, in light of the
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`specification and prosecution history, fails to inform with reasonable certainty those skilled in
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`the art about the scope of the invention. Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898,
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`898–99 (2014).
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`a. “Switch”
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`Defendant argues that “switch” is indefinite because the claim language fails to specify
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`what type of switch is at issue. ECF No. 33 at 8. While Defendant does not take issue with
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`Plaintiff’s establishment of “switch” as a class of structures, it claims that the class identified is
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`too broad. Id. And the Plaintiff’s failure to attach a specific structure to the term “switch” serves
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`to render the term indefinite. Id. To support this contention, Defendant cites to Dynamic Applet
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`Technologies, LLC v. Mattress Firm, Inc., No. 4:17-CV-860-ALM-KPJ, 2018 WL 6816068, at
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`*8 (E.D. Tex. Dec. 27, 2018), quoting language that indicates that a claim’s scope is not
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`reasonably certain when it allows a plaintiff to strategically draw boundaries in its analysis of an
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`accused system. Id.
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`Even though the word “switch” can connote different kinds of switches, Plaintiff
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`contends that it has established, through unrefuted evidence, that “switch” connotes a class of
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`structures. ECF No. 37 at 5. In other words, in the Parties’ art, “switch” has an understood
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`structural meaning, unlike nonce words like “module” or “mechanism.” While the term is broad,
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`Plaintiff cites to comparable cases which demonstrate that great breadth of a structural class does
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`not necessarily render the term indefinite. Id.
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`This Court agrees with Plaintiff. Defendant does not dispute that “switch” connotes a
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`class of structures. Thus, the inquiry is whether that class gives sufficient structural connotation
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`such that a person of ordinary skill in the art would understand how the term structurally limits
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`the claim. Nautilus, 572 U.S. at 898–99. Here, Plaintiff has put on a dearth of evidence showing
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`that a person of ordinary skill in the art would know what a “switch” connotes. ECF No. 26 at 2.
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`As Plaintiff points out, Defendant’s mischaracterizes Dynamic Applet as well. ECF No. 6. The
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`quoted language that “[T]he claim scope is not reasonably certain because nothing prevents
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`Plaintiff from strategically drawing boundaries in its analysis of an accused system,” is that
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`court’s characterization of a party’s argument, which the court goes on to expressly reject.
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`Dynamic Applet Technologies, 2018 WL 6816068, at *8.
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`In Skky, Inc. v. MindGeek, s.a.r.l., the Federal Circuit faced the issue of whether the
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`similarly broad term “wireless device” connoted structure and found that it did. 859 F.3d 1014,
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`1020 (Fed. Cir. 2017). The court spelled out, “it is sufficient if the claim term is used in common
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`parlance or by persons of skill in the pertinent art to designate structure, even if the term covers a
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`broad class of structures and even if the term identifies the structures by their function.” Id. at
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`1019. Here, Plaintiff has sufficiently demonstrated that persons of skill in the art commonly use
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`the word “switch” in a manner that connotes structure. Accordingly, Defendant’s argument that
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`“switch” is not structural because the class of structure evoked is too broad is unavailing.
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`Thus, the term “switch” is not indefinite because Plaintiff has established that “switch”
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`connotes a class of structure that would identify the scope of the claim to a person of ordinary
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`skill in the art.
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`b. “Switch… associated with”
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`Defendant also argues that the term “associated with” when applied to the word “switch”
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`renders the terms indefinite because Plaintiff does not identify or define the associations between
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`the “switch” and the relevant structure. ECF No. 33 at 1.
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` According to Plaintiff, combined with the structure connoted from the word “switch,” a
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`person of ordinary skill in the art would have no trouble understanding the association of that
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`switch to a given system. ECF No. 26 at 20. Relatedly, Plaintiff points out that “associated with”
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`is not at issue in any other context within the patent. Id. If “associated with” does not require
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`construction when attached to other structures, there is no reason the Court should require a
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`construction of the meaning of “associated with” only when it is attached to the word “switch.”
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`Id.
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`The Court agrees with Plaintiff. As discussed above, “switch” connotes a class of
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`structures that a person of ordinary skill in the art would understand. While the manner of
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`association may not be exactly defined, the words “associated with” have a common meaning. A
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`person of average skill in the art, knowing what a switch is, would not lose understanding of the
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`structure being referenced simply because that switch became “associated with” another device.
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`Thus, the words “associated with” do not render the patent indefinite when attached to the word
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`“switch.”
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`2. Means-plus-function
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`Unless the word “means'” is used regarding the term at issue, a rebuttable presumption
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`arises that the term is not means-plus-function. Williamson v. Citrix Online, LLC, 792 F.3d 1339,
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`1348 (Fed. Cir. 2015). Defendant argues that the lack of a recitation of definite structure for
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`“switch” is enough to take the word “switch” out of conventional analysis and put it into means-
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`plus-function analysis. ECF No. 33 at 8. Under this analysis, Defendant argues that the word
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`“switch” does not sufficiently define what the switch in question refers to with sufficient
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`structure because “switch” connotes multiple possible structures. Further, “associated with” is a
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`function not properly described or tied to a structure. Id. at 9.
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`Plaintiff asserts that published writings in the art, dictionary definitions, the record, and
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`expert testimony support the conclusion that a person of ordinary skill would understand a
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`“switch” to have some structural connotation. ECF No. 26 at 2. In other words, “switch” is not a
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`nonce word only used as a black-box for a method of performing a certain function described in
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`the patent. While a “switch” may come in a variety of forms, breadth does not mean
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`indefiniteness. ECF. No. 37 at 7. In Plaintiff’s view, “switch” refers to a class of structure, which
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`is sufficient to render the term definite. Id.
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`As touched on above, “switch” does not lack structure. The other way to trigger a means-
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`plus-function analysis is if there is a function without a listed structure. That is not relevant here.
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`The functions cited by Defendant each implicate a “switch” which sufficiently connotes a
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`structure. Thus, a means-plus-function analysis is not necessary.
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`This case is akin to Barkan out of the Eastern District of Texas. Barkan Wireless IP
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`Holdings, L.P. v. Samsung Electronics Co., Ltd, No. 2:18-CV-28-JRG, 2019 WL 497902 (E.D.
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`Tex. Feb. 7, 2019). There, the court found that a “controller” connoted sufficient structure to
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`avoid a means-plus-function analysis. Id. at 21. The court recognized that the plaintiff
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`established that “controller” belonged to a class of structures, and found that the defendant failed
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`to tie the term “controller” to an analogous term that failed to connote sufficient structure. Id. at
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`23. Here, the term “switch” is analogous to the term “controller” in that both represent broad and
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`varied classes of structures. Like in Barkan, Defendant attempts to tie the term to another case
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`where the term was found indefinite—here, citing Dynamic Applet. ECF No. 33 at 8. Dialpad has
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`similarly failed to establish a sufficient connection with Dynamic Applet to render the term at
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`issue subject to a means-plus-function analysis.
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`IV. CONCLUSION
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`For the foregoing reasons, the Court finds that the terms “primary telephone number” and
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`“voice channel” should have their plain and ordinary meanings that a person of ordinary skill in
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`the art would ascribe to them. Additionally, the Court finds that the terms “switch” and
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`“associated with” are not indefinite and should have their plain and ordinary meaning.
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`SIGNED this 22nd day of August, 2022.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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