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New Pacer--Transcript of Proceedings held on November 30, 2012
12/11/2012 382 Transcript of Proceedings held on November 30, 2012, before Judge Paul S. Grewal. Court Reporter/Transcriber Georgina Galvan Colin, Telephone number 408 888-6697. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/11/2013. (mz, COURT STAFF) (Filed on 12/11/2012) (Entered: 12/11/2012)
Comparison to Judge Wares Vs PAUL S. GREWAL (CLAIM TERM CONSTRUCTION)
CLAIM TERM CONSTRUCTION
“instruction register”
Register that receives and holds one or more instructions for supplying to circuits that interpret the instructions
“ring oscillator”
an oscillator having a multiple, odd number of inversions arranged in a loop, wherein the oscillator is variable based on the temperature, voltage and process parameters in the environment
“separate DMA CPU”
a central processing unit that accesses memory and that fetches and executes instructions directly and separately of the main central processing unit
“supply the multiple sequential instructions”
provide the multiple sequential instructions in parallel (as opposed to one-by-one) to said central processing unit integrated circuit during
1 Unless otherwise noted, the docket citations refer to Case No. 5:08-cv-00882 PSG.
2 See Docket Nos. 387, 394.
3 See Docket Nos. 385, 388.
4 See Docket No. 403.
Case5:08-cv-00882-PSG Document410 Filed12/04/12 Page2 of 3
Case No.: 08-0877
United States District Court
For the Northern District of California
a single memory cycle
“clocking said CPU”
Providing a timing signal to said central processing unit
The parties should rest assured that the court arrived at these constructions with a full appreciation of not only the relevant intrinsic and extrinsic evidence, but also the Federal Circuit’s teaching in Phillips v. AWH Corp.,5 and its progeny. So that the parties may pursue whatever recourse they believe is necessary, a complete opinion will issue before entry of any judgment.
IT IS SO ORDERED.
Dated: December 4, 2012
_________________________________
PAUL S. GREWAL
United States Magistrate Judge
JAMES WARE
United States District Chief Judge
C. ‘336 Patent
1. Claim 1
Claim 1 of the ‘336 Patent provides:
A microprocessor system, comprising
a single integrated circuit including a central processing unit
and an entire ring oscillator variable speed system clock in said
single integrated circuit and connected to said central processing unit
for clocking said central processing unit,
said central processing unit and said ring oscillator variable
speed system clock each including a plurality of electronic devices
correspondingly constructed of the same process technology with
corresponding manufacturing variations,
a processing frequency capability of said central processing
unit and a speed of said ring oscillator variable speed system clock
varying together due to said manufacturing variations and due to at
least operating voltage and temperature of said single integrated
circuit;
an on-chip input/output interface connected to exchange
coupling control signals, addresses and data with said central
processing unit; and
a second clock independent of said ring oscillator variable
speed system clock connected to said input/output interface, wherein a
clock signal of said second clock originates from a source other than
said ring oscillator variable speed system clock.
The parties tender the phrase “ring oscillator” for construction.
Upon review, the Court finds that one of ordinary skill in the art would understand the phrase
“ring oscillator” to mean: “interconnected electronic components comprising multiple odd numbers
of inverters arranged in a loop.”30 When a voltage is applied, the ring oscillator generates signals
that are used by the processing unit to regulate the timing of its operations. In contrast with a circuit
31 Because the ‘148 Patent shares the same specification with the ‘336 Patent and is directly
related to the other three Patents-in-Suit, the Court finds that any representation regarding similar
terms made by the inventors during the prosecution of the ‘148 Patent is relevant to its consideration
and construction of the terms in the ‘336 Patent. See Microsoft Corp. v. Multi-Tech Sys., Inc., 357
F.3d 1340, 1350 (Fed. Cir. 2004) (“Any statement of the patentee in the prosecution of a related
application as to the scope of the invention would be relevant to claim construction.”).
32 (See Otteson Decl., Ex. X, Ex Parte Reexamination Interview Summary, Docket Item No.
310-2.)
14
that receives its timing signal from an external clock, a person of ordinary skill in the art reading the
patent would understand that Claim 1 claims a “single integrated circuit,” fabricated so as to include
a “ring oscillator.”
At issue is whether the phrase “ring oscillator” should be given a specialized meaning based
on statements made by the inventors during reexamination of Claims 4 and 8 of the ‘148 Patent.31
Claim 4 of the ‘148 Patent claims in pertinent part:
A microprocessor integrated circuit comprising . . . a ring oscillator
having a variable output frequency, wherein the ring oscillator
provides a system clock to the processing unit, the ring oscillator
disposed on said integrated circuit substrate.
Claim 8 of the ‘148 Patent has a similarly worded limitation.
During reexamination, the examiner reviewed the allowance of Claims 4 and 8 over U.S.
Patent No. 4,689,581 (“Talbot”). The Talbot Patent, which is entitled “Integrated Circuit Phase
Locked Loop Timing Apparatus,” claims:
an integrated circuit device . . . and a timing apparatus . . . formed on a
common single chip, said timing apparatus comprising a phase locked
loop [comprising, inter alia] a voltage controlled oscillator arranged to
be controlled by [a] voltage signal to produce [an] output timing signal
at its output.
(Talbot, Col. 10:48-11:9.)
Preliminarily, the examiner rejected Claims 4 and 8 of the ‘148 Patent as unpatentable over
Talbot. During the course of reexamination proceedings, the examiner conducted an interview with
the patent owner and discussed whether Claims 4 and 8 were allowable over Talbot.32 Afterward,
33 An examiner’s interview summary may serve as a basis for finding a prosecution
disclaimer that narrows the claim scope. See, e.g., Rheox, Inc. v. Entact, Inc., 276 F.3d 1319, 1322
(Fed. Cir. 2002); Biovail Corp. Int’l v. Andrx Pharms., Inc., 239 F.3d 1297, 1302-04 (Fed. Cir.
2001).
34 (See Chen Decl., Ex. 4, Ex Parte Reexamination Interview Summary, Docket Item No.
316-4 (emphasis added).)
35 (Otteson Decl., Ex. Y, Remarks/Arguments at 11, hereafter, “Remarks,” Docket Item No.
310-3.)
36 For instance, Defendants argued during the Markman hearing that the inventors’ written
submission distinguished the Talbot reference because Talbot lacked a ring oscillator and never
mentioned a requirement of “non-controllability.” Further, Defendants also refer to the inventors’
written response on February 21, 2008, which states:
Further, Talbot does not teach, disclose, or suggest the ring oscillator recited in claim 4.
... Talbot discusses a voltage-controlled oscillator (VCO) 12, but does not teach or disclose
a ring oscillator. Talbot provides two different implementations of the VCO 12 in FIGS. 3-
4, neither one of which is a ring oscillator. Talbot refers to the oscillator of FIG. 3 as a
“frequency controlled oscillator” (col. 7, ll. 21-22) and the oscillator of FIG. 4 simply as a
“voltage controlled oscillator” (col. 8, ll. 59-65). As the sole inventor of the cited reference,
15
the examiner prepared and sent to the patent owner an “Interview Summary.”33 Specifically, with
respect to the discussion of Talbot, the examiner wrote:
Continuing, the patent owner further argued that the reference of Talbot does
not teach of a “ring oscillator.” The patent owner discussed features of a ring
oscillator, such as being non-controllable, and being variable based on the
environment. The patent owner argued that these features distinguish
over what Talbot teaches. The examiner will reconsider the current
rejection based on a forthcoming response, which will include arguments
similar to what was discussed.34
In its post-interview submission, the patent owner reiterated the contention that the claim
should be allowed because Talbot disclosed a “voltage-controlled oscillator” and not the “ring
oscillator” disclosed in the claim:
Further, Talbot does not teach, disclose, or suggest the ring oscillator
recited in claim 4. The Examiner cited col. 3, ll. 26-36, and oscillator
circuit 12 shown in FIG. 1 of Talbot as teaching the recited ring
oscillator. Talbot discusses a voltage-controlled oscillator (VCO) 12,
but does not teach or disclose a ring oscillator.35
During the course of these claim construction proceedings, the inventors have continued to
maintain that Talbot was overcome during reexamination because it does not disclose a “ring
oscillator.”36
Talbot presumably possesses at least ordinary skill in the art, yet Talbot did not characterize
either of the disclosed oscillators as ring oscillators. Applicants respectfully assert that the
reason they were not characterized by Talbot as ring oscillators is because they are not ring
oscillators. For at least the foregoing reasons, Talbot does not teach, disclose, or suggest a
ring oscillator as recited in the claims. (Remarks at 11 (emphases added).)
37 This issue is important to claim construction, because it is relevant to understanding in
what manner the ring oscillator is “non-controllable,” as distinguished from the voltage-controlled
oscillator disclosed in Talbot. Resolving this conflict might affect how the Court approaches issues
with respect to the validity of the patent claim at issue.
16
The Court has examined the Talbot patent. Although the component is, indeed, referred to as
a “voltage-controlled oscillator,” declarations and other extrinsic materials that have been tendered
during the claim construction proceedings call into question the validity of the inventors’ contention
to the PTO and to this Court that the “ring oscillator” is different from the “voltage-controlled
oscillator” disclosed in Talbot. On the one hand, the Court has received extrinsic evidence that the
voltage-controlled oscillator disclosed in Talbot is a ring oscillator. On the other hand, arguments
have been submitted claiming that the voltage-controlled oscillator of Talbot is not a ring
oscillator.37
Under clear Federal Circuit law, a submission made by an inventor during reexamination is
regarded as a disavowal only if the court finds that the allegedly disavowing statement is “so clear as
to show reasonable clarity and deliberateness, and so unmistakable as to show unambiguous
evidence of disclaimer.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1325 (Fed. Cir. 2003)
(citations omitted).
Here, before arriving at a decision on the definition of the phrase “ring oscillator” in the
context of the Talbot reference, the Court finds that it would benefit from further briefing. In the
supplement briefs, the declarants shall fully articulate the technical basis for their opinions with
respect to whether the voltage-controlled oscillator disclosed in Talbot is or is not a ring oscillator.
The Court will return to the construction of the phrase “ring oscillator” following the completion of
the supplement briefing.
38 (See ‘336 Patent, Col. 16:67-17:2 (stating that “y deriving system timing from the ring
oscillator 430, CPU 70 will always execute at the maximum frequency possible, but never too
fast.”).)
17
2. Claim 6
Claim 6 of the ‘336 Patent provides:
A microprocessor system comprising:
a central processing unit disposed upon an integrated circuit
substrate, said central processing unit operating at a processing
frequency and being constructed of a first plurality of electronic
devices;
an entire oscillator disposed upon said integrated circuit
substrate and connected to said central processing unit, said oscillator
clocking said central processing unit at a clock rate and being
constructed of a second plurality of electronic devices, thus varying
the processing frequency of said first plurality of electronic devices
and the clock rate of said second plurality of electronic devices in the
same way as a function of parameter variation in one or more
fabrication or operational parameters associated with said integrated
circuit substrate, thereby enabling said processing frequency to track
said clock rate in response to said parameter variation; an on-chip
input/output interface, connected between said central processing unit
and an off-chip external memory bus, for facilitating exchanging
coupling control signals, addresses and data with said central
processing unit; and
an off-chip external clock, independent of said oscillator,
connected to said input/output interface wherein said off-chip external
clock is operative at a frequency independent of a clock frequency of
said oscillator and wherein a clock signal from said off-chip external
clock originates from a source other than said oscillator.
a. “clocking said central processing unit”
The parties tender for construction the phrase “clocking said central processing unit.”
Upon review, the Court finds that to one of ordinary skill in the art, the plain and ordinary
meaning of “clocking said central processing unit” is to provide a clock signal to the central
processing unit.
A further issue tendered with respect to this phrase is whether, based on the written
description, the construction should include a limitation of the maximum or optimum frequency of
the “clocking” function. In the written description of the ‘336 Patent, the phrase “maximum
frequency possible” is used with respect to an embodiment.38 A description of an embodiment in the
specification may not be imposed as a limitation “unless the patentee has demonstrated a clear
39 The Court observes that “function” is a very broad term. See, e.g., MODERN DICTIONARY
OF ELECTRONICS 311-12 (7th ed. 1999) (defining “function” as, inter alia, a “quantity of value that
depends on the value of one or more other quantities” or a “specific purpose of an entity, or its
characteristic action,” and defining a number of phrases that include the term “function,” such as
“function codes,” “function keys” and a “function table”).
18
intention to limit the claim scope using ‘words or expressions of manifest exclusion or restriction.’”
Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004)
(citation omitted). Here, the Court finds that the cited language does not demonstrate “a clear
intention to limit the claim scope.” Id.
Accordingly, the Court construes “clocking said central processing unit” to mean:
providing a timing signal to said central processing unit.
b. “as a function of parameter variation”
The parties tender for construction the phrase “as a function of parameter variation.” The
full phrase is: “thus varying the processing frequency of said first plurality of electronic devices and
the clock rate of said second plurality of electronic devices in the same way as a function of
parameter variation.”
The disputed issue is whether the phrase requires a mathematical type predetermined
functional relationship. Upon review, the Court finds that a person of ordinary skill in the art
reading the patent would understand that the phrase “as a function of” is describing a variable that
depends on and varies with another.39 Because neither the written description nor the prosecution
history provide a basis for concluding that the phrase should be limited to a narrower definition of an
exact mathematical type functional relationship, the Court declines to do so. Having resolved the
only dispute tendered with respect to this phrase, the Court declines to construe it further.
3. Claim 10
Claim 10 of the ‘336 Patent provides:
In a microprocessor system including a central processing unit, a
method for clocking said central processing unit comprising the steps
of:
providing said central processing unit upon an integrated
circuit substrate, said central processing unit being constructed of a
first plurality of transistors and being operative at a processing
frequency;
providing an entire variable speed clock disposed upon said
integrated circuit substrate, said variable speed clock being
constructed of a second plurality of transistors;
clocking said central processing unit at a clock rate using said
variable speed clock with said central processing unit being clocked
by said variable speed clock at a variable frequency dependent upon
variation in one or more fabrication or operational parameters
associated with said integrated circuit substrate, said processing
frequency and said clock rate varying in the same way relative to said
variation in said one or more fabrication or operational parameters
associated with said integrated circuit substrate;
connecting an on-chip input/output interface between said
central processing unit and an off-chip external memory bus, and
exchanging coupling control signals, addresses and data between said
input/output interface and said central processing unit; and
clocking said input/output interface using an off-chip external
clock wherein said off-chip external clock is operative at a frequency
independent of a clock frequency of said variable speed clock and
wherein a clock signal from said off-chip external clock originates
from a source other than said variable speed clock.
The parties have tendered for construction the phrase “providing an entire variable speed
clock disposed upon said integrated circuit substrate.” There are two issues that are tendered with
respect to this language. First, there is a dispute over whether the “variable speed clock” should be
defined as limited to a ring oscillator. Here, the Court observes that, in other claims, the inventor
discusses a “ring oscillator” as a variable speed system clock. Nonetheless, with respect to this
Claim, the Court declines to limit the broader phrase found in Claim 10 to a ring oscillator only.
Second, the parties tender a dispute over the degree of independence between the signal of
the “variable speed clock” and any external reference signal. However, upon review the Court finds
that this dispute is not pertinent to the construction of the tendered phrase.
Accordingly, the Court construes “providing an entire variable speed clock disposed upon
said integrated circuit substrate” to mean:
Providing a variable speed clock that is located entirely on the same
semiconductor substrate as the central processing unit.
4. Claim 11
Claim 11 of the ‘336 Patent provides:
A microprocessor system, comprising a single integrated circuit
including a central processing unit and an entire ring oscillator
variable speed system clock in said single integrated circuit and
connected to said central processing unit for clocking said central
processing unit, said central processing unit and said ring oscillator
variable speed system clock each including a plurality of electronic
devices correspondingly constructed of the same process technology
with corresponding manufacturing variations, a processing frequency
capability of said central processing unit and a speed of said ring
oscillator variable speed system clock varying together due to said
manufacturing variations and due to at least operating voltage and
temperature of said single integrated circuit; an on-chip input/output
interface connected to exchange coupling control signals, addresses
and data with said central processing unit; and a second clock
independent of said ring oscillator variable speed system clock
connected to said input/output interface, wherein said central
processing unit operates asynchronously to said input/output
interface.
The parties tender for construction the phrase “wherein said central processing unit operates
asynchronously to said input/output interface.”
Claim 11 discloses a microprocessor system comprising, among others, a central processing
unit and an entire ring oscillator variable speed system clock connected to said central processing
unit, an on-chip input/output interface, and “a second clock independent of said ring oscillator
variable speed system clock” connected to said input/output interface. The subject phrase is
contained in a “wherein” clause that describes the relationship between the timing control signal of
the central processing unit and the timing signal of the on-chip input/output interface. The claim
discloses that the central processing unit operates “asynchronously” to the input/output interface.
The written description is silent as to whether there is or can be any timing relationship
between the central processing unit and the input/output interface or between their respective clocks.
The inventors first introduced the term “operates asynchronously to” during the
re-examination of the ‘336 Patent in order to “clarify the meaning of ‘independent’ as recited in the
40 (See Declaration of Eugene Mar in Support of Defendants’ Opening Claim Construction
Brief, Ex. G, In re Ex Parte Reexamination of U.S. Patent No. 5,809,336 at 17, Docket Item No.
213-2.)
41 (Id. (citing STEPHEN A.WARD & ROBERT H. HALSTEAD, JR., COMPUTATION STRUCTURES
93 (1990)) (emphasis added).)
42 One source provides nine different meanings for the term “asychronous.” See MODERN
DICTIONARY OF ELECTRONICS 40 (7th ed. 1999) (defining the term, inter alia, as a “communication
method in which data is sent when it is ready without being referenced to a timing clock, rather than
waiting until the receiver signals that it is ready to receive” or as referring to “computer program
execution [that is] unexpected or unpredictable with respect to the instruction sequence”).
21
claims.”40 The examiner had focused on a reference known as “Kato” that purported to show two
clock signals that are “in synchronism with each other.” (Id. at 19.) The inventors explained that
“Kato does not reveal any teaching that any of the components of the data processing circuit operate
asynchronously with each other.” (Id.) In support of the “independent” and “asynchronous” nature
of its clocks, the inventors cited a textbook that describes what an asynchronous system is:
An asynchronous system is one containing two or more independent clock signals.
So long as each clock drives independent logic circuitry, such a system is effectively
a collection of independent synchronous systems. The logical combination of
signals derived from independent clocks, however, poses difficulty because of the
unpredictability of their phase relationship.41
Reading this prosecution history, a person of ordinary skill would understand that the word
“asynchronously”42 means that the timing signal from one clock is independent from and not derived
from the other clock such that a phase relationship between the two clocks is not readily predictable.
Accordingly, the Court construes “wherein said central processing unit operates
asynchronously to said input/output interface” to mean:
the timing control of the central processing unit operates independently of and is
not derived from the timing control of the input/output interface such that there
is no readily predictable phase relationship between them.
IV. CONCLUSION
The Court has construed the phrases and terms tendered for construction.
On or before June 29, 2012, the parties shall meet and confer and file a Joint Statement
addressing the following issues:
43 On April 28, 2012, Chief Judge Ware announced that he plans to “retire in August 2012 as
the terms of his current law clerks come to an end.” See Chief Judge Ware Announces Transition,
available at http://www.cand.uscourts.gov/news/82.
22
(1) A proposed schedule for supplemental briefs consistent with the terms of this Order;
(2) In light of the Court’s impending retirement,43 the Court proposes to assign this case
to Magistrate Judge Grewal. In their Statement, the parties shall state whether they
jointly consent to having this case immediately reassigned to Judge Grewal. In the
event the parties do not consent to the immediate reassignment, the case will remain
with Judge Ware and be subject to reassignment in due course.
Dated: June 12, 2012
JAMES WARE
United States District Chief Judge
New Pacer--CLAIM CONSTRUCTION ORDER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
ACER, INC., ACER AMERICA CORPORATION and GATEWAY, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LTD., PATRIOT SCIENTIFIC CORPORATION, ALLIACENSE LTD.,
Defendants.
Case No. 5:08-cv-00877 PSG
(Re: Docket Nos. 356, 357, 358, 374)
HTC CORPORATION, HTC AMERICA, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LTD., PATRIOT SCIENTIFIC CORPORATION, ALLIACENSE LTD.,
Defendants.
Case No. 5:08-cv-00882 PSG
(Re: Docket Nos. 385, 387, 388, 403)
CLAIM CONSTRUCTION ORDER
In this patent infringement suit, Plaintiffs Acer, Inc., Acer America Corp., Gateway, Inc., and Plaintiffs HTC Corp. and HTC America, Inc. (collectively “Plaintiffs”) seek a declaratory Case5:08-cv-00882-PSG Document410 Filed12/04/12 Page1 of 3
Case No.: 08-0877
United States District Court
For the Northern District of California
judgment that they do not infringe patents owned by Defendants Technology Properties Ltd., Patriot Scientific Corp., and Alliacense Ltd. (collectively “Defendants”).
1 Consistent with Pat. L.R. 4-3(c), the parties seek further construction of terms and phrases in claims in the patents-in-suit.2 Plaintiffs and Defendants each also seek reconsideration of Judge Ware’s earlier constructions of certain terms.3
As part of those motions for reconsideration, Plaintiffs seek to file a sur-reply on the grounds that Defendants’ reply to their motion for reconsideration introduced new arguments and new evidence.4 The court GRANTS Plaintiffs’ motion to file the sur-reply.
In light of this case’s long history and the trial date set for June 24, 2013, the court does not wish to add any further delay to the constructions by its preparation of a complete opinion setting forth its reasoning and analysis. To that end, the court at this time will simply issue its constructions without any significant reasoning and analysis:
CLAIM TERM
CONSTRUCTION
“instruction register”
Register that receives and holds one or more instructions for supplying to circuits that interpret the instructions
“ring oscillator”
an oscillator having a multiple, odd number of inversions arranged in a loop, wherein the oscillator is variable based on the temperature, voltage and process parameters in the environment
“separate DMA CPU”
a central processing unit that accesses memory and that fetches and executes instructions directly and separately of the main central processing unit
“supply the multiple sequential instructions”
provide the multiple sequential instructions in parallel (as opposed to one-by-one) to said central processing unit integrated circuit during
1 Unless otherwise noted, the docket citations refer to Case No. 5:08-cv-00882 PSG.
2 See Docket Nos. 387, 394.
3 See Docket Nos. 385, 388.
4 See Docket No. 403.
Case5:08-cv-00882-PSG Document410 Filed12/04/12 Page2 of 3
Case No.: 08-0877
United States District Court
For the Northern District of California
a single memory cycle
“clocking said CPU”
Providing a timing signal to said central processing unit
The parties should rest assured that the court arrived at these constructions with a full appreciation of not only the relevant intrinsic and extrinsic evidence, but also the Federal Circuit’s teaching in Phillips v. AWH Corp.,5 and its progeny. So that the parties may pursue whatever recourse they believe is necessary, a complete opinion will issue before entry of any judgment.
IT IS SO ORDERED.
Dated: December 4, 2012
_________________________________
PAUL S. GREWAL
United States Magistrate Judge
Transcript of Proceedings held on November 30, 2012
12/04/2012
Transcript of Proceedings held on November 30, 2012, before Judge Paul S. Grewal. Court Reporter/Transcriber Georgina Galvan Colin, Telephone number (408) 888-6697. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/4/2013. (mz, COURT STAFF) (Filed on 12/4/2012) (Entered: 12/04/2012)
From BaNosser--Barco Case Settled and Dissmissed 11-29-12
Barco Case Settled and Dissmissed 11-29-12
posted on Nov 30, 12 01:41AM
This document is filed only under Barco.. not in Acer nor HTC.. So I assume the CC is still on for tomorrow with them..
http://photos.imageevent.com/banos/t3/Stipulation%20and%20Order%20of%20Dismissal%2011-29-12.pdf
Barco had requested to be allowed to participate via telephone yesterday..
http://photos.imageevent.com/banos/t3/Barco%20Admin%20Request%20to%20Participate%20by%20Telephone%20in%20CC%20Hearing%20%2011-28-12.pdf
that had been granted..
http://photos.imageevent.com/banos/t3/Barco%20Request%20to%20Appear%20by%20Telephone%20Granted%2011-29-12.pdf
Eight Points to Know about September 16, 2012: Post-Grant Transitions and Deadlines
by Dennis Crouch
September 16, 2012 is a big date for parties considering a post-grant challenge to someone else’s patent. Eight things that your clients should know:
1.End of Inter Partes Reexamination: September 15, 2012 is the last date to request inter partes reexamination under the old system. That is to say, inter partes patent reexamination filings will no longer be accepted on September 16, 2012. Parties who understand and find the current system valuable may want to accelerate their filing timeline accordingly.
2.Beginning of Inter Partes Review: The new inter partes review system begins on September 16, 2012 and applies to any issued patent that has been issued for at least 9–months.
3.Inter Partes TRIAL: Despite the similar name, the procedures involved with an inter partes review will be quite different from inter partes reexamination. In short, the review will be more like a trial and heard by a tribunal of administrative patent judges rather than being considered by an examiner.
4.$$$ Inter Partes Expense $$$: The trial features will certainly make inter partes reviews significantly more expensive based on greater attorney fees. In addition, the fee for filing an inter partes review petition is $27,200 (plus $600.00 for each claim over 20). Current inter partes reexamination fee is $8,800.
5.$$$ Ex Parte Reexamination $$$: The AIA barely changes the ex parte reexamination process. Those reexaminations can still be requested by third parties. The major change, however, is that the fee for ex parte reexamination will jump on September 16, 2012 from $2,520 to $17,750. What is $15k worth to your client?
6.Post Grant Review: Except for “covered business methods,” the post grant review system (with its broad-base of potential challenges) is on hold until 2013. In particular, PGR will only be available to challenge granted patents that are filed as applications after the March 16, 2013 first-to-file changeover
7.Business Method Post Grant Review: The PGR system does open on September 16, 2012 to challenge “covered business methods.” These challenges are limited by the statute to only patents that cover some sort of financial data processing and that do not involve a novel technological feature or solution.
8.Supplemental Examination: Although perhaps out of place on this list (b/c not a third party challenge), supplemental examination also becomes available on the 16th of September 2012. This process can cure inequitable conduct that committed during the original ex parte prosecution.
Posted on Aug 30, 2012 at 09:04 PM
http://www.patentlyo.com/patent/2012/08/eight-points-to-know-about-september-16-2012-post-grant-transitions-and-deadlines.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
New Pacer--JOINT CASE MANAGEMENT
CONFERENCE STATEMENT
[RELATED CASES]
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
ACER, INC., ACER AMERICA
CORPORATION and GATEWAY, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED,
PATRIOT SCIENTIFIC CORPORATION,
and ALLIACENSE LIMITED,
Defendants.
Case No. 5:08-cv-00877 PSG
JOINT CASE MANAGEMENT
CONFERENCE STATEMENT
[RELATED CASES]
Date: September 4, 2012
Time: 2:00 pm.
Dept: Courtroom 5, 4th Floor
Judge: Hon. Paul S. Grewal
HTC CORPORATION, HTC AMERICA,
INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED,
PATRIOT SCIENTIFIC CORPORATION,
and ALLIACENSE LIMITED,
Defendants.
Case No. 5:08-cv-00882 PSG
BARCO N.V., a Belgian corporation,
Plaintiff,
v.
TECHNOLOGY PROPERTIES LTD.,
PATRIOT SCIENTIFIC CORP.,
ALLIACENSE LTD.,
Defendants.
JOINT CMC STATEMENT
The parties from the three above-captioned actions, Plaintiffs Acer Inc., Acer America
Corp., and Gateway, Inc. (collectively “Acer”), HTC Corporation and HTC America Inc.
(collectively “HTC”) and Barco, N.V. (“Barco”), and Defendants Technology Properties Limited,
Patriot Scientific Corporation, and Alliacense Limited (collectively “TPL” or “Defendants”),
respectfully submit this Joint Case Management Conference Statement (“CMC Statement”)
pursuant to the Court’s August 21, 2012 order (Docket No. 344 in the Acer action) setting the case
management conference on September 4, 2012.
I. PROCEDURAL HISTORY AND PATENTS-IN-SUIT
Acer and HTC filed their respective declaratory judgment actions on February 8, 2008,
while Barco filed its declaratory judgment action on December 1, 2008 as follows:
(1) The Acer Action (Case No. 5:08-cv-00877);
(2) The HTC Action (Case No. 5:08-cv-00882); and
(3) The Barco Action (Case No. 5:08-cv-05398).
All three actions above were related and originally assigned to Judge Fogel. Upon Judge
Fogel’s departure in October 2011, this case was reassigned to Chief Judge Ware. Because of
Judge Ware’s pending retirement in August 2012, this case has now been reassigned to this Court
per consent of the parties.
The four Patents-in-Suit in the Acer and HTC actions are U.S. Patent Nos. 5,809,336 (the
“’336 Patent”), 5,440,749 (the “’749 Patent”), 5,530,890 (the “’890 Patent”) and 6,598,148 (the
“’148 Patent”) (collectively “Patents-in-Suit”). Three of the four patents—the ’336 Patent, the
’749 Patent, and the ’890 Patent—are at issue in the Barco action.
The four Patents-in-Suit, which share the same specification, are directed to different
aspects of a microprocessor system. Generally speaking, the ’336 Patent is directed to the
microprocessor system’s clocking mechanisms, while the ’749 and ’890 Patents are directed to the
microprocessor system’s architectural features. The ’148 Patent generally relates to the
microprocessor system’s memory.
II. CURRENT STATUS OF THE CASE
The actions are currently in the claim construction stage. Judge Ware conducted a
JOINT CMC STATEMENT
Markman hearing in January 2012 on ten claim terms. On June 12, 2012, Judge Ware issued a
First Claim Construction Order (Acer Dkt. No. 336). In the Order, Judge Ware requested
supplemental briefing with respect to two of the terms. There may be other unresolved claim
construction issues, and the parties may seek clarification or reconsideration on certain terms.
On July 2, 2012 and pursuant to the First Claim Construction Order, the parties submitted a
further Joint Statement regarding competing proposals for the supplemental claim construction
briefing and possible discovery. (Acer Dkt. No. 337). However, Judge Ware did not issue any
order regarding further claim construction briefing before the reassignment to this Court. The
Parties’ Proposed Schedule in the section below therefore includes a proposed briefing schedule
for the supplemental briefs specified in the First Claim Construction Order.
On July 24, 2012, Defendants filed eleven additional suits in this District, asserting
infringement of three of the four Patents-in-Suit (the ’749, ’890, and ’336 patents). Thus, in total,
there are fourteen separate actions pending in this District involving at least these three patents.
On August 24, 2012, the U.S. International Trade Commission (“ITC”) published in the
Federal Register its intention to institute an investigation of infringement of the ’336 patent by
thirteen of the fourteen parties to the pending district court actions. See 77 FR 51572
(Investigation No. 337-TA-853). In addition to Acer and HTC, the ITC respondents include
Amazon.com, Barnes & Noble, Garmin, Huawei, Kyocera, LG Electronics, Nintendo, Novatel
Wireless, Samsung, Sierra Wireless, and ZTE.
III. PARTIES’ PROPOSED SCHEDULE
The parties have met and conferred, and hereby largely agree on a schedule for the
remainder of the claim construction briefing (save for one disagreement over the need for
additional expert depositions). However, Defendants believe that judicial economy would be best
served by waiting for the defendants in the newly-filed actions to answer the complaints, and
possibly consolidating these matters for purposes of discovery and claim construction.
A. Plaintiffs’ Position.
Plaintiffs believe that judicial economy would not be best served by waiting for the
defendants in the newly-filed actions for several reasons. First, Plaintiffs’ declaratory judgment
(“DJ”) actions have been pending for over four and a half years – they are entitled to have the
pending issues in their DJ actions, including claim construction, resolved in a timely manner
without having to wait for eleven additional groups of accused infringers to catch up to the
schedule. Plaintiffs have already expended enormous resources to have their DJ actions resolved,
and waiting months or a year longer would unfairly prejudice Plaintiffs and burden them with
additional litigation expenses while awaiting the coordination of eleven separate actions.
Second, clarification and additional construction by this Court on the remaining claim
terms would actually improve judicial economy by narrowing the issues in the subsequently filed
actions, likely encouraging informal resolution due to the certainty provided by additional claim
construction from this Court.
Third, Plaintiffs believe that it would be improper to consolidate the newly-filed actions
because the current actions are far enough along that further delay would be prejudicial to the
existing parties to the litigation. The newly added accused infringers sell a diversity of products
that bear little relationship to the products accused in Plaintiffs’ DJ actions. The parties in the DJ
actions have all agreed to the Magistrate Judge for all proceedings, whereas the additional eleven
accused infringer groups may not do so, thus making consolidation speculative at best, even if
permissible. See Body Science LLC v. Boston Scientific Corp., 846 F. Supp.2d 980, 991 (N.D. Ill.
Mar. 2012) (refusing to consolidate cases where there were a multitude of different products and
determining that consolidation would not promote judicial economy or efficiency); see also One-
E-Way Inc. v. Plantronics Inc. et al., 2:11-cv-06673, Dkt. No. 80 at 2 (CD Cal. January 19, 2012)
(finding that consolidation was inappropriate because “the defendants – who may have competing
interests and strategies – also are entitled to present individualized assaults on questions of noninfringement,
invalidity, and claim construction”).
Fourth, the remaining claim construction issues are narrow and readily resolvable by the
Court.1 The issues can readily be briefed by the parties already in the DJ actions, and have been
1 The claim construction issues that remain for resolution were raised in claim construction briefs
filed in late 2010 and early 2011, when the case was before Judge Fogel. The case was
subsequently reassigned to Judge Ware, and then upon his retirement, to this court. These events
were out of the control of Plaintiffs, but the effect of these events has been an undue delay in
largely identified in Judge Ware’s First Claim Construction Order. There would not be significant
resources spent resolving these remaining claim construction issues.
Should the Court be inclined to stay further claim construction for months to see if the
cases can be consolidated and a joint scheduled reached, it should be on the condition that TPL
agree to waive past damages from the time of filing of the newly filed actions. Otherwise, the
current Plaintiffs would be prejudiced by ongoing delay in the resolution of their DJ actions and
face continued uncertainty as to their rights.
B. Defendants’ Position.
Plaintiffs misunderstand Defendants’ proposal. As shown by the proposed schedule below,
Defendants are amenable to this Court taking up claim construction issues left open by Judge
Ware; indeed, Defendants stipulated to having this Court do just that.
However, there are now eleven new cases involving the same patents, the same claim
construction issues, and the same invalidity defenses. The risk of inconsistent rulings and
substantial duplication of judicial effort cannot be ignored. See Interactive Fitness Holdings, LLC
v. Icon Health & Fitness, Inc., 10-CV-04628 LHK, 2011 WL 1302633, at *3 (N.D. Cal. April 5,
2011) (granting motion to transfer to avoid duplicative and potentially inconsistent claim
construction and infringement analyses that would inevitably result); see also Micron Tech. Inc. v.
Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011) and Hynix Semiconductor Inc. v. Rambus Inc., 645
F.3d 1336 (Fed. Cir. 2011) (attempting to reconcile inconsistent factual determinations by two
district courts but ultimately remanding for further proceedings). For this reason, the Federal
Circuit has observed that “judicial economy plays a paramount role in trying to maintain an
orderly, effective, administration of justice and having one trial court decide all of these claims
clearly furthers that objective.” In re Google, Inc., 412 F. App’x 295, 296 (Fed. Cir. 2011).
Consequently, the parties propose the following schedule with disagreements noted by
shading:
resolving the parties’ well-distilled claim construction disputes. Further delay would unduly
prejudice Plaintiffs.
Event Date
Exchange of expert declarations for
supplemental briefing
Sept. 14, 2012
Completion of expert discovery Plaintiffs
Sept. 28, 2012
Defendants
Defendants do not believe
that further expert
depositions are necessary
or helpful. The experts
have already been
deposed on claim
construction issues.
Exchange of opening supplemental
claim construction briefs
October 5, 2012
Exchange of responsive supplemental
claim construction briefs
October 26, 2012
Tutorials and hearing, if ordered by the
Court
Approximately 15 days after exchange of
responsive supplemental claim construction
briefs
Final infringement contentions2 Plaintiffs
30 days after the final
claim construction
ruling
Defendants
Defendants believe
judicial economy will
be served by waiting
until the defendants in
the newly-filed cases
have had the
opportunity to appear
and be heard
Final invalidity contentions3
Defendants to serve willfulness
documents; opinion of counsel
50 days after the final
claim construction
ruling
2 2 These two deadlines for final infringement and final invalidity contentions only apply to case
nos. 5:08-cv-0877 (Acer v. TPL) and 5:08cv-0882 (HTC v. TPL). Case no. 5:08-cv-05398 (Barco
v. TPL) was filed in December 2008 and operates under the Patent Local Rules that were in effect
after March 2008, which do not provide for final infringement or invalidity contentions absent
leave from Court.
Event Date
Close of fact discovery Six months after the
final invalidity
contentions
Initial expert reports 30 days after the close
of fact discovery
Rebuttal expert reports 30 days after the initial
expert reports
Close of expert discovery Two weeks after the
rebuttal expert reports
Trial To be determined
IV. LEGAL ISSUES
The principal legal issues that the Parties dispute are:
a. The construction of the claims of the Patents-in-Suit;
b. Whether the Plaintiffs infringe any of the Patents-in-Suit;
c. Whether any infringement by Plaintiffs, if proven, was willful;
d. Whether the Patents-in-Suit are invalid and/or unenforceable; and
e. Whether Intervening Rights are applicable due to amendments to the asserted
claims during reexamination of the Patents-In-Suit.
f. The amount of damages, if any, due to Defendants and potential entry of an
injunction.
V. MOTIONS AND ANTICIPATED MOTIONS
Barco previously filed a motion for summary judgment of non-infringement of the ’336
Patent on December 1, 2010. (Barco Dkt. No. 112.) Judge Fogel subsequently denied the motion
without prejudice on March 8, 2011. (Barco Dkt. No. 167.)
HTC previously filed a motion for partial summary judgment of non-infringement of the
’749, the ’336 and the ’148 Patents on April 8, 2011 prior to claim construction. (HTC Dkt. No.
293.) The motion was subsequently denied by Judge Ware as premature and without prejudice to
renewal after claim construction. (HTC Dkt. No. 361.)
Plaintiffs will be renewing these motions and will be filing additional motions for summary
judgment following the resolution of outstanding claim construction disputes.
VI. AMENDMENT OF PLEADINGS
The parties do not anticipate filing any further amended pleadings at this time.
VII. EVIDENCE PRESERVATION
All parties have been advised by their counsel to preserve all relevant evidence, including
electronically stored information, if any.
VIII. DISCLOSURES
The parties have complied with the initial disclosure requirements of Fed. R. Civ. P. 26.
IX. CLASS ACTIONS
This is not a class action case.
X. RELATED CASES THAT HAVE BEEN RESOLVED
(1) The ASUSTeK Action (Case No. 5:08-cv-00884); and
(2) The Sirius XM Action (Case No. 3:10-cv-00816).
XI. RELIEF
Plaintiffs seek a declaratory judgment against Defendants that they do not infringe any
asserted claim of the Patents-in-Suit, and that the asserted claims are invalid and/or unenforceable.
Defendants seek damages for alleged patent infringement and injunctive relief.
XII. SETTLEMENT AND ADR
Acer, HTC and TPL have engaged in mediation, but have not settled the disputes to date.
See Acer Dkt. No. 49 and HTC Dkt. No. 50. Barco was exempted from the mediation process.
See Barco Dkt. No. 53.
XIII. CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES
The Parties have jointly consented to Magistrate Judge Grewal for all further proceedings
including trial and entry of judgment. (See Acer Dkt. No. 339.)
XIV. OTHER REFERENCES
The parties do not believe that this case is suitable for reference to binding arbitration, a
special master, or the Judicial Panel on Multidistrict Litigation.
XV. NARROWING OF ISSUES
The Parties anticipate filing one or more dispositive motions, such as motions for summary
judgment, seeking to narrow the issues in this case.
XVI. EXPEDITED SCHEDULE
The Parties agree that this case is not suitable for expedited handling at this time.
XVII. TRIAL
The case will be tried to a jury. Parties expect the duration of the trial will depend on
numerous factors, including the dispositions of the pending and anticipated summary judgment
motions that cannot be determined at this stage of the proceedings.
XVIII.DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS
The Parties have filed Corporate Disclosure Statements pursuant to Fed. R. Civ. P. 7-1.
XIX. STATUS OF DISCOVERY
The parties have conducted claim construction discovery and are engaged in fact
discovery. Defendants have also initiated discovery with a number of third-party suppliers,
including some foreign-based third-parties. Given the complexity of the issues in this case, it is
expected that additional document and deposition discovery will be needed after the issuance of
the claim construction order. The parties have previously agreed to close fact discovery six
months after the final invalidity contentions are due, which must be served 50 days after the
issuance of the final claim construction order. (See, e.g., Acer Dkt. No. 288.)
XX. OTHER MATTERS
There are no other matters that the parties believe need to be addressed at this time.
Respectfully submitted,
[SIGNATURE BLOCKS START ON THE NEXT PAGE]
Dated: August 28, 2012
K&L GATES LLP
By: /s/ Timothy Walker
Timothy P. Walker, Esq.
Howard Chen, Esq.
Harold H. Davis, Jr., Esq.
Jas Dhillon, Esq.
Jeffrey M. Ratinoff
K&L Gates LLP
Four Embarcadero Center, Suite 1200
San Francisco, CA 94111
Attorneys for Acer, Inc., Acer America
Corp. and Gateway, Inc.
Dated: August 28, 2012 COOLEY LLP
By: /s/ Kyle Chen
Kyle D. Chen, Esq.
Heidi L. Keefe, Esq.
Mark R. Weinstein, Esq.
Cooley LLP
3000 El Camino Real
Five Palo Alto Square, 4th Floor
Palo Alto, California 94306
Attorneys for HTC Corporation and HTC
America, Inc.
Case5:08-cv-05398-PSG Document291 Filed08/28/12 Page10 of 12
Dated: August 28, 2012 BAKER & MCKENZIE
By: /s/ Edward Runyan
Edward Runyan, Esq.
Baker & McKenzie
130 East Randolph Drive
Chicago, IL 60601
Attorneys for Barco, N.V.
Dated: August 28, 2012 AGILITY IP LAW
By: /s/ Brandon Baum
Brandon Baum
Agility IP Law
149 Commonwealth Drive, Suite 1033
Menlo Park, California 94025
Attorneys for Technology Properties Ltd.
and Alliacense Ltd.
Dated: August 28, 2012 KIRBY NOONAN LANCE & HOGE LLP
By: /s/ Charles T. Hoge
__ Charles T. Hoge, Esq.
Kirby Noonan Lance & Hoge LLP
350 Tenth Avenue
Suite 1300
San Diego, CA 92101
Attorneys for Patriot Scientific Corp.
ATTESTATION PER GENERAL ORDER 45
I, Edward Runyan, am the ECF User whose ID and password are being used to file this
Joint Case Management Conference Statement. In compliance with General Order 45, X.B., I
hereby attest that the counsel listed above have concurred with this filing.
Dated: August 28, 2012
By: : /s/ Edward Runyan
Attorney for Barco, N.V.
13 Companies Cited for Infringement of MMP Portfolio(TM) in ITC Complaint
The MMP Portfolio(TM) Licensing Program is Dramatically Strengthened Via Markman Victory and Filing of ITC and District Court Complaints
CARLSBAD, California - July 24, 2012 - (PR Newswire)-Patriot Scientific Corporation (OTCBB: PTSC - News) announced today that the MMP Portfolio Licensing Program - already among the most successful of all-time - is being further enhanced with a first wave of aggressive ITC enforcement activities. Technology Properties Limited (TPL) and Patriot Scientific Corporation (PTSC), have filed a complaint with the US International Trade Commission (ITC) and corresponding complaints in the US District Court for the Northern District of California against 13 companies believed to be infringing the MMP Portfolio patents. The move defends the investments of the enormous MMP Portfolio licensee community of nearly 100 global industry leaders (with combined annual revenue of approximately $1.4 trillion), the investments of PTSC and TPL in the MMP Portfolio Licensing Program, and the investments of TPL in its own semiconductor product lines.
The 13 ITC respondents are: Acer Inc., Amazon.com Inc., Barnes & Noble Inc., Garmin Ltd., HTC Corporation, Huawei Technologies Co. Ltd., Kyocera Corporation, LG Electronics, Nintendo Co. Ltd., Novatel Wireless Inc., Samsung Electronics Co. Ltd., Sierra Wireless Inc., and ZTE Corporation.
The three-pronged strategy includes: (1) a Complaint filed with the US International Trade Commission seeking an Exclusion Order prohibiting the importation of unlicensed products; (2) parallel actions in US District Court seeking damages for past infringement that includes past un-paid royalties -- plus the interest which has accrued on those royalties -- both tripled for willful infringement, plus attorney's fees; and, (3) the pursuit of injunctions in both the US District Court and the ITC barring the sale of infringing products in the United States in the future.
These latest lawsuits come close on the heels of Alliacense's unprecedented series of 17 consecutive re- examination victories spanning six years of spurious attacks from a powerful group of serial infringers.
And on June 12, 2012, the US District Court for the Northern District of California issued a "Markman" ruling, remarkable for its resounding defeat of the last-remaining ground being clung to by a recalcitrant group of unlicensed, serial infringers. In so doing, the Court aligns with the MMP Portfolio's 2006 Markman victory, handed down by Judge Ward in the US District Court for the Eastern District of Texas, and decisively confirms the claim construction arguments of the Alliacense Team.
About the MMP Portfolio(TM)
The MMP Portfolio patents, originated by The TPL Group in 1989, includes US, European and Japanese patents, covering techniques that enable higher performance and lower cost designs essential to consumer and commercial digital systems ranging from PCs, cell phones and portable music players to communications infrastructure, medical equipment and automobiles. Widely recognized as fundamental technology, the sweeping scope of MMP Portfolio(TM) technologies continues to encourage the world's leading companies to become MMP Portfolio(TM) licensees. Learn more: customerservice@alliacense.com.
About Patriot Scientific Corporation
Headquartered in Carlsbad, California, Patriot Scientific Corporation (PTSC) is the co-owner of the MMP Portfolio(TM). For more information on PTSC, visit www.ptsc.com.
About Alliacense
Alliacense is the recognized leader in the design and execution of Intellectual Property (IP) licensing programs, and delivers peerless IP project support and reverse engineering services. As a cadre of IP licensing strategists, technology experts, and experienced business development/management executives, Alliacense focuses on expanding the awareness and value of IP portfolios under management. Learn more: www.alliacense.com.
About The TPL Group
Founded in 1988, The TPL Group has evolved as a coalition of technology-based enterprises dedicated to the development, management and commercialization of proprietary technology, and the design, manufacture and sales of proprietary products based on those IP assets. Among the advanced products that TPL brings to market are multi-core microprocessors, memory management and control devices, advanced hearing and listening solutions, energy efficient computing architectures, encryption storage products, sub-wavelength acoustic transducers, wafer-level packaging, and solderless PCB-assembly technology. Learn more: www.tplgroup.net.
Safe Harbor Statement: Statements herein which are not purely historical, including statements regarding Patriot Scientific Corporation's intentions, hopes, beliefs, expectations, representations, projections, plans or predictions of the future are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. The forward-looking statements involve risks and uncertainties including, but not limited to, the risk that the recently filed actions and newly implemented strategy may not be successful or result in additional revenues for the Company. It is important to note that the Company's actual results could differ materially from those in any such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, risks and uncertainties associated with the effect of changing economic conditions, trends in the products markets, variations in the company's cash flow, market acceptance risks, patent litigation, technical development risks, and seasonality. Our business could be affected by a number of other factors, including the risk factors listed from time to time in the Company's SEC reports including, but not limited to, the annual report on Form 10-K for the year ended May 31, 2011, and the quarterly report on Form 10-Q for the period ended February 29, 2012. The Company cautions investors not to place undue reliance on the forward-looking statements contained herein. Patriot Scientific Corporation disclaims any obligation, and does not undertake to update or revise any forward-looking statements made herein.
Contact:
Patriot Investor Relations
ir@ptsc.com
760-547-2700 ext. 102
http://50.28.91.52/~patriots/index.php?option=com_content&task=view&id=293&Itemid=29
To All,
I am the wife of Richard aka Wolpackvoltare. He will not be posting due to being in the hospital with extreme health conditions. Please remember him in your prayers.
Richard's Wife, Linda
From BaNosser--New Pacer: TPL's Response to Barco's motion to Strikie portions of TPL's ICs
posted on Jun 18, 12 08:49PM
http://photos.imageevent.com/banos/t3/TPLqus%20Oppostion%20to%20Barcoqus%20Motion%20to%20Strike%20TPLqus%203rd%20Amended%20ICs%206-15-12.pdf
Sorry.. this is from Friday.. I checked at aprrox 1730 PST Fri, and this had not been filed yet
From fs2006--The Life of an Intellectual Property Case
posted on Jun 14, 12 09:46AM
http://usip.com/pdf/Life_of_an_Intellectual_Property_Case_Lawsuit.pdf
Judge Posner: No Damages Despite Infringement
by Dennis Crouch
Apple v. Motorola (N.D.Ill. 11–cv-8540) (Order by Judge Posner, June 2012)
Compensating for Harm: In most tort cases, the harm is easy to identify (if not prove). A negligent driving accident results in property damage. Tortious battery leads to medical bills. However, the non-rivalrous nature of intellectual property often makes the harm more difficult to ascertain. No one is directly injured per se when a third party begins to use an inventor's idea without authorization. Rather, the idea is still available and a third party's separate use of the invention does not prevent the inventor from continuing use the invention as well. Competitive injury sometimes comes into play. Of course, in most situations we don't think of competitive injury as an actionable harm, but rather classify it as beneficial competition – survival of the fittest. And, in most US patent lawsuits, the patented invention does not relate to any ongoing market competition between the parties. The legal harm does exist, but it comes from the statutory exclusive right that guarantees an exclusive entitlement to the patentee along the potential for injunctive relief and a reasonable royalty. Patentees expect to collect rents if others use their patented inventions. Litigation damages are those rents.
Judge Richard Posner is sitting by designation as a trial court judge in a pending infringement lawsuit between Apple and Motorola. (N.D.Ill. 11–cv-8540). Judge Posner's opinions are always interesting to read and this case is no exception. In a recent order, Judge Posner canceled the jury trial scheduled for this week and instead opined that the case is moot because there are no damages and therefore, “neither party can establish a right of relief.” In the order, Judge Posner indicated that a full opinion would be forthcoming, likely within the week.
The crux of the order is that, even if Apple's asserted patents are valid and infringed, Apple cannot prove any damages stemming from the infringement nor can it prove that the harm of ongoing infringement is sufficient to demand injunctive relief.
Damages not an Element: For some causes of action, harm is considered an element of the offense that must be proven before liability is found. Ordinary defamation requires harm. Likewise, murder requires a death. However, many other causes of action (including patent infringement) do not require a showing of harm for the substantive case. Rather, the the usual approach in patent cases is to first determine whether infringement has occurred (without regard to the damage caused) and then determine the appropriate damages. This approach is derived by the patent statute that defines infringement in 35 U.S.C. 271 without regard to damages. A separate provision (discussed below) then suggests a damage calculation method.
Patent Infringement but No Damages?: Section 284 of the Patent Act briefly defines the scope of damages available for infringement. The statute indicates that damages should be “adequate to compensate for the infringement but in no event no less than a reasonable royalty for the use made.” Many see the statute as offering a minimum statutory damage award of at least a reasonable royalty. In my view, one implication of the statute is that damages will never be properly calculated as zero. Rather, even a nominal infringement should result in at least a few pennies as the reasonable royalty.
Proving Damages: It is easy to reconcile my notion that infringement damages are always posigive with Judge Posner's conclusion that no damages exist in this case. The missing linkage is the procedural reality that it is the patentee's burden to prove damages. A planitiff that cannot prove damages should not expect a court to speculate on the proper award. Rather, without that proof, the proper award is zero (or perhaps a nominal award of $1). Here, because Apple's damages experts have either been rejected by the court or else have provided unbelievable reports, Apple's award will be zero.
http://www.patentlyo.com/patent/2012/06/judge-posner-no-damages-despite-infringement.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
Posted on Jun 12, 2012
New Pacer--ORDER GRANTING APLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE (Signed By Judge)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
ACER, INC., ACER AMERICA
CORPORATION and GATEWAY, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED,
PATRIOT SCIENTIFIC CORPORATION,
and ALLIACENSE LIMITED,
Defendants.
Case No. 3:08-cv-00877 JW
ORDER GRANTING APLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE
Judge: Hon. James Ware
HTC CORPORATION and HTC
AMERICA, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED,
PATRIOT SCIENTIFIC CORPORATION
and ALLIACENSE LIMITED,
Defendants.
Case No. 3:08-cv-00882 JW
BARCO, N.V.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED,
PATRIOT SCIENTIFIC CORPORATION
and ALLIACENSE LIMITED,
Defendants.
Case No. 3:08-cv-05398 JW
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
IT IS SO ORDERED
Judge James Ware
ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY PRO HAC VICE
1 CASE NO. 3:08-CV-00877-JW AND RELATED CASES
James R. Farmer, whose business address and telephone number is OTTESON LAW GROUP, AGILITY IP LAW, LLP, 14350 North 87th Street, Suite 190, Scottsdale, AZ 85260; (480) 646-3434, and who is an active member in good standing of the bar of the Utah Supreme Court, having applied in the above-entitled action for admission to practice in the Northern District of California on a pro hac vice basis, representing Defendants TECHNOLOGY PROPERTIES LIMITED and ALLIACENSE LIMITED in the above-captioned cases,
IT IS HEREBY ORDERED that the application granted, subject to the terms and conditions of Civil L.R. 11-3. All papers filed by the attorney must indicate appearance pro hac vice. Service of papers upon and communication with co-counsel designated in the application will constitute notice to the party. All future filings in this action are subject to the requirements contained in General Order No. 45, Electronic Case Filing.
Dated:
HON. JAMES WARE
United States District Chief Judge
New Pacer--FIRST CLAIM CONSTRUCTION ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
Acer, Inc.,
Plaintiff,
v.
Technology Properties Ltd, et al.,
Defendants.
/
HTC Corp.,
Plaintiff,
v.
Technology Properties Ltd, et al.,
Defendants.
/
Barco NV,
Plaintiff,
v.
Technology Properties Ltd, et al.,
Defendants.
NO. C 08-00877 JW
NO. C 08-00882 JW
NO. C 08-05398 JW
FIRST CLAIM CONSTRUCTION ORDER
I. INTRODUCTION
Technology Properties Limited, Patriot Scientific Corporation and Alliacense, Ltd.
(collectively, “Defendants”) own a group of five patents known as the Moore Microprocessor
1 The five Patents-in-Suit are U.S. Patent Nos. 5,809,336 (“the ‘336 Patent”), 5,784,584
(“the ‘584 Patent”), 5,440,749 (“the ‘749 Patent”), 6,598,148 (“the ‘148 Patent”) and 5,530,890
(“the ‘890 Patent”).
2 The first of these now-consolidated actions was filed on February 8, 2008. Acer filed suit
against Defendants seeking a judicial declaration that the ‘336 Patent, the ‘584 Patent and the ‘749
Patent are invalid or are not infringed by Acer. (See Docket Item No. 1 in No. C 08-00877 JW.) On
November 21, 2008, Defendants counterclaimed for infringement of the ‘336 Patent and the ‘749
Patent. (See Docket Item No. 60 in No. C 08-00877 JW.) On February 9, 2009, Acer amended its
complaint to add claims pertaining to the ‘148 Patent and the ‘890 Patent. (See Docket Item No. 98
in No. C 08-00877 JW.) On February 24, 2009, Defendants counterclaimed with respect to those
two patents. (See Docket Item No. 99 in No. C 08-00877 JW.)
3 On February 8, 2008, HTC also filed suit seeking a judicial declaration that the ‘336
Patent, the ‘584 Patent, the ‘749 Patent and the ‘148 Patent are invalid or are not infringed by HTC.
(See Docket Item No. 1 in No. C 08-00882 JW.) On July 10, 2008, HTC amended its complaint to
add claims pertaining to the ‘890 Patent. (See Docket Item No. 34 in No. C 08-00882 JW.) On
November 21, 2008, Defendants counterclaimed with respect to each of those patents except for the
‘584 Patent. (See Docket Item No. 60 in No. C 08-00882 JW.)
4 On December 1, 2008, Barco filed suit seeking a judicial declaration that the ‘584 Patent,
the ‘749 Patent and the ‘890 Patent are invalid or are not infringed by Barco. (See Docket Item No.
1 in No. C 08-05398 JW.) On February 17, 2009, Defendants counterclaimed for infringement with
respect to the ‘749 Patent, the ‘890 Patent and the ‘336 Patent. (See Docket Item No. 27 in No. C
08-05398 JW.)
5 Judge Fogel ordered the cases related. (See Docket Item No. 21 in No. C 08-00882 JW;
Docket Item No. 21 in No. C 08-05398 JW.) On September 1, 2011, this matter was reassigned
from Judge Fogel to Chief Judge Ware. (See Docket Item No. 291 in No. C 08-00877 JW.)
6 517 U.S. 370 (1996).
2
Portfolio patents.1 Plaintiffs Acer, Inc.,2 HTC Corp.3 and Barco, N.V.4 each filed lawsuits seeking a
judicial declaration that the Patents-in-Suit are either invalid or are not infringed. Defendants filed
counterclaims for infringement of the Patents-in-Suit. In due course, the actions were related and
consolidated.5
On January 27, 2012, the Court conducted a hearing in accordance with Markman v.
Westview Instruments, Inc.,6 to construe language of the asserted claims over which there is a
dispute. At the hearing, in addition to the normal intrinsic evidence, the parties relied upon a prior
7 In 2006, Defendants filed a patent infringement suit based upon three of the Patents-in-Suit
in this matter–the ‘336 Patent, the ‘148 Patent and the ‘584 Patent–in the Eastern District of Texas.
(See Order Denying Motions to Dismiss, to Transfer Venue, and to Stay at 3, Docket Item No. 47 in
No. C 08-00877 JW (discussing the Texas action).) Defendants brought that action against
unrelated third parties. (See id.) On June 15, 2007, Judge Ward issued a Claim Construction Order
in the Texas action in which he construed some of the words and phrases from the three patents at
issue in that case. See Tech. Props. Ltd. v. Matsushita Elec. Indus. Co., Ltd., 514 F. Supp. 2d 916
(E.D. Tex. 2007).
8 As of April 30, 2009, “a total of eleven reexamination proceedings had been initiated
against the [Patents-in-Suit] in the United States Patent and Trademark Office (‘USPTO’).” (Order
Granting in part Motion to Stay at 2-3, Docket Item No. 144 in No. C 08-00877 JW.) On June 17,
2009, the Court granted in part motions to stay this action pending reexamination of several of the
Patents-in-Suit. (See id.) On February 22, 2010, the Court lifted the stay. (See Docket Item No.
156 in No. C 08-00877 JW.)
The reexamination certificate for the ‘749 Patent was issued on June 7, 2011. (See
Declaration of James C. Otteson in Support of Defendants’ Opening Claim Construction Brief for
the “Top Ten” Terms, hereafter, “Otteson Decl.,” Ex. BB, Ex Parte Reexamination Certificate,
Docket Item No. 310-6.) The reexamination of the ‘749 Patent resulted in amendments to Claim 1,
among others. Claim 1 of the ‘749 Patent–which includes multiple disputed terms–was amended to
include the two “wherein” clauses. (See id.)
The reexamination certificate for the ‘336 Patent was issued on December 15, 2009. (See
Otteson Decl., Ex. DD, Ex Parte Reexamination Certificate, Docket Item No. 310-8.) The
reexamination of the ‘336 Patent resulted in amendments to Claims 1, 6 and 10, and the addition of
Claim 11, among others. (Id.)
3
claim construction order by Judge T. John Ward7 and documentary material from reexamination
proceedings.8
This Claim Construction Order sets forth the Court’s construction of disputed words and
phrases tendered to the Court for construction.
II. STANDARDS AND PROCEDURES FOR CLAIM CONSTRUCTION
A. General Principles of Claim Construction
Claim construction is a matter of law, to be decided exclusively by the Court. Markman, 517
U.S. at 387. In accordance with the Patent Local Rules of the Northern District, the parties submit
their joint selection of the ten disputed terms that are significant in resolving the case as well as their
proposed definitions for construction. See Patent L.R. 4-3. After the Markman hearing and upon
consideration of the parties’ briefs, the Court issues an order construing the meaning of the disputed
terms. The Court’s construction becomes the legally operative meaning of the disputed terms that
governs further proceedings in the case. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1377 (Fed.
9 Phillips v. AWH Corp., 415 F.3d 1303, 1324 (Fed. Cir. 2005).
4
Cir. 2005). Although greater weight should always be given to the intrinsic evidence,9 claim
construction is a fluid process in which the Court may consider a number of extrinsic sources of
evidence, so long as they do not contradict the intrinsic evidence. See Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582-83 (Fed. Cir. 1996).
B. Construction from the Viewpoint of an Ordinarily Skilled Artisan
A patent’s claims define the scope of the patent: the invention that the patentee may exclude
others from practicing. Phillips, 415 F.3d at 1312. The Court generally gives the patent’s claims
their ordinary and customary meaning. In construing the ordinary and customary meaning of a
patent claim, the Court does so from the viewpoint of a person of ordinary skill in the art at the time
of the invention, which is considered to be the effective filing date of the patent application. Thus,
the Court seeks to construe the patent claim in accordance with what a person of ordinary skill in the
art would have understood the claim to have meant at the time the patent application was filed. This
inquiry forms an objective baseline from which the Court begins its claim construction. Id. at 1313.
The Court proceeds from that baseline under the premise that a person of ordinary skill in the
art would interpret claim language not only in the context of the particular claim in which the
language appears, but also in the context of the entire patent specification of which it is a part.
Phillips, 415 F.3d at 1313. Additionally, the Court considers that a person of ordinary skill in the art
would consult the rest of the intrinsic record, including any surrounding claims, the drawings and the
prosecution history, if it is in evidence. Id.; see also Teleflex, Inc. v. Fisosa N. Am. Corp., 299 F.3d
1313, 1324 (Fed. Cir. 2002). In reading the intrinsic evidence, a person of ordinary skill in the art
would give consideration to whether the disputed term is a term commonly used in lay language, a
technical term, or a term defined by the patentee.
C. Commonly Used Terms
In some cases, disputed claim language involves a commonly understood term that is readily
apparent to the Court. In such a case, the Court considers that a person of ordinary skill in the art
would give the term its widely accepted meaning, unless a specialized definition is stated in the
patent specification or was stated by the patentee during prosecution of the patent. In articulating
the widely accepted meaning of such a term, the Court may consult a general purpose dictionary.
Phillips, 415 F.3d at 1314.
D. Technical Terms
If a disputed term is a technical term in the field of the invention, the Court considers that
one of skill in the art would give the term its ordinary and customary meaning in that technical field,
unless a specialized definition is stated in the specification or during prosecution of the patent.
Phillips, 415 F.3d at 1314. In arriving at this definition, the Court may consult a technical artspecific
dictionary or invite the parties to present testimony from experts in the field on the ordinary
and customary definition of the technical term at the time of the invention. Id.
E. Defined Terms
It is well established that a patentee is free to act as his or her own lexicographer. See, e.g.,
Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357 (Fed. Cir. 1999). Acting as such,
the patentee may use a term differently than a person of ordinary skill in the art would understand it,
without the benefit of the patentee’s definition. Vitronics Corp., 90 F.3d at 1582. Thus, the Court
examines the claims and the intrinsic evidence to determine if the patentee used a term with a
specialized meaning.
The Court regards a specialized definition of a term stated in the specification as highly
persuasive of the meaning of the term as it is used in a claim. Phillips, 415 F.3d at 1316-17.
However, the definition must be stated in clear words which make it apparent to the Court that the
term has been defined. See id.; Vitronics Corp., 90 F.3d at 1582. If the definition is not clearly
stated or cannot be reasonably inferred, the Court may decline to construe the term pending further
proceedings. Statements made by the patentee in the prosecution of the patent application as to the
scope of the invention may be considered when deciding the meaning of the claims. Microsoft
Corp. v. Multi-Tech Systems, Inc., 357 F.3d 1340, 1349 (Fed. Cir. 2004). Accordingly, the Court
10 Subject to further proceedings, the Court’s construction of any particular term is presumed
to apply consistently across all claims in the Patents-in-Suit in which the term appears. See, e.g.,
Paragon Solutions, LLC v. Timex Corp., 566 F.3d 1075, 1087 (Fed. Cir. 2009).
11 Unless otherwise indicated, all bold typeface is added by the Court for emphasis.
6
may also examine the prosecution history of the patent when considering whether to construe the
claim term as having a specialized definition.
In construing claims, it is for the Court to determine the terms that require construction and
those that do not. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997).
Moreover, the Court is not required to adopt a construction of a term, even if the parties have
stipulated to it. Pfizer, Inc. v. Teva Pharm. USA, Inc., 429 F.3d 1364, 1376 (Fed. Cir. 2005).
Instead, the Court may arrive at its own constructions of claim terms, which may differ from the
constructions proposed by the parties.
III. DISCUSSION
Pursuant to the Patent Local Rules, the parties have tendered ten terms that they have
identified as significant to resolving these cases. The parties have asked the Court to consider the
tendered words and phrases in a particular order. However, because the sequence in which the
patents were issued might influence how a person of ordinary skill in the art would understand the
patents, the Court will discuss the words and phrases in the order in which they appear in the
Patents-in-Suit.10
A. ‘749 Patent
The ‘749 Patent is entitled: “High Performance, Low Cost Microprocessor Architecture.”
Claim 1 of the ‘749 Patent, as allowed after reexamination, provides:11
A microprocessor system, comprising a central processing unit integrated
circuit, a memory external of said central processing unit integrated circuit, a
bus connecting said central processing unit integrated circuit to said memory,
and means connected to said bus for fetching instructions for said central
processing unit integrated circuit on said bus from said memory, said means
for fetching instructions being configured and connected to fetch multiple
sequential instructions from said memory in parallel and supply the
multiple sequential instructions to said central processing unit integrated
circuit during a single memory cycle, said bus having a width at least equal
to a number of bits in each of the instructions times a number of the
12 For convenience, the Court will refer to this “means” as the “means for fetching
limitation.”
7
instructions fetched in parallel, said central processing unit integrated circuit
including an arithmetic logic unit and a first push down stack connected to
said arithmetic logic unit, said first push down stack including means for
storing a top item connected to a first input of said arithmetic logic unit to
provide the top item to the first input and means for storing a next item
connected to a second input of said arithmetic logic unit to provide the next
item to the second input, a remainder of said first push down stack being
connected to said means for storing a next item to receive the next item from
said means for storing a next item when pushed down in said push down
stack, said arithmetic logic unit having an output connected to said means for
storing a top item;
wherein
the microprocessor system comprises an instruction register
configured to store the multiple sequential instructions and from which
instructions are accessed and decoded;
and wherein
the means for fetching instructions being configured and connected to
fetch multiple sequential instructions from said memory in parallel and supply
the multiple sequential instructions to the central processing unit integrated
circuit during a single memory cycle comprises supplying the multiple
sequential instructions in parallel to said instruction register during the same
memory cycle in which the multiple sequential instructions are fetched.
Claim 1 recites a microprocessor system. The parties have tendered for construction a
number of words and phrases used in Claim 1.
1. “multiple sequential instructions”
Claim 1 recites that the system comprises, among other components, a “means for fetching”12
that is configured to fetch “multiple sequential instructions.” The parties tender for construction the
phrase “multiple sequential instructions.”
Upon review, the Court finds that this phrase is composed of commonly used words that
have a plain and ordinary meaning. There is nothing in the claim or written description that would
lead a person of ordinary skill in the art to conclude that the inventors intended to use the phrase
with anything other than its plain and ordinary meaning. In particular, the Court finds that the word
“multiple” would have been understood, by a person of ordinary skill in the art, to mean “two or
more,” while the phrase “sequential instructions” would have been understood to mean “computer
13 (See, e.g., Plaintiffs’ Consolidated Responsive Claim Construction Brief at 26-28,
hereafter, “Plaintiffs’ Brief,” Docket Item No. 315 in No. C 08-00877 JW.)
14 (See Declaration of Kyle Chen in Support of Plaintiffs’ Consolidated Responsive Claim
Construction Brief, hereafter, “Chen Decl.,” Ex. 16, Amendment in Response to Non Final Office
Action in Ex Parte Reexamination Proceedings at 26, Docket Item No. 316-16.)
15 Plaintiffs cite to three additional statements made by the inventors that purportedly
contain similar disavowals. (See Plaintiffs’ Brief at 27-28.) However, the Court finds that none of
these cited statements refer to a “prefetch buffer.” Further, each cited statement expressly
distinguishes the alleged invention from the prior art reference on the same basis, namely, that the
instructions are supplied to the CPU “during a single memory cycle.” (Id.)
8
instruction in a sequential order.” Therefore, at this time, the Court declines to use any different
words or phrases to construe the phrase “multiple sequential instructions.”
2. “. . . configured and connected to . . . supply multiple sequential instructions to
central processing unit integrated circuit during a single memory cycle”
Claim 1 recites that the “means for fetching” is configured and connected to supply multiple
sequential instructions to the central processing unit “during a single memory cycle.” The parties
request the Court to decide what, if any, effect the reexamination proceedings had on the meaning of
the phrase “during a single memory cycle.”13 Specifically, the issue tendered to the Court is whether
the phrase should be defined as requiring a “prefetch buffer.”
During reexamination, the inventors, in referring to the phrase “during a single memory
cycle,” defended allowance of the claim over a prior art reference known as “Edwards” by stating
the following:
Edwards describes the way the Transputer decodes and executes instructions. As described
in Edwards, see, e.g., Fig. 8, below, instructions are supplied to a one-instruction-wide
instruction buffer, one at a time, and are there decoded. Fetching multiple instructions into a
prefetch buffer and then supplying them one at a time is not sufficient to meet the claim
limitation–the supplying of “multiple sequential instructions to a CPU during a single
memory cycle.”14
Upon review, the Court does not find that the cited statements constitute a basis for
construing the language of Claim 1 to include the presence or configuration of a prefetch buffer.15
16 The parties did not request the Court to construe the meaning of the phrase “during a
single memory cycle.”
17 See, e.g., MODERN DICTIONARY OF ELECTRONICS 603 (7th ed. 1999) (defining a
“pushdown stack” as a “circuit that operates in the reverse of a shift register,” and explaining that
“[w]hereas[] a shift register is a first-in first-out (FIFO) circuit, pushdown stacks are last-in, first-out
(LIFO) memories. When data is requested, the stack will read the last data stored, and all other data
will move one step closer to the output. Unless memory is emptied, the first data in will never be
retrieved.”). The same source alternatively defines a “pushdown stack” as “[e]ssentially a last-in,
first-out buffer” in which, “[a]s data is added, the stack moves down with the last item, added [sic]
taking the top position. Id. Thus, the “[s]tack height varies with the number of stored items,
increasing or decreasing with the entering or retrieving of data. The words push (move down) and
pop (retrieve the most recently stoked [sic] item) are used to describe its operation.” Id.
18 Referring to Fig. 2, the specification states: “Stack pointer 102, return stack pointer 104,
mode register 106 and instruction register 108 are also connected to the internal data bus 90 by lines
110, 112, 114 and 116, respectively.” (See ‘749 Patent, Col. 6:39-42.)
9
Having disposed of the only issue tendered with respect to this phrase, the Court declines to further
construe it.16
3. “push down stack connected to said arithmetic logic unit”
Claim 1 recites a central processing unit integrated circuit including an arithmetic logic unit
and “a first push down stack connected to said arithmetic logic unit.” The parties tender for
construction the phrase “push down stack connected to said arithmetic logic unit.”
As to this phrase, the Court finds that a person of ordinary skill in the art reading the ‘749
Patent would understand the phrase “push down stack” to mean a last-in, first-out (“LIFO”) data
storage structure, in which the last item placed (pushed) onto the stack is the first item removed
(popped) from the stack.17 Further, the Court finds that a person of ordinary skill in the art at the
time of the invention would understand that a “push down stack” can be implemented using a
dedicated top-of-stack register or a logical stack “pointer” to indicate the “top of the stack” element
regardless of its location. For example, the written description discusses stack pointers 102 and 104
in Fig. 2.18
Finally, with respect to this phrase, the parties dispute whether the “connected to” language
should be construed as “directly connected to” or “physically connected to.” The claim requires that
the push down stack be “connected” to the arithmetic logic unit. The Court finds that a person of
19 SeeMODERN DICTIONARY OF ELECTRONICS 603 (7th ed. 1999) (“In actual practice, a
hardware-implemented pushdown stack is a collection of registers with a counter that serves as a
pointer to indicate the most recently loaded register. Registers are unloaded in the reverse of the
sequence in which they were loaded.”).
20 The Court notes that both the body of the claim and the first “wherein” clause disclose a
microprocessor system comprising recited limitations. However, conventional claim language
would have the wherein clause formatted to provide that “the microprocessor system further
comprises . . .” to avoid any confusion between the wherein clause and the body of the claim.
21 See MICROSOFT COMPUTER DICTIONARY 276 (5th ed. 2002).
22 The Court notes that the phrase “8-bit byte” is unusual and appears to be redundant.
10
ordinary skill in the art would understand that the stack might be implemented using “pointers,”
which negates the need to connect the stack directly or physically to the arithmetic logic unit.19
Therefore, the Court declines to add as a limitation that the connection must be direct or physical.
Accordingly, the Court construes the phrase “push down stack connected to said arithmetic
logic unit” to mean:
a last-in-first-out data storage element connected to the arithmetic logic unit.
4. “instruction register”
Claim 1 contains two “wherein” clauses. With respect to the first “wherein” clause, the
parties tender for construction the phrase “wherein the microprocessor system comprises an
instruction register.”20
In computer systems, the phrase “instruction register” has a plain and ordinary meaning,
namely, a “register in a central processing unit that holds the address of the next instruction to be
executed.”21 A person of ordinary skill in the art reading the written description would understand
that the inventors are using the phrase with its plain and ordinary meaning:
Instruction register 108 receives four 8-bit byte instruction words 1-4 on 32-bit
internal data bus 90.
(‘749 Patent, Col. 7:53-55.)22
The parties have drawn the Court’s attention to a related term that was construed by Judge
Ward and that was subsequently affirmed by the Federal Circuit. Judge Ward’s construction related
to phrases such as “instruction groups” and “operand” in Claim 29 of the ‘584 Patent. See Tech.
23 The Court notes that in a summary of an in-person interview with the examiner issued on
October 25, 1994, the examiner noted with respect to Claim 1: “operand width is variable and right
adjusted.” (See Chen Decl., Ex. 19, Examiner Interview Summary Record, Docket Item No. 316-
20.) The statement appears to have been made in an attempt to distinguish prior art known as
“Boufarah,” and the Court finds that it may potentially impose a limitation on the type of operands
that are to be used and the positioning of the operands in the instruction register. The Court finds
that a full understanding of the meaning of this statement and the events that gave rise to it might be
relevant to the present analysis. Thus, the Court finds that it would benefit from further briefing as
to this issue, as discussed below.
24 The ‘890 Patent and the ‘336 Patent were filed on the same day. However, the ‘890
Patent was issued earlier than the ‘336 Patent. (See Chen Decl. ¶¶ 2, 12 (stating that the ‘890 Patent
was issued on June 25, 1996, while the ‘336 Patent was issued on September 15, 1998).)
11
Props. Ltd., 514 F. Supp. 2d at 931-34. The claims of the ‘584 Patent deal specifically with an
embodiment that includes “variable width operands.” (See ‘584 Patent, Col. 16:7-26.) This
particular embodiment requires all operands to be right justified in the instruction register so that the
microprocessor can quickly locate the operands of variable width without the need “to specify the
different operand sizes.” (See ‘584 Patent, Col. 16:24-26.) However, unlike Claim 29 of the ‘584
Patent, Claim 1 of the ‘749 Patent does not contain such phrases. Thus, the Court does not find
Judge Ward’s construction pertinent.
Because the Court finds that the language of the claim has been used with its plain and
ordinary meaning, the Court declines to further construe it.23
B. ‘890 Patent
Claim 11 of the ‘890 Patent24 provides:
A microprocessor, which comprises a main central processing unit and a
separate direct memory access central processing unit in a single
integrated circuit comprising said microprocessor, said main central
processing unit having an arithmetic logic unit, a first push down stack with a
top item register and a next item register, connected to provide inputs to said
arithmetic logic unit, an output of said arithmetic logic unit being connected
to said top item register, said top item register also being connected to provide
inputs to an internal data bus, said internal data bus being bidirectionally
connected to a loop counter, said loop counter being connected to a
decrementer, said internal data bus being bidirectionally connected to a stack
pointer, return stack pointer, mode register and instruction register, said stack
pointer pointing into said first push down stack, said internal data bus being
connected to a memory controller, to a Y register of a return push down stack,
an X register and a program counter, said Y register, X register and program
counter providing outputs to an internal address bus, said internal address bus
providing inputs to said memory controller and to an incrementer, said
25 The parties agree that a person of ordinary skill would understand “central” processing
unit to refer to a processing unit, and that the word “central” does not necessarily connote the
primary processor in a particular hierarchy.
26 See, e.g., MODERN DICTIONARY OF ELECTRONICS 107 (7th ed. 1999) (defining a CPU as
“[t]hat unit of a computing system that fetches, decodes, and executes programmed instructions and
maintains the status of results as the program is executed”).
27 (See, e.g., ‘890 Patent, Col. 8:22-24 (“The DMA CPU 72 controls itself and has the ability
to fetch and execute instructions. It operates as a co-processor to the main CPU 70 (FIG. 2) for time
specific processing.”).)
28 (‘890 Patent, Col. 1:52-58.)
29 (‘890 Patent, Col. 2:2-5.)
12
incrementer being connected to said internal data bus, said direct memory
access central processing unit providing inputs to said memory controller, said
memory controller having an address/data bus and a plurality of control lines
for connection to a random access memory.
The parties tender for construction the phrase “separate direct memory access central
processing unit.”
Claim 11 provides two separate central25 processing units (“CPU”): a “main” CPU and a
“direct memory access” (“DMA”) CPU. The Court finds that a person of ordinary skill in the art
would understand “CPU” to mean a unit of a computing system that fetches, decodes, and executes
programmed instructions.26 In the written description, the inventors use the term CPU consistently
with its plain and ordinary meaning.27
Further, the written description criticizes “[c]onventional microprocessors” that use “DMA
controllers” because “some processing by the main central processing unit (CPU) of the
microprocessor is required.”28 With respect to the DMA CPU, the written description states that an
object of the invention is to provide a microprocessor “in which DMA does not require use of the
main CPU during DMA requests and responses and which provides very rapid DMA response with
predictable response times.”29
30 The parties agree that a “ring oscillator” is “an oscillator having a multiple, odd number of
inversions arranged in a loop,” which is the construction arrived at by Judge Ward in the Texas
action, though they disagree about whether additional limitations should be added to Judge Ward’s
construction of the term. (See Plaintiffs’ Brief at 3; Defendants’ Opening Claim Construction Brief
for the “Top Ten” Terms at 16-17, Docket Item No. 310 in No. C 08-00877 JW.)
13
Accordingly, the Court construes the term “separate direct memory access central processing
unit” to mean:
a central processing unit that accesses memory and that fetches and executes
instructions directly, separately, and independently of the main central
processing unit.
C. ‘336 Patent
1. Claim 1
Claim 1 of the ‘336 Patent provides:
A microprocessor system, comprising
a single integrated circuit including a central processing unit
and an entire ring oscillator variable speed system clock in said
single integrated circuit and connected to said central processing unit
for clocking said central processing unit,
said central processing unit and said ring oscillator variable
speed system clock each including a plurality of electronic devices
correspondingly constructed of the same process technology with
corresponding manufacturing variations,
a processing frequency capability of said central processing
unit and a speed of said ring oscillator variable speed system clock
varying together due to said manufacturing variations and due to at
least operating voltage and temperature of said single integrated
circuit;
an on-chip input/output interface connected to exchange
coupling control signals, addresses and data with said central
processing unit; and
a second clock independent of said ring oscillator variable
speed system clock connected to said input/output interface, wherein a
clock signal of said second clock originates from a source other than
said ring oscillator variable speed system clock.
The parties tender the phrase “ring oscillator” for construction.
Upon review, the Court finds that one of ordinary skill in the art would understand the phrase
“ring oscillator” to mean: “interconnected electronic components comprising multiple odd numbers
of inverters arranged in a loop.”30 When a voltage is applied, the ring oscillator generates signals
that are used by the processing unit to regulate the timing of its operations. In contrast with a circuit
31 Because the ‘148 Patent shares the same specification with the ‘336 Patent and is directly
related to the other three Patents-in-Suit, the Court finds that any representation regarding similar
terms made by the inventors during the prosecution of the ‘148 Patent is relevant to its consideration
and construction of the terms in the ‘336 Patent. See Microsoft Corp. v. Multi-Tech Sys., Inc., 357
F.3d 1340, 1350 (Fed. Cir. 2004) (“Any statement of the patentee in the prosecution of a related
application as to the scope of the invention would be relevant to claim construction.”).
32 (See Otteson Decl., Ex. X, Ex Parte Reexamination Interview Summary, Docket Item No.
310-2.)
14
that receives its timing signal from an external clock, a person of ordinary skill in the art reading the
patent would understand that Claim 1 claims a “single integrated circuit,” fabricated so as to include
a “ring oscillator.”
At issue is whether the phrase “ring oscillator” should be given a specialized meaning based
on statements made by the inventors during reexamination of Claims 4 and 8 of the ‘148 Patent.31
Claim 4 of the ‘148 Patent claims in pertinent part:
A microprocessor integrated circuit comprising . . . a ring oscillator
having a variable output frequency, wherein the ring oscillator
provides a system clock to the processing unit, the ring oscillator
disposed on said integrated circuit substrate.
Claim 8 of the ‘148 Patent has a similarly worded limitation.
During reexamination, the examiner reviewed the allowance of Claims 4 and 8 over U.S.
Patent No. 4,689,581 (“Talbot”). The Talbot Patent, which is entitled “Integrated Circuit Phase
Locked Loop Timing Apparatus,” claims:
an integrated circuit device . . . and a timing apparatus . . . formed on a
common single chip, said timing apparatus comprising a phase locked
loop [comprising, inter alia] a voltage controlled oscillator arranged to
be controlled by [a] voltage signal to produce [an] output timing signal
at its output.
(Talbot, Col. 10:48-11:9.)
Preliminarily, the examiner rejected Claims 4 and 8 of the ‘148 Patent as unpatentable over
Talbot. During the course of reexamination proceedings, the examiner conducted an interview with
the patent owner and discussed whether Claims 4 and 8 were allowable over Talbot.32 Afterward,
33 An examiner’s interview summary may serve as a basis for finding a prosecution
disclaimer that narrows the claim scope. See, e.g., Rheox, Inc. v. Entact, Inc., 276 F.3d 1319, 1322
(Fed. Cir. 2002); Biovail Corp. Int’l v. Andrx Pharms., Inc., 239 F.3d 1297, 1302-04 (Fed. Cir.
2001).
34 (See Chen Decl., Ex. 4, Ex Parte Reexamination Interview Summary, Docket Item No.
316-4 (emphasis added).)
35 (Otteson Decl., Ex. Y, Remarks/Arguments at 11, hereafter, “Remarks,” Docket Item No.
310-3.)
36 For instance, Defendants argued during the Markman hearing that the inventors’ written
submission distinguished the Talbot reference because Talbot lacked a ring oscillator and never
mentioned a requirement of “non-controllability.” Further, Defendants also refer to the inventors’
written response on February 21, 2008, which states:
Further, Talbot does not teach, disclose, or suggest the ring oscillator recited in claim 4.
... Talbot discusses a voltage-controlled oscillator (VCO) 12, but does not teach or disclose
a ring oscillator. Talbot provides two different implementations of the VCO 12 in FIGS. 3-
4, neither one of which is a ring oscillator. Talbot refers to the oscillator of FIG. 3 as a
“frequency controlled oscillator” (col. 7, ll. 21-22) and the oscillator of FIG. 4 simply as a
“voltage controlled oscillator” (col. 8, ll. 59-65). As the sole inventor of the cited reference,
15
the examiner prepared and sent to the patent owner an “Interview Summary.”33 Specifically, with
respect to the discussion of Talbot, the examiner wrote:
Continuing, the patent owner further argued that the reference of Talbot does
not teach of a “ring oscillator.” The patent owner discussed features of a ring
oscillator, such as being non-controllable, and being variable based on the
environment. The patent owner argued that these features distinguish
over what Talbot teaches. The examiner will reconsider the current
rejection based on a forthcoming response, which will include arguments
similar to what was discussed.34
In its post-interview submission, the patent owner reiterated the contention that the claim
should be allowed because Talbot disclosed a “voltage-controlled oscillator” and not the “ring
oscillator” disclosed in the claim:
Further, Talbot does not teach, disclose, or suggest the ring oscillator
recited in claim 4. The Examiner cited col. 3, ll. 26-36, and oscillator
circuit 12 shown in FIG. 1 of Talbot as teaching the recited ring
oscillator. Talbot discusses a voltage-controlled oscillator (VCO) 12,
but does not teach or disclose a ring oscillator.35
During the course of these claim construction proceedings, the inventors have continued to
maintain that Talbot was overcome during reexamination because it does not disclose a “ring
oscillator.”36
Talbot presumably possesses at least ordinary skill in the art, yet Talbot did not characterize
either of the disclosed oscillators as ring oscillators. Applicants respectfully assert that the
reason they were not characterized by Talbot as ring oscillators is because they are not ring
oscillators. For at least the foregoing reasons, Talbot does not teach, disclose, or suggest a
ring oscillator as recited in the claims. (Remarks at 11 (emphases added).)
37 This issue is important to claim construction, because it is relevant to understanding in
what manner the ring oscillator is “non-controllable,” as distinguished from the voltage-controlled
oscillator disclosed in Talbot. Resolving this conflict might affect how the Court approaches issues
with respect to the validity of the patent claim at issue.
16
The Court has examined the Talbot patent. Although the component is, indeed, referred to as
a “voltage-controlled oscillator,” declarations and other extrinsic materials that have been tendered
during the claim construction proceedings call into question the validity of the inventors’ contention
to the PTO and to this Court that the “ring oscillator” is different from the “voltage-controlled
oscillator” disclosed in Talbot. On the one hand, the Court has received extrinsic evidence that the
voltage-controlled oscillator disclosed in Talbot is a ring oscillator. On the other hand, arguments
have been submitted claiming that the voltage-controlled oscillator of Talbot is not a ring
oscillator.37
Under clear Federal Circuit law, a submission made by an inventor during reexamination is
regarded as a disavowal only if the court finds that the allegedly disavowing statement is “so clear as
to show reasonable clarity and deliberateness, and so unmistakable as to show unambiguous
evidence of disclaimer.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1325 (Fed. Cir. 2003)
(citations omitted).
Here, before arriving at a decision on the definition of the phrase “ring oscillator” in the
context of the Talbot reference, the Court finds that it would benefit from further briefing. In the
supplement briefs, the declarants shall fully articulate the technical basis for their opinions with
respect to whether the voltage-controlled oscillator disclosed in Talbot is or is not a ring oscillator.
The Court will return to the construction of the phrase “ring oscillator” following the completion of
the supplement briefing.
38 (See ‘336 Patent, Col. 16:67-17:2 (stating that “y deriving system timing from the ring
oscillator 430, CPU 70 will always execute at the maximum frequency possible, but never too
fast.”).)
17
2. Claim 6
Claim 6 of the ‘336 Patent provides:
A microprocessor system comprising:
a central processing unit disposed upon an integrated circuit
substrate, said central processing unit operating at a processing
frequency and being constructed of a first plurality of electronic
devices;
an entire oscillator disposed upon said integrated circuit
substrate and connected to said central processing unit, said oscillator
clocking said central processing unit at a clock rate and being
constructed of a second plurality of electronic devices, thus varying
the processing frequency of said first plurality of electronic devices
and the clock rate of said second plurality of electronic devices in the
same way as a function of parameter variation in one or more
fabrication or operational parameters associated with said integrated
circuit substrate, thereby enabling said processing frequency to track
said clock rate in response to said parameter variation; an on-chip
input/output interface, connected between said central processing unit
and an off-chip external memory bus, for facilitating exchanging
coupling control signals, addresses and data with said central
processing unit; and
an off-chip external clock, independent of said oscillator,
connected to said input/output interface wherein said off-chip external
clock is operative at a frequency independent of a clock frequency of
said oscillator and wherein a clock signal from said off-chip external
clock originates from a source other than said oscillator.
a. “clocking said central processing unit”
The parties tender for construction the phrase “clocking said central processing unit.”
Upon review, the Court finds that to one of ordinary skill in the art, the plain and ordinary
meaning of “clocking said central processing unit” is to provide a clock signal to the central
processing unit.
A further issue tendered with respect to this phrase is whether, based on the written
description, the construction should include a limitation of the maximum or optimum frequency of
the “clocking” function. In the written description of the ‘336 Patent, the phrase “maximum
frequency possible” is used with respect to an embodiment.38 A description of an embodiment in the
specification may not be imposed as a limitation “unless the patentee has demonstrated a clear
39 The Court observes that “function” is a very broad term. See, e.g., MODERN DICTIONARY
OF ELECTRONICS 311-12 (7th ed. 1999) (defining “function” as, inter alia, a “quantity of value that
depends on the value of one or more other quantities” or a “specific purpose of an entity, or its
characteristic action,” and defining a number of phrases that include the term “function,” such as
“function codes,” “function keys” and a “function table”).
18
intention to limit the claim scope using ‘words or expressions of manifest exclusion or restriction.’”
Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004)
(citation omitted). Here, the Court finds that the cited language does not demonstrate “a clear
intention to limit the claim scope.” Id.
Accordingly, the Court construes “clocking said central processing unit” to mean:
providing a timing signal to said central processing unit.
b. “as a function of parameter variation”
The parties tender for construction the phrase “as a function of parameter variation.” The
full phrase is: “thus varying the processing frequency of said first plurality of electronic devices and
the clock rate of said second plurality of electronic devices in the same way as a function of
parameter variation.”
The disputed issue is whether the phrase requires a mathematical type predetermined
functional relationship. Upon review, the Court finds that a person of ordinary skill in the art
reading the patent would understand that the phrase “as a function of” is describing a variable that
depends on and varies with another.39 Because neither the written description nor the prosecution
history provide a basis for concluding that the phrase should be limited to a narrower definition of an
exact mathematical type functional relationship, the Court declines to do so. Having resolved the
only dispute tendered with respect to this phrase, the Court declines to construe it further.
3. Claim 10
Claim 10 of the ‘336 Patent provides:
In a microprocessor system including a central processing unit, a
method for clocking said central processing unit comprising the steps
of:
providing said central processing unit upon an integrated
circuit substrate, said central processing unit being constructed of a
first plurality of transistors and being operative at a processing
frequency;
providing an entire variable speed clock disposed upon said
integrated circuit substrate, said variable speed clock being
constructed of a second plurality of transistors;
clocking said central processing unit at a clock rate using said
variable speed clock with said central processing unit being clocked
by said variable speed clock at a variable frequency dependent upon
variation in one or more fabrication or operational parameters
associated with said integrated circuit substrate, said processing
frequency and said clock rate varying in the same way relative to said
variation in said one or more fabrication or operational parameters
associated with said integrated circuit substrate;
connecting an on-chip input/output interface between said
central processing unit and an off-chip external memory bus, and
exchanging coupling control signals, addresses and data between said
input/output interface and said central processing unit; and
clocking said input/output interface using an off-chip external
clock wherein said off-chip external clock is operative at a frequency
independent of a clock frequency of said variable speed clock and
wherein a clock signal from said off-chip external clock originates
from a source other than said variable speed clock.
The parties have tendered for construction the phrase “providing an entire variable speed
clock disposed upon said integrated circuit substrate.” There are two issues that are tendered with
respect to this language. First, there is a dispute over whether the “variable speed clock” should be
defined as limited to a ring oscillator. Here, the Court observes that, in other claims, the inventor
discusses a “ring oscillator” as a variable speed system clock. Nonetheless, with respect to this
Claim, the Court declines to limit the broader phrase found in Claim 10 to a ring oscillator only.
Second, the parties tender a dispute over the degree of independence between the signal of
the “variable speed clock” and any external reference signal. However, upon review the Court finds
that this dispute is not pertinent to the construction of the tendered phrase.
Accordingly, the Court construes “providing an entire variable speed clock disposed upon
said integrated circuit substrate” to mean:
Providing a variable speed clock that is located entirely on the same
semiconductor substrate as the central processing unit.
4. Claim 11
Claim 11 of the ‘336 Patent provides:
A microprocessor system, comprising a single integrated circuit
including a central processing unit and an entire ring oscillator
variable speed system clock in said single integrated circuit and
connected to said central processing unit for clocking said central
processing unit, said central processing unit and said ring oscillator
variable speed system clock each including a plurality of electronic
devices correspondingly constructed of the same process technology
with corresponding manufacturing variations, a processing frequency
capability of said central processing unit and a speed of said ring
oscillator variable speed system clock varying together due to said
manufacturing variations and due to at least operating voltage and
temperature of said single integrated circuit; an on-chip input/output
interface connected to exchange coupling control signals, addresses
and data with said central processing unit; and a second clock
independent of said ring oscillator variable speed system clock
connected to said input/output interface, wherein said central
processing unit operates asynchronously to said input/output
interface.
The parties tender for construction the phrase “wherein said central processing unit operates
asynchronously to said input/output interface.”
Claim 11 discloses a microprocessor system comprising, among others, a central processing
unit and an entire ring oscillator variable speed system clock connected to said central processing
unit, an on-chip input/output interface, and “a second clock independent of said ring oscillator
variable speed system clock” connected to said input/output interface. The subject phrase is
contained in a “wherein” clause that describes the relationship between the timing control signal of
the central processing unit and the timing signal of the on-chip input/output interface. The claim
discloses that the central processing unit operates “asynchronously” to the input/output interface.
The written description is silent as to whether there is or can be any timing relationship
between the central processing unit and the input/output interface or between their respective clocks.
The inventors first introduced the term “operates asynchronously to” during the
re-examination of the ‘336 Patent in order to “clarify the meaning of ‘independent’ as recited in the
40 (See Declaration of Eugene Mar in Support of Defendants’ Opening Claim Construction
Brief, Ex. G, In re Ex Parte Reexamination of U.S. Patent No. 5,809,336 at 17, Docket Item No.
213-2.)
41 (Id. (citing STEPHEN A.WARD & ROBERT H. HALSTEAD, JR., COMPUTATION STRUCTURES
93 (1990)) (emphasis added).)
42 One source provides nine different meanings for the term “asychronous.” See MODERN
DICTIONARY OF ELECTRONICS 40 (7th ed. 1999) (defining the term, inter alia, as a “communication
method in which data is sent when it is ready without being referenced to a timing clock, rather than
waiting until the receiver signals that it is ready to receive” or as referring to “computer program
execution [that is] unexpected or unpredictable with respect to the instruction sequence”).
21
claims.”40 The examiner had focused on a reference known as “Kato” that purported to show two
clock signals that are “in synchronism with each other.” (Id. at 19.) The inventors explained that
“Kato does not reveal any teaching that any of the components of the data processing circuit operate
asynchronously with each other.” (Id.) In support of the “independent” and “asynchronous” nature
of its clocks, the inventors cited a textbook that describes what an asynchronous system is:
An asynchronous system is one containing two or more independent clock signals.
So long as each clock drives independent logic circuitry, such a system is effectively
a collection of independent synchronous systems. The logical combination of
signals derived from independent clocks, however, poses difficulty because of the
unpredictability of their phase relationship.41
Reading this prosecution history, a person of ordinary skill would understand that the word
“asynchronously”42 means that the timing signal from one clock is independent from and not derived
from the other clock such that a phase relationship between the two clocks is not readily predictable.
Accordingly, the Court construes “wherein said central processing unit operates
asynchronously to said input/output interface” to mean:
the timing control of the central processing unit operates independently of and is
not derived from the timing control of the input/output interface such that there
is no readily predictable phase relationship between them.
IV. CONCLUSION
The Court has construed the phrases and terms tendered for construction.
On or before June 29, 2012, the parties shall meet and confer and file a Joint Statement
addressing the following issues:
43 On April 28, 2012, Chief Judge Ware announced that he plans to “retire in August 2012 as
the terms of his current law clerks come to an end.” See Chief Judge Ware Announces Transition,
available at http://www.cand.uscourts.gov/news/82.
22
(1) A proposed schedule for supplemental briefs consistent with the terms of this Order;
(2) In light of the Court’s impending retirement,43 the Court proposes to assign this case
to Magistrate Judge Grewal. In their Statement, the parties shall state whether they
jointly consent to having this case immediately reassigned to Judge Grewal. In the
event the parties do not consent to the immediate reassignment, the case will remain
with Judge Ware and be subject to reassignment in due course.
Dated: June 12, 2012
JAMES WARE
United States District Chief Judge
THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:
Dated: June 12, 2012 Richard W. Wieking, Clerk
By: /s/ JW Chambers
William Noble
Courtroom Deput
From l2007s--Patriot has updated their FAQs on the website
posted on Jun 11, 12 01:22PM
If you would like to know what changed, below is the original FAQs posted in Dec. 2011. The updated version on the website completely left out any mention of the majority voting resolution that had been approved by stockholders. Guess they don't want the world to know it doesn't matter what shareholders approve by majority vote, the BoD will do what they want to do. Pay attention to the new question added on the webiste : Should the public contact the USPTO in support of the re-exam process?
http://patriotscientific.com/ptsc-faqs.pdf
2011-12-02
Patriot Scientific Corporation Frequently Asked Questions
Q: Regarding the settlement reached between Patriot and the TPL Group in October 2011, why were further details not released regarding the settlement terms?
A: In order for Patriot and TPL to reach a settlement, it was necessary to agree that certain aspects of the settlement for which disclosure was not otherwise required remain confidential. Confidentiality was not our preference, however settling on terms that we believed to be favorable to the interests of Patriot's shareholders was our priority and we believe that we achieved that goal despite our inability to share some of the other details. We hope that by settling we have removed one obstacle faced by the license program.
Q: There were many serious claims levied against TPL by Patriot. How can Patriot simply abandon these claims without moving forward with the litigation?
A: We considered several factors in deciding to settle with TPL, including the significant cost and duration of litigation, the remainder of the MMP Portfolio's patent lives and the disruption to the licensing program. Although no settlement is ever perfect, we believed that the achievements afforded by the settlement were in the best interests of the licensing program and therefore Patriot's shareholders.
Q: Some people have identified a certain licensee as the impetus for the lawsuit initiated by Patriot against TPL. How was that specific issue addressed?
A: All aspects of the settlement beyond that which was disclosed in the Company's October 7, 2011 filing with the SEC made on Form 8-K are confidential.
Q: Now that Patriot has settled with TPL, why aren't there more MMP license announcements?
A: While we believe that by settling we have removed a significant obstacle faced by the license program, we also believe the licensing program is influenced by several factors, some of which are more fully described in the Risk Factors section of our annual report on Form 10-K for the year ended May 31, 2011, and the quarterly report on Form 10-Q for the period ended August 31, 2011. We encourage the investing public to review these risk factors.
Q: On Chuck Moore's Colorforth web-site he made several statements that described Patriot's settling its lawsuit with TPL to be averse to his interests. Did Patriot act inappropriately with Mr. Moore?
A: Both Patriot's and Mr. Moore's lawsuits with TPL involve issues that in some manner pertain to the MMP Portfolio. However, Patriot's and Mr. Moore's legal actions and the underlying issues are separate and distinct. Patriot's settling with TPL did not pose a conflict of interest in our dealings with Mr. Moore, and Patriot's conduct with Mr. Moore has always been professional and above-board. For the benefit of the licensing program we would like to see TPL and Mr. Moore reach a settlement, however, Patriot's primary obligation was and is, to its shareholders.
Q: Why aren't all MMP Portfolio licenses announced?
A: Not all MMP licenses are announced. We believe that as a general rule the licensing program is enhanced by the publicity associated with the announcement of a new licensee. However, one reason why a license may not be announced is the licensee may require confidentiality as a condition to the license agreement. This may become more commonplace as companies are increasingly approached by agents representing intellectual property portfolios. Companies don't necessarily want to advertise that they may have been targets for patent infringement settlements.
Q: Why aren't the licensee fees and terms for MMP licenses made public?
A: TPL's rationale for not disclosing licensing terms is to avoid this information setting minimum or upper limits on future licensing deals, which would make it harder for TPL in future negotiations with prospective licensees. Potential licensees would have access to this information through Patriot's public filings. While we understand the desire of our shareholder's to have this detailed information, we have to agree with TPL that it is probably in the best interests of the licensing program not to disclose license details.
Q: What is the current status of the USPTO re-examinations of the MMP Portfolio patents?
A: There have been seventeen reexamination challenges made on the MMP Portfolio. Most recently challenges against US`749 and US`148 were successfully defended with Reexamination Certificates issued confirming all significant claims, while also adding new claims. We are currently awaiting and anticipate the issuance of a Reexamination Certificate for US'584, thus concluding all outstanding requests against the MMP Portfolio. Also notable was the USPTO's denial in August of a reexamination reconsideration petition asserted against US`336.
Q: Why has there been a substitution of counsel in the Northern California infringement litigation against Acer, HTC and Barco?
A: Unfortunately we cannot answer this question at this time other than to say it is in the furtherance of a legal strategy that we expect will benefit the infringement litigation and overall licensing program.
Q: What is the future direction of Patriot? Are additional M&A transactions planned? Is returning cash to the shareholders an option?
A: Patriot is not currently pursuing any acquisition opportunities. It has, and continues to, divest of interests in activities that have required continued uses of cash. While we believe Patriot currently has a relatively strong cash position, we continue to take measures to preserve resources so that we are as prepared as possible to support our interests in the MMP Portfolio and meet all challenges, both known and unforeseen. At this time a very important event in determining Patriot's future will be the outcome in the current Northern California infringement litigation. A significant step in that process will be the Markman hearing which is currently scheduled for January 2012. While Patriot has not ruled out returning cash to its shareholders, no action in this regard is expected to be undertaken until significant uncertainties surrounding the business, litigation, and the licensing program are resolved.
Q: What are the plans for PDSG? Why has it only had limited success thus far?
A: We have explored several go-to market strategies for PDSG. Over the past two years this has included an aggressive effort to identify partners that already had access and inroads to the market place. Given limited success we followed this effort with the exploration of a merger between PDSG and a specific systems integrator, and then most recently we again modified our market approach by reconfiguring the offering and removing many significant barriers to purchase including providing cloud based services under a SaaS model with generous evaluation options and minimal subscription duration commitments. All this has been done while curtailing cash burn and careful monitoring of the future investment requirements. We believe that this is an appropriate time to explore options in the market place focusing on strategic buyers that can have their market strategies enhanced by the unique and increasingly comprehensive attributes of the CDX-4 product suite and its ability to facilitate secure, standards based information sharing. As we announced on October 11, 2011, we have engaged a third party investment banker and have begun identifying and reaching out to potential acquirers and we hope to achieve a conclusion to this process relatively quickly.
Q: Why don't we ever hear about Holocom? Does Patriot still have an investment interest in Holocom?
A: Patriot continues to hold a preferred stock position in Holocom. Patriot's expectations are for its interest to eventually be realized upon a transactional event driving liquidity.
Q: Why is there such a lack of transparency at Patriot?
A: The perception that there is a lack of transparency stems largely from the nature of the licensing business. It begins with the fact that most prospective licensees do not proactively seek MMP Portfolio licenses. This can create a potentially contentious environment where the rights of the Portfolio often need to be aggressively negotiated with each licensor. Any information beyond what is not absolutely essential or required by law for public disclosure can be damaging to this effort. Similarly, litigation over infringement, like most any litigation engaged in by corporations, is generally not commented on until specific events are concluded. Also, even in the best of times the licensing business has had an episodic element to it. Unless and until a reasonable basis for forecasting future results becomes apparent, it would be inappropriate for us to make such speculations. While we understand shareholder frustration over transparency, Patriot has had to work within these confines. Unfortunately, this can lead to perceptions that there is an overall unreasonable or inappropriate lack of transparency. This is not to say that we aren't doing our best to increase transparency and will continue to do so, including assessing and differentiating information that truly needs to remain confidential and that which does not. Finally, there are several important factors that should be known which contribute to the success of the licensing business and we have been careful to enumerate these in the Risk Factors section of our annual report on Form 10-K for the year ended May 31, 2011, and the quarterly report on Form 10-Q for the period ended August 31, 2011. These are not boiler plate comments and we encourage you to read them carefully.
Q: When is the date for the next stockholders' meeting?
A: The Company plans to hold a physical meeting in Carlsbad California on Friday, February 10th, 2012 for stockholders of record as of December 16th, 2011.
Q: What is the status of the majority voting resolution approved at the last stockholders' meeting?
A: As you are aware, last year at our 2011 Annual Meeting of Stockholders, our stockholders voted on a proposal (Proposal No. 3) which requested that our Board of Directors initiate a process to amend our governance documents to provide for majority voting with respect to the annual election of our Board of Directors. While this proposal was approved by the requisite vote at our 2011 Annual Meeting of Stockholders, the proposal was non-binding upon our Board of Directors and therefore its implementation is at the discretion of our Board of Directors. After careful consideration, the Board of Directors has decided to retain the plurality voting standard and not implement the proposal. The principal factors upon which the Board made its decision include the fact that a substantial majority of public companies still use the plurality standard due to the increased likelihood of a failed election or the potential that stockholders would not elect a director that is needed to satisfy a regulatory or experience requirement. We expect the topic of stockholder proposals to be addressed during the upcoming stockholder meeting.
Q: Does Patriot continue to purchase shares in the open market?
A: Yes, Patriot regularly purchases shares in the open market within the purview of the safe harbor of Rule 10b-18 of the Securities Exchange Act of 1934.
Q: Are there significant stock option grants outstanding at the Board and management level for Patriot?
A: No. There are currently 1,800,000 options granted all of which are underwater and which represent less than half of one percent of all outstanding shares.
Q: Is there significant insider trading in Patriot's stock?
A: There is not significant trading activity on the part of Patriot's officers and Board. When trading activity does occur, our officers and Board members are required to self report this activity with the Securities and Exchange Commission on Form 4, Statement of Changes in Beneficial Ownership.
Safe Harbor Statement: Statements herein which are not purely historical, including statements regarding Patriot Scientific Corporation's intentions, hopes, beliefs, expectations, representations, projections, plans or predictions of the future are forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. The forward-looking statements involve risks and uncertainties including, but not limited to, the risks and uncertainties relating to the future of our MMP joint-venture and our wholly owned subsidiary PDSG. It is important to note that the company's actual results could differ materially from those in any such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, risks and uncertainties associated with the effect of changing economic conditions, trends in the products markets, variations in the company's cash flow, market acceptance risks, patent litigation, technical development risks, and seasonality. Our business could be affected by a number of other factors, including the risk factors listed from time to time in the company's SEC reports including, but not limited to, its most recent annual and quarterly reports filed on Forms 10-K and 10-Q. The company cautions investors not to place undue reliance on the forward-looking statements contained herein. Patriot Scientific Corporation disclaims any obligation, and does not undertake to update or revise any forward-looking statements made herein.
Next >
Forward-Looking Statements: Patriot Scientific does not routinely undertake to publicly update or revise its forward-looking statements, even if experience or future changes make it clear that any projected results (expressed or modified) will not be realized.
Forward-Looking Information: The statements in Patriot Scientifics news releases and public filings may contain forward-looking information within the meaning of the Private Securities Litigation Act of 1995. Such forward-looking statements involve certain risks, assumptions and uncertainties. In each case, actual results may differ materially from such forward-looking statements. Any statements regarding targets for future results are forward-looking, and actual results may differ materially. These are the company's targets, not predictions of actual performance.
Safe Harbor statement under the Private Securities Litigation Reform Act of 1995: Statements in this information contain statements forward looking in time which involve risks and uncertainties, including the risks associated with the effect of changing economic conditions, trends in the products markets, variations in the company's cash flow, market acceptance risks, technical development risks, seasonality and other risk factors detailed in the company's Securities and Exchange Commission filings.
Alliacense Announces Ford Motor Company Purchases MMP Portfolio™ License
CUPERTINO, Calif. – May 25, 2012 – Alliacense today announced that Ford Motor Company has purchased an MMP™ Portfolio license from The TPL Group. Ford joins General Electric, Caterpillar, Robert Bosch GmbH, Sony, Nokia, HP and dozens of other global market leaders in purchasing an MMP license.
About Alliacense
Alliacense is a recognized leader in the design and execution of Intellectual Property (IP) licensing programs. As a cadre of IP licensing strategists, technology experts, and experienced business development/management executives, Alliacense focuses on expanding the awareness and value of IP portfolios under management. For more information, visit www.alliacense.com.
About the MMP Portfolio™
The MMP Portfolio patents, filed by The TPL Group in the 1980s, include seven US patents as well as their European and Japanese counterparts, cover techniques that enable higher performance and lower cost designs essential to consumer and commercial digital systems ranging from PCs, cell phones and portable music players to communications infrastructure, medical equipment and automobiles.
The MMP Portfolio™ is widely recognized as fundamental technology. The sweeping scope of applications using MMP Portfolio design techniques continues to encourage the world’s leading manufacturers of end-user products from around the globe to become MMP Portfolio licensees. 95 global companies from the US, Europe, Japan, Korea and Taiwan have licensed the MMP Portfolio™ technologies. Manufacturers can learn more about how to participate in the MMP Portfolio™ Licensing Program by contacting: mmp-licensing@alliacense.com.
# # #
Alliacense and MMP are trademarks of Technology Properties Limited (TPL).
All other trademarks belong to their respective owners.
Patriot Data Solutions Group Announces Sale of Assets
http://www.crossflo.com/pdf/news/pr_2012-05-01.pdf
Form 4
Name and Address of Reporting Person*FELCYN GLORIA
FELCYN GLORIA
http://www.sec.gov/Archives/edgar/data/836564/000101968712001533/xslF345X03/felcyn_f4-043012patriot.xml
New 10-Q is out
http://www.sec.gov/Archives/edgar/data/836564/000101968712001380/patriot_10q-022912.htm
Click here: patriot_10q-022912.htm
Bank of America maintains dividend
Shareholders to receive a penny a share even after the bank passes a test that was expected to boost payout.
By Jane Sanders, Benzinga Staff Writer
Bank of America (BAC +3.50%) shareholders will continue to receive a quarterly dividend of a penny a share, despite the bank passing a federal stress test earlier this year that would have allowed it to boost the payout.
The dividend will be payable July 25 to shareholders as of July 11, according to the bank.
The company has paid a 1 cent dividend every quarter since the beginning of 2009, according to its website. Bank of America, the second-largest U.S. bank by assets, had spoken about a dividend increase, but its plans to do so were rejected last year by the Federal Reserve.
In March, however, the bank passed the test in which the Federal Reserve evaluated what would happen to the bank if unemployment rose to 13%, the stock market decreased by half and housing values decreased 21%.
JPMorgan Chase (JPM) passed the stress test in 2011 and bumped its dividend to 25 cents from 5 cents, and again earlier this year to 30 cents. US Bancorp (USB +1.52%) passed the stress test in 2011 and boosted its dividend to 12.5 cents last year from 5 cents and again earlier this year to 19.5 cents.
Bank of America earned a profit of $1.4 billion in 2011, or 1 cent per share, after reporting a loss of $2.2 billion in 2010. Most of the revenue was earned in the fourth quarter, when the bank posted earnings of $2 billion, or 15 cents per share. The company's most profitable division was card services, which reversed 2010's net loss of $7 billion to earn $5.8 billion in 2011. The company will release its first-quarter 2012 financial results April 19.
Bank of America also restructured its business divisions as part of CEO Brian Moynihan's "New BAC" program to return the bank to higher profitability, according to an SEC filing this week. The program, announced last year, was set to reduce expenses by $5 billion and cut 30,000 jobs.
The bank combined its deposit, business banking and card services segments into a consumer and business banking division. Commercial banking and corporate and investment banking were combined into a global commercial banking division, and the global markets group became its own division.
Joseph Price, the former head of consumer, small business and card banking, and Sallie Krawcheck, former head of global wealth management, left those positions in September and were replaced by co-chief operating officers Thomas Montag and David Darnell.
http://money.msn.com/top-stocks/post.aspx?post=265b66a2-89a3-4a33-8af4-597ae0bee1de
Inter Partes Reexamination: Standard for Initiating Reexamination No Longer Requires "New" Issues
Posted on Apr 08, 12 11:14AM
Inter Partes Reexamination: Standard for Initiating Reexamination No Longer Requires "New" Issues
The threshold standard for initiating an inter partes reexamination was changed on September 16, 2011 - the enactment date of the America Invents Act. The revised law eliminates the old “substantial new question of patentability” standard and now requires “a reasonable likelihood that the requester would prevail with respect to at least 1 of the claims challenged in the request.” This reasonable likelihood of prevailing (RLP) standard must now be met before the USPTO can initiate an inter partes reexamination.
In my initial review of the change, I wrote that the new standard is “stricter” than the old. Certainly, a reasonable likelihood of success is more difficult to prove than simply raising a substantial question. However, I must add an important caveat — the old standard required that the substantial question be “new” while the revised standard does not have such a limitation.
In a recent petition decision, the USPTO confirmed this analysis — indicating that the a reexamination request under the RLP standard can be based entirely upon issues previously addressed by the Office. In other words, “the determination of whether the question presented in the request are new is no longer a prerequisite of the determination of whether to order inter partes reexamination.” (Quoting from the petition decision) The USPTO wrote:
Whether the issue being brought forth for consideration has been addressed in a previous Office proceeding does not preclude reexamination under the current standard for ordering inter partes reexamination. Under 35 U.S.C. 312, the Office has the discretion to reconsider issues that have been addressed in the past, provided the estoppel provisions of 35 U.S.C. 317 do not apply.
In a footnote, the decision noted that the question of whether the raised objections to patentability are “new” is simply “not relevant to deciding this petition.”
File Attachment: Dismissal of Petition.pdf (210 KB).
Robert Frame had argued on behalf of petitioner that the new RLP standard should be interpreted as SNQ+. Frame pointed to the House Report on the AIA that stated:
The threshold for initiating an inter partes review is elevated from 'significant new question of patentability' -a standard that currently allows 95% of all requests to be granted -- to a standard requiring petitioners to present information showing that their challenge has a reasonable likelihood of success.
As discussed above, that approach was rejected by the USPTO (CRU).
The patent being reexamined is No. 8,028,491 and covers a particular type of tactile warning surface units used to warn visually impaired individuals of a hazard (such as a curb). The design allows the surface units to be wet-set (in concrete) and also replaceable. This type of device is required in many situations in order to comply with requirements of the ADA.
In 2011, the patent holder (ADA Solutions) filed suit against several alleged infringers. On that same day, several of the accused infringers filed this reexamination request. (The parties are litigating other patents as well).
Posted on Apr 07, 2012 http://www.patentlyo.com/patent/2012/04/inter-partes-reexamination-standard-for-initiating-reexamination-no-longer-requires-new-issues.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
New Pacer--Date Filed # Docket Text
03/19/2012 360
DOCUMENT E-FILED UNDER SEAL re 359 Order on Administrative Motion to File Under Seal Exhibit 7 to Declaration of Kyle D. Chen in Support of Plaintiffs' Consolidated Responsive Claim Construction Brief by HTC America, Inc., HTC Corporation. (Attachments: # 1 Ex. 7 - Part 2, # 2 Ex. 7 - Part 3, # 3 Ex. 7 - Part 4)(Chen, Kyle) (Filed on 3/19/2012) (Entered: 03/19/2012)
From ronran--Re: "knowing" what you own....Larry and all...
In response to Re: Trials..Mets settle out of court by HUNTINGTON-L
Posted on Mar 19, 12 07:16PM
As usuall, great post, Larry. No one "knows" what they own in PTSC --- there are lots of folks who believe in what they own, which is great, but belief isn't the same thing as knowledge.
If anyone truly "knew" what they owned in PTSC, he or she would have "known" in advance of the decline in the stock price over the last six years. This would have caused him or her to sell every single share on the intraday spike to $2.25 back in early 2006, and to then sell everything else they owned in order to re-purchase at under .05, probably to have sold again by now.
Being able to separate belief from knowledge is very important to investing. Merely "believing" represents a completely emotional view that tends to cause one to "fall in love" with a company or its stock, which is very dangerous. No one gets it right all the time, but developing real knowledge usually leads to better decisions.
Best wishes to you and all.
Bank of America, Alcoa: Dow Movers
By Alexandra Zendrian 03/16/12 - 04:39 PM EDT
Stock quotes in this article:^DJI, BAC, AA, UTX
YORK (TheStreet) -- U.S. stocks finished mixed Friday, taking a breather after rising sharply earlier in the week as a measure of consumer sentiment missed the mark.
Breadth within the Dow was negative with 18 of the index's 30 components posting losses.
The biggest percentage decliner in the Dow was United Technologies(UTX_).
The stock fell 1.62% to $85.48 on nearly double its average daily trading volume. TheStreet Ratings gives United Technologies an A- grade with a buy rating and a $96.48 price target.
The biggest percentage gainers among the blue chips were Bank of America(BAC_) and Alcoa(AA_).
Shares of Bank of America rose 5.95% to $9.79 on almost double the stock's average daily trading volume. The stock has been heading toward the $10 mark following the company's passage of the Federal Reserve's stress test on Tuesday.
TheStreet Ratings gives Bank of America a C- grade and a hold rating.
Alcoa shares rose 1.84% to $10.54. The stock gets a C grade and a hold rating from TheStreet Ratings.
--Written by Alexandra Zendrian in New York.
New Pacer--RECOMMENDED DISCOVERY ORDER NO.3.
THOMAS HR DENVER, ESQ. (56872)
Mediation Masters
96 North Third Street
Suite 300
San Jose, CA 95112
Telephone:
Facsimile:
Special Master
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ACER INC., HTC CORP., BARCO NV,
Plaintiffs,
vs.
TECHNOLOGY PROPERTIES, LTD. et aI., Defendants.
Case No: C-08-00877 JW C-08-00882 JW C-08-05398 JW
RECOMMENDED DISCOVERY ORDER NO.3.
Pursuant to Stipulation of the parties (attached hereto as Exhibit A), it is ordered
that: 1. In addition to the claims identified in Discovery Order No.2, TPL shall serve
amended ICs for Claims 7, 10, 14 and 16 of the '336 Patent;
TPL shall serve its amended ICs for claims identified in the Stipulation and
Discovery Order NO.2 by March 30, 2012.
Dated:
March 16,2012
lsI Thomas HR Denver
THOMAS HR DENVER
RECOMMENDED DISCOVERY ORDER NO.3
EXHIBIT A
Daniel J. O'Connor (Pro Hac Vice)
Edward K. Runyan (Pro Hac Vice)
BAKER & MCKENZIE LLP
300 East Randolph Drive
Chicago, IL 60601
Telephone: daniel..Tod L. Gamlen (SBN 83458)
BAKER & MCKENZIE LLP
660 Hansen Way
Palo Alto, CA 94303-1044
Attorneys for Plaintiff
BARCON.V.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
BARCO N.V., a Belgian corporation Plaintiff,
v. TECHNOLOGY PROPERTIES LTD., PATRIOT SCIENTIFIC CORP., and ALLIACENSE LTD.,
Defendants.
STIPULATION AND [PROPOSED] ORDER CASE NO. 3:08-cv-05398 JW
Case No. 3:08-cv-05398 JW
STIPULATION AND [Im9PQ~M)] ORDER EXTENDING DEADLINE TO SERVE AMENDED INFRINGEMENT CONTENTIONS AND INCLUDING ADDITIONAL CLAIMS FOR WHICH TPL SHALL AMEND ITS INFRINGEMENT CONTENTIONS
Pursuant to Northern District of California Civil Local Rules 6-2 and 7-12, Plaintiff Barco
N.V. ("Barco") and Defendants Technology Properties Limited, Patriot Scientific Corporation, and Alliacense Limited (collectively "Defendants" or "TPL"), hereby stipulate and request that the Court:
(1) extend the deadline to serve amended Infringement Contentions (ICs) as set forth in Special
Master Thomas Denver's Order on Barco's Motion to Strike (Dkt. 332, Related Case No. 3:08-cv00877-
JW) (the "Order") by four additional business days so that the deadline to serve amended ICs
is extended from March 26, 2012 to March 30, 2012 and (2) include four additional claims (claims 7,
10, 14, and 16) of U.S. Patent No. 5,809,336 (the '336 patent) for which TPL shall serve amended
Infringement Contentions (ICs).
WHEREAS, Barco's Proposed Order (Dkt. 238-5) and Barco's Reply Brief (Dkt. 266) requested the Court, inter alia, to strike the ICs for claims 1,6, 11, and 13 of the '336 patent, because certain limitations for these claims rely on one or more published articles;
WHEREAS, Barco's Opening Motion noted that, in addition to the ICs for claims 1,6, 11, and
13 of the '336 patent, ICs for claims 7, 10, 14, and 16 of the '336 patent also rely solely on the same
one or more published articles for certain claim limitations. See page 6, line 21 to page 7, line 24 0
Barco's Opening Motion (Dkt. 238);
WHEREAS, claims 7, 10, 14, and 16 of the '336 patent were inadvertently omitted from
Barco's Proposed Order (Dkt. 238-5) and Reply Brief (Dkt. 266);
WHEREAS, Special Master Thomas Denver's Order on Barco's Motion to Strike (Dkt. 332,
Related Case No. 3:08-cv-00877-JW), in apparent reliance on Barco's Proposed Order, ordered TPL
to amend the ICs for claims 1,6, 11, and 13 ofthe '336 patent for relying on published articles;
WHEREAS, while TPL disputes that its ICs are insufficient, it does not dispute that the same
rationale underlying the Special Master's Order relating to ICs for claims 1,6, 11 and 13 of the '336
patent also applies to claims 7, 10, 14, and 16 of the '336 patent;
WHEREAS, TPL was ordered by Special Master Thomas Denver to serve amended ICs within 20 days of his Order becoming final (i.e., by March 26, 2012);
STIPULATION AND PROPOSED] ORDER
WHEREAS, Barco will not be prejudiced if the deadline to serve amended ICs is extended from March 26,2012 to March 30, 2012; and ACCORDINGLY, it is hereby stipulated by and among the parties that:
(1)
In addition to the claims identified in Special Master Thomas Denver's Order of February 24,2012, TPL shall serve amended ICs for claims 7, 10, 14, and 16 ofthe '336 patent; and
(2)
TPL shall serve its amended ICs for claims identified in this stipulation and in Special Master Thomas Denver's Order by March 30, 2012.
Respectfully Submitted,
Dated: March 13,2012 BAKER & McKENZIE LLP
By: lsi Edward K. Runyan Edward K. Runyan
Attorneys for Plaintiff BARCON.V.
Dated: March 13,2012 AGILITY IP LAW, LLP
By: lsi James C. Otteson James C. Otteson Michelle G. Breit
Attorneys for Defendants TECHNOLOGY PROPERTIES LIMITED and ALLIACENSE LIMITED
PU RSUANT TO STIPULATION, IT IS SO ORDERED.
Jfi:,
Dated: March.l:e, 2012
At rlI\ A~
THOMAS HR DENVER Special Master
STIPULATION AND [PROPOSED) ORDER
page 2 CASE NO. 3:08-cv-05398 JW
ATTESTATION PURSUANT TO GENERAL ORDER 45
Pursuant to General Order 45, I represent that concurrence in the filing of this document has been obtained from the other signatory which shall serve in lieu ofhis signature on this document.
Dated: March 13,2012 lsi Edward K. Runyan Edward Runyan, Esq.
STIPULATION AND [pROPOSED] ORDER
From marc--Re: Was Leckrone Merely ,, Comments to All
In response to Was Leckrone Merely Dreaming by l2007s
posted on Mar 16, 12 01:42PM
#1. Lecky has said a lot of things over the years at various shm's most of which have not come to pass, yet, if ever. Most of which were suppose to happen by now and have not but there is still time for some truth.
#2. When Lecky talks even the stuff that is close to reality or has happened usually does not relate to PTSC but to his company and more importantly his interest. It is always important imo to remember that. He may control the board, set their salaries etc but he is not our Board and the stock he says he owns is I think owned by TPL and one million shares of which, if I recall correctly was part of a deal and given to him or just about.
#3. Rampant speculation over the past dozen plus year on this board alone has at times made this Raging Bull Jr. For those of you who remember Ron and others set up this site so that we could have rational thought with factual information shared by realistic investors. At times such as this that view seems to disappear and speculation seems to be the name of the game.
#4. It is not for me to tell someone what to write or how to think or what the share price might be a day, week, month or year from now but for those of us who have had experience with this particular stock I think it is safe to say the following. Without direction or advice or corporate information of any type from our gang of three we are all shooting in the dark. At three different times under other mgmt leadership we would be promised regular corporate updates or information that would help keep us abreast of what was happening. That is the way most companies operate. Shareholders are kept in the loop. Though there are some old timers here and a number of newbies who do not know the history but speculation on PTSC has gotten us no where. Or if anything it has hurt our investment.
I suggest that taking the advise that Ron wrote in his post a few post back and sit back and see what happens. Let the Markman happen and then based on that we will see what we will see. If you want to speculate do so but realize that the numbers I am seeing thrown around and the statements of PTSC being sold are not based on reality ( it would be very difficult based upon contractual agreements for the company to be bought out) as far as share price based upon no information and not based on the past as things are so different now (good and bad as we now have all those positive reexams but a lot of time has passed) I feel that throwing out share prices is much more risky then picking the tournament brackets. (yes, I want the Aztecs a ranked team to go on and the are playing a now ranked NCS team now but are not favored to win and should not even be there as they lost most of their sweet sixteen team of last year) but how many people really get it right and there is so much real information out there to make your choices. Things happen so why not wait and see what happens but always when setting a stock price on PTSC let me people know that you are just guessing, please
Okay, need to run but good luck to all of you and I wish you the best but anybody from NC you have a beautiful State but please know that you only need one team at the party and let it be NC and NCS to go on.
IMO
God Bless
marc
From lambertslunatics--To be CLEAR - $42M estimate is to PDS - NOT PTSC
Posted on Mar 16, 12 11:57AM
I just want to be clear that IF, and that's a very big if considering who said it, but IF Leckrone was being truthful about the MMP having already pulled in more than $350M in license fees, as it was reported he did at the SHM, then that would mean that the most recent quarter completed would have brought in $42M or more in license fees to PDS.
But to be CRYSTAL CLEAR, that's NOT revenue to PTSC. As most understand, any money that PDS gets, first goes to pay TPL's expenses for licensing and prosecuting, then the other 3rd party expenses like expert testimony, etc., and only AFTER those are paid, does TPL & PTSC then divvy up the remaining money 50/50.
That being said, during the year that the J3 settlement occured, the EXPENSES for that year were approximately $16M. One might argue these are similar times, so IF DL was being truthful, and there is around $42M in fees, then it could be that the remaining balance AFTER expenses could be as little as $25M to $30M, with PTSC getting around $12.5M to $15M in rough numbers.
On the flip side, IF our BOD allowed DL the platform to speak as he did in THEIR ANNUAL SHAREHOLDER MEETING, and it turns out to be UNTRUE, then in my opinion, I believe there is serious liability on the shoulders of Cliff Flowers, Gloria Felcyn and Carlton Johnson in that no correction was issued there or in the days following.
I suppose we'll know one way or the other by April 16, 2012.
Citigroup Is the New Bank of America
By Shanthi Bharatwaj
03/15/12 - 06:01 PM EDT
JPMorgan Chase & Co| JPM UPCitigroup Inc| C UPBank of America Corporation| BAC UPNEW YORK (TheStreet) -- Citigroup(C_) "failed" the bank stress tests, while Bank of America(BAC_) "passed."
That was the instant verdict delivered by the markets following the results of the Federal Reserve's CCAR (Comprehensive Capital Analysis and Review) announced after the bell on Tuesday. Shares of Bank of America have risen nearly 16% since Monday's close, while Citigroup has gained about 5.7%.
But if one sets aside Citi's request to return capital, which may have proved to be overly ambitious, the banks actually fared roughly the same in the hypothetical stress scenario. Citi's "minimum stressed capital ratio with no capital actions" was 5.9%, above the Fed's required minimum of 5%. Bank of America's stressed capital ratio was 5.7%.
What sets them apart is that Bank of America CEO Brian Moynihan learned from his mistake last year when he submitted a request for a modest dividend increase and was denied. This time the bank said it would not submit a request to return more capital, thus saving it from the embarrassment of being turned down.
Now Citigroup CEO Vikram Pandit is feeling the pain of having been too eager to return capital to shareholders in 2012. Pandit has repeatedly said that the bank will be in a position to reward shareholders with more dividends and buybacks in 2012, so the rejection has delivered a serious blow to investor confidence and Citi's credibility.
"One would think Citi would operate beyond reproach, whether it is with accounting conservatism, adherence with regulations, executive compensation or items such as the announcement of a return of capital before authority is granted," Mike Mayo wrote in a note cited by Bloomberg News. "The capital mishap is one more sign that the culture has not changed.
Oppenheimer analyst Chris Kotowski estimates that Citigroup must have asked to return $10 billion over the next 9 quarters or about 1% of its $1 trillion risk-weighted asset base, based on the difference between the minimum capital ratios before and after the request. That works to about $4.5 billion per year.
Had Citi asked for half of that, Kotowski calculates, its minimum stressed ratio after all proposed capital actions would have been 5.4%, in line with JPMorgan Chase's(JPM_) and US Bancorp(USB_), which positively surprised.
The bull case for Citigroup then is that the management got too optimistic on the proposal and this is a temporary setback. The bank can make a request for a lower capital return program later in the year and could win approval from the regulator.
From lambertslunatics--beantown - Where is the BOD buying???!!!! / Re: Where is the buying
In response to Where is the buying by beantown
posted on Mar 15, 12 11:52AM
Licenses, anticipated positive Markman, possible $42M quarter, USPTO clearance, Apple, GE, Motorola......etc. .... etc. ......etc.
It's a laugher to hear from some that the MM's are to blame, or swing traders, or anything else.
When you realize that our CEO who has raked in over $1M of PTSC cash, and our 2 remaining BOD members who have scored another $1M between them, play the poverty and risk cards as EXCUSES for not buying a 5-15 cent stock that THEY are responsible for stewarding, it's NO WONDER the buying is LIMITED.
As positive as things may be currently developing, LEADERSHIP remains the bottleneck, and PTSC is lead by NON LEADERS. PTSC and use shareholders will succeed DESPITE them, and not because of them, unfortunately. The best I can say for them at this point is that they are sort of following the Hypocratic oath and first "doing no harm". However, there's really no need to wonder why the stock remains stalled at the 15 cent mark, and why more people aren't attracted to buy.
ORDER GRANTING PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE CONFIDENTIAL EXHIBITS UNDER SEAL
http://photos.imageevent.com/banos/t3/Order%20Granting%20Motion%20to%20Seal%20Confidential%20Exhibits%203-14-12.pdf
Four large US banks fail stress tests
By Paul Handley | AFP – 3 hours ago.. .
Citigroup was one of four large US banks that flunked stress tests aimed at seeing how they would hold up in a new economic crisis, Federal Reserve data showed Tuesday.
Three others -- Ally, Suntrust and MetLife -- also failed the tests, while 15 other large bank holding companies passed the exercise, the Fed said.
As a group, though, the 19 came through strongly, said the Fed, thanks to pressure for them to boost capital over the past three years as the financial sector digs its way out of the deep 2008-2009 recession.
"In fact, despite the significant projected capital declines, 15 of the 19 bank holding companies were estimated to maintain capital ratios above all four of the regulatory minimum levels under the hypothetical stress scenario," the Fed said.
The exercise opened the door for some of the most capital-flush banks to immediately announce new or higher dividend payments to shareholders, after the Fed prevented or limited such payouts by a number of the banks last year following a similar examination.
JPMorgan Chase announced a 20 percent dividend hike and a $15 billion share buyback program, while Wells Fargo also sharply boosted its planned dividend.
Bank shares meanwhile surged in the final hour of trade on the US markets after JPMorgan jumped the gun with its announcement that it had passed the tests and would up its dividend.
The Fed had originally planned to release the results on Thursday.
The central bank's test subjected the banks to another theoretical crash of the economy to see how they would hold up: a US recession marked by a 50 percent drop in stock prices, a 21 percent fall in housing prices, and joblessness soaring to 13 percent, all the while being buffeted by an even worse recession in Europe.
The test saw the 19 together losing $534 billion over nine months.
Despite that, the Fed said, at the end of the test period the banks together had core "tier one" capital at a level that was higher than the actual level they had during the financial crisis in early 2009.
That "reflects a significant increase in capital during the past three years," it said.
Citigroup was the largest of the four that failed the test -- its tier one capital ratio level fell in the theoretical crash to 4.9 percent, below the fed's 5.0 percent minimal threshold.
Citigroup's actual tier one ratio was 11.7 percent in the third quarter of 2011, in the higher range of the 19.
But the tests found it particularly vulnerable to losses on home loans, commercial and industry financing, consumer loans and credit cards.
Citigroup in a statement defended its position and called on the Fed to make public more details of the tests.
But it also said that it would pull back on plans to boost its dividend payout.
"Citi remains among the best capitalized large banks in the world," it said.
It said it would have passed the central bank's test if it does not follow through with proposed capital actions -- which the Federal Reserve rejected in the tests, Citi said.
"In light of the Federal Reserve's actions, Citi will submit a revised Capital Plan to the Federal Reserve later this year, as required by the applicable regulations."
The worst performance came from Ally, formerly the finance arm of General Motors known as GMAC: its tier one ratio fell to just 2.5 percent in the test from the actual 8.0 percent level reported in the third quarter of last year.
The company that has broadened from car loans to more general banking and insurance, is currently controlled by the US Treasury as a result of the government's bailout of GM in 2009.
Echoing the grumbling from Citigroup and MetLife over the results, the American Bankers Association assailed the premises of the test as excessively severe.
"The banking industry is pleased that the overwhelming majority of institutions passed the Federal Reserve's stress tests with flying colors," ABA president Frank Keating said in a statement.
"The industry is now very well prepared for any challenging economic circumstances that could arise."
"At the same time, we object to testing bank capital under theoretical conditions that are far more severe than even those seen during 'the Great Recession.'"
"It unjustifiably prohibits some institutions from paying dividends to shareholders and could potentially impair their ability to raise capital and make loans."
http://ca.news.yahoo.com/citi-ally-suntrust-metlife-fail-stress-tests-205649742.html
New Pacer--STIPULATION AND [PROPOSED] ORDER EXTENDING DEADLINE TO SERVE AMENDED INFRINGEMENT CONTENTIONS AND INCLUDING ADDITIONAL CLAIMS FOR WHICH TPL SHALL AMEND ITS INFRINGEMENT CONTENTIONS
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION
BARCO N.V., a Belgian corporation
Plaintiff,
v.
TECHNOLOGY PROPERTIES LTD., PATRIOT SCIENTIFIC CORP., and ALLIACENSE LTD.,
Defendants.
STIPULATION AND [PROPOSED] ORDER EXTENDING DEADLINE TO SERVE AMENDED INFRINGEMENT CONTENTIONS AND INCLUDING ADDITIONAL CLAIMS FOR WHICH TPL SHALL AMEND ITS INFRINGEMENT CONTENTIONS
Pursuant to Northern District of California Civil Local Rules 6-2 and 7-12, Plaintiff Barco N.V. (“Barco”) and Defendants Technology Properties Limited, Patriot Scientific Corporation, and Alliacense Limited (collectively “Defendants” or “TPL”), hereby stipulate and request that the Court: (1) extend the deadline to serve amended Infringement Contentions (ICs) as set forth in Special Master Thomas Denver’s Order on Barco’s Motion to Strike (Dkt. 332, Related Case No. 3:08-cv-00877-JW) (the “Order”) by four additional business days so that the deadline to serve amended ICs is extended from March 26, 2012 to March 30, 2012 and (2) include four additional claims (claims 7, 10, 14, and 16) of U.S. Patent No. 5,809,336 (the ‘336 patent) for which TPL shall serve amended Infringement Contentions (ICs).
WHEREAS, Barco’s Proposed Order (Dkt. 238-5) and Barco’s Reply Brief (Dkt. 266) requested the Court, inter alia, to strike the ICs for claims 1, 6, 11, and 13 of the '336 patent, because certain limitations for these claims rely on one or more published articles;
WHEREAS, Barco’s Opening Motion noted that, in addition to the ICs for claims 1, 6, 11, and 13 of the ‘336 patent, ICs for claims 7, 10, 14, and 16 of the ‘336 patent also rely solely on the same one or more published articles for certain claim limitations. See page 6, line 21 to page 7, line 24 of Barco's Opening Motion (Dkt. 238);
WHEREAS, claims 7, 10, 14, and 16 of the ‘336 patent were inadvertently omitted from Barco’s Proposed Order (Dkt. 238-5) and Reply Brief (Dkt. 266);
WHEREAS, Special Master Thomas Denver’s Order on Barco’s Motion to Strike (Dkt. 332, Related Case No. 3:08-cv-00877-JW), in apparent reliance on Barco’s Proposed Order, ordered TPL to amend the ICs for claims 1, 6, 11, and 13 of the ‘336 patent for relying on published articles;
WHEREAS, while TPL disputes that its ICs are insufficient, it does not dispute that the same rationale underlying the Special Master’s Order relating to ICs for claims 1, 6, 11 and 13 of the ‘336 patent also applies to claims 7, 10, 14, and 16 of the ‘336 patent;
WHEREAS, TPL was ordered by Special Master Thomas Denver to serve amended ICs within 20 days of his Order becoming final (i.e., by March 26, 2012);
WHEREAS, Barco will not be prejudiced if the deadline to serve amended ICs is extended from March 26, 2012 to March 30, 2012; and
ACCORDINGLY, it is hereby stipulated by and among the parties that:
(1) In addition to the claims identified in Special Master Thomas Denver’s Order of February 24, 2012, TPL shall serve amended ICs for claims 7, 10, 14, and 16 of the ‘336 patent; and
(2) TPL shall serve its amended ICs for claims identified in this stipulation and in Special Master Thomas Denver’s Order by March 30, 2012.
Respectfully Submitted,
Dated: March 13, 2012
BAKER & McKENZIE LLP
By: __ /s/ Edward K. Runyan
Edward K. Runyan
Attorneys for Plaintiff
BARCO N.V.
Dated: March 13, 2012
AGILITY IP LAW, LLP
By: __ /s/ James C. Otteson
James C. Otteson
Michelle G. Breit
Attorneys for Defendants
TECHNOLOGY PROPERTIES LIMITED and ALLIACENSE LIMITED
PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: March 13, 2012
THOMAS HR DENVER
Special Master
From ronran--Re: "topped off" on PTSC stock...Magnus and all...
insert-text-here
Posted on Mar 13, 12 09:16AM
Thanks for your reply. Some of the points made in your post, such as Leckrone's dishonesty, are among the "other such factors" I mentioned, but, as we seem to agree, there is no point in discussing those factors as we await the Markman ruling and resolution of the Barco issue.
As to the Barco situation, yes, Barco's motion is separate from Acer and HTC --- in other words, to my knowledge, neither Acer nor HTC have filed such motions. It is possible that they might be awaiting the outcome of Barco's motion to take further action, but the answer to that would depend on technical knowledge, in addition to legal strategy that only a patent lawyer could competently discuss. Therefore, I would not want to speculate further, except to say that any such motions would obvioulsy be less likely to succeed if TPL's amended infringement contentions are considered satisfactory.
I would also take this opportunity to comment further on an assumption I had made about the Barco motion in one or more of my prior posts, in which I had characterized it as being "dispositive". In going back and trying to find where I thought I had read that, I was unable to find any such reference, so I sent an email to Mr. Flowers and asked for his assistance, after perhaps talking with our legal team if necessary. His reply, in part, was that, as the Company sees it, "the dispositive nature of the motion, should it granted, cannot be determined at this time".
Obviously, we would all prefer that the Barco motion not be granted, but there seems to be no consensus that, even if it is, such would be dispositive.This is a bit better than what I had been thinking, so I must retract my assumption and take a "wait and see" position. My apologies to the forum if my prior posts injected additional confusion.
Best wishes to you and all.
From ronran--Re: "topped off" on PTSC stock...Magnus and all...
in response to Re: Guess everyone here has "topped off" on PTSC stock... by MagnusBuchs
posted on Mar 12, 12 06:49PM
Could it be the sphinctoral reflex resulting from the J3 settlement and the Markman Rulling that preceeded it ?
Hopefully not, although "perception as reality" can be hard to shake.
The hope is that those who remember the J3 settlement and what has occurred thereafter have learned a bit more in the years since that time. Back then, the MMP was under examination in the PTO, and, while the reality was that there was a strong likelihood of re-certification (as we have now seen), the perception of possible invalidation was perhaps an influence (in addition to other factors discussed here many times).
Cut to the present, and the re-exam process is over and done --- there is simply no realistic probability of another request for a re-exam being made, but even if such was to occur, it would seem that the chances of the PTO granting such are virtually nil. As a result, there is no basis, whether in reality or even by mere perception, to believe that invalidation of the MMP is any kind of meaningful risk.
In view of this, all we need is a deciisively favorable Markman ruling, and the playing field will have changed, much for the better. Of course, saying "all we need" is the rough equivalent of a "big if", because there ain't no certainties in litigation --- but the point is the same, which is that there are virtually no other negative influences out there of any real moment. Unless the Company resumes other endeavors that have failed in the past (which they have indicated there is no intention to do), then there is only one strategy to implement, and it simply needs to be effectively pursued and marketed.
As always, of course, we shall see. Best wishes to all.
Disavowal of Claim Scope and Beauregard Method Claims
by Dennis Crouch
Digital-Vending Services International, LLC v. The University of Phoenix, Inc. (Fed. Cir. 2012)
In a split decision, the Federal Circuit has reversed the lower court's claim construction and vacated the summary judgment of non-infringement with respect to impacted claims. On remand, the district court will be required to reconsider whether whether Digital-Vending's patents covering aspects of internet-based content delivery are valid and infringed. Chief Judge Rader penned the opinion and was joined by Judge Linn and joined-in-part by Judge Moore. In her partial dissent, Judge Moore focused on the doctrine of disavowal of claim scope – arguing that the "exacting" standard for disavowal of claim scope was met in this case and therefore takes precedence over other canons of construction in the analysis of claim scope.
Method Claim Written as an Apparatus: Before getting to the heart of the claim construction debate, it is important to mention the court's recognition here that a Beauregard claim should properly be interpreted as a method claim rather than an apparatus or composition of matter claim. In some instances, patent law treats method claims differently than it treats apparatus claims. Because of this distinction, many patent attorneys choose to include both method and apparatus claims within the same patent whenever possible. In discussing the asserted claims, the Federal Circuit opines that claims 1-22 of asserted Patent No. 6,282,573 are all "method claims" despite the fact that claims 13-22 expressly claim "a computer storage medium" containing data and instructions for causing a computer to perform a particular method. Noting this potential discrepancy, the court wrote that these Beauregard claims are "functionally-defined claims" that "should be treated as method claims to avoid exalting form over substance." Quoting CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1374 (Fed. Cir. 2011). The court also noted that independent claim 23 - directed to a "computer architecture" with various interconnected servers should be treated as a system rather than a method. (Note – Judge Moore did not dissent from this portion of the opinion).
How Prosecution History Impacts Claim Scope: In many patent cases, the most hotly contested legal issue is claim construction and the resulting claim scope. Broadly construed claims cast a wider net over potential infringers, but are also more likely to be held invalid than those that are more narrowly construed. There a variety of thoughts on how the specification and prosecution history should impact claim construction. Strongly-held maxims include the notion that claims should be interpreted in light of the specification, but limitations found in the specification should not be automatically added as implicit limitations of claim scope. In Phillips, we learned that the specification should be given greater consideration. Phillips also gave credence to arguments associated with claim differentiation. Thus, in that case, the fact that a claim referred to "steel baffles … strongly implie[d] that the term 'baffles' does not inherently mean objects made of steel." (quoting Phillips). An additional and important claim construction canon involves the limitation of claim scope that has been the subject of clear disavowal. A problem with canons of construction is that they often conflict and the difficulty for courts comes in deciding which of the many canons to give precedence. Here, there is no question on the law that a clear disavowal of claim scope takes precedence over other canons of construction. The dispute in the case is on whether a disavowal occurred.
In this case, some of the patented claims refer to a "registration server being further characterized in that it is free of content managed by the architecture" and others refer to the "registration server," standing alone. This difference between the claims provides a strong suggestion that athe bare "registration server" limitation does not require that the server be free of managed content. In its analysis, the majority court noted that the patentee repeatedly referred to the registration server as being free of managed content, but also that the patent attorney had been "careful" to "avoid any hint [in the specification] that the inventors clearly disavowed claim scope with respect to the method claims." Thus, the court allowed a broad interpretation of the "registration server" term.
The dissent disagreed with this analysis and instead argued that the majority opinion "allows the patent owner to reclaim surrendered claim scope, thus subverting the public notice function of patents." Here, the dissent focused on the patentees "repeated statements in the specification" indicating that "each" of the registration servers are separated from any managed content and that such an architecture is a "requirement" not to be "violated." For Judge Moore, those statements lead her to the conclusion that "t is difficult to imagine a clearer case of disavowal."
On remand, the lower court will be asked to determine whether the defendants infringe the asserted claims under the broader claim interpretation put forth by the majority.
Posted on Mar 11, 2012
http://www.patentlyo.com/patent/2012/03/disavowal-of-claim-scope.html?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+PatentlyO+%28Dennis+Crouch%27s+Patently-O%29
Bank Stress Test Results Eminent: Time To Buy Or Bail?
http://seekingalpha.com/article/424311-bank-stress-test-results-eminent-time-to-buy-or-bail?source=msn
From l2007s--Chuck Moore's Blog March 9
9 March 2012 8:00 Friday
Leckrone had issued subpoenas to me and GreenArrays for documents and deposition in his Cross-Complaint against Chet. GreenArrays' lawyer argued they did not conform to Nevada law, so we refused to respond. Leckrone filed a motion to compel, but the Commissioner of Discovery agreed the subpoenas were invalid. A small issue and a small victory
From ronran--Re: Brown vs TPL Motion in Limine...Laurie and all....
in response to Brown vs TPL Motion in Limine by l2007s
posted on Mar 05, 12 12:51PM
As I think everyone knows by now, a "motion in limine" is a motion "to limit", i.e., to exclude, certain requested items of potential evidence. I would need to review more of the case to comment with any measure of confidence on these specific items, but some general thoughts are as follows.
1) Brown is probably claiming that this contractual dispute has caused some of his health problems. TPL may be arguing that this a breach of contract and/or fraud action, not a personal injury case, and that health issues are thus legally irrelevant.
2) TPL appears to be arguing that the only party to the specified agreement was Chet Brown, and that his wife/relative's signature is thus legally irrelevant in order tor the agreement to be effective.
3) Even less sure about this one, but "bifurcation" is a separation of claims from among several brought in the same suit, and "alter ego" means that several companies and/or persons are actually the same entity.
4) This likely means that Brown seeks to introduce evidence of other lawsuits/claims/judgments against TPL and/or Leckrone, which the latter seek to exclude. Different states have different rules on this, but here in my jurisdiction, this kind of evidence is not admissible except under strict exceptions, such as "pattern or practice of conduct", which must be established according to established procedures.
5) TPL obviously seeks to exclude the derogatory reference to "patent troll", which would carry a negative inference if introduced as evidence.
Sorry I can't be more help on this one, at least without further information.
Rexam Cert Issued on 584 eom
posted on Feb 29, 12 11:46AM (Agora)
Bibliographic Data
Application Number:
90/011,169
Customer Number:
-
Filing or 371 (c) Date:
08-20-2010
Status:
Reexamination Certificate Issued
Application Type:
Re-Examination
Status Date:
02-29-2012
Examiner Name:
RIMELL, SAMUEL G
Location:
ELECTRONIC
Group Art Unit:
3992
Location Date:
-
Confirmation Number:
1864
Earliest Publication No:
-
Attorney Docket Number:
0081-011D4X4
Earliest Publication Date:
-
Class / Subclass:
700/001
Patent Number:
-
First Named Inventor:
5784584
Issue Date of Patent:
To all:
I'm getting married this Wednesday to my childhood sweetheart of Fifty years and will be traveling on our honeymoon, then moving from Northern California to Southern California. Someone will have to check Pacer each day for any news on the markman hearing. I will be returning to I-Hub in two weeks. Thanks, and good luck to us all in the coming weeks.
Wolfpackvoltare