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Step 57 VCSY's reply claim construction brief: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION Vertical Computer Systems, Inc., Plaintiff, v. Microsoft Corporation, Defendant. ) ) ) ) ) ) ) ) ) Civil Action No. 2:07-cv-00144 DFCE Honorable Judge David Folsom Magistrate Judge Charles Everingham VERTICAL’S REPLY BRIEF ON CLAIM CONSTRUCTION i TABLE OF CONTENTS Page I. INTRODUCTION.................................................................................................. 1 II. MICROSOFT PRESENTS AN INCORRECT BACKGROUND FOR THE ‘744 PATENT........................................................................................................ 2 III. MICROSOFT PRESENTS UNSUSTAINABLE CONSTRUCTIONS..................... 3 IV. VERTICAL’S CONSTRUCTIONS ARE CORRECT.............................................. 5 A. The Construction Of “Objects” Is Necessary.............................................. 5 B. The Definition of “Arbitrary Objects” Can Only Be What Vertical Has Proposed ................................................................................................... 6 C. Microsoft’s Definition For “Arbitrary Name” Is Misplaced ........................... 8 D. The Definition By Example Method Used By Microsoft In Defining “content,” “form,” and “functionality” Is Wrong............................................ 9 E. Should The Court Construe “Arbitrary Object Framework,” Vertical’s Definition Is The Only One compelled By The Intrinsic Record ............... 11 F. The Term “That Separates A Content … A Content … A form … And A Functionality” Is Also A Preamble Term That Does Not Need Definition.................................................................................................. 14 G. The Patentee Of The ‘744 Patent Did Not Make The Prosecution History Disavowal That Microsoft Claims It Did ....................................... 16 V. CONCLUSION.................................................................................................... 17 ii TABLE OF AUTHORITES Page(s) Federal Cases Anchor Wall Systems v. Rockwood Retaining Walls, Inc., 340 F.3d at 1308 (Fed. Cir. 2003) ................................................................................. 11 Catalina Marketing International v. Coolsavings.com, 289 F.3d 801 (Fed. Cir. 2002) ....................................................................................... 15 DeGeorge v. Bernier, 768 F.2d 1318 (Fed. Cir. 1985) .......................................................................................9 Exxon Research & Engineering Co. v. United States, 265 F.3d 1371 (Fed. Cir. 2001) ............................................................................... 13, 14 Fernandez Innovative Technologies v. GMC, 2008 U.S. Dist. LEXIS 41537 (N.D. Ill. May 23, 2008) .................................................. 14 Halliburton Energy Services, Inc. v. M-I LLC, 514 F.3d 1244 (Fed. Cir. 2008) ..................................................................................... 13 Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111 (Fed. Cir. 2004) .......................................................................................4 Intirtool, Ltd. v. Texas Corp., 369 F.3d 1289 (Fed. Cir. 2004) ............................................................................... 12, 16 Inverness Medical Switzerland GmbH v. Warner Lambert Co., 309 F.3d 1373 (Fed. Cir. 2002) ..................................................................................... 11 Johnson Worldwide Associates, Inc. v. Zebco Corp., 175 F.3d 985 (Fed. Cir. 1999) ................................................................................. 11, 16 Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) ................................................................................... 1, 4 Rhine v. Casio, Inc., 183 F.3d 1342 (Fed. Cir. 1999) ..................................................................................... 13 Specialty Composites v. Cabot Corp., 845 F.2d 981 (Fed. Cir. 1988) ....................................................................................... 17 iii Sunrace Roots Enterprise Co. v. SRAM Corp., 336 F.3d 1298 (Fed. Cir. 2003) .......................................................................................8 Therasense, Inc. v. Becton, Dickinson & Co., 2008 U.S. Dist. LEXIS 27444 (N.D. Cal. Apr. 3, 2008).................................................. 14 United States Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554 (Fed. Cir. 1997) ..................................................................................... 17 Statutes 35 U.S. §112 ...................................................................................................................1 1 I. INTRODUCTION Microsoft’s brief on claim construction is replete with misleading statements and misplaced arguments. It ignores material parts of Vertical’s definitions and the ‘744 patent itself. It provides an analysis that is purely result driven to either obtain claim constructions that would invalidate the claims of the ‘744 patent or allow Microsoft to avoid infringement of those claims. It incorrectly conducts a construction in light of the accused products and the prior art. Microsoft’s analysis is simply wrong. The proof that Microsoft’s analysis is improperly result driven and out of context appears throughout Microsoft’s brief. On page 2, Microsoft alleges indefiniteness under 35 U.S. §112, paragraph 2. On pages 4-6, Microsoft appears to make another invalidity allegation, improperly suggesting that the invention of the ‘744 patent was on sale more than one year before the filing date of the application for the ‘744 patent. Both of these arguments not only fail because they do not have any legal or factual support, but they do not have any place in this analysis. Microsoft cannot evade the rules associated with summary judgment with these allegations. In the first page of its brief, Microsoft appears to frame the issues of this claim construction while at the same time arguing that Vertical has construed the contested terms “in an abstract context based principally on alleged ‘ordinary meaning’ ….” Vertical has done no such thing. Vertical has supported its claim constructions exclusively with the intrinsic record -- the ‘744 patent itself, its words and its prosecution history. A simple review of Vertical’s opening brief on claim construction proves that Vertical followed the mandate of Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) and used the internal record; and that record firmly supports Vertical’s constructions. Thus, for the reasons 2 outlined below and in Vertical’s opening memorandum, Vertical respectfully requests that the Court adopt its constructions. II. MICROSOFT PRESENTS AN INCORRECT BACKGROUND FOR THE ‘744 PATENT The discussion in Microsoft’s brief regarding the WebOS product, although misplaced, shows that Microsoft fails to appreciate just what the invention of the ‘744 patent is and how it differs from anything that preceded it. The prior art WebOS product is an example of procedural programming while the present invention is an advance on conventional object oriented programming developed a long time after the appearance of procedural programming. Procedural programming, of which WebOS is an example, appeared in the 1950’s along with the appearance of computers. It is a rigorous approach to programming where the programmer writes the programming code in sequential steps, including subroutines that perform some function or provide some needed information. This type of programming proved unusable in many modern applications because as more people worked on a procedural program the sequence of steps became too long and unmanageable. In the late 1980’s and early 1990’s, programmers developed a new way of programming called object oriented programming. This type of programming allowed programmers to separate the development process into modules called “objects” that interfaced with each other to provide the overall program. The program also could reuse the objects at various points in the program. But in this type of programming, the programmer still had to define the interface between a given object and the rest of the 3 program. The programmer had to pass any variables that the object used or needed; and it had to pass them in a pre-determined order. The invention of the ‘744 patent, as stated in Vertical’s opening brief, is an important advance in object oriented programming. It provides a smart connection or interface between an object and the rest of the program. The program need not pass any parameters that the object needs, because the object will determine those parameters on its own by using available information that it can obtain. If the programmer passes the parameters through the interface, an arbitrary object will use them; if he does not, it will determine them on its own with available information. Microsoft seeks to improperly connect the WebOS product with the ‘744 patent by arguing that FIG. 5 of the ‘744 patent is “virtually identical” to an old WebOS diagram on another company’s website and by arguing that FIG. 5 shows an embodiment of the invention of the ‘744 patent. But, FIG. 5 of the ‘744 patent, on its own, does not show or disclose the invention of the claims of the ’744 patent. Also, the fact that the subject website used the word “object” does not, by itself, support any conclusion that WebOS was an object oriented product. The overwhelming evidence shows that WebOS was a procedural program that had absolutely nothing to do with object oriented programming or the invention of the ‘744 patent. III. MICROSOFT PRESENTS UNSUSTAINABLE CONSTRUCTIONS The ‘744 patent provides a large number of specific examples for elements such as “arbitrary objects,” “content,” “form,” “functionality,” etc. Rather than providing definitions for those terms, Microsoft does exactly what the Court of Appeals for the Federal Circuit admonishes against – it confines the terms and the associated claims to specific 4 examples in the specification of the ‘744 patent. (See, Phillips, 415 F.3d at 1323). And, it does not use all the examples – just those that suit its purposes. But, a person of ordinary skill in the art rarely confines his or her definitions of terms to the exact representations depicted in the examples and embodiments. Phillips, 415 F.3d at 1323. And, unless the patentee has demonstrated a clear intention to limit the claim scope using words or expressions of manifest exclusion or restriction, a court cannot confine the definitions to specific examples. Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1120 (Fed. Cir. 2004). The patentee of the ‘744 patent (Aubrey McAuley) not only did not demonstrate such an intention, he did the exact opposite. For example, with respect to “arbitrary objects,” the specification of the ‘744 patent states that “arbitrary objects”: “may include encapsulated legacy data…” (col. 2, lines 29-34, Exhibit A); “can include text file pointers..” (col. 3, lines 43-46, Exhibit A); and may include any combination of application logic and data desired by the developer.” (col. 4, lines 21-22, Exhibit A). This language clearly demonstrates an intent that “arbitrary objects” not be limited to the specific examples. In fact, the most egregious example of where Microsoft took a permissive “can be” and turned it into a limiting definition is in its definition for “arbitrary objects” where it took the permissive sentence: “One arbitrary object can be easily replaced with another arbitrary object of another type” (col. 4, lines 40-41, Exhibit A) and turned it into the following restrictive expression: “that is interchangeable with another object of another type” in their definition (emphasis added). 5 Microsoft has engaged in this type of gamesmanship throughout its claim constructions; and Vertical will outline those instances in the following text in the discussions for the specific terms. On page 22 of its brief, Microsoft coins its improper approach as “defining … by example.” Example, indeed. IV. VERTICAL’S CONSTRUCTIONS ARE CORRECT A. The Construction Of “Objects” Is Necessary Although Vertical in its opening brief (page 7, second paragraph) incorrectly stated that the ‘744 patent does not use the term “object” apart from the term “arbitrary,” that statement referred generally to the disclosure of the ‘744 patent and not necessarily the specific language of the claims of the ‘744 patent. Upon close examination of the claims and specification of the ‘744 patent, claim 1, for example, uses the term “object” apart from the term “arbitrary” as follows: “… creating arbitrary objects with corresponding arbitrary names of various object types for ….” In addition, the most important portion of the specification for the ‘744 patent (column 5, lines 42-46 and column 5, line 62 to column 6, line 5, Exhibit A) uses the term “object” apart from “arbitrary.” Thus, Microsoft cannot assert that the claims of the ‘744 patent do not use the term “object” apart from the term “arbitrary”; and whether Vertical inadvertently made an admission to that effect is immaterial. The term “object” is central to object oriented programming and it is beyond question that an object can either be composed of one of content, form and functionality, a combination of any two of context, form and functionality, or a combination of all three elements. The invention of the ‘744 patent allows the separation and isolation of an element such as content. For the definition of objects not to have the option of including only one element, as Microsoft suggests, is untenable. And, it does not logically follow 6 that an object cannot contain a combination of those elements. If an object could not contain such a combination of elements, then Microsoft’s definition fails completely because it only envisions a complete combination of elements: “a combination of application logic and data” which is everything. Thus, it is Microsoft’s definition that defies the teachings of the ‘744 patent, and not Vertical’s as Microsoft argues on page 16 of its brief. The construction of the term “objects” is necessary in this case to, at the very least, define the field of the invention. Microsoft has already shown a willingness to blur the lines between the invention and procedural programming such as WebOS. Objects are the central focus of this invention and their definition is necessary. B. The Definition of “Arbitrary Objects” Can Only Be What Vertical Has Proposed Vertical has offered undeniable reasons for the adoption of its definition for “arbitrary objects” including the discussion in its opening brief and in Section III above. On pages 8-10 of its opening brief, Vertical shows that the specification includes countless of permissive statements about “arbitrary objects.” Such statements cannot function as definitions; and if they could, Microsoft would have to at least include all of them in its definition. Vertical also shows that the only statements where the ‘744 patent uses words of exclusion or restriction (and thus defining words) with respect to arbitrary objects are the statements in column 5, lines 42-46 and in column 5, line 62 to column 6, line 5 (Exhibit A). That is where the ‘744 patent draws a clear and unequivocal distinction between its invention and “previous object oriented development systems.” “Arbitrary objects” are simply objects (or pieces of program) that can be created independently by individual preference and can be accessed by name. 7 Microsoft mischaracterizes Vertical’s definition of “arbitrary objects” on page 4 of its brief by leaving out an important section of the definition. It alleges that Vertical has advanced a definition for “arbitrary objects” that only includes the part “can be retrieved by name only.” That is only part of Vertical’s definition. Microsoft disregards the “that can be created by individual preference” part. This is the part that makes an object arbitrary; and it is the part that Microsoft improperly places in its “arbitrary name” definition where it includes the phrase “desired by the developer.” On page 11 of the brief, Microsoft lists three (3) instances where the specification associates “arbitrary objects” with the concept of interchangeability – the main concept of Microsoft’s definition. It fails, however, to note that the specification expresses all three of those citations in permissive terms: “can be” interchangeable. It also fails to note that the specification includes a much larger number of permissive statements that associate “arbitrary objects” to other concepts and characteristics. Yet, Microsoft completely disregards those other characteristics and leaves no doubt that its strategy is to argue that either its accused products do not have the interchangeability feature (non-infringement) or that prior art objects do have it (invalidity). This approach is improper and yields the wrong definition. It depends on who the defendant may be and what they need to do to avoid liability. It cannot yield consistent and correct definitions. Remarkably, on page 11 of its brief, Microsoft goes on to argue that “interchangeability” is important because dependent claims 22 and 44 “require that an object of one type actually be ‘swapped’ with an object of another type.” But, the fact that these dependent claims include the “swapping” or “interchanging” feature is precisely why the arbitrary object terms or the independent claims 1 and 26 from which claims 22 and 44 8 depend cannot include this feature. The doctrine of claim differentiation presumes that each claim in a patent has a different scope. Sunrace Roots Enter. Co. v. SRAM Corp., 336 F.3d 1298, 1302-1303 (Fed. Cir. 2003). That presumption “is especially strong when the limitation in dispute is the only meaningful difference between an independent claim and dependent claim, and one party is urging that the limitation in the dependent claim should be read into the independent claim.” Id. at 1303. That is precisely the case here. Microsoft is urging the Court to read the swapping or interchangeability feature, the only feature in claims 22 and 44, into independent claims 1 and 26, respectively. However, if the Court were to do so, it would wrongly render claims 22 and 44 superfluous. Federal Circuit precedent simply does not allow such an outcome. Thus, the doctrine of claim differentiation trumps Microsoft’s definition for “arbitrary objects.” C. Microsoft’s Definition For “Arbitrary Name” Is Misplaced Microsoft attempts to cloud the primary issues in this claim construction, blurring the differences between prior art objects and arbitrary objects and moving the features of “arbitrary objects” into “arbitrary names” with the hopes of avoiding infringement or proving invalidity of the claims of the ‘744 patent. The ‘744 patent makes a clear distinction between prior art objects and the central feature of its invention – “arbitrary objects.” All objects have names; and the developers of those objects assign the names arbitrarily, by individual preference, just as the parents of a child arbitrarily name the child. In the present invention, what is arbitrary is the new kind of object invented (an arbitrary object). To differentiate between the names of the classic or prior art objects, the ‘744 patent uses the term “arbitrary names” instead of the longer “names of arbitrary objects.” Names do not do anything; and they do not have features. The things labeled by those names do things and have features. 9 Microsoft’s proposed definition of “arbitrary name” is not really a definition for that term but an acknowledgement that Vertical’s definition of “arbitrary object” is correct. The limitations that Microsoft assigns to the term “arbitrary name” do not relate to “arbitrary name” but to “arbitrary objects.” As stated above, a name is a name, a label. Names cannot do anything; the thing being labeled does something. Thus, names do not access objects as Microsoft asserts. As the specification (column 5, lines 41-45, lines 53-54 and lines 61-64, and column 6, lines 14-15) and Vertical’s opening brief (see pages 10-11) firmly establish an “arbitrary name is an identifier assigned to an arbitrary object.” The name is for an arbitrary object. Thus, Vertical does not “read out” the term “arbitrary” from “arbitrary name” as Microsoft alleges. D. The Definition By Example Method Used By Microsoft In Defining “content,” “form,” and “functionality” Is Wrong Microsoft complains that the Court should not have to construe terms such as “form,” “content,” and “functionality.” But those terms appear in the body of the claims. And, Microsoft would rather avoid their construction while at the same time forcing Vertical and the Court into construing a term (“separates a content … a form … and a functionality”) that contains those words and that appears in the preamble which usually does not require construction. DeGeorge v. Bernier, 768 F.2d 1318, 1322, n. 3 (Fed. Cir. 1985). But, forced to construe them, Microsoft offers constructions that clearly show its improper results-driven methodology. On page 21 of its brief, Microsoft criticizes Vertical’s definitions of “content,” “form” and “functionality” as terse. But, even if Vertical is guilty of being terse, it simply does not logically follow that by being terse Vertical is rewriting its patent claims to suit its needs, as Microsoft alleges on page 21 of its brief. In any event, complexity is not an endorsed goal 10 in any litigation, especially patent litigation, and Microsoft’s definitions are indeed complex. With respect to the term “content,” Vertical has shown in its opening brief (at pages 11-13) that the specification clearly associates “content” and “data.” (Col. 6, lines 32-39, Exhibit A). Vertical has shown that the Examiner of the application for the ‘744 patent clearly associated “content” with “data” (see page 12 of Vertical’s opening brief and Exhibit C). It seems that Microsoft is the only one that disagrees. It wants to define by example: Microsoft’s proposed construction is consistent with the teachings of the specification, and attempts to provide clarification and assistance to the jury by defining this term by example,8 just as is done in the specification … (Microsoft Brief at page 22). Footnote 8 of Microsoft’s brief, states that: In providing such examples of content, Microsoft’s construction does not limit ‘content’ to the listed examples, as Vertical contends, which should be apparent from the use of the permissive ‘can include.’ Microsoft’s arguments fail at all levels. Microsoft’s definition does indeed limit the scope of content to the listed example. Its definition does not use the permissive “can include”; and it does not include an instruction to the jury to consider other examples. Its “example” is simply not a definition. Where (as here) a claim term such as “content” is susceptible to a number of possible definitions, the term may be construed to encompass all the alternatives and should be so construed absent some indication that only one meaning was intended: [A] word that has an ordinary meaning encompassing two relevant alternatives may be construed to encompass both alternatives. Rexnord, 274 F.3d at 1343, 60 USPQ2d at 1855 (holding that the claim term "portion" may be interpreted to encompass both "separate" or "integral"). However, before finally concluding that the term encompasses both meanings, we must determine whether the specification or prosecution history clearly demonstrates that only one of the multiple meanings was intended. Inverness Medical Switzerland GmbH v. Warner Lambert Co., 309 F.3d 1373, 1379, 64 11 U.S.P.Q.2d 1933, 1937 (Fed. Cir. 2002); see also, Johnson Worldwide Associates v. Zebco Corp., 175 F.3d 985, 991 (Fed. Cir. 1999) (“Varied use of a disputed term in the written description demonstrates the breadth of the term rather than providing a limited definition.”); Anchor Wall Systems v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1308. The Court of Appeals for the Federal Circuit in Inverness went on to hold that because the specification gave examples consistent with both meanings of the disputed claim term “on” as both “in contact with that which supports from beneath” and “indicat[ing] presence within,” the term “on” had to be interpreted to encompass both definitions. 309 F.3d at 1379, 64 U.S.P.Q.2d at 1937 & n.4. With respect to “form” and “functionality,” Microsoft uses the same definition by example approach. As with content, Microsoft’s definitions of form and functionality do indeed limit the scope of those terms to the listed examples. Its definitions also do not use the permissive “can include”; and they too do not include an instruction to the jury to consider other examples. The Microsoft proposals are simply not definitions and they do not offer any assistance to the jury. They are a recipe for jury confusion. On page 25 of its brief, Microsoft argues that Vertical’s definition of “functionality” as software code “would not allow separation of ‘content’ and ‘form’ from ‘functionality.’” Even if that were true (and it is not) then Microsoft’s definition would suffer the same handicap because it too uses “software code” to define functionality. E. Should The Court Construe “Arbitrary Object Framework,” Vertical’s Definition Is The Only One compelled By The Intrinsic Record The claims of the ‘744 patent define a method with three (3) steps. None of those steps have the recitation of an “arbitrary object framework”; and none of those steps uses it as an antecedent. Thus, Microsoft has not rebutted the presentation made by Vertical 12 that the term “arbitrary object framework” does not limit the claims of the ‘744 patent, and thus, that the Court need not construe it. (See pages 15-16 of Vertical’s opening brief). A claim preamble is limiting if it recites essential steps or if it is necessary to give life, meaning and vitality to the claim. Intirtool, Ltd. v. Texas Corp., 369 F.3d 1289, 1295-96 (Fed. Cir. 2004). The term “arbitrary object framework” is not limiting. Also, the arguments that Microsoft makes on pages 18 and 19 of its brief, rather than prove the indefiniteness of the term “arbitrary object framework,” actually prove that the ‘744 patent clearly defines it. Microsoft admits that a patent can define a claim term in functional language; and it provides specific “functional attributes” for the framework element on page 18 of its brief. When one adds the discussion in the ‘744 patent cited on page 17 of Vertical’s brief (column 3, lines 14-23 and lines 32-34, Exhibit A) to the citations made by Microsoft in their brief, there cannot remain any doubt that the ‘744 patent clearly defines the term “arbitrary object framework.” In fact, the claims themselves define this term: “in an arbitrary object framework that separates a content of said computer application, a form of said computer application, and a functionality of said computer application….” The phrase beginning with “that” is a modifier of the subject term. The specification supports and repeats that definition (column 3, lines 14-23 and 32-34, Exhibit A). As shown on page 17 of Vertical’s brief, an “arbitrary object framework” is indeed a hierarchical system for arbitrary objects. The ‘744 patent describes what it is and what it does. And, it describes it to one of ordinary skill in the art. Thus, the term “arbitrary object framework” is not indefinite. Even if the Court were to parse out “arbitrary object,” which the parties do not have any problem defining, and “framework” which is indeed a term of art that means a 13 hierarchical system, one can easily and clearly define this term. In addition, Microsoft’s invalidity arguments are premature. Microsoft cannot evade a full-blown validity analysis (with all the procedural safeguards of Rule 56 of the Federal Rules of Civil Procedure) by raising the specter of invalidity during the claim construction phase. Rhine v. Casio, Inc., 183 F.3d 1342, 1346 (Fed. Cir. 1999). Microsoft’s reliance on Halliburton is misplaced. "Claims are not indefinite merely because they present a difficult task of claim construction." Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008). "[o]nly claims not amenable to construction or insoluably ambiguous are indefinite." Id. at 1250. Proof of indefiniteness requires "an exacting standard" that is met where the challenger "shows by clear and convincing evidence that a skilled artisan could not discern the boundaries of the claim based on the claim language, the specification, and the prosecution history, as well as her knowledge of the relevant art area." Halliburton, 514 F.3d at 1249-50. Microsoft has not even attempted to meet this burden and standard. A patent claim is sufficiently definite if "one skilled in the art would understand the bounds of the claim when read in light of the specification." Exxon Research & Eng'g Co. v. United States, 265 F.3d 1371, 1375 (Fed. Cir. 2001). "If the meaning of the claim is discernible, even though the task may be formidable and the conclusion may be one over which reasonable persons will disagree, . . . the claim [is] sufficiently clear to avoid invalidity on indefiniteness grounds." Exxon Research & Eng'g Co., 265 F.3d at 1375. See also, Fernandez Innovative Techs. v. GMC, 2008 U.S. Dist. LEXIS 41537, 26-27 (N.D. Ill. May 23, 2008) (adopting plaintiff’s proposed construction, concluding that defendants failed to meet the "exacting" standard of indefiniteness and holding that the term 14 “configuration” was sufficiently definite); and Therasense, Inc. v. Becton, Dickinson & Co., 2008 U.S. Dist. LEXIS 27444, 115-116 (N.D. Cal. Apr. 3, 2008) (Holding that because the inventors provided "a general guideline and examples sufficient to enable a person of ordinary skill in the art to determine" whether the “measurement zone” limitation is satisfied by an accused device, the '745 claim terms are not indefinite.) Microsoft does not have any problem proposing a definition for “arbitrary object framework,” despite its protestations that the term is indefinite. But as with its argument of indefiniteness, Microsoft is wrong with its proposed definition. It improperly picks a feature that suits its purpose and leaves out features that apparently do not (see pages 17-18 of Vertical’s opening brief). Once again, Microsoft is engaging in a results-oriented analysis that has more relevance to its specific defenses than what the ‘744 patent teaches the public. It is flawed and unsustainable. F. The Term “That Separates A Content … A Content … A form … And A Functionality” Is Also A Preamble Term That Does Not Need Definition If any of the disputed terms do not need construction it is the phrase: “that separates a content of said computer application, a form of said computer application, and a functionality of said computer application,” which appears in the preamble of the independent claims 1 and 26. That term praises the advantages of the invention; and it is clearly a modifier of “arbitrary object framework” another preamble term that, as shown above, does not need definition. Preamble language merely extolling benefits or features of the claimed invention does not limit the scope without clear reliance on those benefits or features as patentably significant. Catalina Marketing International v. Coolsavings.com, 289 F.3d 801, 808-809 (Fed. Cir. 2002). Microsoft argues that the “separates” phrase serves as an antecedent for the terms 15 “content,” “form” and “functionality” which appear in the body of independent claims 1 and 26. Even if the simple terms “content,” “form” and “functionality” in the preamble were to serve as antecedents for those same words in the body of the claims, the concept of separation does not serve as an antecedent to any term in the body of the claim. Microsoft argues on page 21 of its brief that the Court need not construe the terms “content,” “form” and “functionality,” yet it wants the Court to construe a preamble term that contains them. The patentee of the ‘744 patent did indeed use the “separates” phrase to praise and describe the advantages of his invention. Much like a designer of a new automobile engine that achieves 200 miles per gallon would use that achievement to tout the new engine, the patentee here used the separation that the claimed method achieves to tout the benefits of that invention to the Patent Office. However, that fact alone does not compel the conclusion that it is a limitation of the invention. Just as someone could describe a car engine without reciting its performance or benefits, the body of the claims of the ‘744 patent describe a complete method such that deletion of the preamble phrase does not affect the steps or the claimed invention. (See, Intirtool, Ltd. v. Texas Corp., 369 F.3d 1289, 1295-96 (Fed. Cir. 2004)). Even though Vertical believes that the subject phrase does not function as a limitation, Vertical has proposed a construction that is not only consistent with the specification but with the rest of the claim language. The specification, in column 2, lines 9-14 and lines 19-25 (Exhibit A), states that the claimed method separates content, form and functionality. That method deals with creating, managing and deploying arbitrary objects. Thus, arbitrary objects are central to the separation concept. 16 Microsoft’s definition, on the other hand, focuses on the content, form and functionality entities themselves. It does not deal with the method or the arbitrary object framework that the “separates” term modifies. It does what Microsoft argues that it need not do – define “content,” “form” and “functionality.” As a further alternative, the Court may disregard both Vertical’s and Microsoft’s proposals and simply define the “separates” phrase by its ordinary meaning. Since the parties have already defined “content,” “form” and “functionality,” the Court may define just the word “separates” by assigning to it its ordinary dictionary meaning of “sets apart.” Under the law, the Court need not construe every word in claims 1 and 26, only words whose meaning has been questioned by the parties. Even then, it is not always necessary to go beyond the precise words of the claim nor to offer any definition beyond those exact words. See, e.g., Johnson Worldwide Associates, Inc. v. Zebco Corp., 175 F.3d 985, 992 (Fed. Cir. 1999) (construing term “heading” by rejecting efforts to narrow its scope, but otherwise asserting no “positive” meaning); Specialty Composites v. Cabot Corp., 845 F.2d 981, 988 (Fed. Cir. 1988) (construing term “plasticizer” by rejecting efforts to narrow its scope, but otherwise asserting no positive meaning). Indeed, in United States Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1566 (Fed. Cir. 1997), the district court properly did not repeat the claim language or any construction of that language in the jury instructions at all. G. The Patentee Of The ‘744 Patent Did Not Make The Prosecution History Disavowal That Microsoft Claims It Did As stated above, the patentee of the ‘744 patent did trumpet the benefits of the invention defined by its claims. He consistently stated that the invention can separate content, form, and functionality. He at no time stated that “no class includes two or more 17 of a content, a form, and a functional method” when referring to his invention. His statements are not the same or even similar to the statement that Microsoft has advanced in its “disavowal” argument. In fact, if anything needs construing it is this alleged disavowal statement. It includes words such as “class” (which the disclosure of the ‘744 patent does not use) and deals with combinations while the actual expression used by the patentee of the ‘744 patent to describe the advantages of the invention focuses on separation. The statement from which Microsoft derives its alleged disavowal is a description of a prior art patent, not a description of the invention of the ‘744 patent. The patentee, if anything, disavowed only methods that cannot separate content, form and functionality. V. CONCLUSION Vertical thus urges the Court to accept its claim construction since that most closely agrees with the specification and the prosecution history, and is in harmony with what the invention represents. In particular, Vertical urges the Court to define “arbitrary object” as “an object that can be created independently by individual preference and that can be accessed solely by name.” Prior art systems needed to know everything about an object to use it; the present invention solved that problem. By the same token, “arbitrary name” is simply “an identifier assigned to an arbitrary object” not something more elaborate or contrived. In view of the foregoing and in view of the discussion in its opening brief, Vertical respectfully requests that the Court adopt Vertical’s proposed constructions of the disputed terms and phrases and eliminate the preamble terms from consideration. Should the Court decide that the preamble terms are claim limitations, then Vertical respectfully requests that the Court adopt its definitions for these terms as well. 18 VERTICAL COMPUTER SYSTEMS, INC. Eric M. Albritton Texas State Bar No. 00790215 ALBRITTON LAW FIRM P.O. Box 2649 Longview, Texas 75606 Tel.: (903) 757-8449 Fax: (903) 758-7397 ema@emafirm.com Thomas John Ward, Jr. Texas Bar No. 00794818 Ward & Smith Law Firm P O Box 1231 Longview, TX 75606-1231 Telephone: (903) 757-6400 Facsimile: (903) 757-2323 Raymond P. Niro Vasilios D. Dossas Sally Wiggins NIRO, SCAVONE, HALLER & NIRO 181 West Madison Street, Suite 4600 Chicago, Illinois 60602 (312) 236-0733 Fax: (312) 236-3137 Attorneys for Plaintiff CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by email and/or fax, on this the 20th day of June, 2008. ____________________________________ Eric M. Albritton |
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