IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION ADVANCED MEDIA NETWORKS, LLC, § § Plaintiff, § § v. § Civil Action No. 3:15-CV-3496-N § AT&T MOBILITY LLC, § § Defendant. § ORDER This Order addresses the issue of claim construction of the patent in suit, U.S. Patent Number 5,960,074 (the “Patent”). The Court has reviewed the parties’ briefs and all related filings and evidence, including the patent in suit, the specifications, the patent prosecution history to the extent it was submitted by the parties, as well as the parties’ proposed claim constructions. The Court hereby construes the disputed claims according to Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 360 (1996). I. BACKGROUND A. The Patent in Suit The Patent, entitled “Mobile Tele-computer Network for Motion Picture, Television and TV Advertising Production,” was issued by the USPTO on September 28, 1999, and is now assigned to Plaintiff Advanced Media Networks, LLC (“AMN”). Although the invention was originally directed at facilitating on-location video production, AMN has ORDER – PAGE 1 asserted it against a variety of technologies, including wirelessly connecting (“tethering” or “hot spot”) computers and other devices to a cell phone, such as those provided by Defendant AT&T Mobility LLC (“AT&T”). II. APPLICABLE LAW A. Principles of Claim Construction Claim construction is a question of law for the Court, see Markman, 517 U.S. at 391, although it may involve subsidiary factual questions. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 836-39 (2015). In construing the claims of a patent, the words comprising the claims “are generally given their ordinary and customary meaning” as understood by “a person of ordinary skill in the art in question at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc) (citations and internal quotation marks omitted). Accordingly, courts must determine the meaning of claim terms in light of the resources that a person with such skill would review to understand the patented technology. See id. at 1313 (citing Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998)). First, “the person of ordinary skill in the art is deemed to read the claim term . in the context of the entire patent, including the specification.” Id. If the specification “reveal[s] a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess . , the inventor’s lexicography governs.” Id. at 1316. Likewise, if “the specification . reveal[s] an intentional disclaimer, or disavowal, of claim scope by the inventor . .[,] the inventor’s intention, as expressed in the specification, is regarded as dispositive.” Id. (citation omitted). While the claims ORDER – PAGE 2 themselves provide significant guidance as to the meaning of a claim term, the specification is generally dispositive as “it is the single best guide to the meaning of a disputed term.” Id. at 1314-15 (internal quotation marks omitted). In addition to the specification, courts must examine the patent’s prosecution history – that is, the “complete record of the proceedings before the PTO and includ[ing] the prior art cited during the examination of the patent.” Id. at 1317 (citation omitted). “Like the specification, the prosecution history provides evidence of how the PTO and the inventor understood the patent.” Id. (citation omitted). In particular, courts must look to the prosecution history to determine “whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Id. (citations omitted). “[W]here the patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer attaches and narrows the ordinary meaning of the claim congruent with the scope of the surrender.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003). Finally, in addition to evidence intrinsic to the patent at issue and its prosecution history, courts may look to “extrinsic evidence, which ‘consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises.’” Phillips, 415 F.3d at 1317 (quoting Markman, 52 F.3d at 980). In general, extrinsic evidence is “less reliable than the patent and its prosecution history in determining how to read claim terms.” Id. at 1318. ORDER – PAGE 3 When the intrinsic evidence, that is the patent specification and prosecution history, unambiguously describes the scope of a patented invention, reliance on extrinsic evidence, which is everything outside the specification and prosecution history, is improper. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996). While the Court may consult extrinsic evidence to educate itself about the invention and relevant technology, it may not rely upon extrinsic evidence to reach a claim construction that is clearly at odds with a construction mandated by the intrinsic evidence. See Key Pharm. v. Hercon Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998). B. Prior Constructions of the Claims of the Patents in Suit The Patent has previously been construed in Advanced Media Networks LLC v. Gogo LLC, Civil Action No. 2:11-CV-10474 (C.D. Cal. June 14, 2013) (the “Gogo Order”). That case settled after the Gogo Order was issued and thus was not appealed; in fact, as part of the settlement the Court vacated the Order. This construction provides persuasive authority and helpful guidance to the Court in construction of the claims in this matter, but it is not binding on the Court. Accordingly, the Court provides due deference to this previous claim construction. The Patent has also been raised in several lawsuits, has been reexamined by the PTO several times, and is the subject of inter partes review by the PTAB, though apparently not any of the claims asserted in this action. ORDER – PAGE 4 III. CONSTRUCTION OF THE PATENT CLAIMS AND TERMS A. Networks and Layers1 Beginning around the late 1960s, computer scientists began looking at how to connect computers from different vendors together in a systematic manner. It was helpful to conceptualize the problem in layers: starting with physically how do you send a bit of data from one computer to another, on up to how do two computer applications communicate on different computers. To some degree, the idea of layers provided abstraction, that is, the higher layers did not care how the lower layers did their job. Thus the application layer did not care how the physical layer did its job, including famously even by carrier pigeon. See Internet Engineering Task Force (“IETF”) Request for Comment (“RFC”) 1149 (April 1, 1990) (the date is perhaps significant). The Internet Protocol Suite was developed first under the auspices of the Department of Defense’s Defense Advanced Research Projects Agency (“DARPA”) and later the IETF. It includes four layers: link, internet, transport, and application. It perhaps can be characterized as more concerned with practicality and running code rather than academic rigor in following layers and abstraction. In March 1982, the Department of Defense adopted the Internet Protocol Suite as the standard for all military computer networking. See Richard 1This background does not form any part of the Court’s analysis of the disputed terms, but is offered merely for context. It is of a sufficient level of generality that the Court can take judicial notice of these historical facts. It is drawn from two Wikipedia articles: Internet Protocol Suite, https://en.wikipedia.org/wiki/Internet_protocol_suite (last visited Feb. 21, 2017); and OSI Model, https://en.wikipedia.org/wiki/OSI_model (last visited Feb. 21, 2017). ORDER – PAGE 5 DeLauer, Internet Experiment Note (“IEN”) 207 (March 1982), reprinted at https://www.rfc-editor.org/ien/ien207.txt (last visited Feb. 23, 2017). In separate and somewhat later efforts, the International Organization for Standardization (“ISO”) and the International Telegraph and Telephone Consultative Committee (“CCIT”), a European standards organization, both began developing a more formal standard for layers. In 1983, the two efforts merged, resulting in 1984 in the Open System Interconnection Reference Model, ISO 7498, or OSI. OSI defines seven layers with relatively strict separation between the layers. The Internet Protocol Suite and the OSI model have somewhat different philosophies, and there is no strict correlation or mapping of the four Internet Protocol Suite layers to the seven OSI model layers, though approximations can be made. With this historical context in mind, the Court will turn to the claim language at issue. B. Claim Construction 1. “a redundant digital microwave communications system” AMN: a digital microwave communication system that allows for the transmission of information in the event of a non-functional communication path or device AT&T: a digital microwave communication system arranged in a microwave ring so that if one link is not functional, data may be routed in the opposite direction to arrive at its designated location ORDER – PAGE 6 Analysis: The principal issue is whether the topology of the redundant microwave communication system is limited to a ring, as shown in the “Exemplary Network System Embodiments.” See Patent 3:64-66 (“The microwave ring employs system redundancy so that if one link is not functional, data may be routed in the opposite direction to arrive at its designated location.”). AT&T relies on language in this section referring to “the present invention,” which it argues indicates that this limitation is applicable to the patent as a whole, not merely the preferred embodiment. See AT&T Amd. Opening Br. at 21-22 [105] (citing, among others, TiVo Inc.