Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 1 of 32 PageID #: 4902
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`MEMORANDUM AND ORDER
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`This Memorandum Opinion construes the disputed claim terms in United States Patent
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`Numbers 5,835,498, 7,143,328, 7,295,578, and 7,599,439. Also before the Court is Defendant
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`Dell, Inc.’s (“Dell”) Motion to Strike Plaintiff Nexus Display Technologies, LLC’s Untimely
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`Expert Declaration in Support of Its Claim Construction Brief (Docket No. 128) and Dell and
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`Defendant Lenovo (United States) Inc.’s Opposed Motion for Leave to File Supplemental
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`Briefing (Docket No. 160). On June 24, 2015, the parties presented arguments on the disputed
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`claim terms. At the claim construction hearing, the Court inquired whether the parties wanted to
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`present oral argument on Dell’s Motion to Strike, but the parties stated that they would rest on
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`the papers. Docket No. 155 at 109:24–110:7, 110:9–11 and 110:14–15 (“Markman Hr’g Tr.”).
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`For the reasons discussed below, the Court DENIES the Motion to Strike (Docket No. 128) and
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`GRANTS the Motion to Supplement (Docket No. 160). The Court resolves the claim term
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`disputes as stated below.
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`1
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`CIVIL ACTION NO. 2:14-CV-762
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`NEXUS DISPLAY TECHNOLOGIES
`LLC,
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`Plaintiff
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`vs.
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`DELL INC., et al.,
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`Defendants.
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 2 of 32 PageID #: 4903
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`BACKGROUND
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`Plaintiff Nexus Display Technologies, LLC’s (“NDT”) alleges that Defendants
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`Defendant Dell, Inc.’s (“Dell”) and Lenovo (United States) Inc. (“Lenovo”) (collectively,
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`“Defendants”) infringe United States Patent Numbers 5,835,498 (“ ’498 Patent”), 7,143,328
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`(“ ’328 Patent”), 7,295,578 (“ ’578 Patent”), and 7,599,439 (“ ’439 Patent”) (collectively,
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`“Asserted Patents”). The Asserted Patents generally relate to the connection and interface
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`between a computer system and a display device. Docket No. 123 at 1.
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`DELL’S MOTION TO STRIKE
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`On May 26, 2015, Dell filed a motion to strike NDT’s expert declaration by Dr. William
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`H. Mangione-Smith. Docket No. 128 at 1. Dell contends NDT failed to timely disclose the
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`declaration as required by Patent Rule 4-3. Id. Dell argues that Rule 4-3 disclosures were due in
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`this case by April 20, 2015, and Dr. Mangione-Smith’s declaration was not disclosed until
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`NDT’s opening claim construction brief on May 11, 2015. Id. at 2, see also, Docket No. 47 and
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`101. Dell states that it was prejudiced by NDT’s failure to disclose because Dell had “two weeks
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`to review, consider, depose, and respond” to the declaration, instead of five weeks. Id. at 3,
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`fn. 2. NDT responds that it complied with the Patent Rules. Docket No. 144 at 1. NDT argues
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`that it satisfied the Rule 4-3 requirements by referencing its intention to rely on expert testimony
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`and identifying Dr. Mangione-Smith by name with the subject matter he would opine on.
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`Docket No. 144 at 3–4.
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`Here, NDT complied with Local Rule 4-3. In NDT’s opening claim construction brief,
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`testimony from Dr. Mangione-Smith was relied on for various terms. See, Docket No. 123 at 8,
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`14–16, and 24–26. In the parties’ Joint Claim Construction and Prehearing Statement, NDT
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`identified Dr. Mangione-Smith and a summary of his testimony for each of those terms. See,
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 3 of 32 PageID #: 4904
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`Docket No. 106 at 3–4, 6–7, and 18–19. Accordingly, Dell’s motion to strike (Docket No. 128)
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`is DENIED.
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`MOTION TO SUPPLEMENT
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`On July 23, 2015, Defendants filed an opposed motion for leave to file supplemental
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`briefing (Docket No. 160) with respect to the term “a second rate that is at least substantially
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`equal to (N/K)P per unit time” from the ’439 Patent. On July 27, 2015, the Court ordered the
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`parties to file an agreed briefing schedule as to the underlying motion without granting the
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`request to supplement. See, Docket No. 165. Instead of briefing whether Defendants’ request to
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`supplement was proper, the parties briefed the merits regarding the proposed supplementation.
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`See, Docket Nos. 161; 173; 175; and 176. Having considered all the briefing, the Court declines
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`to incorporate Defendants’ supplementation into its construction because the metes and bounds
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`of the ’439 Patent sufficiently provide context for the term’s meaning. See, e.g., SunRace Roots
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`Enter. Co., Ltd. v. SRAM Corp., 336 F.3d 1298, 1307 (Fed. Cir. 2003) (finding that consideration
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`of inventor testimony was inappropriate because the intrinsic evidence resolved any ambiguity
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`about the appropriate construction of the disputed term). However, Defendants’ Opposed
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`Motion for Leave to File Supplemental Briefing (Docket No. 160) is GRANTED.
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`CLAIM CONSTRUCTION
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`APPLICABLE LAW
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’ ” Phillips v. AWH Corp., 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381
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`F.3d 1111, 1115 (Fed. Cir. 2004)). The Court examines a patent’s intrinsic evidence to define
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`the patented invention’s scope. Id. at 1313–4; Bell Atl. Network Servs., Inc. v. Covad Commc’ns
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 4 of 32 PageID #: 4905
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`Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). Intrinsic evidence includes the claims, the
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`rest of the specification and the prosecution history. Phillips, 415 F.3d at 1312–3; Bell Atl.
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`Network Servs., 262 F.3d at 1267. The Court gives claim terms their ordinary and customary
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`meaning as understood by one of ordinary skill in the art at the time of the invention. Phillips,
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`415 F.3d at 1312–3; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).
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`Claim language guides the Court’s construction of claim terms. Phillips, 415 F.3d at
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`1314. “[T]he context in which a term is used in the asserted claim can be highly instructive.” Id.
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`Other claims, asserted and unasserted, can provide additional instruction because “terms are
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`normally used consistently throughout the patent.” Id. Differences among claims, such as
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`additional limitations in dependent claims, can provide further guidance. Id.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’ ” Id.
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`(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995)). “[T]he
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’ ” Id. (quoting Vitronics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex. Inc. v. Ficosa N. Am.
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`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). In the specification, a patentee may define his own
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`terms, give a claim term a different meaning that it would otherwise possess, or disclaim or
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`disavow some claim scope. Phillips, 415 F.3d at 1316. Although the Court generally presumes
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`terms possess their ordinary meaning, this presumption can be overcome by statements of clear
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`disclaimer. See, SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337,
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`1343–4 (Fed. Cir. 2001). This presumption does not arise when the patentee acts as his own
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`lexicographer. See, Irdeto Access, Inc. v. EchoStar Satellite Corp., 383 F.3d 1295, 1301 (Fed.
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`Cir. 2004).
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 5 of 32 PageID #: 4906
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`The specification may also resolve ambiguous claim terms “where the ordinary and
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`accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of
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`the claim to be ascertained from the words alone.” Teleflex, Inc., 299 F.3d at 1325. For
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`example, “[a] claim interpretation that excludes a preferred embodiment from the scope of the
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`claim ‘is rarely, if ever, correct.” Globetrotter Software, Inc. v. Elam Computer Group Inc., 362
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`F.3d 1367, 1381 (Fed. Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583). But, “[a]lthough
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`the specification may aid the court in interpreting the meaning of disputed language in the
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`claims, particular embodiments and examples appearing in the specification will not generally be
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`read into the claims.” Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir.
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`1988); see also, Phillips, 415 F.3d at 1323.
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`The prosecution history is another tool to supply the proper context for claim
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`construction because a patentee may define a term during prosecution of the patent. Home
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`Diagnostics Inc. v. LifeScan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`specification, a patent applicant may define a term in prosecuting a patent”). The
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`well-established doctrine of prosecution disclaimer “preclud[es] patentees from recapturing
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`through claim interpretation specific meanings disclaimed during prosecution.” Omega Eng’g
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`Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003). The prosecution history must show
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`that the patentee clearly and unambiguously disclaimed or disavowed the proposed interpretation
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`during prosecution to obtain claim allowance. Middleton Inc. v. 3M Co., 311 F.3d 1384, 1388
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`(Fed. Cir. 2002); see also, Springs Window, 323 F.3d at 994 (“The disclaimer . . . must be
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`effected with ‘reasonable clarity and deliberateness.’”) (citations omitted)). “Indeed, by
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`distinguishing the claimed invention over the prior art, an applicant is indicating what the claims
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`do not cover.” Spectrum Int’l v. Sterilite Corp., 164 F.3d 1372, 1378–79 (Fed. Cir. 1988)
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 6 of 32 PageID #: 4907
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`(quotation omitted). “As a basic principle of claim interpretation, prosecution disclaimer
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`promotes the public notice function of the intrinsic evidence and protects the public’s reliance on
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`definitive statements made during prosecution.” Omega Eng’g, Inc., 334 F.3d at 1324.
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`Although “less significant than the intrinsic record in determining the legally operative
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`meaning of claim language,” the Court may rely on extrinsic evidence to “shed useful light on
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`the relevant art.” Phillips, 415 F.3d at 1317 (quotation omitted). Technical dictionaries and
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`treatises may help the Court understand the underlying technology and the manner in which one
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`skilled in the art might use claim terms, but such sources may also provide overly broad
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`definitions or may not be indicative of how terms are used in the patent. Id. at 1318. Similarly,
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`expert testimony may aid the Court in determining the particular meaning of a term in the
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`pertinent field, but “conclusory, unsupported assertions by experts as to the definition of a claim
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`term are not useful.” Id. Generally, extrinsic evidence is “less reliable than the patent and its
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`prosecution history in determining how to read claim terms.” Id.
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`The patent in suit may contain means-plus-function limitations that require construction.
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`Where a claim limitation is expressed in means-plus-function language and does not recite
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`definite structure in support of its function, the limitation is subject to 35 U.S.C. § 112 ¶ 6.
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`Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, § 112
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`mandates
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`that “such a claim
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`limitation be construed
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`to cover
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`the corresponding
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`structure…described in the specification and equivalents thereof.” Id. (citing 35 U.S.C. § 112
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`¶ 6.). Accordingly, when faced with means-plus-function limitations, courts “must turn to the
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`written description of the patent to find the structure that corresponds to the means recited in the
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`[limitations].” Id.
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 7 of 32 PageID #: 4908
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`ANALYSIS
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`At issue are terms/phrases from claims 1, 5 and 12 from the ’498 Patent; claims 1, 8,
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`28–29, 32 and 47 from the ’578 Patent; and claims 1, 3, 8, 15, 17, 22, 29, 32 and 38–39 from the
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`’439 Patent. On June 23, 2015, the parties filed a Notice stating the parties reached an agreement
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`regarding the construction of three claims terms from the ’328 Patent. Docket No. 148. On June
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`24, 2015, the Court circulated preliminary claim constructions intended to indicate where the
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`undersigned stood after considering the claim construction briefing, and stated that he may
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`change his position based upon the parties’ arguments at the claim construction hearing.
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`Markman Hr’g Tr. 3:9–13.
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`I. Agreed Terms
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`A. The ’498 Patent
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`In the opening claim construction brief, NDT represents that the parties reached an
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`agreement with respect to the term “having an inputs” in the ’498 Patent. Docket No. 123 at 5.
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`Dell and Lenovo do not address the agreement in their responsive claim construction brief.
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`However, the parties stipulate to the agreement in their Joint Claim Construction and Prehearing
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`Statement. Docket No. 106 at 1. Also at the claim construction hearing, the parties reached an
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`agreement with respect to terms involving “encoder” and “decoder” in the ’498 Patent based on
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`the Court’s preliminary claim constructions. Markman Hr’g Tr. 3:14–4:5. The constructions
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`agreed to by the parties are as follows:
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 8 of 32 PageID #: 4909
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`Claim Terms
`having an inputs
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`encoder
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`Agreed Claim Construction
`having an input
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`a device that encodes or translates bits of data
`into a corresponding encoded data word
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`encoder producing encoded data words
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`plain and ordinary meaning
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`a device that decodes or translates an encoded
`data word into respective bits of data
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`plain and ordinary meaning
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`decoder
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`decoder…for decoding data words
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`In view of the parties’ agreement on the proper construction of the above identified
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`terms, the Court ADOPTS these constructions.
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`B. The ’328 Patent
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`The parties agreed to the construction for three claims terms in the ’328 Patent. Docket
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`No. 148 at 1. This agreement resolves all pending claim construction disputes with respect to the
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`’328 Patent. Id. The constructions agreed to by the parties are as follows:
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`Claim Terms
`the auxiliary data [enable] signal is one of the
`appended to an end of the video data [enable]
`signal and pre-pended to a beginning of the
`video data [enable] signal
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`pre-pended to a beginning of the video data
`[enable] signal
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`appended to an end of the video data [enable]
`signal
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`Agreed Claim Construction
`the auxiliary data [enable] signal is either
`merged with the trailing edge of the video
`[data] enable signal at the start of the blanking
`period or merged with the leading edge of the
`video [data] enable signal at the end of the
`blanking period
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`merged with the video data [enable] signal at
`the leading edge of the video data [enable]
`signal and at the end of the blanking period
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`merged with the video data [enable] signal at
`the trailing edge of the video data [enable]
`signal and the start of the blanking period
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`In view of the parties’ agreement on the proper construction of the above identified
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`terms, the Court ADOPTS these constructions.
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 9 of 32 PageID #: 4910
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`C. The ’578 Patent
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`In the opening claim construction brief, NDT represents that the parties reached an
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`agreement with respect to the term “at least one audio data stream” in the ’578 Patent. Docket
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`No. 123 at 5. Dell and Lenovo do not address the agreement. The construction agreed to by the
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`parties is as follows:
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`Claim Terms
`at least one audio data stream
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`Agreed Claim Construction
`at least one stream of audio data
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`In view of the parties’ agreement on the proper construction of the above identified
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`terms, the Court ADOPTS these constructions.
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`II. Disputed Terms
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`A. The ’498 Patent
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`1. “isochronous control codes”
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`NDT’s Proposed Construction
`control codes that indicate the transfer of time
`critical data such as timing control signals of
`video or other data
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`Defendants’ Proposed Construction
`control codes indicating the transfer of time
`critical data and inserted into the data stream
`immediately so
`that
`their correct relative
`timing will be preserved
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`The parties agree that “isochronous control codes” are “control codes that indicate the
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`transfer of time critical data.” However, the parties dispute whether “isochronous control codes”
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`must be “inserted into the data stream immediately.” NDT contends that its proposed
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`construction comes straight from the ’498 Patent specification. Docket No. 123 at 22 (citing
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`’498 Patent at 6:53–58) (“The second type of control word is the isochronous data transfer word.
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`These control words indicate the transfer of time critical data such as timing control signals of
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`video or other data. The isochronous special word can be sent at any time without interfering
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`with the other streams”). NDT argues that Defendants’ construction adds an improper limitation
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 10 of 32 PageID #: 4911
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`in conflict “with the specification, which states that an isochronous control code ‘can be sent at
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`any time.’ ” Id. at 23 (citing ’498 Patent at 6:56–58). Defendants state NDT’s proposed
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`construction fails to address when the codes are sent and ignores representations made in the
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`specification that they must be sent immediately to preserve the timing between them. Docket
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`No. 130 at 22.
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`Though the Court agrees with Defendants that “isochronous control codes” need to be
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`treated with some sort of priority, the Court finds that “immediately” adds an unwarranted
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`temporal limitation into the apparatus claims in the ’498 Patent. The specification describes
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`rules for signal output and states that “[t]he isochronous data transfer words are input into the
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`data stream output by the multiplexor 48 when receive[d] and have the highest priority.” ’498
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`Patent at 7:62–64 (emphasis added). As an example of this, the specification describes that,
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`when needed, the isochronous or time critical data can be inserted in the middle of data
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`transmission. Id. at 10:12–15. Figure 6 also provides an example that “ensures that if there are
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`any isochronous signals to be sent over the link 28 they will be injected into the data stream
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`immediately to preserve their timing.” Id. at 11:6–9. Construing “isochronous control codes” as
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`having the highest priority would indicate that these control codes “can be sent at any time
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`without interfering with the other streams.” ’498 Patent at 6:56–57; see also, Docket No. 131-10
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`at 31 (’498 File History, 10/6/97 Amendment) (“The isochronous special word is sent at any time
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`without interfering with the other streams.”).
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`At the claim construction hearing, NDT stated it is concerned that “highest priority”
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`improperly adds a dependent claim limitation to an independent claim. Markman Hr’g Tr. at
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`58:1–18. While the Court is mindful of importing limitations not contemplated by the claims,
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 11 of 32 PageID #: 4912
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`the ’498 Patent’s use of “isochronous control codes” throughout the specification indicates that
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`each embodiment contemplated by the claims would treat the codes with the “highest priority.”
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`Finally during prosecution, the patentees distinguished the claims by arguing that
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`“isochronous control codes” are capable of maintaining the relative timing between related
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`control codes. Specifically, the patentees argued that “the present invention maintains the
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`relative timing between the start of sync isochronous control code and the end of sync
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`isochronous control code for their inclusion into the serial bit stream….” Docket No. 131-10 at
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`31 (’498 File History, 10/6/97 Amendment). The patentees further argued that the “use of
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`isochronous control codes and the speed of the serial link allows multiple streams of video data
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`to be transmitted over the same serial link while preserving the timing information for each video
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`stream.” Id. The patentees stated that this was “not possible with any of the cited prior art
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`references,” and “[a]ll that is required here is that the relative timing between related isochronous
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`control codes of the same data stream be maintained.” Id. at 31–32. Therefore, the Court
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`construes “isochronous control codes” to mean “control codes that have the highest priority
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`and indicate the transfer of time critical data (such as timing control signals of video or
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`other data), and are capable of maintaining the relative timing between related control
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`codes.”
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`2. “other control codes identifying streams”
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`NDT’s Proposed Construction
`control codes that identify the start, end or type
`of a data stream
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`Defendants’ Proposed Construction
`control words unique to each data stream that
`indicate the start or end of that data stream
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`The parties agree that “other control codes identifying streams” are control codes—or
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`words—that indicate “the start or end of a data stream.” However, the parties dispute whether
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`the codes must be “unique to each data stream.” NDT contends that adding “unique to each data
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`11
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 12 of 32 PageID #: 4913
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`stream,” as Defendants propose, improperly reads a limitation from the specification into the
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`claims. Docket No. 123 at 24. Defendants respond that the claims require more than identifying
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`“the start or end of a data stream.” Docket No. 130 at 26. Defendants argue that NDT’s
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`construction fails to uniquely identify any stream as distinct from the other streams as required
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`by the claim’s plain meaning. Id. at 26–27.
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`Although the claim language does require identifying the data stream, “identification” is
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`not necessarily synonymous with “uniqueness.” Identifying a stream would distinguish it from
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`other streams that start or end at different times or carry different types of data, but it would not
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`necessarily require a control word “unique to each data stream.” Figure 4B illustrates a video
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`data stream and a multimedia data stream, and the specification states that “[multimedia data]
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`stream 1 has a different data start word than that used for video start word.” ’498 Patent at
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`10:6–8. Thus, the “multimedia data stream has its own special start control word for
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`identification.” Id. at 10:5–6. However, this is not a requirement that control words be “unique
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`to each data stream.” It simply provides one way for the data stream to be identified, which can
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`be accomplished by separating multiple data streams and indicating the start and end of a certain
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`type of data transfer, as stated in the specification.
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`Additionally, the specification states that “[t]he present invention provides a unique
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`control and separation scheme in which four categories of special or control words are used.”
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`’498 Patent at 6:44–46. The specification identifies the third of the four control words as a data
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`stream separation word. Id. at 6:58–59. The specification states that this control word “separates
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`between multiple contexts of data streams and indicates the start or end of a certain type of data
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`transfer.” Id. at 6:59–61. Accordingly, the Court construes “other control codes identifying
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`12
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 13 of 32 PageID #: 4914
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`streams” to mean “control codes that identify and separate multiple data streams and
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`indicate the start or end of a certain type of data transfer.”
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`B. The ’578 Patent
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`1. “clock channel of the link”
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`NDT’s Proposed Construction
`a channel of the link that transmits a signal
`representative of a clock
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`Defendants’ Proposed Construction
`only channel of the link for transmitting a
`clock signal
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`The parties dispute whether the phrase “clock channel of the link” is limited only to one
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`channel transmitting a clock signal, or if it is a channel transmitting a signal representative of a
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`clock. NDT states that the ’578 Patent “contemplates a variety of [embodiments for]
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`transmitting a signal to the receiver that is representative of a clock.” Docket No. 123 at 13.
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`NDT argues that its proposed construction incorporates those embodiments as disclosed in the
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`specification where a clock data may be transmitted on multiple channels. Id. at 13–14. NDT
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`contends that Defendants’ proposed construction improperly narrows the term to a single
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`embodiment. Id.
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`Defendants maintain that their proposed construction captures what the ’578 Patent
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`teaches: “a single channel for sending all clock signals.” Docket No. 130 at 32. Defendants
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`argue that the ’578 Patent teaches that clocks signals should “be sent on one ‘continuous’ clock
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`channel” and there are not any embodiments where more than one channel is used to transmit
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`clock signals. Id. at 33. Defendants further argue that NDT’s proposed construction is contrary
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`to the ’578 Patent’s disclosure for transmitting a clock signal over a single channel. Id. at 34.
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`Defendants are correct that the specification emphasizes that the clock channel must be
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`capable of continuously transmitting timing information and other data. Specifically, the
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`specification states that “[i]t is advantageous to send the auxiliary clock of the present invention
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 14 of 32 PageID #: 4915
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`on a continuous channel while transmitting auxiliary data (which can be easily buffered) on an
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`intermittent channel (i.e., only during blanking intervals when a video data enable signal DE is
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`low), to exploit the advantages of the properties of both the continuous and intermittent
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`channels.” ’578 Patent at 10:10–16. Likewise, the specification states that “[t]he video blanking
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`intervals of a TMDS-like link (e.g., that of FIG. 6) provide a large bandwidth for sending audio
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`data (but are not continuous), while the video clock channel of a TMDS-like link (e.g., Channel
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`C of FIG. 6) is continuous and therefore better for sending timing information (such as a
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`sampling clock for one or more streams of audio data or other auxiliary data, as well as a video
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`clock).” Id. at 10:26–33; see also, id. at 9:59–67, 11:21–78.
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`However, contrary to Defendants’ contention, the intrinsic evidence indicates that the
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`claims are not limited to a single embodiment where clock signals are sent over a single channel.
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`The ’578 Patent states that “[t]hroughout the specification and in the claims the expression
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`‘TMDS-like link’ will be used to denote a serial link, capable of transmitting digital video data
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`(and a clock for the digital video data) from a transmitter to a receiver, and optionally also
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`transmitting one or more additional signals (bidirectionally or unidirectionally) between the
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`transmitter and receiver, that is or includes either a TMDS link or a link having some but not all
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`of the characteristics of a TMDS link.” Id. at 5:7–15. The specification also states that
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`“although a TMDS link has four differential pairs (in the single pixel version), three for video
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`data and the other for a video clock, a TMDS-like link could have a different number of
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`conductors or conductor pairs.” Id. at 5:52–56. The specification further states that “[i]t is
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`within the scope of the invention to employ combinations of channels for transmitting auxiliary
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`data (and/or auxiliary data clocks or timing information) in either or both directions over a
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`TMDS-like link.” Id. at 47:44–47. Thus, the specification indicates that the claims are not
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 15 of 32 PageID #: 4916
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`limited to the TMDS link or the number of conductors illustrated in Figure 6 or, in other words, a
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`single channel for a clock signal.
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`Finally, neither NDT nor Defendants propose language that accurately captures what the
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`channel actually transmits (i.e., timing information and other data). The specification states that
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`“the invention is a communication system including a transmitter, a receiver, and a TMDS-like
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`link, in which video data and auxiliary data (often including timing data associated with other
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`auxiliary data) are transmitted from the transmitter to the receiver, or in which video data are
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`transmitted over the link from the transmitter to the receiver, and auxiliary data (often including
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`timing data associated with other auxiliary data) are transmitted from the receiver to the
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`transmitter (or from the transmitter to the receiver and also from the receiver to the transmitter).”
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`’578 Patent at 6:36–46 (emphasis added). The specification further states that “timing
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`information for audio data (e.g., a clock for recovering transmitted audio data) falls within the
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`scope of ‘auxiliary data.’ ” Id. at 6:4–6. Likewise, the specification states that “the video clock
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`channel of a TMDS-like link (e.g., Channel C of FIG. 6) is continuous and therefore better for
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`sending timing information (such as sampling clock for one or more streams of audio data or
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`other auxiliary data, as well as a video clock).” Id. at 10:29–33. Accordingly, the Court
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`construes “clock channel of the link” to mean “at least one channel of the link capable of
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`continuously transmitting timing information and other data.”
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`2. “closely matching the auxiliary data rate”
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`NDT’s Proposed Construction
`No construction necessary.
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`The parties dispute whether the term “closely matching” is indefinite. Defendants claim
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`Defendants’ Proposed Construction
`Indefinite.
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`the term “closely matching” is indefinite because the ’578 Patent does not provide an objective
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 16 of 32 PageID #: 4917
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`standard for a person of ordinary skill in the art to determine “how ‘close’ the clock frequency
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`and the auxiliary data rate must be in order to be ‘closely matching.’ ” Docket No. 130 at 35.
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`Patent claims must particularly point out and distinctly claim the subject matter regarded
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`as the invention. 35 U.S.C. § 112(b). The Supreme Court recently described this statutory
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`provision as requiring a “delicate balance” between the “inherent limitations of language” and
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`the need of patents to “afford clear notice of what is claimed, thereby apprising the public of
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`what is still open to them” so as to avoid “a zone of uncertainty which enterprise and
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`experimentation may enter only at the risk of infringement claims.” Nautilus, Inc. v. Biosig
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`Instruments, Inc., 134 S. Ct. 2120, 2128–29 (2014). “[A]bsent a meaningful definiteness
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`check…patent applicants face powerful incentives to inject ambiguity into their claims.” Id. at
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`2129.
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`In order to meet the “exacting standard” to prove indefiniteness, an accused infringer
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`must demonstrate by clear and convincing evidence that the claims, read in light of the
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`specification and the prosecution history, fail to inform, with reasonable certainty, those skilled
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`in the art about the scope of the invention. Id. at 2124. Prior to Nautilus, a claim was indefinite
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`only if a challenger could prove, by clear and convincing evidence, that it was “not amenable to
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`construction” or was “insolubly ambiguous.” Halliburton Energy Servs., Inc. v. M-I, LLC, 514
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`F.3d 1244, 1249–50 (Fed. Cir. 2008) (citing Datamize, LLC v. Plumtree Software, Inc., 417 F.3d
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`1342, 1347 (Fed. Cir. 2005)). According to the Supreme Court, the new “reasonable certainty”
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`standard “mandates clarity while recognizing that absolute precision is unattainable.” Nautilus,
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`134 S. Ct. at 2124. The Court found that the previously-applicable “amenable to construction”
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`and “insolubly ambiguous” standards “breed lower court confusion” and “diminish the
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`definiteness requirement’s public-notice function and foster the innovative-discouraging ‘zone of
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`Case 2:14-cv-00762-RWS Document 230 Filed 09/22/15 Page 17 of 32 PageID #: 4918
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`uncertainty.’ ” Id. at 2130.
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`NDT maintains that terms of degree are not inherently indefinite, and that absolute
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`precision is not required in determining “closely matching.” Ma