Before 2017

Markman Ruling Construes “Network” Rejecting Parties’ Proposals

Plaintiff Microwave Vision, SA (“Microwave Vision”), owner of U.S. Patent No. 7,443,170 (the “‘170 Patent”), brought an action for patent infringement along with MVG Industries, SAS, and MVG, Inc. (collectively “Plaintiffs”) against ESCO Technologies Inc. and ETS-Lindgren Inc. (collectively the “Defendants”).

The ‘170 Patent covers systems used “to measure various parameters relating to antennas used in wireless devices.”  P. 2.  The system uses the same array of probes to obtain multiple measurements by rotating the probes or the antenna to achieve different perspectives.  One of Plaintiffs’ devices is depicted below:
Judge Steve C. Jones provides a thorough exposition of the relevant legal standard for construing claims at pages 3 – 6 of his 52-page Order.  The nexus of the parties’ claim construction dispute centers on the construction of the term “network of probes.”  The parties agreed that the ‘170 Patent improved on prior art, which used a similar set of probes, by allowing pivoting of the probes and the tested antenna to garner additional data points.  Greater measurement resolution is achieved by the system through obtaining more measurement points than the number of probes.  Microwave Vision argues its ‘170 Patent claims protect its system of achieving this increased resolution from infringement by Defendants.
Divergent claim constructions of the key term “network of probes” were proffered by Plaintiffs and Defendants.  Plaintiffs argued that the term should be construed to require probes that “can each send signals to a common receiving device,” while the Defendants argued the probes must be “communicatively interconnected.”  Pp. 11-12.  The Court focused on the thrust of the dispute – “what it means for a given set of ‘probes’ to be ‘networked.’”  P. 12.
In its examination of the claims,[i] the Court found no mention of sending signals to a common receiving device or communicative interconnectivity.  Thus the functional limitations proposed by each side was not mandated by the claim language. P. 13.  The Court further found that the patentee had not acted as lexicographer to define the term in the specifications.  P. 13.  The Court found the arguments of each side effective against the other and thus neither proposed construction had specification support.  P. 13.  Similarly, the Court dissected the extrinsic evidence offered by each side in support of its proposal and found that evidence lacking.
The Court found fault with the premise of both sides that a “network” must involve communications, noting the reference to a network of trains in “Newton’s Telecom Dictionary.”  P. 15, n. 4.  The Court did not find dictionary references to “nodes” in communication systems to be synonymous with “probes” as used in the ‘170 Patent.  Apparently, Judge Jones did not feel the compulsion that the parties felt that communications of some kind must be included as a limitation, probably based on the probes as manifested in real-life employing communication of the measurements taken.  “This is not to say that Claim 12 could not include such features.  But they are not required limitations.”  P. 16, supported by n. 7.
The Court’s independent approach to deriving a proper construction offers a lesson to IP litigators both on how to systematically arrive at a supportable construction and on how to persuasively document that process.   Judge Jones followed the process he described in his Legal Standard section first looking to the claim language (including the language of non-asserted independent claims).  P. 18, n. 9.  That examination of claims led Judge Jones to conclude that the “network of probes” require a particular structure. 
First the probes must be in a single plane.  Pp. 18-20.  This requirement was further supported by repeated terminology in the specifications, which in turn was further supported by the prosecution history.  P. 20.  The term Judge Jones chose to describe this relationship was “coplanar.”  P. 21, n. 10.
Second, the probes must “have a fixed relation to one another.”  P. 21.  Pointing to language that requires the pivoting of the network of probes, Judge Jones noted they must move “as a single unit, which in turn necessitates a fixed relationship.”  P. 22.  Dependent claim references to distribution of the probes at a given pitch along an arc further require a fixed relationship between the probes.  P. 22.  Similarly, multiple references to pivoting, tilting, moving, and pitch distribution in the specifications were cited for additional support.  P. 23.  The Court next points to the prosecution history where the patentee distinguished other prior art measuring probes for not involve pivoting, moving, or specifying an angular pitch.[ii]  P. 24.
While stating that extrinsic evidence was unnecessary to support the Court’s construction, Judge Jones nevertheless delivered the coup de grȃce to the parties’ constructions, pointing out the ‘170 Patent was filed pursuant to the Patent Cooperation Treaty based on a French Application.  Judge Jones then noted that the translation of the French application included the term at issue:  “network of probes.”  P. 26  The Court’s exegesis of the French term translated – réseau de sondes – supplied almost poetical support for his construction.  Réseau means a system of lines forming small squares of standard size forming a network to facilitate measurements or detect changes (in film), and sonde means various devices of testing physical and meterological conditions (above the earth’s surface) and the Middle French word sonde referred to a nautical “sounding line.”  Pp. 26-27.  Thus, as Judge Jones noted, the terms from which “network of probes” derived referred to probes with a particular physical arrangement rather than signal sending or other electronic communication characteristics.  P. 27.  Despite the Court’s repeated disavowing of reliance upon the historical genesis of the term at issue, one can almost see the Judge’s smile upon its discovery.
Thus, the Court, relying only upon the claims, specifications, and prosecution history, found “network of probes” to mean “multiple probes having a fixed and coplanar relationship to one another.”  P. 28-29.
The remaining constructions relating to the structure required for means-plus-function claims.  In determining the precise structures required, Judge Jones relied primarily on the disclosures in the specifications, noting that the first step was to identify the claimed function and next to determine what structures correspond to that function and examine the specification or prosecution history for a clear link of that structure to the recited function.  P. 31.  The Court again took a minimalist approach.  With regard to the first construction of a means-plus-function claim, the Court found the structure disclosed in the specifications that was required to perform the claimed function but refused to import additional limitations that were unnecessary for the claimed function.  The required structure does not need to include limitations already in the claim, but only those necessary to perform the claimed function that appear in the specification but not the claim.  While the Court decided not to adopt either side’s argument, a structure was found but without all of the limitations proposed by Plaintiffs.
However, with the final means-plus-function claim, the Court found that Plaintiffs had only disclosed one structure in the specification and thus the structure must “be limited to the single disclosed structure and equivalents.”  P. 48, citing Mettler-Toledo, Inc., v. B-Tek Scales, LLC, 671F.3d 1291, 1296 (Fed. Cir. 2012).
This Order demonstrates a sophistication of claim construction analysis extending beyond the arguments of counsel, yet bound by precedent and restraint.

The case is Microwave Vision, S.A., MVG Industries, SAS, and MVG, Inc. v. ESCO Technologies, Inc., and EST-Lindgren Inc., Dkt. 59, decided July 15, 2014, in 1:14-cv-01153-SCJ, in the United States District Court for the Northern District of Georgia, Atlanta Division, assigned to Judge Steve C. Jones.

[i] Although only Claim 12 was in dispute.  The Court looked at all the claims to see if their wording informed the correct finding.
[ii] Given the Court’s multiple references to a “given pitch” or “set pitch,” it is interesting to note that the Court’s ultimate construction required fixed positions but included no requirement of a symmetry of pitch in the locations.

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