In a tentative ruling, a court held the claim term “processor” did not invoke means-plus-function construction and was not governed by 35 U.S.C. §112¶6. Realtime Adaptive Streaming LLC v. Adobe Systems Inc., No. cv 18-9344-GW(JCx) (C.D. CA, July 25, 2019.
Plaintiff Realtime Adaptive Streaming LLC (“Realtime”) brought an action against Defendants Google LLC and YouTube LLC (collectively “Google Defendants”) alleging infringement of five Realtime patents. Realtime further filed suit against Defendant Adobe Systems Inc. (“Adobe”), alleging infringement of seven Realtime patents, including the five patents asserted against the Google Defendants. The court directed the parties to file consolidated claim construction briefs for certain disputed terms. The court conducted a hearing and issued a Tentative Ruling construing the disputed terms.
Two of the patents asserted against Adobe, US 9,769,477 and US 9,762,907, included the claim term “processor.” Representative claim 1 of the ‘477 patent recites in part:
1. A system, comprising:
. . .
one or more processors configured to:
determine one or more data parameters, at least one of the determined one or more data parameters relating to a throughput of a communications channel measured in bits per second; and
select one or more asymmetric data compression encoders from among the plurality of different asymmetric data compression encoders based upon, at least in part, the determined one or more data parameters.
The parties submitted the following proposed claim constructions for the disputed claim term:
Term Realtime’s Proposed Construction
Adobe’s Proposed Construction “one or more processors configured to” No construction necessary Governed by 35 U.S.C. 112 ¶6
Function: determine one or more data parameters, at least one of the determined one or more data parameters relating to a throughput of a communications channel []measured in bits per section]; and select one or more [asymmetric/video] data compression encoders from among a plurality of different [asymmetric/video] data compression encoders based upon, at least in part, the determined one or more data parameters.
Corresponding structure: Indefinite.
Initially, the court noted that the disputed claim term did not use the word “means,” and that “presumptively, therefore, §112 ¶6 does not apply to the limitations.” Zeroclick, LLC v. Apple Inc., 891 F.3d 1003, 1007 (Fed. Cir. 2018).
Defendant Adobe argued that the presumption is overcome because the claims only describe the processors in functional terms. Adobe, however, like the defendant (Apple) in Zeroclick, failed to offer any evidence to show that a person of ordinary skill in the art would not understand the word “processor” itself to connote a class of structures and therefore failed to meet. The presumption remains unrebutted. Zeroclick, 891 F.3d at 1007-08.
Plaintiff Realtime, on the other hand, submitted expert testimony:
A person of ordinary skill would readily understand that “processor” . . . as used in patents connotes a specific structure: the central processing unit (CPU) of a computer that processes data, comprising an instruction control unit and an arithmetic unit. For example, the IEEE technical dictionary defies “processor” as: “A device that interprets and executes instructions, consisting of at least an instruction control unit and an arithmetic unit.
Zeger Decl., Docket No. 70-2, paragraphs 38-40.) “The standard (for invoking §112 ¶6) is whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure.” Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015), Because Adobe has failed to cite evidence to overcome the presumption against means-plus-function claiming, and Plaintiff has presented evidence to the contrary, the court held that 35 USC §112 ¶6 did not apply to the claim term “processor.”
Lessons for Practice
It is comforting to know that the claim term “processor” held its ground in this case. Zeroclick has strengthened the presumption, under assault since Williamson, that claim terms that do not include “means” do not invoke means-plus-function claiming. Still, the possibility of a claim term, absent explicit structure in the claim, being found to be governed by 35 USC 112 ¶6 is ever present.
When drafting a patent application, surround claim terms that imply structure with additional structural detail, in the CLAIM. Further, be prepared. Include structural/algorithmic detail for claim terms in the specification.