Lupercal LLC v. CitiBank, N.A.

Western District of Texas, txwd-6:2019-cv-00201

BRIEF regarding [35] Brief, by Lupercal LLC.

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0 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION LUPERCAL LLC, Plaintiff Case No. 6:19-cv-00201-ADA v. JURY TRIAL DEMANDED LEAD CASE CITIBANK, N.A., Defendant LUPERCAL LLC, Case No. 6:19-cv-00202-ADA Plaintiff JURY TRIAL DEMANDED v. PLAINS CAPITAL BANK, Defendant PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF 0 TABLE OF CONTENTS I. INTRODUCTION ....................................................................................................... 1 II. DISPUTED TERMS ................................................................................................... 3 A. Term 1: "image submission tool" (Claims 30-32, 38, 43-44, 50) ....................... 3 B. Term 2: "pre-process" (Claims 30, 42)............................................................... 5 C. Term 3: "pre-processing parameters" (Claims 30, 42)...................................... 8 D. Term 4: "the pre-processing by the image submission tool controlled by one or more pre-processing parameters received from a device separate from the user device in a conversion of the one or more images or the one or more replacement images as specified for use by a receiving party" (Claims 30, 42) .............................. 11 E. Term 5: "enabling a user to determine whether the one or more images should be replaced with one or more replacement images" (Claim 30), "enabling a user to determine whether the first image should be replaced with a first replacement image" (Claim 42) ........................................................................................................ 13 III. CONCLUSION ......................................................................................................... 16 PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |i 0 TABLE OF AUTHORITIES Advanced Cardiovascular Sys. v. Medtronic, Inc., 265 F.3d 1294, 1304 (Fed. Cir. 2001)....................................................................... 2 Datamize LLC v. Plumtree Software, Inc., 417 F.3d 1342 (Fed. Cir. 2005) ........................................................................ 15, 16 Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014) ........................................................................ 15, 16 Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004) .......................................................................... 1 Nautilus Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014) ........................................................................................ 13 Phillips v. AWH Corp., 415 F.3d 1303, 1320 (Fed. Cir. 2005)....................................................................... 2 Summit 6 LLC v. Research in Motion Corp., 2012 U.S. Dist. LEXIS 186414 (N.D. Tex., May 21, 2012) ................................. 4, 9 Summit 6 LLC v. HTC Corp., 2015 U.S. Dist. LEXIS 179647 (N.D. Tex., Mar. 21, 2015) ................................. 4, 9 Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283 (Fed. Cir. 2015) .............................................................................. 11 Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1306 (Fed. Cir. 2007)....................................................................... 2 PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |ii 0 EXHIBITS1 Exh No. Description PX-557 U.S. Patent No. 6,895,557 PX-482 U.S. Patent No. 7,765,482 PX-515 U.S. Patent No. 8,612,515 PX-094 U.S. Patent No. 9,386,094 A Summit 6 LLC v. Research in Motion Corp., 2012 U.S. Dist. LEXIS 186414 (N.D. Tex., May 21, 2012) B Summit 6 LLC v. HTC Corp., 2015 U.S. Dist. LEXIS 179647 (N.D. Tex., Mar. 21, 2015) C Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283 (Fed. Cir. 2015) 1 These exhibits were provided with Lupercal's Opening Brief (Dkt. Nos. 34-1 – 34-7). PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |iii 0 I. INTRODUCTION Lupercal respectfully submits this Responsive Claim Construction Brief to the Opening Brief submitted by PlainsCapital regarding the '094 Patent. As anticipated, PlainsCapital took the common Defendant approach to claim construction, asserting that the '094 Patent covers nothing more than the preferred embodiment. PlainsCapital urges the Court to commit the "cardinal sin" of adopting constructions laden with narrow limitations that are unsupported by the intrinsic record. Its proposals are contrary to Federal Circuit law which states that "[e]ven when the specification describes only a single embodiment, the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using 'words or expressions of manifest exclusion or restriction.'" Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 904 (Fed. Cir. 2004) (emphasis added). PlainsCapital has not pointed to any "words or expressions of manifest exclusion or restriction" from the specification or prosecution history. That is because both the '094 Patent and prosecution history repeatedly couch the preferred embodiments as just that—preferred, but non-limiting, embodiments. In actuality, the patentees demonstrated a clear intention to avoid limiting the claims' scope using words of manifest inclusion: It will be apparent to those of ordinary skill in the art that the present invention can be embodied in other specific forms without departing from the spirit or essential character thereof. The presently disclosed embodiments are therefore considered in all respects to be illustrative and not restrictive. The scope of the invention is indicated by the appended claims PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |1 0 rather than the foregoing description, and all changes which come within the meaning and range of equivalents thereof are intended to be embraced therein. PX-094 at 6:50-8. There are no similarly clear (but opposite) statements indicating that the inventors meant the otherwise broad—and purposefully varied—language of their claims to always and only cover a "web-based" embodiment. The prosecution history also fails to make clear and unambiguous disavowals of claim scope. Verizon Servs. Corp. v. Vonage Holdings Corp., 503 F.3d 1295, 1306 (Fed. Cir. 2007) ("To operate as a disclaimer, the statement in the prosecution history must be clear and unambiguous, and constitute a clear disavowal of scope"). Specifically, none of the examples used by PlainsCapital highlights any sort of express exclusionary or restrictive language that would support the its attempt to limit the '094 Patent to only one possible web implementation. Because the required clear disavowals are not present in the prosecution history, PlainsCapital's constructions are inappropriate. Perhaps more fundamentally, the Defendant's strategy has the effect of putting the claim construction cart before the horse. Claim construction begins with the words of the claims themselves, not with the details of the preferred embodiment, as it is those claims that define the patentees' right to exclude. See Advanced Cardiovascular Sys. v. Medtronic, Inc., 265 F.3d 1294, 1304 (Fed. Cir. 2001); Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) ("It is a 'bedrock principle' of patent law that 'the claims of a patent define the invention to which the patentee is entitled the right to exclude.'"). PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |2 0 Lupercal's proposed constructions are faithful to the cannons of claim construction, the prior opinion by the Federal Circuit, and the prior claim construction orders by Judge O'Connor. Accordingly, the Court should adopt Lupercal's straight forward proposed constructions. II. DISPUTED TERMS A. Term 1: "image submission tool" (Claims 30-32, 38, 43-44, 50) Lupercal's Proposed Construction Plains Capital's Proposed Construction No construction necessary (plain and "web-based program capable of being ordinary meaning) integrated into a webpage and configured to perform a variable amount of intelligent preprocessing on media objects such as images prior to upload" This term needs no construction and is easily understood by reading the claims. As recited, the "image submission tool" is the software code, which is stored on a user's device, that performs the recited operations, including "pre-processing." Defendant's attempt to restrict the scope of the claims to a "web-based program" should be rejected for the same reasons Judge O'Connor rejected the same attempt in the two previous Summit 6 cases. In those cases, Judge O'Connor determined there was no disclaiming language such that the claims would be limited to web-based applications. Specifically, Judge O'Connor stated: Without such disclaiming language, Defendants' argument reduces to an improper attempt to limit the scope of the claims to the preferred embodiment. Likewise, in the previous Summit 6 action, the Court found that the invention's description "as a 'web-based' media submission tool' is not a PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |3 0 'clear and unmistakable disclaimer' of pre-processing that occurs outside of a browser. Id. (citing Exh. B, at *30).2 [T]he Court notes that: (1) the portions of the specification that discuss pre-processing within a browser relate to the preferred web site embodiment, and may not be grafted upon the claims as a whole; and (2) the applicants distinguished the Fredlund prior art on the basis of client-side processing, not processing within a browser. Furthermore, the Court finds that the applicants' description of the current invention as a "web-based media submission tool" is not a "clear and unmistakable disclaimer" of pre-processing that occurs outside of a browser. Exh. A, at *21. For the same reasons the prior attempts to limit the claims to a preferred "web" embodiment were rejected, the Court should likewise reject Defendant's attempt to do so here. Additionally, Defendant's attempt to restrict the claims to a "web-based program" should be rejected based on claim differentiation. In the original issued claims of the '557 Patent, the claims covered use of the invention in the context of a web page. However, subsequent patents, including the '094 Patent are not so limited. In fact, the claims of the '094 were deliberately drafted to not be limited to "web pages." Hence the use of "image submission tool" to broaden the scope of the application of the image processing invention. Finally, Defendant's attempt to add additional restrictions to "image submission tool," beyond what is explicitly recited in the claim, should be rejected. Specifically, Defendant wants to add the limitation that the "image submission tool" must be 2 In the opening brief, this quotation was incorrectly cited to the below quotation. PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |4 0 "configured to perform a variable amount of intelligent preprocessing on media objects such as images prior to upload." However, the claim itself recites and defines the particular "pre-processing" that must occur. While the specification may provide exemplary embodiments with various features, capabilities, and possibly restrictions, the claims do not include each and every one of these. If claims were so limited, there would never be multiple independent claims, much less dependent claims that add additional features and limitations. Moreover, Defendant does not disclose what is meant by "intelligent" pre- processing that is not already captured in the construction of "pre-processing." To the extent "pre-processing" should be limited to "intelligent" pre-processing, the place to make such a determination is with the construction of pre-processing–not with the construction of "image submission tool." Finally, with respect to "a variable amount" of pre-processing, the claims recite the amount of pre-processing that is required. The claims do not recite, nor do they require, the amount of pre-processing to be variable. Again, while a disclosed embodiment may include a variable amount of processing, the claims are not so limited. B. Term 2: "pre-process" (Claims 30, 42) Lupercal's Proposed Construction Plains Capital's Proposed Construction "modifying the one or more images, as "modifying the one or more image files, as opposed to data merely associated with opposed to data merely associated with the one or more images, at the user device the image files, at the user device prior to prior to transmission to a remote device" transmission to a remote device" PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |5 0 The difference between the parties' construction is the meaning of "file," which the Defendant appends to "image" and which is not recited in the claims. Defendant's overly narrow view of "image," would appear to mean that "image" is limited to only those images that are stored as an individual file in mass storage and which have a specific filename, such as "C:\images\image1.jpg." The claims are not so limited. The proper reading of the claims, the specification, and intrinsic record demonstrates that the recited image is a formatted image (e.g. a JPG image) as opposed to the raw digital data captured by an image sensor. Such a formatted image could be stored in a variety of ways on the user device, for example in a media data object, an array, in a database stored in RAM. Of course, as indicated in dependent claim 37, the image could be stored in a file. When the image is stored in an array or a media data object, the image would not have a filename. The specification supports this view. For example, in the following excerpt, the specification describes placing images in a media object identifier and then submitting images to a remote device–not "image files." The Prepare and Post tools also support a batch interface, allowing a plurality of images to be Submitted simultaneously as in the case of a professional photographer, for example. The opportunity for user confirmation is again provided, e.g., by displaying a visual representation of the images in the batch. If a mistake is made Such that the wrong image is placed in a media object identifier, the correct image may be placed in the media object identifier. The correct image will replace the mistaken image. Alternatively, the user may remove an image from a media object identifier by right- clicking on the media object identifier and selecting Remove within a resulting pop up menu. PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |6 0 PX-094 at 4:1-13. As described, the media object identifier operates as a image data storage structure (e.g. an image database or an array) for storing the batch of images prior to submission. While the images are not stored as a file with a filename when stored in the media object identifier, the images are still images. The distinction between a formatted image and a stored image file is demonstrated by dependent claims 31 and 43, which depend from claims 30 and 42 respectively. Claim 31 recites: 31. The non-transitory computer-readable medium of claim 30, wherein the image identifier section when executed causes the image Submission tool to generate the visual representation from an image file. Claim 43 recites: 43. The method of claim 42, wherein the image submission tool generates the visual representation from an image file. Thus, according to claims 31 and 43, the generated visual representation of the image is performed by using an image file. This is narrower than the scope of generating the visual representation from an image, as recited in claims 30 and 42. Thus, based on claim differentiation, with respect to claims 30 and 42, the image does not need to be stored as an individual image file and could instead be stored in a database, a media data object, or some other non-file type of data storage. Defendant cites to the prosecution history and prior PTAB proceedings in an attempt to improperly conflate the recited image with a stored image file. The prosecution history and PTAB proceedings do not support such a position. Instead, the cited portions demonstrate that the raw digital data captured by an image sensor, such as a CCD sensor (a charged coupled device) in a digital camera, is not an image until it has been formatted PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |7 0 as an image (e.g. a JPG). Thus, where and how an image is stored has no import to whether a formatted image is an image. These portions of the prosecution further demonstrate that the procedure for capturing and formatting the raw CCD data into an image is not the claimed pre-processing of the image. It does not mean, however, that a JPG formatted image is not an image until and unless it is stored as a system file. Because the claims, specification, and the intrinsic record support Lupercal's position that the recited image is not limited to a stored image file, the Court should reject Defendant's proposed construction. C. Term 3: "pre-processing parameters" (Claims 30, 42) Lupercal's Proposed Construction Plains Capital's Proposed Construction "values directing the pre-processing" "configurable values directing the preprocessing, as opposed to merely default values" The claim language is clear, the pre-processing parameters are received from a separate device and they direct (control) the pre-processing performed by the image submission tool. PX-094, Claim 30 ("…the pre-processing by the image submission tool controlled by one or more pre-processing parameters received from a device separate from the user device…"). Lupercal proposes this term to be construed as Judge O'Connor construed it to mean "values directing the pre-processing" which is how it was previously construed. [T]he term[] "pre-processing parameters" and "parameter used to control the pre-processing" should be given the full breadth of their ordinary meaning as understood by a person of ordinary skill in the art at the time of the invention. As PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |8 0 such, the Court finds that the "pre-processing parameters" and "parameters used to control the pre-processing" mean "values directing the pre-processing." Exh. A. at 37-38; Exh. B, at *26, fn. 8. PlainsCapital wants to add the word "configurable" to the prior construction to apparently show that the parameters are provided by a separate device as opposed to the distinguished prior art systems, which had no no pre-processing or did not use pre- processing parameters received from a separate device to control the pre-processing of images. Def. Opening Br. at 19-22. However, the claim language itself already demonstrates that the pre-processing parameters are received from a separate device and the image submission tool performs pre-processing of the image using parameters received from another device before submission of the image. Thus, the addition of "configurable" is unnecessary. If PlainsCapital intends configurable to mean something else, it is unclear what else it may mean. PlainsCapital also wants to append "as opposed to merely default values" to the prior construction of "pre-processing parameters." For support, PlainsCapital states: The addition of the phrase "as opposed to merely default values" is consistent with how the Summit 6 court construed the term "pre-processing" to help "clarify that the material subject to pre-processing does not include data merely associated with the media object or digital content." Def. Opening Br. at 22 (citing Exh. A, at *15-16). This citation, however, does not support PlainsCapital's attempt to restrict the "pre-processing parameters" to a value "as opposed to merely default [parameter] values." Instead, the passage supports the notion that it is the image data as opposed to data PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |9 0 associated with the image data that is being pre-processed. The relevant passaged from the prior order is: The Mobile Phone Defendants argue that preprocessing should be understood as modifying "the digital content," since the prosecution history twice refers to "pre-processing of the media object." Plaintiff agrees with the Mobile Phone Defendants that the data being modified during preprocessing "would be actual digital content data and not data separate from the digital content." Nevertheless, Plaintiff argues that its proposed language, while similar to the Mobile Phone Defendants' proposal, is more precise. With regard to what material is pre-processed, the parties' only dispute is how best to express their consensus that the actual media object or digital content, as opposed to data merely associated with the media object or digital content, is subject to preprocessing. Id. at *13-14 (internal citations omitted). While the pre-processing parameters must be received from a device separate from the image submission tool and the pre-processing parameters control (i.e., direct) the pre- processing performed by the image submission tool, there is nothing preventing the pre- processing parameters from being be a "default" value provided by a remote device. Further, there is nothing requiring that the parameters must change over time or must be submitted more than once. Because Defendant's addition of "configurable" does not clarify any issue and appears to be confusingly redundant, it should be rejected. Additionally, Defendant's addition of "as opposed to merely default values" should be rejected because there is absolutely no support that the pre-processing parameters supplied by the separate device cannot be "default" values. Indeed, depending on the remote device and its application, it is quite likely the pre-processing parameters (e.g. image width and image height) for PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |10 0 that particular application will be consistent and thus properly considered a default value. Accordingly, the Court should adopt Lupercal's proposed construction which is identical to the two-prior constructions by Judge O'Connor. D. Term 4: "the pre-processing by the image submission tool controlled by one or more pre-processing parameters received from a device separate from the user device in a conversion of the one or more images or the one or more replacement images as specified for use by a receiving party" (Claims 30, 42) Lupercal's Proposed Construction Plains Capital's Proposed Construction No construction necessary (plain and "pre-processing the one or more image ordinary meaning) files using the image submission tool to meet the pre-processing parameters specified by a receiving party, the pre- processing parameters being received by the image submission tool from a device other than the user device while the image submission tool performs a change of the one or more image files from one form to another" Upon construing the "pre-process" and "pre-processing parameters" terms, no further construction of this phrase is necessary because the remainder of this phrase is clear and understandable to a jury. PlainsCapital improperly adds a temporal and a reformatting limitation, which should be rejected. The temporal limitation: As anticipated, PlainsCapital improperly attempts to inject an unrecited temporal limitation into the claims. Def. Opening Br. at 25-28. Such an attempt to inject a temporal PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |11 0 limitation was explicitly rejected by the Federal Circuit. See Pl. Opening Br. at 14-15; Exh. C, at *12. In its opening brief, PlainsCapital failed to mention or acknowledge this prior ruling. As noted by the Federal Circuit, the pre-processing parameters are received from a device other than the image submission tool. Thus, "being received by the image submission tool from a device other than the user device" captures this requirement. This phrase does not mean that the parameters must be received from a separate device while the pre-processing operation is being performed. Based on the Federal Circuit's opinion and the plain language of the claim, the Court should reject PlainsCapital's attempt to improperly inject a temporal limitation into the claims. The "change from one form to another" limitation: Defendant cites Microsoft's Computer Dictionary in support for its proposed construction of "conversion," to mean "change of the one or more image files from one form to another." Def. Opening Br. at 28. First, Defendant's citation to a standard dictionary illustrates this term has a plain and ordinary meaning to a person of ordinary skill in the art, and thus needs no construction. Second, Defendant's inclusion of "file" and "from one form to another" appears to require the "file" format of the image must change during the pre-processing operation. As noted above, there is no requirement that the image be stored as a data file in the system's main memory in order satisfy as the claimed image. Additionally, the dependant claims demonstrate several pre-processing operations that satisfy the claimed conversion operation but which do not require changing an "image file" "from one form to another" (i.e. reformatting the file). See claim 33 (compressing the image); claim 34 (cropping the image); claim 35 (altering the image quality (e.g. resolution)); claim 37 (encoding the PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |12 0 image). While these operations change the image data itself, none require reformatting the image, whether the image is stored as an image file or stored as a data object, in an array, or in a database. Further, based on claim differentiation, the pre-processing "conversion" in claims 30 and 48 must be broader than the pre-processing in the dependent claims. For example, claims 36 and 48 recite that the image file format is changed to one specified by the pre- processing parameters. Thus, the pre-processing conversion of claims 30 and 42 must be broader than reformatting an image file from one form to another. Because the meaning of conversion has a plain and ordinary meaning, which is broader than only reformatting an image file from one format to another, the Court should reject Defendant's overly narrow construction. E. Term 5: "enabling a user to determine whether the one or more images should be replaced with one or more replacement images" (Claim 30), "enabling a user to determine whether the first image should be replaced with a first replacement image" (Claim 42) Lupercal's Proposed Construction Plains Capital's Proposed Construction No construction necessary (plain and Indefinite ordinary meaning) A claim is definite when viewed in light of the intrinsic evidence, if it "inform[s] those skilled in the art about the scope of the invention with reasonable certainty." Nautilus Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). The following claim phrases easily satisfy this standard: [G]enerate a visual representation of one or more images, the visual representation enabling a user to PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |13 0 determine whether the one or more images should be replaced with one or more replacement images. PX-094 at 12:21-24 (Claim 30) (emphasis added). [C]ausing the image submission tool to generate a visual representation of one or more images, the visual representation enabling a user to determine whether the one or more images should be replaced with one or more replacement images. Id. at 13:44-14:3 (Claim 42) (emphasis added). The claimed operation is simple and straightforward. The system generates a visual representation (i.e., a preview) of the selected image. When this preview is displayed, the user can visually see what image has been selected. By visually seeing the preview, the user is then able to determine whether a wrong image has been selected. If so, the user can replace the image. For example, if one wanted to send an image of their pet, but the preview showed the selected image was instead a plate of food, the user could visually see the wrong image was selected. The user could then replace the image. The specification provides explicit support for this functionality: The Prepare and Post tools also support a batch interface, allowing a plurality of images to be submitted simultaneously as in the case of a professional photographer, for example. The opportunity for user confirmation is again provided, e.g., by displaying a visual representation of the images in the batch. If a mistake is made such that the wrong image is placed in a media object identifier, the correct image may be placed in the media object identifier. The correct image will replace the mistaken image. Alternatively, the user may remove an image from a media object identifier by right-clicking on the media object identifier and selecting Remove within a resulting pop-up menu. PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |14 0 PX-094 at 4:4-13 (emphasis added). Accordingly, the system generates a visual preview of selected images so the user can visually see the image in order to determine whether a wrong image has been selected. Any reasonable person, including those skilled in the art, can readily understand the scope of the invention with reasonable certainty. Thus, viewed in light of the intrinsic evidence, the claims "inform those skilled in the art about the scope of the invention with reasonable certainty," and are therefore definite and valid. In its attempt to invalidate the claims, PlainsCapital asserts "[n]othing in the specification informs a POSITA how the generated visual representation enables a user to determine whether an image should be replaced with a replacement image." Def. Opening Br. at 29 (emphasis added). As noted above, it is because the system generates a preview of the image such that the user can visually see which image has been selected that enables the user to then determine whether the correct image has been selected. Without the visual preview, the user is not able to "see" the stored digital image in order to determine if the correct image has been selected. PlainsCapital's reliance on Interval Licensing and Datamize are misplaced. See Id. (citing Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014); Datamize LLC v. Plumtree Software, Inc., 417 F.3d 1342 (Fed. Cir. 2005). In Interval Licensing, the term at issue was "unobtrusive manner that does not distract a user." In Datamize, the term was "aesthetically pleasing." Id. Based on the intrinsic evidence, which must be considered when evaluating indefiniteness, these terms were not sufficiently clear. That is not the case here. The claims do not require a subjective evaluation of what would "distract a user" or be "aesthetically pleasing." The claims simply require the generation PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |15 0 of a visual preview to allow the user to visually see the selected image in order to determine if a wrong or mistaken image has been selected. Aside from being clear on its face, the scope of the claim is fully informed by the specific example provided in the specification, which was not afforded by the intrinsic evidence in Interval Licensing or in Datamize. See PX-094 at 4:4-13. III. CONCLUSION For these reasons, Lupercal respectfully requests the Court construe the disputed claim terms in accordance with Lupercal's proposed constructions. Dated: December 10, 2019 Respectfully submitted, Raymond W. Mort, III Texas State Bar No. 00791308 raymort@austinlaw.com THE MORT LAW FIRM, PLLC 100 Congress Ave, Suite 2000 Austin, Texas 78701 Tel/Fax: (512) 865-7950 ATTORNEYS FOR PLAINTIFF PLAINTIFF'S RESPONSIVE CLAIM CONSTRUCTION BRIEF PAGE |16