Neodron LTD v. Lenovo Group LTD, and Lenovo (United States) Inc.

Western District of Texas, txwd-6:2019-cv-00320

Exhibit A

Interested in this case?

Current View

Full Text

2 EXHIBIT A 2 UNITED STATES INTERNATIONAL TRADE COMMISSION Washington, D.C. In the Matter of CERTAIN TOUCH-CONTROLLED Inv. N0. 337-TA-1162 MOBILE DEVICES, COMPUTERS, AND COMPONENTS THEREOF ORDER NO; 15: CONSTRUING THE TERIVISOF THE ASSERTED CLAIMS OF THE PATENTS AT ISSUE " _(November 25, 2019) L 2 TABLE OF CONTENTS INTRODUCTION ............................................................................................................... .. 1 IN GENERAL ...................................................................................................................... ..2 RELEVANT LAW .............................................................................................................. ..2 LEVEL OF ORDINARY SKILL ........................................................................................ ..7 THE ASSERTED PATENTS .............................................................................................. ..8 -A., The '173 Patent ......................................................................................................... ..8 B. The '91OPatent ...................................................................................................... ..1l C. The '790 Patent ...................................................................................................... .. 13 D. The 'S80 Patent ...................................................................................................... .. 14 CLAIM CONSTRUCTION ............................................................................................... .. 18 A. Construction of the Agreed-Upon Claim Terms .................................................... .. 18 B. Construction of the Disputed Claim Terms ........................................................... .. 19 1. '173 Patent —"A sensing element that comprises a sensing path that comprises a length" .................................................................................... .. 19 _ 2. '173 Patent —"sensing path" .................................................................... .."..2O 3. '173 Patent —"the range of parameter values being associated with the length of the sensing path" ......................................................................... ..22 4. '173 Patent —"the sensing path comprises a closed loop" ......................... ..24 5. '9lO Patent —"the particular one of the sensing areas selected based on a predefined ranking scheme that prioritizes the two or more sensing areas based on the positions of the two or more sensing areas with the sensing ' region" ........................................................................................................ ..25 6. '79OPatent —"respective [first/second] [sensor/signal] values of [the/a] plurality [of] keys" ..................................................................................... ..27 7. '790 Patent —"[analyze/analyzing], to detennine a second active key, respective second signal values of the plurality of keys, the analysis, to detennine the second active key, of the respective second signal values of the plurality of keys being biased in favor of the first key".........................28 8. T580Patent - "signals" ............................................................................... ..30 2 '580 Patent - "measured values corresponding to the [second/fourth] set of signals" ....................................................................................................... ..32 'S80 Patent - "adjusting the second set of measured values corresponding to the second set of signals with the fourth set of measured values corresponding to the fourth set of signals" ................................................ ..34 ii Y 2 I. INTRODUCTION This Investigation was instituted by the Cormnission on June 24, 2019 to determine whether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation, or the sale within the United States after importation of touch-controlled mobile devices, including smartphone and tablet devices, computers, including notebook and laptop computers, and associated components thereof by reason of infringement of one or more of claims \ 1-19 of U.S. Patent No. 8,432,173 ("the '173 patent"); claims 1-37 of U.S. Patent No. 8,791,910 ("the '910 patent"); claims 1,4-8, 10-14, and 16-24 of U.S. Patent No. 9,024,790 ("the '790 patent"); and claims 1-12 of U.S. Patent No. 9,372,580 ("the '580 patent"). See 84.Fed. Reg. 29545 (June 24, 2019). The Complainant is Neodron Ltd. ("Neodron"). The Respondents are Amazon.com, Inc. ("Amazon"), Dell Technologies, Inc. ("Dell"), Lenovo Group Ltd. ("Lenovo"), Motorola Mobility LLC ("Motorola"), Microsoft Corporation ("Microsofi"), HP Inc. ("HP"), and Samsung Electronics, Co., Ltd. and Samsung Electronics America, Inc. ("Samsung") (together, "the Respondents"). Pursuant to Ground Rule 6, a Markman hearing was held October 22, 2019. Prior to the hearing, the Parties filed joint proposed claim construction charts setting forth a limited set of terms to be construed, and after the hearing, the Parties filed an updated joint claim construction chart. The Parties also filed initial and reply claim construction briefs, wherein each party offered its construction for the claim tenns in dispute, along with support for its proposed interpretation. 1 1For convenience, the briefs and amended chart submitted by the Parties are referred to hereafter as: CIMB Complainant's Initial Markman Brief I CRMB Complainant's Reply Markman Brief I RIMB Respondents' Initial Markman Brief RRMB Respondents' Reply Markman Brief JC Updated Joint Claim Construction Chart Hr'g Tr. Markman hearing transcript 1 2 II. IN GENERAL ' ­ The claim terms are construed for the purposes of this section 337 Investigation. Those terms not in dispute need not be construed. See Vanderlande Indus. Nederland BV v. Int 'l Trade Comm 'n, 366 F.3d 1311, 1323 (Fed. Cir. 2004) (noting that the administrative lawjudge need only construe disputed claim terms). . III. RELEVANT LAW "An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the properly construed claims to the device accused of infringing." Markman v. WestviewInstruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc) (internal citations omitted), afi"d, 517 U.S. 370 (1996). Claim construction is a "matter of law exclusively for the court." Id. at 970-71. "The construction of claims is simply a way of elaborating the normally terse claim language in order to understand and explain, but not to change, the scope of the claims." Embrex, Inc. v. Serv. Eng'g Corp., 216 F.3d 1343, 1347 (Fed. Cir. 2000). Claim construction focuses on the intrinsic evidence, which consists of the claims themselves, the specification, and the prosecution history. See Phillips v. AWH C0rp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc), cert. denied, 546 U.S. 1170 (2006); see also Markman, 52 F.3d at 979. As the Federal Circuit in Phillips explained, courts must analyze each of these components to determine the "ordinary and customary meaning of a claim tenn" as understood by a person of ordinary skill in art at the time of the invention. 415 F.3d at 1313. "Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language." Bell All. Network Servs., Inc. v. Covad C0mmc'ns Grp., Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001)(qu0ting Vitronic Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). r 2 2 "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.'" Phillips, 415 F.3d at 1312 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). "Quite apart from the written description and the prosecution history, the claims themselves provide substantial guidance as to the meaning of particular claims terms." Id. at 1314; see also Interactive Gift Express, Inc. v. Compuserve 1nc., 256 F.3d 1323, 1331 (Fed. Cir. 2001) ("In construing claims, the analytical focus must begin and remain centered on the language of the claims themselves, for it is that language that the patentee chose to use to 'particularly point [ ] out and distinctly claim [ ] the subject matter which the patentee regards as his invention."). The context in which a term is used in an asserted claim can be "highly instructive." Phillips, 415 F.3d at 1314. Additionally, other claims in the same patent, asserted or unasserted, may also provide guidance as to the meaning of a claim tenn. Id. "Courts do not rewrite claims; instead, we give effect to the terms chosen by the patentee." K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1364 (Fed. Cir. 1999). _ The specification "is alwayshighly relevant to the claim construction analysis. Usually it is dispositive; it is the single best guide to the meaning of a disputed term." Phillips, 415 F.3d. at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). "[T]he / specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess. Phillips, 415 F.3d at 1316. "In other cases, the specification may reveal an intentional disclaimer, or disavowal, of claim scope by the inventor." Id, As a general rule,' however, the particular examples or embodiments discussed in the specification are not to be read into the claims as limitations. Id. at 1323. In the end, "[t]he construction that stays true to the claim language and most naturallydaligns with the patent's description of the invention will be the correct construction." Id. at 1316 (quoting Renishaw PLC v. Marppss S0cieta'per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)). 3 ' r 2 \ In addition to the claims and the specification, the prosecution history should be examined, if in evidence. Id. at 1317 (citing Graham v. John Deere C0., 383 U.S. 1, 86 (1966)); see Liebel­ Flarsheim C0. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004). The prosecution history can "often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Phillips, 415 F.3d at 1317; see Chimie v. PPG Indus. Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005) ("The purpose of consulting the prosecution history in construing a claim is to exclude any interpretation that was disclaimed during prosecution."). ' When the intrinsic evidence does not establish the meaning of a claim, then extrinsic evidence (i.e., all evidence external to the patent and the prosecution history, including dictionaries, inventor testimony, expert testimony, and learned treatises) may be considered. Phillips, 415 F.3d at 1317. Extrinsic evidence generally is viewed as less reliable than the patent itself -and its prosecution history in determining how to define claim terms. Id. "The court may receive extrinsic evidence to educate itself about the invention and the relevantrtechnology, but the court may not use extrinsic evidence to arrive at a claim construction that is clearly at odds with the construction mandated by the intrinsic evidence." Elkay Mfg. C0. v. Ebco Mfg. C0., 192 F.3d 973, 977 (Fed. Cir. l999)(cert. denied, 529 U.S. 1066 (2000)). If, after a review of the intrinsic and extrinsic evidence, a claim term remains ambiguous, the claim should be construed so as to maintain its validity. Phillips, 415 F.3d at 1327. Claims, however, cannot be judicially rewritten in order to fulfill the axiom of preserving their validity. Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999). Thus, "if the only claim construction that is consistent with the claim's language and the written description renders the claim invalid, then the axiom does not apply and the claim is simply invalid." Id. 4 2 The construction of a claim term is generally guided by its ordinary meaning. However, courts may deviate from the ordinary meaning when: (1) "the intrinsic evidence shows that the patentee distinguished that tenn from prior art on the basis of a particular embodiment, expressly disclaimed subject matter, or described a particular embodiment as important to the invention;" or (2) "the patentee acted as his own lexicographer and clearly set forth a definition of the disputed claim term in either the specification or prosecution history." Edwards Lifesciences LLC v. Cook 1nc., 582 F.3d 1322, 1329 (Fed. Cir. 2009); see also GE Lighting Sols., LLC v. AgiLight, Ina, 750 F.3d 1304, 1309 (Fed. Cir. 2014) ("the specification and prosecution history only compel departure from the plain meaning in two instances: lexicography and 'disavowal."); Omega;Eng 'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003) ("[W]here the patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of prosecution 'disclaimer attaches and narrows the ordinary meaning of the claim congruent with the scope of the surrender."); Rheox, Inc. v. Entact, Inc., 276 F.3d 1319, 1325 (Fed. Cir. 2002)(quoting Southwall Techs., v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed. Cir. 1995) ("The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution"). Nevertheless, there is a "heavy presumption that a claim term carries its ordinary and customary meaning." CCS Fitness, Inc. v. Brunswick C0rp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (citations omitted). The standard for deviating trom the plain and ordinary meaning is "exacting" and requires "a clear and unmistakable disclaimer." Thorner v. Sony Computer Entm 't Am. LLC, 669 F.3d 1362, 1366-67 (Fed. Cir. 2012); see Epistar Corp. v. Int'! Trade Comm 'n, 566 F.3d 1321, 1334 (Fed. Cir. 2009) (requiring "expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope" to deviate from the ordinary meaning) (citation omitted). As the Federal Circuit has explained, "[w]e do not read limitations from the specification into claims; we do not redefine words. Only the patentee can do that." Thorner, 669 F.3d at 1366. 5 2 \ A claim must also be definite. Pursuant to 35 U.S.C. § 112, second paragraph: "The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention." 35 U.S.C. § 112, 1]2. In Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898 (2014), the Supreme Court held that § 112, 112 requires "that a patent's claims, viewed in light of the specification arid prosecution history inform those skilled in the art about the scope of the invention with reasonable certainty." Id. at 910.. A claim is required to "provide objective boundaries for those of skill in the art," and a claim term is indefinite if it "might mean several different things and no informed and confident choice is among the contending definitions." Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cit'.2014)(cert. denied, 136 s. ct. 59 (2015)). A patent claim that is indefinite is invalid. 35 U.S.C. § 282(b)(3)(A)­ I Courts are not required to construe every claim limitation of an asserted patent. See O2 Micro Intern. Ltd. v. Beyond Innovation Technology C0., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (citations omitted). Rather, "claim construction is a matter of resolution of disputed meanings and technical scope, to clarily and when necessary to explain what the patentee covered by the claims, for use in the determination of infringement." Id. at 1362 (quoting U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997)); see also Embrex, 216 F.3d at 1347 ("The construction of claims is simply a way of elaborating the normally terse claim language [] in order to understand and explain, but not to change, the scope of the claims") (citation omitted). In addition, "[a] detennination that a claim term 'needs no construction' or has the 'plain and ordinary meaning' may - r _ / be inadequate when a term has more than one 'ordinary' meaning or when reliance on a tenn's 'ordinary' meaning does not resolve the parties' dispute." O2 Micro, 521 F.3d at 1361. Claim construction, however, is not an "obligatory exercise in redundancy." U.S.Surgical Corp., 103 F.3d at 1568. "[M]erely rephrasing or paraphrasing the plain language of a claim by substituting 6 2 synonyms does not represent genuine claim construction." C.R. Bard, Inc, v. U.S. Surgical C0rp., ' 388 F.3d 858, 863 (Fed. Cir. 2004). IV. LEVEL OF ORDINARY SKILL In its opening brief, Neodron's expert stated that for all asserted patents: A person of ordinary skill in the art of the patented technology at the time of the invention of the asserted patents would have a bachelor's degree in electrical engineering, computer engineering, or the equivalent and 1-2 years of field, lab or other work experience in research, design, development, and/or testing of electronic sensors, controllers, human-machine interfaces, and related fimiware and software, or the equivalent. g CIMB Expert Declaration of Dr. Michael C. Brogioli, Ph.D. at 5, 1]17. In their opening brief, the Respondents contended: [A] person of ordinary skill in the art with respect to the '910, '790, and '173 Patents would have had a Bachelor's Degree in Physics, Electrical Engineering or Computer Science or the equivalent plus at least two years of experience in the field of touch sensors, signal. processing, human-computer interaction, graphical user interfaces, or a related field. . . .. Respondents contend that a person of ordinary skill in the'art with respect to the '58O Patent would have had a Bachelor's Degree in Physics, Electrical Engineering or Computer Science or the equivalent plus at least two years of experience in the field of touch sensors, signal processing, or a related field. . . . . For all patents, additional education could substitute for work experience and vice versa. RIMB at 3. These proposed levels of skill are very similar. A degree in physics, however, would not be as helpful as one in electrical engineering or computer science, which are more directly related to the art, and a degree in computer engineering, which is largely a hybrid of electrical engineering and computer science, would likely be very helpful. As for experience, electronic sensors, controllers, and signal processing are too broad to be directly qualifying, although they may be considered "related fields." And the '58Opatent is not so far afield from the other three patents that 7 2 it should be considered separately from them. Therefore, one of ordinary skill in the art would have had a bachelor's degree in electrical engineering, computer engineering, computer science, or a related field,»andat least two years of experience in the research, design, development, and/or testing of touch sensors, human-machine interaction and interfaces, and/or graphical user interfaces, and related firmware and software, or the equivalent, with additional education substituting for experience and vice versa. V. THE ASSERTED PATENTS A. The '173 Patent V The '173 patent, entitled "Capacitive Position Sensor," issued on April 30, 2013 to Harald Philipp. The '173 patent is assigned on its face to Atmel Corporation. Neodron owns by assignment all rights, title, and interest in the 'l73 Patent. Amended Complaint at 1[47. The '173 patent generally provides "an improved capacitive position sensor for an electrical appliance in which a desired parameter value can be more efficiently and accurately selected." ' 173 patent at 2:62-65. In particular: I In one embodiment, a method includes receiving one or more first signals indicating one or more first capacitive couplings of an object with a sensing element that comprises a sensing path that comprises a length. The first capacitive couplings correspond to the object coming into proximity with the sensing element at a first position along the sensing path of the sensing element. The method includes determining based on one or more of the first signals the first position of the object along the sensing path and setting a parameter to an initial value based on the first position of the object along the sensing path. The initial value includes a particular parameter value and is associated with a range of parameter values. The range of parameter values is associated with the length of the sensing path. . Id. at Abstract. The '173 patent has 19 claims. As of the date of this order, all claims are asserted in various combinations against the various respondents. The claims in which there are disputed terms read as 8 2 follows (with the first instance of the agreed-upon terms in italics and the first instance of the disputed tenns highlighted in bold): A method comprising: _ receiving one or more first signals indicating one or more first capacitive couplings of an object with a sensing element that comprises a sensing path that comprises a length, the first capacitive couplings corresponding to the object coming into proximity with the sensing element at a first position along the sensing path of the sensing element determining based on one or more of the first signals the first position of the object along the sensing path; setting a parameter to an initial value based on the first position of the object along, the sensing path, the initial value comprising a particular parameter value and being associated with a range of parameter values, the range of parameter values being associated with the length of the sensing path; receiving one or more second signals indicating one or more second capacitive couplings of the object with the sensing element, the second capacitive couplings corresponding to a displacement of the object along the sensing path from the first position; and detefinining based on one or more of the second signals the displacement of the object along the sensing path; and adjusting the parameter within the range of parameter values based on the displacement of the object along the sensing path. The method of claim l, wherein the sensing path comprises a closed loop. One or more computer-readable non-transitory storage media embodying logic that IS operable when executed to: receive one or more first signals indicating one or more first capacitive couplings of an object with a sensing element that comprises a sensing path that comprises a length, the first capacitive couplings corresponding to the object coming into proximity with the sensing element at a first position along the sensing path of the sensing element determine based on one or more of the first signals the first position of the object along the sensing path; set a parameter to an initial value based on the first position of the object along the sensing path,' the initial value comprising a particular parameter value and 9, 2 being associated with a range of parameter values, the range of parameter values being associated with the length of the sensing path; receive one or more second signals indicating one or more second capacitive couplings of the object with the sensing element, the second capacitive couplings corresponding to a displacement of the object along the sensing path from the first position; and determine based on one or more of the second signals the displacement of the object along the sensing path; and adjust the parameter within range of parameter values based on the displacement of the object along the sensing path. The media of claim 10, wherein the sensing path comprises a closed loop. An apparatus comprising: i a sensing element that comprises a sensing path that comprises a length; and one or more computer-readable non-transitory storage media embodying logic that is operable when executed to:, receive one or more first signals indicating one or more first capacitive couplings of an object with the sensing element, the first capacitive couplings ' corresponding to the object coming into proximity with the sensing element at a first position along the sensing path of the sensing element determine based on one or more of the first signals the first position of the object along the sensing path; set a parameter to an initial value based on the first position of the object along the sensing path, the initial value comprising a particular parameter value and V being associated with a range of parameter values, the range of parameter values being associated with the length of the sensing path; ' receive one or more second signals indicating one or more second capacitive couplings of the object with the sensing element, the second capacitive couplings corresponding to a displacement of the object along the sensing path from the first position; and determine based on one or more of the second signals the displacement of the object along the sensing path; and adjust the parameter within range of parameter values based on the displacement of the object along the sensing path. 10 2 B. _ The'910 Patent The '9lO patent, entitled "Capacitive Keyboard With Position-Dependent Reduced Keying Ambiguity," issued on July 29, 2014 to Harald Philipp. The '9l0 patent is assigned on its face to Atmel Corporation. Neodron owns by assigmnent all rights, title, and interest in the '910 Patent. Amended Complaint at 1]53 The '9l0 patent generally relates to "touch sensitive user interfaces having an array of sensing elements and methods for detennining which of a plurality of sensing elements in simultaneous detection is intended by a user for selection." '9lO Patent at l:20-23. In particular: In one embodiment, a method includes receiving two or more output signals responsive to two or more capacitive couplings. Each of the capacitive couplings has occurred between a pointing object and one of two or more sensing areas within a sensing region, and each of the sensing areas has a position within the sensing region. The method includes, if'two or more of the output signals each have an output­ signal level that exceeds a predefmed activation level, then selecting a particular one of the sensing areas with out-put-signal levels exceeding the predefined activation level as an intended one of the sensing areas based on a predefined ranking scheme that takes into account the positions of the sensing areas within the sensing region. Id. at Abstract. The '9l0 patent has 37 claims. As of the date of this order, all claims are asserted in various combinations against the various respondents (with the exception of Amazon). The claims in which there are disputed terms read as follows (with the first instance of the agreed-upon terms in italics and the first instance of the disputed terms highlighted in bold): 1. A method comprising,-by one or more computing devices: receiving two or more output signals responsive to two 01'more capacitive couplings, each of the capacitive couplings occurring between a pointing object and one of two or more sensing areas within a sensing region, each of the sensing areas having a position within the sensing region; and if two or more of the output signals each have an output signal level that exceeds a predefined activation level, then selecting a particular one of the sensing areas ' 1 1 2 with output-signal levels exceeding the predefined activation level as an intended one of the sensing areas, the particular one of the sensing areas selected based on a predefined ranking scheme that prioritizes the two or more sensing areas based on the positions of the two or more sensing areas within the sensing region. . One or more computer-readable non-transitory storage media embodying logic that is operable when executed to: ­ receive two or more output signals responsive to two or more capacitive couplings, each of the capacitive couplings occurring between a pointing object and one -of two or more sensing areas within a sensing region, each of the sensing areas having a position within the sensing region; and if two or more of the output signals each have an output signal level that exceeds a predefined activation level, then select a particular one of the sensing areas with output-signal levels exceeding the predefined activation level as an intended one of the sensing areas, the particular one of the sensing areas selected based on a predefined ranking scheme that prioritizes the two or more sensing areas based on the positions of the two or more sensing areas within the sensing region. An apparatus comprising: a touch-sensitive user interface; and one or more computer-readable non-transitory storage media coupled to the touch­ sensitive user interface that embody logic operable when executed to: receive two or more output signals responsive to two or more capacitive couplings, 7each of the capacitive couplings occurring between a pointing object and one of two or more sensing areas within a sensing region of the touch-sensitive user interface, each of the sensing areas having a position within the sensing region; and » if two or more of the output signals each have an output signal level that exceeds a predefined activation level, then select a particular one of the sensing areas with output-signal levels exceeding the predefined activation level as an intended one of the sensing areas, the particular one of the sensing areas selected based on a predefined ranking scheme that prioritizes the two or more sensing areas based on the positions of the two or more sensing areas within the sensing region. \ 12 2 C." The '790 Patent The '79Opatent, entitled "Capacitive Keyboard Non-Locking Reduced Keying Ambiguity," issued on May 5, 2015 to Harald Philipp. The '790 patent is assigned on its face to Atmel Corporation. Neodron owns by assignment all rights, title, and interest in the '790 Patent. Amended Complaint at 1]59. The '79O patent generally relates to "method and apparatus for controlling an array of non-bistable keys, such as capacitive position sensors, and, more specifically for preventing accidental false inputs from keys adjacent to a selected key in a capacitive keyboard." '79OPatent at 1:21-25. In particular: Keyboards, keypads and other data entry devices can suffer from a keying ambiguity problem. In a small keyboard, for example, a user's finger is likely to overlap from a desired key.to onto adjacent ones. An iterative method of removing keying ambiguity from a keyboard comprising an array of capacitive keys involves measuring a signal strength associated with each key in the array, comparing the measured signal strengths to find a maximum, determining that the key having the maximum signal strength is the unique user-selected key, and maintaining that selection until either the initially selected key's signal strength drops below some threshold level or a second key's signal strength exceeds the first key's signal strength. Id. at Abstract. The '790 patent has 24 claims. As of the date of this order, all claims are asserted against all the respondents (with the exception of Amazon and Motorola). The claims in which there are disputed tenns read as follows (with the first instance of the agreed-upon terms in italics and the first instance of the disputed tenns highlighted in bold): l. An apparatus comprising: plurality of keys: control logic operatively coupled to the plurality of keys and configured to: analyze, to determine a first active key, respective first signal values of the plurality of keys; l assign, based at least on the respective first sensor values of the plurality keys, a first key as the first active key; and A l3 2 analyze, to determine a second active key, respective second signal values of the plurality of keys, the analysis, to determine the second active key, of the respective second signal values of the plurality of keys being biased in favor of the first key. ' i 7. A method comprising: analyzing, to determine a first active key, respective first sensor values of a plurality of keys; 'assigning,based at least on the respective sensor values of the plurality keys, a first key as the first active key; and analyzing, to determine a second active key, respective second signal values of the plurality of keys, the analysis, to determine the second active key, of the respective second signal values of the plurality of keys being biased in favor of the first key. _ 13. Logic embodied in a non-transitory computer-readable medium, the logic configured when executed to perform operations comprising: analyzing, to determine a first active key,respective first sensor values of a plurality of keys; assigning, based at least on the respective sensor values of the plurality keys, a first key as the first active key; and V analyzing, to determine a second active key, respective second signal values of the plurality of keys, the first key being biased during the analysis, the analysis, to determine the second active key, of the respective second signal values of the plurality of keys being biased in favor of the first key. D. The '580 Patent The '580 patent, entitled "Enhanced Touch Detection Methods," issued on June 21, 2016/to Martin John Simmons, Darren Golbourn, Daniel Pickett, and Andrew Hersee. The 'S80 patent is assigned on its face to Atmel Corporation. Neodron owns by assignment all rights, title, and interest in the '580 Patent. Amended Complaint at 1]65. The '580 patent generally relates to techniques that provide enhanced touch detection capabilities when a user is touching two areas of a touch sensor simultaneously. In particular: 14 2 L. A method includes sending a first set of signals to a first set of lines of a touch sensor. The method also includes receiving a second set of signals on a second set of lines of the touch sensor in response to sending the first set of signals. The second set of lines are capacitively coupled to the first set of lines. The method includes sending a third set of signals and receiving a fourth set of signals. The fourth set of signals is capacitively generated based on the third set of signals. The method also includes determining a fifth set of signals by compensating the second set of signals based on the fourth set of signals and determining whether a touch occurred based on the fifth set of signals. V 1d at Abstract. The 'S80 patent has 12 claims. As of the date of this order, claims 1, 4-6, 10-14, and 16-24 are asserted in various combinations against the various respondents. The claims in which there are disputed terms read as follows (with the first instance of the agreed-upon terms in italics and the first instance of the disputed terms highlighted in bold): _ A method, performed by executing logic embodied by one or more computer­ readable non-transitory storage media, comprising: p sending a first set of signals to a first set of lines of a touch sensor, the first set of lines arranged along a first axis, each line of the first set of lines comprising electrodes; A receiving a second set of signals on a second set of lines of the touch sensor in response to sending the first set of signals, the second set of lines arranged along a second axis that is different than the first axis, each line of the second set of lines comprising electrodes, the second set of lines capacitively coupled to the first set of lines; I in response to receiving the second set of signals, measuring the second set of signals" to determine a second set of measured values corresponding to the second set of signals; storing the second set of measured values correspondingto the second set of signals; sending a third set of signals to the first set of lines; determining, afier sending the third set of signals to thefirst set of lines, a fourth set of signals by measuring the first set of lines that received the third set of signals: \ 15 2 in response to measuring the fourth set of signals, determining a fourth set of measured values corresponding to the fourth set of signals; storing the fourth set of measured values corresponding tothe fourth set of signals; determining a fifth set of signals by compensating the second set of signals based on the fourth set of signals, wherein determining the fifih set of signals comprises adjusting the second set of measured values corresponding to the second set of signals with the fourth set of measured values corresponding to the fourth set of signals; and detennining whether a touch occurred based on the fifth set of signals. A system comprising: a touch sensor comprising: a first set of lines, the first set of lines arranged along a first axis, each line of the first set of lines comprising electrodes; a second set of lines, the second set of lines arranged along a second axis that is different than the first axis, each line of the second set of lines comprising electrodes, the second set of lines capacitively coupled to the first set of lines; and _ one or more computer-readable non-transitory storage media comprising logic that, when executed is operable to: send a first set of signals to the first set of lines of the touch receive a second set of signals on the second set of lines of the touch sensor in response to sending the first set of signals; in response to receiving the second set of -signals, measure the second set of signals ' to determine a second set of measured values corresponding to the second set of signals: ' store the second set of measured values corresponding tosthe second set of signals; send a third set of signals to the first set of lines: determine, afier sending the third set of signals to thefirst set of lines, a fourth set of signals by measuring the first set of lines that received the third set of signals; in response to measuring the fourth set of signals, determining a fourth set of measured values corresponding to the fourth set of signals; store the fourth set of measured values corresponding to the fourth set of signals; 16 2 determine a fifth set of signals by compensating the second set of signals based on the fourth set of signals, wherein determining the fifth set of signals comprisesadjusting the second set of measured values corresponding to the second set of signals with the fourth set of measured values corresponding to the fourth set of signals; and determine whether a touch occurred based on the fifth set of signals. One or more computer-readable non-transitory storage media comprising logic that, when executed is operable to: send a first set of signals to a first set of lines of a touch sensor, the first set of lines arranged along a first axis, each line of the first set of lines comprising electrodes; receive a second set of signals on a second set of lines of the touch sensor in response to sending the first set of signals, the second set of lines arranged along a second axis that is different than the first axis, each line of the second set of lines comprising electrodes, the second set of lines capacitively coupled to the first set of lines: in response to-receiving the second set of signals, measure the second set of signals to determine a second set of measured values corresponding to the second set of signals; store the second set of measured values corresponding to the second set of signals: send a third set of signals to the first set of lines: determine, after sending the third set of signals to the first set of lines, a fourth set of signals by measuring the first set of lines that received the third set of signals; in response to measuring the fourth set of signals, determining a fourth set of measured values corresponding to the fourth set of signals; store the fourth set of measured values corresponding to the fourth set of signals; determine a fifth set of signals by compensating the second set of signals based on the fourth set of signals, wherein determining the fifth set of signals comprises adjusting the second set of measured values corresponding to the second set of signals with the fourth set of measured values corresponding to the fourth set of signals; and determine whether a touch occurred based on the fifth set of signals. 17 2 \, VI. CLAIM CONSTRUCTION A. Construction of the Agreed-Upon Claim Terms Prior to, during, and after the Markman hearing, the Parties reached agreement regarding the construction of a number of terms in each patent: '173 Patent Agreed Construction Claim Term "object" either an inanimate object, such as a wiper, pointer, or stylus, or alternatively a human finger or other appendage any of whose presence adjacent the element will create a localized capacitive coupling from a region of the element back to a circuit reference via any circuitous path, whether galvanically or nongalvanically v "sensing element" physical electrical sensing element made of conductive substances "displacement" distance and direction of movement '910 Patent. Agreed Construction _ Claim Term "activation level" level associated with the sensing area above which that sensing area can be selected '790 Patent Agreed Construction Claim Term cakeyaa) a touchable portion of a mechanical to electrical transducing device that is nonbistable in nature. This term specifically excludes conventional mechanical switches in which two or more electrical conductors are moved into or away from contact with each other to make or break an electrical COI1I16CIl0I'l. A key can also be a dimensional sensing surface such as an XY touch screen or a 'trackpad' "control logic operatively The tenn is construed according to 35 U.S.C § 112(6). l coupled to the plurality of keys and configured to: The function is: ~ analyze, to detennine a first analyze, to determine a first active key, respective first signal active key, respective first values of the plurality of keys; assign, based at least on the signal values of the plurality respective first sensor values of the plurality of keys, a first key of keys; assign, based at least as the first active key; and analyze, to determine a 'second on the respective first sensor active key, respective second signal values of the plurality of values of the plurality keys, a keys, the analysis, to detennine the second active key, of the first key as the first active respective second signal values of the plurality of keys being key; and analyze, to determine biased in favor of the first key a second active key, 18 2 1 respective second signal The structure is: values of the plurality of keys, microprocessor or microcontroller 18,programmed to execute the analysis, to detennine the the logical operations of: (i) figure 5A as described at 7:24-8:24 second active key, of the and 8:37-49, and equivalents thereof; or (ii) figures SA and SB respective second signal as described at 7:24-8:49, and equivalents thereof. values of the plurality of keys being biased in favor of the first key." 'S80 Patent _ Agreed Construction Claim Term afier sending the third set of after (not while) sending the third set of signals to the first set of signals to the first set of lines lines ­ compensating the second set Plain and ordinary meaning, which is "compensating the of signals based on the fourth second set of signals based on the fourth set of signals set of signals JC at l, 3, 6, 47. These constructions are: (1) consistent with the plain and ordinary meaning of the tenns; (2) consistent with the intrinsic evidence; and/or (3) consistent with means-plus-function claiming practice. See '173 patent at 6:66-67, 7:2-8; '9l0 patent at 3:49-61; '790 patent at 4:41-52, 7:24­ 8:49; '580 patent at 14:18-20. They are therefore adopted. B. Construction of the Disputed Claim Terms- ' The disputed claim terms are summarized in the Parties' Updated Joint Claim Construction Chart. See JC. 'They are discussed individually below. ­ 1. 'I73 Patent —"A sensing element that comprises" a sensing path that I comprises a length" Relevant Neodron' Construction Claims ' Respondents' Construction 'l73 patent "physical electrical sensing Original Proposal: "physical electrical claims 1, 10, element made of conductive sensing element made of conductive 19 substances that comprises a substances of a set shape for sensing and a sensing path that comprises a set length" ' length" Alternative Proposal: "a physical electrical sensing element made of Supporting evidence: conductive substances with a detennined ath and length for sensing" 19 2 '173 patent at 3:9-11; 7:14-17; Fig 1; claims 1, 10, 19 Supporting evidence: '173 Patent: Abstract, Figs. 1-4, 1:19-22, Brogioli Decl. at 111]69-72 1:38-44, 1:45-54, 1:54-6l,'2:11-16, 2:62­ 65, 2:67-3:1, 3:13-14, 3:22-28, 3:50-51, Brogioli Reb. Decl. at {H141-48 3:58-64, 5:39-41, 5:52-55, Claims 1-3, 5­ 8,10-12,14-17,19. Expert testimony of Jean Renard Ward, \ Rebuttal Decl. at Ml 8 - 11. JC at 1-2. 2. ' 173 Patent —"sensing path" Relevant Neodron's Construction Respondents' Construction Claims '173 patent "a path for sensing that is Original Proposal: "set shape for claims 1, 10, detennined for each use" sensing" 19 Alternative Proposal: "a path for sensing Supporting evidence: that is determined for each sensing '173 patent at 3:9-11; 7:14-17; Fig. element" 1; claims 1-3, 7, 10-12,16, 19 Supporting evidence: Brogioli Decl. at {[1169-72 '173 Patent: Abstract, Figs. 1-4, 1:19-22, 1:38-44, 1:45-54, 1:54-61, 2:11-16, 2:62­ Brogioli Reb. Decl. at 111]41-48 65, 2:67-3:1, 3:13-14, 3:22-28, 3:50-51, 3:58-64, 5:39-41, 5:52-55, Claims 1-3, 5­ 8,10-12,14-17,19 1 Expert testimony of Jean Renard Ward, Rebuttal Decl. at 111]8-11 JC at 2. V These first two disputed tenns are closely related and will be considered together. I have adopted the Parties' agreed construction for "sensing element" as a "physical electrical sensing element made of conductive substances," and the Parties apparently do not dispute that any particular sensing path must have a length. See Hr'g Tr. at 46:1-9. The dispute instead centers on whether the sensing path (and its associated length) must be a single path "hardwired" (Hr'g Tr. at 48:20-23) into the sensing element, or may be "dynamic []" (RIMB at 10), that is, changeable over time. 8 20 2 Every explicitly described embodiment incorporates Respondents' proposed construction. For instance, in one embodiment "the sensing element"—as opposed to the sensing path—"is arcuate in shape." '173 patent at 5:52-53. In other embodiments, "the sensing element"—again, not the sensing path—"is in the form of a closed loop.'f Id. at 5:53-54. As another example, in describing an implementation for temperature control of an oven, the specification describes a "rotary sensing element 20 [that] may have a diameter of about 2 inches." Id. at 8:56-57. And in the dependent claims covering the "zooming-in" feature, the term "the sensing path" is used. See id. at 5:17, 10:5, 11:1-2. This suggests that the sensing path, the antecedent basis for which is-found in independent claims l and 10, does not change when switching from first to second (i.e., zooming­ in) mode. So Respondents' proposed construction is consistent with the embodiments explicitly described in the specification. But this does not mean that it is required by the claim language. "[T]he specification and prosecution history only compel departure from the plain meaning in two instances: lexicography and disavowal." GE Lighting S0ls., 750 F.3d at 1309. Respondents identify nothing that might qualify as either lexicography or disavowal to support their position. As noted, the claim language supports a "sensing path" that does not change during a single use, but nothing in the intrinsic evidence rules out the possibility of, say, adjusting the sensing path from a two-inch diameter circle to a three-inch diameter circle between uses. And there appears to be implicit support for such a possibility at two points in the specification. First, the specification describes "1ock[ing] out" the sensing element signal by use of separate "sensing areas in the centre region of the sensing element," and vice versa; this implies that such sensing areas could themselves serve as sensing elements and allow for multiple hardwired sensing paths. 'l'73 patent at 6:12-21. Second, in describing the conductive substances used to fabricate the sensing element, the specification describes both a "single resistor. . . deposited on a substrate to form a continuous pattern," and "a plurality of discrete 21 ' 2 resistors." Id. at 6:22-28. If a single resistor can accommodate a single sensing path, a plurality of discrete resistors may be able to accommodate a plurality of discrete sensing paths. Properly construed, therefore, the "sensing path" is set, or determined, for each use, but not necessarily hardwired into the sensing element. Accordingly, the term "sensing path" is construed as "a path for sensing that is determined for each use," and the term "a sensing element that comprises a sensing path that comprises a length" is construed as "a physical electrical sensing element made of conductive substances that comprises a path for sensing that is determined for each use that comprises a length." 3. '173 Patent —"the range of parameter values being associated with the length of the sensing path" Relevant Neodron's Construction Respondents' Construction Claims '173 patent Plain and ordinary meaning ("the the range of parameter values mapped to claims 1, 10, range of parameter values being the length of the sensing path" 19 associated with the length of the sensing path") Supporting evidence: . '173 Patent: Abstract, Figs. 1-4, 1:54-57, Supporting evidence: 1:58-61, 2:2-10, 2:26-31, 3:24-31, 3:58­ '173 patent at claims 1, 7, 10, 19 64, 5:12-15, 5:15-18, 8:60-66, Claims 1, 7, 10, 16, 19 ' Brogioli Decl. at 1]73 Expert testimony of Jean Renard Ward, Brogioli Reb. Decl. at 11]]49-5048 Rebuttal Decl. at 1]j]12-15 JC at 2. Respondents correctly note that the terms "being associated with" and "mapped to" are seemingly used interchangeably throughout the specification. RMB at 12. For example: The range of parameter values associated with the capacitive sensor (i.e., the resolution) may detennine whether a desired parameter value can be selectedin the first mode operation. '173 Patent, 5:12-15 (emphasis added). a first mode of the capacitive position sensor in which the range of parameter or function values is mapped onto the sensing path and in which the parameter or function can be set to approximately the desired value by a touch of the sensing path at a first point, . . . '173 Patent, 3:24-28 (emphasis added). 22 2 r Thus, Respondents argue that the two terms mean the same thing, and that "[w]ell-established precedent, therefore, requires the terms to be construed to have the same meaning." RRMB at 12­ 14 (citing Wasica Fin. GmbH v. Cont 'l Auto.' Sys., 853 F.3d 1272, 1282 (Fed. Cir. 2017), and Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1329 (Fed. Cir. 2009)). Respondents further argue that their proposed construction "clarifies" the term "associated with." RMB at 12. Respondents do not explain how substituting "mapped to" for "being associated with" clarifies anything, even assuming that the specification uses the two terms interchangeably. And the Parties apparently understand the term "mapped to" differently, at least as Respondents use it. Neodron understands the tenn to refer to a "singular" mapping that cannot be adjusted to account for the "zooming-in" mode described in the patent. See Hr'g Tr. at 62:21-63:21; '173 patent at 5:17. Respondents understand the term to be, simply, interchangeable with "being associated with." See Hr'g Tr. at 69:3-21. Given this disparate understanding, use of "mapped to" in place of "being associated with" clarifies nothing. i Furthermore, it is not clear that "mapped to" encompasses the full scope of the claim language. As I explained at the hearing, the claim language may cover a controller with binary output states, such as a light switch. See Hr'g Tr. at 65:12-15. Arguably, with such a controller the range of parameter values would be "associated with" the length of the sensing path (e.g., half would be associated with the "on" position, and half with the "oft" position), but would not necessarily be "mapped to" the sensing path (because the range would be limited to only two states)._See id. at 16­ 24. In other words, the term "being associated with" could be broader than "mapped to," which weighs against importing the latter language into the claim. See also CRMB at 6 (arguing that use of the tenn "mapping" in dependent claim 7 suggests a meaning narrower than "associated with"). 23 2 / Therefore, Neodron's proposed construction is accepted, and the term "the range of parameter values being associated with the length of the sensing path" is construed as "the range of parameter values being associated with the length of the sensing path." 4. '173 Patent —"the sensing path comprises a closed loop" Relevant Neod1'on'sConstruction Respondents' Construction Claims ~ '173 patent Plain and ordinary meaning ("the "the sensing path has a continuous shape claims 2, ll sensing path comprises a closed with an open middle section" loop") . Supporting evidence: Supporting evidence: 'l73 Patent: Abstract, Figs. 1-4, 5:38-44, 'l73 patent at 7:14-17; claims 2, ll 5:52-59, 6:21-24, 7:14-17, Claims 2, 11 x Brogioli Decl. at 1]74 Cambridge Dictionary of American English (2d ed. 2008), RESP_00l5310­ Brogioli Reb. Decl. at 1]51 312 Merriam-Webster's Collegiate Dictionary (10th ed. 1998), RESP_00l5337-339 Expert testimony of Jean Renard Ward, Rebuttal Decl. at 1]j]16-l 8 JC at 3. Respondents submit that using the plain meaning of -"closedloop" is "insufficient to clarify the claims' scope." RIMB at l4. They do not explain why this is so, however, nor is such insufficiency apparent from the record. Obviously, a closed loop is typically a continuous shape with an open middle section, and the specification provides three examples of an "outline shape having an open middle section," namely, a circle, an ellipsoid, and a trapezoid. 'l73 patent at 7:17. But this does not mean that the claim scope must be limited to the specification's (clearly nonexclusive) list of examples, or to having an "open middle section." Moreover, the purpose of the closed loop is to allow "rotary" movement along the sensing path, so that the "object" may travel "a plurality of revolutions" and thereby generate the desired output signal. Id. at 5:55-59. A closed loop permitting such movement need not be a shape with just one open middle section; for instance, 24 2 it could be a figure eight or infinity symbol, or some more complex shape with many open middle sections. So long as the sensing path overlaps itself to permit "a plurality of revolutions," any shape would seemingly be operative, regardless of the number of open middle sections. Therefore, Neodron's proposed construction is accepted, and the term "the sensing path comprises a closed loop" is construed as "the sensing path comprises a closed loop." 5. '910 Patent —"the particular one of the sensing areas selected based on a predefined ranking scheme that prioritizes the two or more sensing areas based ' on,7 the positions of the two or more sensing areas with the sensing region Relevant Neodron's Construction Respondents' Construction Claims '910 patent "selecting the particular one of the _"selectingthe particular one of the claims 1, 13, sensing areas from the two or more sensing areas from the two or more 25 sensing areas is based on a sensing areas using a comparison based predefined ranking scheme that on a predefined ranking scheme applied to prioritizes sensing areas based on each of the two or more sensing areas their positions within the sensing based on their positions within the sensing region" " region" Supporting evidence: . Supporting evidence: '9l0.patent at 6:37-54; claims 1,2, '910 Patent: Abstract, Figs. 2'-5,8, 9a-b, 13, 25 claims l-4, 6, 7, 13, 25, col. 1:19-27, 2:34-58, 3:15-4:10, 5:7-52, Brogioli Decl. at1[1[86-87 6:37-7:6, 7:36-43, 7:47-51, 10:6-12:62, Brogioli Reb. Decl. at 1H]69-72 14:17-22, 15:39-43, 16:5-38,1715-11, 17:33-42, 17:51-67. Expert testimony of Jean Renard Ward, Rebuttal Decl. at 1]j 38-45 JC at 6. Respondents state that the "central dispute is whether the claims require selecting 'the particular one of the sensing areas' by comparing each activated sensing area's position-based priority ranking to that of the others." RIMB at 32-33 (emphasis in original). Complainant, on the other hand, states that Respondents' change of the claim term "a predefined ranking scheme that prioritizes sensing areas' to "a comparison based on a predefined ranking assigned to each sensing 25 2,1 area" distorts and improperly narrows the plain meaning of the claim. CRMB at 14 (emphasis in original). Moreover, Complainant argues that Respondents' construction violates the doctrine of claim differentiation because claim 52limits claim 1 by reciting that the predefined ranking scheme applies a weighting to the output signal level of each sensing area with output signal levels exceeding the predefined activation level, which arguably requires a comparison of the sensing areas with the predefined activation level. According to Complainant, claim 1 does not require any particular type of ranking to be assigned —it requires only that a ranking scheme be used to prioritize. Hr'gTr. atl13-115. . During the hearing, the parties' positions were further clarified. Respondents stated that their claim construction does not require that a ranking be assigned to every sensing area within the sensing device. Rather, Respondents stated that the ranking is assigned only to the sensing areas that have exceeded the threshold. Thus, Respondents agreed to insert "each of the two or more sensing areas" before "positions within the sensing region." Hr'g Tr. at 119-120. Similarly, Complainants clarified that their construction of claim 1 requires only that the ranking scheme prioritizes "the two or more sensing areas." Hr'g Tr. at 139. Claim 1 does not by its own-temis require a "comparison" of the two or more sensing areas based on the ranking scheme. The specification does not teach that such a comparison is always necessary, and in fact, it teaches a number of different algorithms that may be used to decide which key is intended, such as random, pseudo-random selection, or determination of first scanned key. See CRMB at 15. Moreover, claim 5 requires identification of a "highest" signal level—that is, a comparison—so requiring a comparison in claim 1, too, violates the doctrine of claim differentiation. '91OPatent at 18:38-39. 2 Complainant also argues that Respondents' construction violates claim differentiation based upon claim 2; however, nothing in claim 2 requires a "comparison." 26 2 Accordingly, Neodron's construction is accepted, with the insertion of the agreed upon language discussed at the hearing. The term "the particular one of the sensing areas selected based on a predefined ranking scheme that prioritizes the two or moresensing areas based on the positions of the two or more sensing areas with the sensing region" is construed as "selecting the particular one of the sensing areas from the two or more sensing areas is based on a predefined ranking scheme that prioritizes the two or more sensing areas based on their positions within the sensing region." _6. '790 Patent —"respective [first/second] [sensor/signal] values of [the/a] plurality [of] keys" Relevant Neodron's Construction Respondents' Construction Claims '79O patent "respective sensor signal values of "respective [first/second] sensor outputs sa claims 1, 7, 13 [the/a] plurality [of] keys from each of the plurality of keys" Supporting evidence: Alternatively, the claims are indefinite. '79O patent at Figs. 1B, 1C, 4; claims 1, 5, 7, 13 Supporting evidence: \ '790 Patent: Figs. lb, 1c, 4, 5a, 5b, Neodron Ex. 3 (Email Abstract, 1:36-48, 2:9-22, 3:6-13, 3:14-16, Correspondence) at 6; 3:17-37, 4140- 45, 4:58-5:3, 5:19-41, 5:33 36, 5:42-58, 6:66- 7:17, 7:18-23, 7:31-47, l Resps. Ex. 16 (Email 7:54-55, 8:9-13, Correspondence); Resps. Claims 1, 5, 7,13, 21, 24 Opening Br. at 18 Expert testimony of Jean Renard Ward, Brogioli Decl. at 11175-so Opening Decl. at W 31-38, Rebuttal Decl. Brogioli Reb. Decl. at 1]j]52-58 at 11119-24 JC at 4. \ Before the hearing, the parties agreed that the tenns "signal values" and "sensor values," which both appear in the claims, are completely interchangeable. Thus, the remaining issue is whether the term "values" should be replaced with the tenn "outputs." Respondents assert that the term should be limited to "output": "to make it clear, it's the outputs coming out of the sensor." Hr'g Tr. at 88. Respondents further state that "all the different embodiments [in the specification] show that the signals that are coming out of the sensors are sensor outputs." Id. at 89. 27 2 But the term "value" embodies rmore than just the output of the sensor. For example, Neodron points out that the claim could encompass additional, unclaimed processing steps, and components to perform them, including "any processing, amplification, thresholding, smoothing, noise reduction, whether it is that's done in the process of comparing" the values to determine which key is pressed. Hr'g Tr. at 100. Thresholding, in particular, is clearly contemplated. See '790 Patent at Fig. 4, 7:40-47. Inasmuch as a sensor signal output is modified by a "threshold" circuit element (component 15 in figure 4), for instance, the relevant "value" to be "analyze[d]" in claim 1 is actually the (thresholded) input to counter 14 and not the output direct from keys 12. See '790 Patent at 7:18-22; Hr'g Tr. at 81:13-24. Nor is there evidence of disavowal or clear lexicography to limit the term "value" to "output." And "absent 'clear and unmistakable language [] otherwise," Respondents' suggested limitation to the term does not meet the "exacting" standard to so limit the claim. Cont 'l Circuits LLC v. Intel C0rp., 915 F.3d 788, 798 (Fed. Cir. 2019). Accordingly, the term "respective [first/second] [sensor/signal] values of [the/a] plurality [oi] keys" is construed as "respective sensor signal values of [the/a] plurality [of] keys." 7. '790 Patent - "[analyze/analyzing], to determine a second active key, respective second signal values of the plurality of keys, the analysis, to, determine the second active key, of the respective second signal values of the plurality of keys being biased in favor of the first key" a s Relevant Neodron s Construction - Respondents Construction Claims '790 patent "[analyze/analyzing], to determine "comparing the second signal values of claims 1, 7, 13 a second active key, respective the plurality of keys to select a second second signal values of the active key, wherein the selection of the plurality of keys, the analysis, to second active key is skewed in favor of, determine the second active key, of but not locked to, the already selected first the respective second signal values active key" of the plurality of keys being biased or skewed in favor ofl but Supporting evidence: not locked to the previously '790 Patent: Figs. lb, 1c, 4, 5a, Sb, determined first active key" Abstract, 2:9-22, 2:63-3:2, 3:3-5, 3:6-16, 3:17-37, 5:21- 32, 5:19-41, 7:18-23, 7:40­ Supporting evidence: g 28 2 '790 patent at 3i24-27, col. 3; 41, 7:54-55, 7:58-60, 8:9-11, Claims 1, 7, claims 1, 7, 13 13 File History for '790 Patent at ' Brogioli Decl. at 111] 81-82 RESP_00l2534 Brogioli Reb. Decl. at 111]60-61 File History for U.S. Patent No. 7,821,425 at RESP_00l3222, 0013392 Expert testimony of Jean Renard_Ward, ' Rebuttal Decl. at flj] 25-29 JC at 5. A potential dispute regarding the addition of "not locked to" was clarified during the hearing. Neodron's counsel explained that the term "not locked to," which both parties now agree should be part of the claim construction, modifies both biased and skewed. Hr'g Tr. at 104. The "not lock to" aspect is discussed in the Specification as being one advantage of the present invention: "the method disclosed herein permits the smooth rollover of key selection as a finger slides from one key to the next. . . [but in earlier patents] the first key to win remains selected even if the maximal signal strength has shified to a new key. . . . Therefore, the instant invention may be referred to as 'non­ locking' key ambiguity reduction." '790 Patent, 3:6-16. Thus, I agree with the additional limitation of "not locked to" for this term's construction. Neodron, however, asserts that beyond that addition, the plain and ordinary meaning of the claim language is the proper construction. Neodron submits that, as with the earlier tenn, there is no clear and unmistakable disclaimer or lexicography that warrants Respondents' rewriting the term "analyzing" with "comparing." Moreover, Neodron points out that the claim recites that the first set of signal values are analyzed to determine the first active key, and then analyzing a second set of signal values occurs, skewing the analysis in favor of the first active key, in order to determine the second active key. The two analyses are not different, and thus, their construction also should not be different. Hr'g Tr' at 106. 29 2 Respondents, on the other hand, argue that the specification describes only comparing the signals, and thus, the claim should be limited to only comparing the signals. Hr'g Tr. at 108. The Federal Circuit has repeatedly held that "it is 'not enough that the only embodiments, or all of the embodiments, contain a particular limitation' to limit the claims beyond their plain meanings." Uriwired Planet, LLC v. Apple Inc., 829 F.3d 1353, 1359 (Fed. Cir. 2016). I find no evidence of lexicography or disclaimer of 'the plain and ordinary meaning of the term "analyze," and Respondents did not present any such evidence. Therefore, the temi "[ana1yze/analyzing], to determine a second active key, respective second signal values of the plurality of keys, the analysis, to determine the second active key, of the respective second signal values of the plurality of keys being biased in favor of the first key" is construed as"[ana1yze/analyzing], to determine a second active key, respective second signal values of the plurality of keys, the analysis, to determine the second active key, of the respective second signal values of the plurality of keys being biased or skewed in favor of, but not locked to the previously determined first active key." _ 8. '580 Patent - "signals" Relevant Neodron's Construction Respondents' Construction ~~ Claims '580 patent "electrical impulses or electrical electncal impulses driven on or claims 1-12 representations of inform ation" received from the electrodes" Supporting evidence: Supporting evidence: '580 patent at 8:55-59; 10:40-54; '580 Patent: Figs. 1A, 1B, 2, 3, 1:26-41, Figs. 2, 3; claims 1-12 2:26-45, 3:55- 4:8, 4:9-22, 5:33-36, 7:34­ 8:14, 8:57-59, 8:61-64, 915- 10, 10:36-39, Neodron Ex. C (Electrical Claim 1 Engineering Dictionary (LaPlante 2000)) Expert Testimony of Jean Renard Ward, Rebuttal Decl. at 1111 46-53 Brogioli Decl. at 1111 50-56 Brogioli Reb. Decl. at 111117-25 File History for the '580 patent, RESP_0012573, at pages, e.g., RESP_0012585-620, RESP_0012 782­ 30 2 RESP_O012966-983, RESP_00l3025-041 ~ U.S. Patent No. 8,773,146 to Hills, RESP_O002819 Merriam-Webster's Collegiate Dictionary 787, RESP_0O12789-800, " (10th ed. 1998), RESP_OO15316-318 JC at 7-8. The plain meaning of "signal" in this context is "an impulse (as a voltage, current, or magnetic field strength) by which messages or information can be transmitted."." RIMB, EX. 24 at RESP_00153l8. (emphasis added). The limitation "of information" is therefore redundant. Further, Neodron agreed during the hearing that "electrical signal," though itself redundant in light of the dictionary definition, was a proper substitute for Neodron's_proposed construction. Hr'g Tr. at 152:9-23. The adjective "electrical" is found in both proposed constructions, and is supported by the specification. The remaining dispute is over whether the signals are "driven on or received from the electrodes." Neodron argues that in the patent the tenn signals is used not only for electrical impulses, but also for a fifth set of signals determined by adjusting the second set of measured values; that is, the fifih set of signals is not driven on or received directly from electrodes. CRMB at 19. Respondents, on the other hand, argue that the fifth set of signals is created by "compensating," a process the patent describes as distributing the measured charge evenly across implicated nodes, which are the crossings of two electrode lines. RRMB at 20. But that description of compensating is just one "example" of the process, and nothing in the '580 patent limits the process to use only with electrodes. '580 Patent at 8:61, 10:36. Respondents further argue that Neodron's proposed construction "imposes no meaningful limit" on the scope of the term, in_part because the patent generally distinguishes between "signals," "measured values," and "calculated values." RRMB at 20-21. Not so. Claim 1 distinguishes ' 31 1 2 between sets of signals and the "measured values corresponding to" them. E.g., '580 Patent at 14:12, 14:22. And the last step in claim 1, "determining whether a touch occurred," is done "based on the fifth set of signals," not on any measured values corresponding to that set; Id. at 33-34. Clearly, "signals" are distinct from "measured values," and there is a meaningful limit on the former. Therefore, "signals" is construed as "electrical signals." 1 9. 'S80Patent - "measured values corresponding to the [second/fourth] set of signals" Relevant Neodron's Construction Respondents' Construction. Claims '580 patent "values measured, not merely "values measured, not calculated, from the claims l 9 5 5 9 calculated, corresponding to the [second/fourth] set of signals" ' [second/fourth] set of signals, excluding reference count values Respondents note that the phrase in and any other values that were Neodron's proposal beginning with initially calculated without a "excluding..." is new, was not presented measured value" to the Court in briefing or oral argument by Neodron, and has no more support in Supporting evidence: the intrinsic record than the remainder of '580 patent at claims 1, 5, 9 Neodron's proposal. Neodron Ex. l (Respondents' Proposed Constructions) at 3; Supporting evidence: Neodron Ex. 3 (Email _ '580 Patent: 4:1-4, 4:45-46, 7:34-8:14, Correspondence) at 10; 8:48-50, Claim 1 Neodron Ex. E ('580 File History Excerpt); Resps. Ex. 13 (Resp. to Expert Testimony of Jean Renard Ward, Office Action) at RESP_00l3033 Rebuttal Decl. at 1111 54 —60 RESP_00l3038; Resps. Ex. 19 (Hills) at 8:23-25 File History for the '580 patent, RESP__00l2573, at pages, e.g., Brogioli Decl. at 111]54-61 RESP_00l2966-983, RESP_0013025-041 Brogioli Reb. Decl. at 111]26-36 U.S. Patent No. 8,773,146 to Hills RESP_00028 19, at 5:23-34. 1 JC at 8. / Construction of this claim is determined by prosecution history estoppel, although the parties do not agree on what the patentee argued during prosecution that resulted in claim allowance. During prosecution, the patentee added the term "measured values corresponding to the 32 2 [second/fourth] set of signals" to overcome the Hills reference, which the Examiner cited against the claims. Hills taught an "MC baseline" that is a calculated value, and according to the patentee, "not a value that is measured." RIMB, Ex. l3 at RESP_0O13038. During an interview with the patentee, the Examiner agreed that "merely calculating a value would not disclose measuring a value." Id. Hills further taught that the MC baseline can be reset, based on a measured "raw count," and the Examiner had equated this resetting of the MC baseline to the patentee's recitation of the "determining a fifth set of signals by compensating the 2nd set of signals based on the 4th set of signals." Id. The patentee argued, however, that "recalculating the [MC] baseline," a calculated value, "from a previously calculated baseline fails to disclose, teach or suggest. . . measuring the second set ofsignals. . . and adjusting the second set of measured values. . ." Id. at RESP_00l3039. The Examiner agreed with this statement and withdrew this rejection in the next Office Action. Id. Ex. 14. ' Thus, during prosecution, the patentee distinguished the tenns "measured" and "calculated" by stating that if a value starts as a calculated value, then no matter how it is later changed, it will always be "calculated" and never measured. The position urged by the patentee did not further limit the "measuring" term. Thus, during prosecution, the patentee clarified that a value that is measured only, with no calculation of any kind involved, is within the scope of the claim; and also a value that is the result of a measurement followed by calculation is within the scope of the claim. Accordingly, the further limitations added to this term by the parties, including Neodron's new "excluding reference count values" language, are not correct. Therefore, "measured values corresponding to the [second/fourth] set of signals" is construed as "values, comprising an initial measurement, corresponding to the [second/fourth set of signals." 33 2. 10. 'S80 Patent - "adjusting the second set of measured values corresponding to the second set of signals with the fourth set of measured values corresponding to the fourth set of signals" Relevant Neodron's Construction Respondents' Construction Claims 580 patent "changing, not merely validating, "changing, not validating, the second set claims 1, 5, 9 the second set of measured values of measured values corresponding to the corresponding to the second set of second set of signals with the fourth set of signals with the fourth set of measured values corresponding to the measured values corresponding to fourth set of signals" the fourth set of signals, excluding reporting or validating without Respondents note that the phrase in changing a value" Neodron's proposal beginning with "excluding..." is new, was not presented Supporting evidence: to the Court in briefing or oral argument by Neodron, and has no more support in '580 patent at 6:67-7:3; 8:55-9:10; the intrinsic record than the remainder of claims 1, 5, 9 Neodron's proposal p Neodron Ex. E ('580 File History Supporting evidence: Excerpt) '580 Patent: Fig. 1B, 6:32-36, 6:44-67, 8:57-64, 14:29-32 Brogioli Decl. at 111]62-63 File History for the '580-patent, Brogioli Reb. Decl. at 1111 37-4 RESP_0012573, at pages, e.g., RESP_0013025-041, RESP_00130S1­ 075, RESP_0013078-093, RESP_0013100-102 American Heritage College Dictionary (3rd ed. 1993, RESP_0015313-315 Expert Testimony of Jean Renard Ward, Rebuttal Decl. at ilj]61-66 JC at 8-9. The construction of this tenn, too, requires considering the prosecution history of the patent, as well as the plain meaning of "adjusting." During prosecution, the patentee argued that the Hills reference does not teach 6 determining a set of signals by adjusting values. . . Rather, Hills discloses reporting (validating) a touch when both a self-capacitance ('SC') scan and a mutual capacitance ('MC') scan detect a signal indicating a touch. . . . The SC scan 612 has its own touch threshold based on its own baseline 650, and the MC scan 611 has its 34 ' 2 own touch threshold based on its own baseline. . . . Only after both the SC scan and MC scan independently detect a touch is the touch reported (validated). The cited portions of Hill specifically do not teach using values associated with the SC scan to adjust values associated with the MC scan, . . .[and thus] do not disclose determining a set of signals by adjusting values associated with the second set of signals based on values associated with the fourth set of signals. . RIMB, Ex. 15 at RESP_0013090-91. The patentee argued, that is, that Hills teaches reporting (validating) a touch when both a self-capacitance scan and mutual capacitance scan detect a signal. That is entirely different from adjusting values, as recited in the claims. The 'S80 Patent does not teach reporting or validating as a step in "adjusting," so there is no need for that step in the claim construction. ' Furthennore, near the end of prosecution, the patentee and the Examiner had an interview during Which this term was discussed. In the Interview Surmnary, the Examiner recapped the conversation as "[a]pplicant discussed the differences between the prior art Hills and the claimed invention related to determ[ining] a fifih set of signals by changing measured mutual capacitance values from the second set of signals by using measured self capacitance values from the measured fourth set of signals." Applicant-Initiated Interview Summary, January 2§, 20163 (emphasis added). The patentee did not argue that the Examiner's use of "change" instead of "adjust" as it is used in the claim was incorrect. Rather, the Applicant merely argued that Hills "does not disclose, teach, or suggest changing mutual scan values using self-scan values." RIMB, Ex. 17 at RESP_0O13100­ 01 (emphasis added). Moreover, the plain meaning of adjust is "to change so as to match or fit." RIMB, Ex. 23 at RESP_00153 l 5. The patentee did not ftnther limit this term. Thus, the term "adjust" is correctly construed as "change." 3 Official Notice is taken of the Applicant-Initiated lnterview Summary, included in Exhibit Dl to the Complaint, which is the complete prosecution history of the '580 Patent. 35 2 1 Therefore, "adjusting the second set of measured values corresponding to the second set of signals with the fourth set of measured values corresponding to the fourth set of signals" is construed as "changing the second set of measured values corresponding to the second set of signals with the fourth set of measured valued corresponding tothe fourth set of signals." SO ORDERED. @/id/50 Cameron Elliot i Administrative Law Judge 36 x 2 CERTAIN TOUCH-CONTROLLED MOBILE DEVICES, COMPUTERS, AND COMPONENTS THEREOF INV. NO. 337-TA-1162 PUBLIC CERTIFICATE OF SERVICE I, Lisa R. Barton, hereby certify that the attached Order No. 15 has been served upon the following parties as indicated, on Nfly_Z W. 1;, J; Lisa R. Barton, Secretary U.S. Intemational Trade Commission 500 E Street SW, Room 112A Washington, DC 20436 FOR COMPLAINANT NEODRON LTD. Asha Allam, Esq. V' Hand Delivery ADDUCI,MASTRIANI& SCHAUMBERG, 1133 Connecticut Avenue, NW, 12"'Floor LLP firess Via FirstDelivery Class Mail. Washington, DC 20036) Other: FOR RESPONDENT AMAZON.COM, INC. Stefani E. Shanberg, Esq. () Via Hand Delivery " MORRISON & FOERSTER LLP 425 Market Street (\XExpress (~ Via FirstDelivery Class Mail 4 San Francisco, CA 94105 () Other: FOR RESPONDENTS SAMSUNG ELECTRONICS CO., LTD & SAMSUNG ELECTRONICS AMERICA, INC. D. Sean Trainor; Esq. () Via Hand Delivery O'MELVENY 1625 Eye Street,&NW MYERS LLP ((\/{) Express Via FirstDelivery Class Mail Washington, DC 20006 () Other: \ 2 CERTAIN TOUCH-CONTROLLED MOBILE DEVICES, COMPUTERS, AND COMPONENTS THEREOF INV. NO. 337-TA-1162 FOR RESPONDENT DELL TECHNOLOGIES INC. Adam D. Swain, Esq. () \/ia Hand Delivery ALSTON & BIRD LLP () xpress Delivery 950 F Street NW (Vfiiia First Class Mail, Washington, DC 20004 () Other: FOR RESPONDENTS HP INC. & MICROSOFT CORPORATION Sean C. Cunningham, Esq. () Via Hand Delivery DLA PIPER LLP (Express Delivery 401 B Street, Suite 1700 (Via First Class Mail San Diego, Ca 92101 (). Other: FOR RESPONDENTS LENOVO GROUP LTD., LEVONO (UNITED STATES) INC. & MOTOROLA MOBILITY LLC Cecilia Sanabria, Esq. ' ' () 1aHand Delivery FINNEGAN, HENDERSON, FARABOW, (Express Delivery GARRETT,& DUNNER LLP) Via First Class Mail 901 New York Avenue, NW () Other: Washington, DC 20001 4