NOTE: This disposition is nonprecedential.
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JAMES L. DRIESSEN, MARGUERITE A.
`DRIESSEN,
`Plaintiffs-Appellants
`
`v.
`
`SONY MUSIC ENTERTAINMENT, AKA SONY BMG
`MUSIC ENTERTAINMENT, BEST BUY STORES,
`AKA BEST BUY COMPANY, FYE, AKA TRANS
`WORLD ENTERTAINMENT, TARGET
`CORPORATION,
`Defendants-Appellees
`______________________
`
`2015-2050
`______________________
`
`Appeal from the United States District Court for the
`District of Utah in No. 2:09-cv-00140-CW-BCW, Judge
`Clark Waddoups.
`______________________
`
`Decided: February 10, 2016
`______________________
`
`JAMES L. DRIESSEN, Lindon, UT, pro se.
`
`MARGUERITE A. DRIESSEN, Lindon, UT, pro se.
`
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JAMES L. DRIESSEN, MARGUERITE A.
`DRIESSEN,
`Plaintiffs-Appellants
`
`v.
`
`SONY MUSIC ENTERTAINMENT, AKA SONY BMG
`MUSIC ENTERTAINMENT, BEST BUY STORES,
`AKA BEST BUY COMPANY, FYE, AKA TRANS
`WORLD ENTERTAINMENT, TARGET
`CORPORATION,
`Defendants-Appellees
`______________________
`
`2015-2050
`______________________
`
`Appeal from the United States District Court for the
`District of Utah in No. 2:09-cv-00140-CW-BCW, Judge
`Clark Waddoups.
`______________________
`
`Decided: February 10, 2016
`______________________
`
`JAMES L. DRIESSEN, Lindon, UT, pro se.
`
`MARGUERITE A. DRIESSEN, Lindon, UT, pro se.
`
`
`
`
`
` 2
`
` DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
`
`JAMES CHARLES PISTORINO, Parrish Law Office, Menlo
`Park, CA, for defendants-appellees.
`______________________
`
`Before DYK, MAYER, and HUGHES, Circuit Judges.
`PER CURIAM.
`
`James L. Driessen is the named inventor on U.S.
`Patent Nos. 7,003,500 (“the ’500 patent”), 7,636,695 (“the
`’695 patent”), and 7,742,993 (“the ’993 patent”). Mr.
`Driessen and his wife, Marguerite A. Driessen,1 (collec-
`tively “the Driessens”) sued Sony Music Entertainment,
`Best Buy Stores, FYE, and Target (collectively “Sony”),
`alleging infringement of the ’500, ’695, and ’993 patents in
`the United States District Court for the District of Utah.
`The district court granted Sony’s motions for summary
`judgment, finding asserted claims 1–4 and 7 of the ’500
`patent invalid as indefinite, and asserted claims 10–15 of
`the ’500 patent, all claims of the ’695 patent, and all
`claims of the ’993 patent invalid for lack of written de-
`scription. The Driessens appeal. We affirm.
`BACKGROUND
`The ’500, ’695, and ’993 patents all have virtually the
`same specification and relate to systems and methods of
`purchasing downloadable content from the Internet.
`Rather than purchasing the content directly through the
`Internet, the buyer goes to a retail store to pay for the
`item in person. At the retail store, the buyer obtains a
`ticket or other “physical medium” proof of sale containing
`a web address specific to the item sold and a unique
`password that will enable its download. Driessen v. Sony
`
`1 The basis for Marguerite Driessen’s standing is
`not clear in the record.
`
`
`
`DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
`3
`
`Music Entm't, No. 2:09-CV-0140-CW, 2015 WL 1057845,
`at *2 (D. Utah Mar. 10, 2015) (“D.C. Op.”). The buyer can
`then anonymously download the media content from any
`computer with Internet access by going to the web ad-
`dress and inputting the unique password provided. The
`district court held claims 1–4 and 7 of the ’500 patent
`invalid as indefinite, and claims 10–15 of the ’500 patent
`and all asserted claims of the ’695 and ’993 patents inva-
`lid for lack of written description. Id. at *14. The Dries-
`sens appealed. We have jurisdiction under 28 U.S.C.
`§ 1295(a)(1).
`
`DISCUSSION
`We begin with the issue of indefiniteness. Indefinite-
`ness is a question of law that we review de novo. Teva
`Pharm. U.S.A., Inc. v. Sandoz, Inc., 789 F.3d 1335, 1341
`(Fed. Cir. 2015). We review the ultimate construction of a
`claim and intrinsic evidence de novo. Teva Pharm.
`U.S.A., Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
`We review the grant of summary judgment de novo.
`Vanmoor v. Wal-Mart Stores, Inc., 201 F.3d 1363, 1365
`(Fed. Cir. 2000).
`Claim 1 of the ’500 patent, which contains several
`means-plus-function elements, provides,
`A payment system for itemized Internet mer-
`chandise or itemized downloadable media materi-
`al objects, comprising:
`
`a retail point of sale establishment;
`
`a customer access point at said retail point of
`sale establishment;
` URL information that is an Internet transac-
`tion location of said itemized Internet merchan-
`dise or itemized downloadable media material
`objects;
`
`
`
`
`
` 4
`
` DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
` means for accepting payment through an in
`person transaction with a customer wherein said
`payment is designated for purchase of said item-
`ized Internet merchandise or itemized down-
`loadable media material objects;
` means for storing and retrieving a record on
`or in a physical medium corresponding to said
`URL information that is an Internet transaction
`location of said itemized Internet merchandise or
`itemized downloadable media material objects;
` means for transfer of said physical medium
`from said retail point of sale establishment to said
`customer; and
` means for Internet transaction authorization
`on, in, or actuated from said physical medium
`wherein ownership rights in said itemized Inter-
`net merchandise or itemized downloadable media
`material objects are preselected and transferred to
`said customer through said transfer of said physi-
`cal medium.
`’500 patent col. 10 ll. 18–42 (emphasis added).
`Primarily at issue in the case is the “means for storing
`and retrieving a record on or in a physical medium”
`limitation. Id. at ll. 30–31. Pursuant to 35 U.S.C.
`§ 112(f),2 the district court found that the function of that
`element is “storing and retrieving a record on or in a
`physical medium.” D.C. Op., at *6. The district court
`construed “storing” to mean “both putting into storage
`and holding in storage,” “retrieving” to mean “taking out
`of storage for the purpose of presenting authentication to
`
`
`2 Before the America Invents Act 35 U.S.C. § 112(f)
`was contained in § 112 paragraph 6.
`
`
`
`DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
`5
`
`prove purchase,” “record” to mean a “unique URL corre-
`sponding to specific web merchandise or content,” and “on
`or in a physical medium” to mean the location where “the
`record is stored and from where it may be retrieved.” Id.
`A means-plus-function claim is indefinite unless
`structure to perform the function is identified in the
`specification. E.g., Cardiac Pacemakers, Inc. v. St. Jude
`Med., Inc., 296 F.3d 1106, 1113–14. The district court
`here rejected the Driessens’ contention that Figure 5—
`which depicts an “Admit One” ticket and a floppy disk—
`provides the necessary structure to correspond with the
`above function. D.C. Op., at *7. The court explained that
`while Figure 5 perhaps discloses examples of “physical
`media,” it does not disclose a structure that “stor[es] and
`retriev[es] a record on or in a physical medium.” Id.
`(emphasis added). Because the specification failed to
`disclose any such associated structure for “storing” and
`“receiving” the record in a physical medium, the district
`court held that claim 1 and dependent claims 2–4 and 7
`are invalid as indefinite.
`The Driessens argue that the district court erred in
`construing “storing” in claim 1 of the ’500 patent to re-
`quire “both putting into storage and holding in storage,”
`D.C. Op., at *6, contending that “storing” should be un-
`derstood to require only holding in storage, not the addi-
`tional preliminary step of getting there. The word
`“storing” itself implies both putting into and holding in
`storage. See Store, MERRIAM-WEBSTER DICTIONARY (2015)
`(“to put . . . in a place where it is available, where it can
`be kept safely, etc.”). The Driessens point to no language
`in the claims or specification that would support their
`contrary construction. The Driessens’ argument by
`analogy, that “store rooms, filing cabinets, cans, bottles,
`and similar devices” are properly understood as “storage”
`devices despite their inability to “put things into them-
`selves,” is inapposite. Claim terms must be construed in
`
`
`
`
`
` 6
`
` DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
`light of the context in which they appear. See, e.g.,
`Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d
`1294, 1299 (Fed. Cir. 2003). In the context of storing “a
`record on or in a physical medium,” it is apparent that
`“store” implies not only maintaining the record in a
`physical medium, but also getting it there to begin with.
`Similarly, the Driessens’ contention that “retrieving”
`should be construed to mean only “presenting” or “deliver-
`ing” divorces the claim from its context, in violation of
`basic claim construction principles. See id. We see no
`error in the district court’s claim construction.
`The Driessens argue further that the necessary struc-
`tures for performing a “means for storing and retrieving a
`record on or in physical medium,” ’500 patent col. 10 ll.
`30–31, were known in the art, and therefore the claims
`are not indefinite. The district court properly rejected
`this argument. We have explained that “[t]he inquiry is
`whether one of skill in the art would understand the
`specification itself to disclose a structure, not simply
`whether that person would be capable of implementing a
`structure. Accordingly, a bare statement that known
`techniques or methods can be used does not disclose
`structure.” Biomedino, LLC v. Waters Tech. Corp., 490
`F.3d 946, 953 (Fed. Cir. 2007) (citations omitted). Noth-
`ing in Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct.
`2120 (2014), is to the contrary. There is no support in the
`specification that the Driessens’ proposed additional
`structures—ink, bar codes, magnetic strips and disks,
`scratch off materials, and silica memory—perform the
`storing function. Nor does a general purpose computer
`provide sufficient structure for “storing and retrieving a
`record on or in a physical medium.” See, e.g., Noah Sys.,
`Inv. v. Intuit Inc., 675 F.3d 1302, 1312 (Fed. Cir. 2012).
`We see no error in the district court’s conclusion that
`claims 1–4 and 7 of the ’500 patent are invalid as indefi-
`nite.
`
`
`
`DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
`7
`
`We next consider the issue of written description. We
`review a district court’s grant of summary judgment of
`invalidity for lack of written description de novo. ICU
`Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368, 1376
`(Fed. Cir. 2009). Claim 10 of the ’500 patent provides,
`A method of merchandise transfer on a computer
`network comprising at least one buyer computer
`on a network for operation by a user desiring to
`buy at least one product and at least one selling
`computer on said network operating for a purpose
`to sell said product, the method comprising the
`steps of: . . .
`sending a payment message as a response to
`said in person transaction either directly or
`through other computers on said network to
`said selling computer on said network;
`causing an authorization message to be creat-
`ed on said selling computer in or as a result of
`said payment message that comprises at least
`said specification of said product and authen-
`tication based on cryptographic key(s), said
`selling computer being programmed to receive
`said authorization message for verification of
`said authentication; . . . .
`. . . .
`Id. col. 11 l. 60–col. 12 l. 18 (emphasis added). The three
`terms “selling computer,” “payment message,” and “au-
`thorization message,” which first appeared when Mr.
`Driessen added new claims by amendment more than four
`years after filing the original application that became the
`’500 patent, also appear in claims 11–15 of the ’500 patent
`and all asserted claims of the ’695 and ’993 patents. The
`district court construed “selling computer” to mean “the
`seller-side computer or computer network comprised of
`
`
`
`
`
` 8
`
` DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
`the computer/network of the web content dealer.” D.C.
`Op., at *12. It construed “payment message” in accord-
`ance with both parties’ proposed constructions to mean
`“an electronic message indicating that payment was
`received.” Id. It construed “authorization message” in
`accordance with the Driessens’ proposed construction to
`mean “an electronic message,” explaining that no further
`definition is required because the context of “authoriza-
`tion message” is clear. Id. The district court then found
`that no written description for “selling computer,” “pay-
`ment message,” or “authorization message” is provided
`anywhere in the specification or original application. The
`court rejected the Driessens’ contention that the terms
`were implicitly present in the original application, finding
`that the discussion of “secure web transactions” and
`“public key infrastructure” did not necessarily provide for
`“payment messages” or “authorization messages,” let
`alone require such messages to be sent to or from “selling
`computers.” Id. at *13. The court thus held that claims
`10–15 of the ’500 patent and all asserted claims of the
`’695 and ’993 patents are invalid for lack of written de-
`scription.
`When, as here, a patent applicant adds new claims af-
`ter the original filing date, “the new claims . . . must find
`support in the original specification.” TurboCare Div. of
`Demag Delaval Turbomachinery Corp. v. GE, 264 F.3d
`1111, 1118 (Fed. Cir. 2001). The terms “selling comput-
`er,” “payment message,” and “authorization message” are
`not present anywhere in the specification or original
`provisional application. The Driessens contend that
`because the words “payment,” “message,” “authorization,”
`and “computer” appear individually numerous times in
`the specification, adequate written description for the
`terms “selling computer,” “payment message,” and “au-
`thorization message” is provided. This argument misun-
`derstands the written description requirement. The mere
`
`
`
`DRIESSEN v. SONY MUSIC ENTERTAINMENT
`
`9
`
`presence of these words in isolation does not suffice to
`show that the “patentee had possession of” the “selling
`computer,” “payment message,” and “authorization mes-
`sage” elements of the claimed invention at the time of the
`application, as 35 U.S.C. § 112(a) requires.3 LizardTech,
`Inc. v. Earth Res. Mapping, Inc., 424 F.3d 1336, 1345
`(Fed. Cir. 2005). Further, the district court properly
`concluded that “selling computer,” “payment message,”
`and “authorization message” are not implicitly present in
`the application’s references to the distinct concepts of
`“secure web transactions” and “public key infrastructure.”
`D.C. Op., at *13.
`We see no error in the district court’s conclusion that
`claims 10–15 of the ’500 patent and all asserted claims of
`the ’695 and ’993 patents are invalid for lack of written
`description.
`We have considered the Driessens’ remaining ar-
`guments and find them to be without merit.
`AFFIRMED
`COSTS
`
`Costs to Appellees.
`
`
`3 Before the America Invents Act 35 U.S.C. § 112(a)
`was contained in § 112 paragraph 1.
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