Typhoon Touch Technologies, Inc et al v. Motion Computing, Inc et al, No. 6:2007cv00546 - Document 437 (E.D. Tex. 2009)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part 354 Motion for Summary Judgment. The Court interprets the claim language in this case in the manner as set forth in this Order. For ease of reference, the disputed claims are set forth in Appendix A and the Court's claim interpretations are set forth in Appendix B. Signed by Judge Leonard Davis on 07/23/09. cc:attys 7-24-09 (mll, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION TYPHOON TOUCH TECHNOLOGIES, INC. and NOVA MOBILITY SYSTEMS, INC., § § § § § § § § § § Plaintiffs, vs. DELL, INC., et al., CASE NO. 6:07 CV 546 PATENT CASE Defendants. MEMORANDUM OPINION AND ORDER Before the Court is Defendants Motion for Summary Judgment on the issue of indefiniteness (Docket No. 354). After considering the briefing and oral argument, Defendants motion is GRANTED in part for the reasons explained below. This opinion also construes the disputed terms in U.S. Patent Nos. 5,379,057 (the 057 patent ) and 5,675,362 (the 362 patent ). BACKGROUND The 057 patent issued on January 3, 1995, and the 362 patent issued on October 7, 1997. The 362 patent is a continuation of the 057 patent. Both patents are similarly entitled Portable Computer with Touch Screen and Computer System Employing the Same. Generally, the patents describe a portable computing apparatus utilizing a touch-screen for display and user interface. The patents recite that prior art computing devices lacked combined features of versatility, portability, and user-friendliness. To that end, the patents also describe computer programs run by the portable computer that generally facilitate data collection in an easy-to-use fashion. On December 5, 2007 1 Typhoon Touch Technologies, Inc. ( Typhoon ) filed this patent infringement action alleging that Defendants infringed certain claims of the 057 and 362 patents. APPLICABLE LAW 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 v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). In claim construction, courts examine the patent s intrinsic evidence to define the patented invention s scope. See id.; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). This intrinsic evidence includes the claims themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips, 415 F.3d at 1312 13; Alloc, Inc. v. Int l Trade Comm n, 342 F.3d 1361, 1368 (Fed. Cir. 2003). The claims themselves provide substantial guidance in determining the meaning of particular claim terms. Phillips, 415 F.3d at 1314. First, a term s context in the asserted claim can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the claim s meaning because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term s meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314 15. [C]laims must be read in view of the specification, of which they are a part. Id. (quoting 2 Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). [T]he specification is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term. Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term a different meaning than the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor s lexicography governs. Id. Also, the specification may resolve ambiguous claim terms where the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words alone. Teleflex, Inc., 299 F.3d at 1325. But, [a]lthough the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims. Comark Commc ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. The prosecution history is another tool to supply the proper context for claim construction because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) ( As in the case of the specification, a patent applicant may define a term in prosecuting a patent. ). Although extrinsic evidence can be useful, it is less significant than the intrinsic record in determining the legally operative meaning of claim language. Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but 3 technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert s conclusory, unsupported assertions as to a term s definition is entirely unhelpful to a court. Id. Generally, extrinsic evidence is less reliable than the patent and its prosecution history in determining how to read claim terms. Id. The patents in suit also contain means-plus-function limitations that require construction. Where a claim limitation is expressed in means plus function language and does not recite definite structure in support of its function, the limitation is subject to 35 U.S.C. § 112, ¶ 6. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, 35 U.S.C. § 112, ¶ 6 mandates that such a claim limitation be construed to cover the corresponding structure . . . described in the specification and equivalents thereof. Id. (citing 35 U.S.C. § 112, ¶ 6). Accordingly, when faced with means-plus-function limitations, courts must turn to the written description of the patent to find the structure that corresponds to the means recited in the [limitations]. Id. Construing a means-plus-function limitation involves multiple inquiries. The first step in construing [a means-plus-function] limitation is a determination of the function of the means-plusfunction limitation. Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). Once a court has determined the limitation s function, the next step is to determine the corresponding structure disclosed in the specification and equivalents thereof. Id. A structure disclosed in the specification is corresponding structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim. Id. 4 Moreover, the focus of the corresponding structure inquiry is not merely whether a structure is capable of performing the recited function, but rather whether the corresponding structure is clearly linked or associated with the [recited] function. Id. APPLICATION General Purpose Claims 1-2 and 6-11 of the 057 patent contain the term general purpose. Typhoon suggests that the term means not application dedicated, i.e., not pre-programmed for specific end uses in specific fields. Defendants urge that the term needs no construction. To support its definition, Typhoon seizes on language in the background section of the patent explaining that [h]andheld data collection devices [in the prior art] typically run dedicated, often single-function applications, which are preprogrammed for specific end uses in specific fields . . . . 057 Patent at 1:23-26 (emphasis added). The patent s claims use the word general purpose to describe a type of computer. See e.g., 057 Patent at 31:12-13 ( A self contained, general-purpose, portable, keyboardless computer . . . . ). As noted by Defendants, Typhoon s quoted language describes the applications run by handheld devices rather than the devices themselves. As the above-quoted language suggests, applications are dedicated, computers are not. As a result, it would be inappropriate to import the inventors description of prior art applications, into the patent s limitation describing computers. Further, Typhoon s definition describes general purpose by defining what it is not, rather than what it is. The specification and prosecution history only specifically mention general purpose in contrast to prior art devices that are only capable of running single-function applications. See 057 Patent at 1:23-26, 42-44; Typhoon s Opening Brief, Ex. E, Docket No. 340-11 at 5 TYPH_000254. However, the term general purpose within the context of the entire specification is clearly meant to be broader than this distinction alone. Rather, the specification makes numerous references to the type of computer contemplated by the inventors. These references suggest that a general purpose computer is simply one with a central processing unit ( CPU ) and memory. See, e.g., 057 Patent at 2:46-50 ( The portable computer is self-contained in that it includes in a single compact housing all components necessary for computing central processing unit ( CPU ), a memory . . . . ); 3:4-5 ( The CPU of the portable computer executes the application and processes the manually entered data pursuant to the application. ); 3:28-29 ( The CPU causes data corresponding to the response signals to be stored in memory. ). As the remainder of the claim limitations require that the computer have the ability to run multiple applications (accounting for the distinction suggested by the specific references to general purpose in the specification) and have both a CPU and memory, no further definition of general purpose is necessary or warranted. See 057 Patent at 31:23-28 ( a central processing unit connected to said memory means . . . and an application generator for generating said data collection applications ). Portable The term portable appears in claims 1-2, 6-12, and 14 of the 057 patent and claims 1-8, 10 and 12 of the 362 patent. Typhoon suggests that the term means easily carried around during use and not unwieldy. Defendants urge that the term means designed to be carried by an individual. Thus, the parties agree that term requires that a device have the ability to be carried by an individual. However, the parties disagree over whether portable requires that a device be capable of operation while moving. 6 Both patents begin by describing portable devices in the prior art as includ[ing] hand-held units and lap-top computers. 362 Patent at 1:22-25; 057 Patent at 1:20-24. The patents also acknowledge that lap-top computers are generally not operated while being carried. See 057 patent at 1:51-52 ( the lap-top is intended for use while supported on the user s lap, as the name imports ); 362 Patent at 1:51-52 (same). Typhoon s proposed construction equates ambulatory use with portability. However, as the above-quoted passages suggest, the specification clearly distinguishes between a portable device and one which is capable of ambulatory use. Furthermore, the description of the invention describes portability in terms of compact design and describes an optional carrying case that is specifically adapted for ambulatory use of the portable computer. See 362 Patent at 4:42; 057 Patent 17:28-29, 45-56 & Fig. 14. Thus, there is clearly a distinction between ambulatory use and portability. The Court rejects Typhoon s suggestion that portability requires ambulatory use. However, Defendants suggestion that portability be by design introduces an element of subjectivity into the term that is not warranted by the claim language or specification. See Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005) ( The scope of claim language cannot depend solely on the unrestrained subjective opinion of a particular individual purportedly practicing the invention. ). The essence of portability, as reflected in the specification, is not the fact that a device has the ability to move, but rather the ease with which it can be moved. See 057 Patent at 1:54-58 (describing lap-top as portable but having unsymmetrical dimensions, bulkiness, [burdensome] weight, and [an] off-set center of gravity ). Accordingly, portable is defined as physically configured to be easily carried by an individual. 7 keyboardless The term keyboardless appears in claims 1-2, 6-12, and 14 of the 057 patent and claims 1-8, 10, and 12 of the 362 patent. Defendants define the term as without a physical integrated keyboard. Typhoon suggests that the term means does not require a keyboard for use since it is equipped with a touch screen. In effect, Typhoon s definition limits the term to devices utilizing a touch screen. Typhoon s construction is imported from a portion of the specification that mentions that [t]he portable computer is keyboardless in that it does not require a keyboard for use since it is equipped with a touch screen. 057 Patent at 2:57-59. Ultimately, the parties dispute centers over whether keyboardless is a negative limitation that restricts the invention from utilizing any kind of keyboard. Initially, Typhoon s definition must be rejected because it is overly restrictive and explains why the preferred embodiment of the invention fits into a keyboardless category rather than explaining what keyboardless means. O2 Micro Int l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) ( The purpose of claim construction is to determine the meaning and scope of the patent claims asserted to be infringed. ) (internal quotation marks omitted). Defendants are correct that the specification distinguishes integrated from non-integrated keyboards. See 057 Patent at 2:59-61 ( Nevertheless, [the invention] is provided with connections to hookup an external keyboard as well as a full range of peripherals . . . . ). However, inherent in this same distinction is the understanding that peripheral keyboards are mechanical (non-virtual) keyboards. See id. at 2:61-63 ( and is capable of displaying an interactive, simulated keyboard by means of the input/output device ). Similarly, Defendants use of the word physical fails to capture the full meaning of the 8 term as described in the specification. A virtual keyboard displayed on a touchscreen is nevertheless physical. See The American Heritage College Dictionary 1031 (3d ed. 1997) (defining physical as of or relating to material things ). The specification distinguishes mechanically integrated keyboards from non-mechanically integrated keyboards rather than physical keyboards from nonphysical keyboards. See 362 patent at 1:47-49 ( Entry of information is generally performed using a keyboard which is provided integrally in the lap-top computer s housing or as a peripheral. ). Accordingly, the meaning of keyboardless in light of the specification is without a mechanically integrated keyboard. touch sensitive screen Claims 1, 12, and 14 of the 057 patent contain the term touch-sensitive screen. Typhoon defines the term as a screen which is responsive to the touch of a finger. Defendants suggest that the term means a device, on which a display s output is shown, that recognizes inputs in response to touch. The parties dispute surrounds whether 1) the term screen needs further definition in order to contrast it with the invention s display and 2) whether touch-sensitive is limited to touch by a finger. With regard to the first issue, the patent makes a distinction between a display, which is an output device that produces images viewable by the user, and a touch-sensitive screen, which is a separate device that receives input from the user. See 057 Patent at 2:53-55 ( The input/output device has a touch sensitive screen superimposed over a display, for example, a liquid crystal display ( LCD ). ). This distinction is expressed sufficiently in the claims themselves. Id. at 31:14-17 ( [A] combined input/output device including a display for displaying outputs on a touch-sensitive screen, said screen superimposed over said display . . . . ). Thus, contrary to Defendants arguments, 9 there is no need to define screen with regard to its relationship with the display as that relationship is sufficiently communicated in the claim language. See id. With regard to the second issue, the specification does not limit touch-sensitivity to touch by a finger. Typhoon cites to a number of references in the specification that clearly refer to a particular embodiment of the invention. See, e.g., id. at 10:38-41 ( A scale or bar graduated, for example, from 1 to 10 can be provided, which has a marker which moves in response to movement of a user s finger across the bar. ) (emphasis added); 19:44-46 (explaining that a particular embodiment of the invention would have the ability to respond with the touch of a finger! ). Additionally, neither the claims nor summary of the invention contain any reference to touch by a finger. It is clear from the context of Typhoon s intrinsic citations that the inventor regarded touch of a finger to be a convenient example for explaining the operation of the touch-sensitivity, rather than intending to limit the term to only finger sensitivity. This conclusion is bolstered by the intrinsic evidence showing that the inventor provided a host of prior art to the Patent and Trademark Office ( PTO ) describing touch-sensitivity that was sensitive to a variety of different stimuli. See, i.e., U.S. Patent No. 4,653,086 (filed March 15, 1985) (disclosing touch sensitivity to a stylus or pen, but not sensitivity to a finger); U.S. Patent No. 4,555,699 (filed Jan. 10, 1983) (disclosing a data entry system using a stylus or finger and touchsensitive tablet). Thus, the inventor indicated to the Patent and Trademark Office ( PTO ) that touch sensitivity based on various stimuli (not restricted to a finger ) was well-known in the art and considered when conceiving of the invention described in the 057 patent. Considering both the intrinsic and extrinsic record, references in the specification to touch-sensitivity with a finger, were not meant to be definitional. Therefore, imputation of such a limitation into the meaning of touch10 sensitive would be improper. Accordingly, touch-sensitive screen is defined as a screen which is responsive to touch. memory [means] for storing and for executing The terms memory for storing, memory means for storing, 1 and for executing appear in claims 1, 12, and 14 of the 057 patent and claims 1, 10, and 12 of the 362 patent. The parties agree that the terms should be similarly defined but disagree over whether the limitations express a requirement or a capability. For context, claim 1 of the 362 patent requires a memory for storing a data collection application and an operating system and a processing unit connected to said memory for executing said data collection application. 362 Patent at 16:62-67. Also, by way of example, claim 12 of the 362 patent contains the limitation a run-time executor for executing said application and said libraries to facilitate data collection operations. Id. at 18:35-36. Typhoon suggests that the terms require no definition, but that the ordinary meaning of for storing and for executing indicate only a capability of performing the claims recited functions. Conversely, Defendants urge that memory [means] for storing be defined as a memory that must perform the recited function and for executing be defined as the recited function must be performed. Typhoon s argument is that the plain meaning of for indicates an ability, rather than a requirement. In support of this construction Typhoon cites Optimal Recreation Solutions LLP v. Leading Edge Technologies, Inc., where the Federal Circuit opined that memory means for storing the position of the golf cup was not a means-plus-function limitation and that memory was defined as a device capable of storing data. 6 Fed. Appx. 873, 877-878. Importantly, the question of whether for storing the position of the golf cup required (rather than represented a capability) 1 The parties have agreed that memory means is not a means-plus-function limitation. 11 that the memory store that type of information was not before the court. Id. Thus, the court defined only the term memory means and did not decide whether for storing presented an additional limitation. Here, the structure of the memory and the run-time executor are defined according to their functions: e.g., storing data collection applications or executing data collection applications. Thus, the claim uses functional language that describes the structure of a memory and run-time executor beyond being merely memory and a run-time executor. See, e.g., Acco Brands, Inc. v. Micro Security Devices, Inc., 346 F.3d 1075, 1078 ( The functional language is, of course, an additional limitation in the claim. ) (quoting K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1363 (Fed. Cir. 1999)). Typhoon s argument attempts to omit any portion of a limitation after the preposition for from the claim language. If the claim scope extending to merely a capability to store or to execute was sought by the inventor, then the claim would have recited only a memory and a runtime executor. Thus, Defendants are correct that, as an operational apparatus embodied as claimed, the memory and the run-time executor must perform the recited functions (including storing data collection applications and operating systems and executing those applications). The patentee defines the structure of memory and the run-time executor by reference to functional characteristics, which is proper. But, having done so, the patentee also imposed the requirement that the functional characteristics specified must be included within the claim limitation in the context of the operational apparatus; in this case a computer containing a memory for storing . . . and a run-time executor for executing . . . . See, e.g., 362 Patent at 18:24-36. Accordingly, Memory [means] for storing any of a plurality of data collection applications 12 . . . an operating system and data . . . is defined as a memory that must perform the recited function (i.e. storing a plurality of data collection applications, an operating system and data/ at least one data collection application/ data collection application and various libraries/ functional libraries/ a data collection application and an operating system). Similarly, the term for executing is defined as the recited function must be performed (namely, executing the application and the libraries to facilitate data collection operations). data collection application Claims 1, 7, and 12-15 of the 057 patent and claims 1, 4, and 10-13 of the 362 patent contain the term data collection application. The parties agree that the term does not have a plain meaning. Typhoon defines the term as a software application for receiving and storing data that utilizes libraries. To arrive at this definition, Typhoon relies on several phrases describing the operation of a data collection application within the specification and then reduces those descriptions to their most general form. For example, Typhoon cherry-picks general references to a data collection application s ability to collect and record data and coverts them into the limitation s defining characteristic. See 057 Patent at 2:64-67 ( For data collecting and recording, the memory of the portable computer stores a data collection application . . . . ). In fact, the patents do explain that data collection applications assist in collecting data. See id. However the description also explains that data collection is facilitated by using displayed help fields for each question or subject, sequential and consequential libraries, and cross referencing of entered responses. 362 Patent at 3:7-10. As will be more thoroughly explained, libraries are generally groups of possible responses to questions. See id. at 3:12-17. Along these same lines, the description of the preferred embodiment details how a data collection application is formatted 13 for question and answer data collection. See, e.g., id. at 12:10-14 ( The loop procedure s main function is to go to each question on the data collection screen one by one, interact with the user to get the information, validate the information, and return to the beginning of the loop or exit. ). Because the specification exclusively refers to the data collection application s ability to collect data by question and answer, Defendants urge that the term be defined as a computer program that collects responses to a predetermined series of questions. Thus, the parties principal dispute is whether a data collection application broadly collects and stores data or is limited by the disclosed question and answer format. The specification provides several indications that a data collection application is limited to its disclosed question and answer format. First and foremost, in a paragraph entitled [w]hat is an application? located in an illustrative appendix to the specification, the patent recites that [t]he basics of designing applications can be summarized in the following single sentence: The application is a series of multiple-choice questions. 057 Patent at 18:27-31. Additionally, several dependent claims contain references to changing the flow of said data collection applications. See, e.g., 362 Patent at 17:21-21, 18:44-45. Defendants assert that flow has no antecedent basis in the claims, unless flow refers to a characteristic of a data collection application. Defendants are correct that use of the term flow in reference to applications is consistent with a data collection application having a flow of questions described in the specification. See 057 patent at 3:32-36 (explaining that consequential libraries contain actions or executable instructions . . . which change the flow of the application ) (emphasis added). Typhoon responds by arguing that a construction requiring a question and answer format would violate the canon of claim differentiation because claims 11 and 12 of the 057 patent contain 14 a limitation requiring an application generator for generating said data collection applications and . . . said application generator further comprising means for cross referencing responses to said inquiries with possible responses from one of said libraries. See 057 Patent at 32:18-22, 37-40. Typhoon asserts that this reference to inquiries and responses, only found in claims 11 and 12, precludes limiting a data collection application to collecting the responses to predetermined questions. However, while a data collection application may collect responses to questions, the limitation in claims 11 and 12 specifically call for a means for cross referencing responses to questions. The doctrine of claim differentiation does not apply. See Curtiss-Wright Flow Control Corp. v. Velan, Inc., 438 F.3d 1374, 1380-81 (Fed. Cir. 2006) (discussing the doctrine of claim differentiation as applied to independent claims). Further, the language in claims 11 and 12 further suggest that data collection applications collect responses to predetermined questions because (as claims 11 and 12 explain) the application generator provides a means to cross reference provided responses with the stored responses contained within the libraries. Thus, the language in claims 11 and 12 assume that there are responses that have been collected by a data collection application and stored predetermined questions. Typhoon s suggestion that the patent very generally describes a data collection application as receiving and storing data is incorrect. As discussed, the specification and the claims of the patent refer to a data collection application as a specific sort of data collection tool that gathers answers to a series of questions. Accordingly, data collection application is defined as a computer program that collects responses to a predetermined series of questions. 15 application generator Claims 1, 6-7, and 9-12 of the 057 patent and claims 1, 3-4, 6-8, and 10 of the 362 patent include the term application generator. Typhoon suggests the term means a software tool used to develop and customize data collection applications and libraries, while Defendants urge that the definition is an interactive software development tool used in generating a data collection application by converting menu selections to code. The patents overwhelmingly explain, in various locations, the purpose and function of an application generator. The patents abstract explains that [a]n application generator allows the user to develop data entry applications by combining features of sequential libraries, consequential libraries, help libraries, syntax libraries, and pictogram libraries into an integrated data entry application. 362 Patent at [57] ( Abstract ); 057 Patent at [57] ( Abstract ). The description also references FIG. 5 [as] show[ing] a block diagram of the computer-aided interactive process for application generation. The process is designed to provide a series of options which are selectable by the designer. 362 Patent at 8:9-12; 057 Patent at 8:45-48. Defendants argue that the definition of application generator should be limited to an interactive program containing only menu selections because the description of the preferred embodiment contains the above-quoted reference to menu options and an interactive process. However, the entirety of the description provides evidence that the claims are not so limited. The 057 patent provides an appendix for the specific purpose of explaining application generation. See 057 Patent at 17:23-26 ( To further clarify the application generator process, appended hereto and made part hereof is an illustrative application generation guide. ). As part of this application generation guide the appendix describes how to design questions (for the data collection 16 applications) and answers (for the libraries) noting that the user is not limited by particular formats or forms. See 057 Patent at 20:34-39 ( The first step in designing an application is comprised of drafting questions and defining the formats for their answers. What you must be aware of here is that we are using the term question quite liberally. When we say question we mean literally any kind of text . . . . ). The description, the claims, and the supporting appendix only restrict an application generator to what it creates, i.e. a data collection applications and libraries. Thus, Defendants construction restricting the application generator to turning menu selection to code is unsupported. Instead, as explained by the patent and viewed in the context of the extensive appendix on application generation, the application generator is a tool for creating questions (in the form of data collection applications) and answers (in the form of libraries). On the other hand, Typhoon s suggested definition requires that the application generator also customize[s] applications. The patents do not describe a difference between the creation of applications and libraries and their customization. Additionally, the ordinary meaning of customize is inherently subjective. See The American Heritage College Dictionary 341 (3d ed. 1997) (defining customize as to make or alter to individual or personal specifications ). Finally, as the definition suggests, creation necessarily includes the ability to customize. Therefore, the addition of the phrase and customize in Typhoon s proposed definition is inappropriate. See Datamize, 417 F.3d at 1350. Accordingly, application generator is defined as a software tool used to develop data collection applications and libraries. library The term library is found in claims 1, 6-7, 9-15 of the 057 patent and claims 1, 3-4, 6-8, 17 and 10-13 of the 362 patent. Typhoon suggests that the term means a collection of customizable content used by the data collection application. Defendants urge the definition is a collection of possible responses, messages, or images used by the data collection application. The parties agree that a library is a collection of content that is used by the data collection application. Thus, the principal controversies surround whether the content is limited to responses, messages, or images and whether the content is customizable. The patents specification describes five types of libraries: sequential, consequential, help syntax, and pictogram libraries. See 362 Patent at [57] ( Abstract ); 3:7-9 ( [D]ata collection is facilitated by using displayed help fields for each question or subject, sequential and consequential libraries, and cross-referencing of entered responses. ); 057 Patent at 3:15-18 (same). Sequential libraries are libraries of possible responses in text or pictogram form . . . . 057 Patent at 3:20-21. Consequential libraries are similar to sequential libraries . . . . Id. at 3:32. With respect to consequential libraries, the specification teaches that the user is able to select[] from the displayed possible responses as described with respect to sequential libraries. Id. at 3:37-38 (emphasis added). Thus, consequential and sequential libraries are described in the patent as responses, and the responses are, in turn, described as having the form of a text or pictogram. Similarly, pictogram libraries are described as stor[ing] graphical images of objects, and syntax libraries are collections of standard messages that are displayed on the screen to interact with the user. Id. at 15:25-26, 34-35. Finally, the patent refers to help libraries with reference to a help function described as messages or text relating to each one of the questions on the data collection screen. 057 Patent at 14:49-51 (emphasis added). These libraries exist so that when a user initiates the help feature text will pop up on a window and explain, for example, the nature of 18 [what] the answer should be. Id. at 14:54-55. Thus, Defendants are correct that the specification defines libraries specifically as either responses, messages, or images. Importantly, Typhoon concedes that the patents specifically describe libraries as responses, messages, or images. See Typhoon s Opening Brief, Docket No. 340 at 22. Typhoon does not suggest, or point to any intrinsic or extrinsic evidence concerning what kind of content the term libraries would encompass besides the definitions specifically given in the specification and recited above. Finally, the claims themselves use the word content to describe all outputs displayed on the screen of the disclosed devices. See id. at 31:19-22 ( an application generator for generating said data collection applications and for creating different functional libraries relating to said contents and formats displayed on said screen ). If content is the visible result of the interaction between data collection applications and libraries, then the definition of libraries must be something less broad: i.e., responses, messages, or images. Typhoon also argues that libraries should be defined as customizable. For the same reasons discussed for the term application generator, the word customizable is inappropriate for describing library. The patents claims specify that a user can create libraries and introducing customize into the definition of library would only add ambiguity to the definition without clarifying anything about the scope of the term. Accordingly, library is defined as a collection of possible responses, messages, or images used by the data collection application. operating in conjunction with The term operating in conjunction with appears in claims 1, 12, and 14 of the 057 patent and claims 1 and 10 of the 362 patent. The term is used in various contexts. For example, claim 19 1 of the 362 patent teaches an application generator operating in conjunction with said operating system to generate said data collection application, and claim 12 of the 057 patent teaches a runtime utility operating in conjunction with said processor to execute said application. The ordinary definition of the word operate is to perform a function. The American Heritage College Dictionary 956 (3d ed. 1997). However, Typhoon urges that the term needs no definition because in conjunction merely describes a characteristic or feature, for example, that the run-time utility is designed to operate with the processor and need not actually operate for the claim limitation to be satisfied. Typhoon provides no support for its plain and ordinary construction and fails to explain how the word operating denotes a mere capability. Thus, Typhoon bears the burden of showing how the patentee intended operating in conjunction to have a specialized meaning. N. Telecom Ltd. v. Samsung Elecs. Co., 215 F.3d 1281, 1295 (Fed. Cir. 2000) ( The plain and ordinary meaning of claim language controls, unless that meaning renders the claim unclear or is overcome by a special definition that appears in the intrinsic record with reasonable clarity and precision. ) (citation omitted). In accordance with the plain meaning of operating, Defendants suggest that the claim language operating in conjunction with requires that the run-time utility/executor/ or the application generator, in fact, be operating, and operating in conjunction with the processor/operating system. In other words, the phrase is not satisfied until the run-time utility/executor or application generator is actually operating. Thus, the parties agree that the term requires that the run-time utility/executor or application generator operate with the processor/operating system, however, the parties disagree over whether the term requires those features to actually perform their functions (rather than a capability or feature). 20 With regard to the interaction between the run-time utility and the processor, the specification describes that [w]hen the computer . . . is turned on, its operating system is loaded automatically in and the run-time process commences. 057 Patent at 12:43-45. As such, the patent clearly indicates that the run-time utility only operates when the processor (in the computer) is turned on. Thus, the patent does not describe a capability to interact, but an actual ongoing interaction between the run-time utility and the processor. See id. at 12:42-13:59. With regard to the interaction between the application generator and the operating system, claim 1 of the 057 patent and claim 10 of the 362 patent describe the interaction relating to partition[ing] . . . memory means. See 057 Patent at 31:30-35. Additionally, claim 1 of the 362 patent describes the interaction occurring in order to generate said data collection application and to create different functional libraries. 362 Patent at 17:1-5. The patent describes partitioning as an operation actually performed by the application generator in order to separate data collection applications and associated libraries within memory. See 059 Patent at 7:46-48. Thus, the only situation described in the specification that can give any effect to the claim language is at the point in time when an application generator and processor are working together to partition memory. The patent also describes, in detail, how the application generator uses the processor to generate data collection applications and libraries. See 057 Patent at 8:44-12:40. It is clear from the detailed description that the application generator actually works with the processor to create data collection applications and libraries. Had the patentee claimed an application generator capable of working in conjunction with or simply an application generator and a processor, then a device with the mere ability to partition, generate, or create could meet the claim language. However, as the claim limitation 21 specifically requires that an application generator work with an operating system to partition memory or generate applications and libraries, that language must be given effect. Contrary to Typhoon s argument, there is no support in the intrinsic record that the claim limitation operating in conjunction with denotes a mere capability to operate. Thus, the term needs no construction, and the plain and ordinary meaning controls, i.e., that the run-time utility/ executor/ application generator, in fact, be operating, and operating in conjunction with the processor/ operating system. In other words, the phrase is not satisfied until the run-time utility/ executor or application generator is actually operating. to partition said memory [means] Claim 1 of the 057 patent and claim 10 of the 362 patent contain the term to partition said memory [means]. Typhoon suggests that the term needs no construction and simply means to divide a memory. Defendants advocate that the definition is to divide a memory into multiple locations recognized by the operating system as separate sections of memory for storing data. The fundamental dispute between the parties is whether partition should be given its technical definition. Since Phillips, claim terms are generally given their technical definition in lieu of a general dictionary definition. See Amgen Inc. v. Hoechst Marion Roussel, Inc., 469 F.3d 1039, 1041 (Fed. Cir. 2006) (citing Phillips, 415 F.3d at 1303); Mangosoft v. Oracle Corp., 525 F.3d 1327, 1333 (Fed. Cir. 2008) (construing a claim term consistently with its technical definition). Within the field of computer science, partition has a particular and well recognized definition meaning: a section of a hard disk physically divided from other sections during the formatting operation and treated by the operating system as if it were a separate disk. See Defendants Brief, Ex. 16, Docket No. 355-19 22 (referencing Que s Computer User s Dictionary 344-345 (1990)). Further, the specification explains that the host system 202 stores an application and associating libraries in memory locations partitioned by the application generator. Accordingly, this reference explains that the data (applications and libraries) are stored in memory locations (as opposed to physical locations) and that such memory locations were created by the application generator (the operating system ). Therefore, besides the patented subject matter generally falling under the field of computer systems, the intrinsic evidence further supports use of the technical definition. Typhoon provides no evidence, either intrinsic or extrinsic, that supports the use of a broader definition outside the context of computer science. Accordingly, to partition said memory [means] means to divide a memory into multiple locations recognized by the operating system as separate sections of memory for storing data. said possible responses Claims 7, 8, 11, 13, and 15 of the 057 patent and claims 4-5, 8, 11, and 13 of the 362 patent contain the term said possible responses. The parties dispute surrounds whether there is ambiguity over what the term refers to. The term first appears in claim 7 of the 057 patent and claim 4 of the 362 patent. The preceding claim in both the patents (claim 6 of the 057 and claim 3 of the 362) is a dependant claim and contains a reference to said application generator includes a sequential library of possible responses configured for display by the input/output device. 057 Patent at 31:62-64; 362 Patent at 17:3-4.2 Whenever the term said possible responses appears in the subsequent claims, Typhoon argues that the term refers to the responses both in the sequential library claims and in the claim where the term appears. For example, claim 7 of the 057 patent 2 For ease of reference, these claims will be referred to as the sequential library claims. 23 claims [t]he self contained, general purpose, portable, keyboardless computer of claim 6 wherein a second library created by said application generator includes a consequential library of one of actions and executable instructions associated with said possible responses for changing the flow of said data collection applications. Typhoon argues that said possible responses in claim 7 refers to the possible responses in both claim 7 (the responses for consequential libraries) and claim 6 (the responses for sequential libraries). To this end, Typhoon asserts that the claim needs no construction because this result yields from the plain and ordinary meaning of the term. In contrast, Defendants assert that the term refers only to its antecedent basis in the sequential library claim. Therefore, in the above example, said possible responses would refer only to the possible responses of the sequential libraries mentioned in claim 6. To this end, Defendants suggest the term means the possible responses of the sequential library. In each of the claims including the term said possible responses (including claim 7 of the 057 patent referenced above) the claims do not mention, define, or refer to other sets of responses. In the very same manner, the specification refers to and describes other libraries (such as consequential libraries) with reference to the responses in the sequential libraries. See id. at 3:3242 ( Consequential libraries are similar to sequential libraries except that associated with one or more of the possible responses stored in the memory are actions or executable instructions (e.g., branch, jump, etc.) also stored therein which change the flow of the application. ). Thus, the specification and the claim language support the conclusion that the only clear antecedent basis for said possible responses are the responses mentioned in the sequential library claims. As a result, Defendants construction is correct and said possible responses means the possible responses of the sequential library. 24 for changing the flow Claims 7, 13, and 15 of the 057 patent and claims 4, 11, and 13 of the 362 patent contain the term for changing the flow of said data collection applications. The parties point to the same portion of the specification to support their suggested definitions: 1.6 Logical Flow of Applications The logical flow of your application is controlled by a parameter common to each answer field: the Go To parameter. This parameter determines the next question to be asked in the application. Each question is also assigned a Sequence Number used by the GoTo parameter. In the example of FIG. 1.1 above, question 1's GoTo parameter would be simply Next Question. Question 2's GoTo parameter, being the final question of this short application, would be End Program. 057 Patent at 19:64-20:6. The above quoted language describes how flow is controlled by a parameter that determines the next question. Typhoon suggests that the definition of for changing the flow is for changing the logical order of inquiries. However, as the above quoted language clearly demonstrates, the logical order of questions is only altered in response to the user s answer to the previous inquiry. Further, the specification suggests a process where a change in logical order extends to the next question. Thus, Typhoon s general definition including the term logical order is overly broad. The specification describes a specific question-by-question process whereby a change in answer to a current question may result in a different subsequent question. See id. at 19:51-54 ( Consequential libraries . . . hold lists of answers and can affect the flow of the application. That is, the next questions asked are dependant upon the previous answer selected. ) Therefore, Defendants proposed construction correctly identifies the scope of flow. Accordingly, for changing the flow of said data collection application is defined as changing the next question presented from the data collection application depending on the response to the previous question. 25 means for cross-referencing Claims 11 and 12 of the 057 patent and claim 8 of the 362 patent contain a limitation requiring the application generator to contain a means for cross-referencing responses to said inquiries with possible responses from one of said libraries. All parties agree that the term is a means-plus-function claim and is governed by 35 U.S.C. § 112, ¶ 6. The parties further agree that the disclosed function of the term is cross-referencing responses to said inquiries with possible responses from one of said libraries. However, Defendants argue that the term is indefinite because there is no corresponding structure disclosed in the patent s specification. Typhoon contends that the term is definite and the corresponding structure is disclosed as an algorithm that matches entered responses with a library of possible responses, and, if a match is encountered, displaying the fact of the match, otherwise alerting the user, or displaying information stored in memory fields associated with that library entry, and equivalents thereof. Typhoon supports its articulation of the term s structure by referencing a portion of the specification describing the preferred embodiment of the invention: 3. Cross-referencing Cross-referencing imports that, for each answer field, the entered response can be related to a library to determine if the response in the answer field is existent in the library. In other words the answer information is cross-referenced against that specific library. If it is available in that library, then, corresponding to that library entry, an action is executed. For instance, the associated action can involve an overlay window that alerts the user of the fact of the match with the library entry, or displays the contents of an information field stored in association with that entry in the memory. The user can then avail himself or herself of that information to make a decision or for whatever other purpose. Thus, cross-referencing results in the typical situation with the display of information. 057 Patent at 14:57-15:4. Defendants claim that the above quoted language is merely an articulation of the result of the claimed function and not a structure. 26 When § 112, ¶ 6 is invoked and the claimed structure is a computer, a degree of specificity is required beyond merely disclosing a computer. Aristocrat Techs. Austl. Pty Ltd. v. Int'l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). Because general purpose computers can be programmed to perform very different tasks in very different ways, simply disclosing a computer as the structure designated to perform a particular function does not limit the scope of the claim to the corresponding structure, material, or acts' that perform the function, as required by section 112 paragraph 6. Id. Thus, in a means-plus-function claim in which the disclosed structure is a computer, or microprocessor, programmed to carry out an algorithm, the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithm. Id. (quoting WMS Gaming, Inc. v. Int'l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999)). If a patentee fails to disclose a specific algorithmic structure, then the claim term is indefinite. Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1367 (Fed. Cir. 2008). The parties agree that a specific algorithmic structure is not disclosed in the patent. Regardless, Typhoon asserts that the above-quoted language is detailed enough to allow a practitioner skilled in the art to understand the algorithmic structure corresponding the means for cross-referencing term. However, when language in the specification simply describes the function to be performed, not the algorithm by which it is performed, the claim term does not escape indefiniteness. Aristocrat Techs., 521 F.3d at 1334. This is true even when language in the specification is so specific that it may allow one skilled in the art to devise an algorithm with sufficient structure. Id. The above quoted language merely discloses the result achieved by a means for cross-referencing. Typhoon s proposed structural language does not disclose any sort of computer algorithm. Rather, it uses more (and different) words to define the function. The patent 27 fails to disclose any algorithmic structure for the means for cross-referencing claim term. As a result, the claim is indefinite. Defendants motion for summary judgment on the issue of indefiniteness is granted with respect to claims 11 and 12 of the 057 patent and claim 8 of the 362 patent. run-time utility Claims 12 and 14 of the 057 patent contain the term run-time utility. Typhoon suggests that the term means a software tool to facilitate data collection operations. Defendants urge that the definition is a program specifically designed to execute and process compiled data collection application and libraries. Initially, Typhoon s construction is overly broad in light of the claim language. Claim 12 requires a run-time utility . . . to execute said [data collection] application. Considering that the claim language already requires that a run time utility execute data collection applications, Typhoon s construction merely replaces the words software tool for run-time utility. Such a construction is unhelpful, renders claim language superfluous, and unjustifiably broadens the scope of the claims by merely replacing a specific term with a more general one. On the other hand, Defendants construction focuses on how the run-time utility operates in the preferred embodiments and fails to capture what a run-time utility is. See 057: Fig. 5, 6, 8:6163, 18:17-18 (describing that the preferred embodiment features a run-time utility that operates on compiled applications created by an application generator). Defendants improperly focus on whether a run-time utility must interact with compiled data collection applications. Adding such a limitation does not assist in defining a run-time utility, but rather, imports a roundabout limitation on the nature of data collection applications. Such a limitation is clearly improper. Thus, 28 Defendants proposed construction is also rejected. As agreed by the parties and as indicated by the words run-time, the utility is invoked during the execution of a program. See 057 Patent at 12:43-46 ( When the computer 10A-10N is turned on, its operating system is loaded automatically in and the run-time process commences. ). Here, the utility aids in the execution of a data collection application. Id. at 12:41-43. The word utility designates not just a software tool, as Typhoon describes, but a software program that manages the tasks involved in execution of the data collection application by the processor. See id. at Fig. 11, 12:41-13:59. As shown by the flow chart in Figure 11 of the 057 patent, the run-time process for managing a data collection application involves managing a number of specific tasks. Therefore, a run-time utility refers to a software program invoked during execution of a data collection application to manage the various tasks involved in executing the data collection application. data collection unit Claim 14 of the 057 patent contains the term data collection unit. The parties agree that the term has no established meaning within the art. Despite this, Typhoon advocates that the term means a device for collecting data. Thus, Typhoon s argument is essentially that unit should be construed as device and that the patentee did not attach any specialized or restricted meaning to the term as a whole. Conversely, Defendants argue that the term means a device that is designed to collect data for transfer to a central location. Typhoon responds by arguing that Defendants definition is overly restrictive in requiring a data collection unit to transfer to a central location. The patentee essentially coined a phrase in using data collection unit. The meaning given to it by the patentee is gleaned from the attributes of data collection described in the specification. 29 The patent describes that a data collection unit can continuously and repetitively collect data. 057 Patent at 7:56-57. Then, the collected data is stored locally on the satellite computer. Id. at 7:5960. [T]he data provided from the computer . . . is uploaded to the host computer. Id. at 7:62-63. The patent also refers to the uploaded data as transferred data. Id. at 7:67. However, the fact that the data is transferred to a host computer in the specification is merely illustrative and has nothing to do with the operation of a data collection unit. By way of analogy, the patent describes that data being transferred to a host computer can be accomplished in a variety of ways, including by floppy disk, cable or satellite connection. Id. at 8:1-5. That recital, nor the recital that transferred data flows to a host computer, restricts a data collection unit to transferring data soley by those described methods or soley to the described recipient. Thus, the attributes essential to the patentee s use of the term data collection unit are collection of data and transfer of data. Accordingly, data collection unit is defined as a device to collect data for transfer. run-time executor Claims 1 and 12 of the 362 patent contains the term run-time executor. The parties agree that the term has no ordinary meaning and that it is not specifically described in the patent. Defendants claim, based on these two facts, that the term is indefinite. Typhoon argues that the term was used, and indeed meant to be used, interchangeably with the term run-time utility. As noted above, the 362 patent is a continuation of the 057 patent, which in turn claims priority to U.S. Application No. 07/271,237 filed on November 14, 1988. The term run-time executor was first used in new claims added to the 057 patent application on January 28, 1994. See Amendment dated January 28, 1994, Defendants Motion for Summary Judgment Ex. 3, Docket No. 354-4 at 6-8, 10. After those claims were rejected by the patent examiner for lack of a written 30 description, the applicant replaced the term run-time executor with the term run-time utility described in the specification. See Office Action dated March 17, 1994, Defendants Motion for Summary Judgment Ex. 4, Docket No. 354-5 at 3; Amendment dated May 31, 1994, Defendants Motion for Summary Judgment Ex. 6, Docket No. 354-7 at 6. The term run-time executor was reintroduced in the continuation application which led to the 362 patent. See Preliminary Amendment dated October 4, 1994, Defendants Motion for Summary Judgment Ex. 8, Docket No. 354-9 at 1, 13-15, and 17-18. The claims in the continuation application were not rejected on the basis of lack of a written description. Thus, the term run-time utility is used in the 057 patent and the term run-time executor is used in the 362 patent. This history manifests a clear intention by the patentee that the terms run-time utility and run-time executor are synonymous and interchangeable. C.f. Telecom Ltd. v. Samsung Elecs. Co., 215 F.3d 1281, 1294 (Fed. Cir. 2000) (holding that patentee must use reasonable clarity and deliberateness in prosecution history in order for a court to limit the scope of claim terms based on such history). In addition, by the time the continuation application leading to the 362 patent was filed, the PTO also agreed that the patentee used the terms interchangeably. At the time of the original application there was no evidence that utility and executor had similar definitions. However, given those terms subsequent history, Defendants argument that run-time executor is insolubly ambiguous has no support. The patent history decisively yields the conclusion that runtime executor be given the same definition as run-time utility. Therefore, Defendants motion for summary judgment is denied with respect to the term run-time executor and the term is defined as a software program invoked during execution of a data collection application to manage the various tasks involved in executing the data collection application. 31 CONCLUSION For the foregoing reasons, the Court interprets the claim language in this case in the manner set forth above. Furthermore, Defendants motion for summary judgment on the issue of indefiniteness is GRANTED in part and DENIED in part. For ease of reference, the disputed claims are set forth in Appendix A and the Court s claim interpretations are set forth in Appendix B. So ORDERED and SIGNED this 23rd day of July, 2009. __________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE 32 APPENDIX A U.S. Patent No. 5,379,057 1. A self-contained, general-purpose, portable, keyboardless computer comprising: A. a combined input/output device including a display for displaying outputs on a touch-sensitive screen, said screen superposed over said display and configured for manual entry of responses; B. memory means for storing any of a plurality of data collection applications, an operating system and data, said data collection applications determining contents and formats of said outputs displayed on said screen; C. a central processing unit connected to said memory means and said input/output device for executing said data collection applications stored in said memory means; and D. an application generator for generating said data collection applications and for creating different functional libraries relating to said contents and said formats displayed on said screen, said application generator operating in conjunction with said operating system to partition said memory means for storing said data collection applications and libraries. 2. The self-contained, general-purpose, portable, keyboardless computer of claim 1 further comprising means for powering said input/output device and said processing unit. 6. The self-contained, general-purpose, portable, keyboardless computer of claim 1 wherein a first library created by said application generator includes a sequential library of possible responses configured for display on said screen in selected ones of said formats. 7. The self-contained, general-purpose, portable, keyboardless computer of claim 6 wherein a second library created by said application generator includes a consequential library of one of actions and executable instructions associated with said possible responses for changing the flow of said data collection applications. 8. The self-contained, general-purpose, portable, keyboardless computer of claim 7 wherein said possible responses are one of text and pictograms. 9. The self-contained, general-purpose, portable, keyboardless computer of claim 8 wherein said pictograms comprise graphical images of objects and wherein a third library created by said application generator includes a pictogram library of said pictograms. 10. The self-contained, general-purpose, portable, keyboardless computer of claim 9 wherein a fourth library created by said application generator includes a syntax library of predefined message outputs displayed on said screen, and whereby changes to said predefined message outputs are effected by accessing said syntax library and manually entering desired message outputs. 11. The self-contained, general-purpose, portable, keyboardless computer of claim 10 wherein said application generator further includes means for cross-referencing said responses with one of said libraries of said possible responses. 12. A portable, keyboardless, computer comprising: an input/output device for displaying inquiries on a touch-sensitive screen, said screen configured for entry of responses to said inquiries; a memory for storing at least one data collection application configured to determine contents and formats of said inquiries displayed on said screen; a processor coupled to said memory and said input/output device for executing said data collection application; and an application generator for generating said data collection application and for creating 33 different functional libraries relating to said contents and said formats displayed on said screen, said application generator further comprising means for cross-referencing responses to said inquiries with possible responses from one of said libraries; and a run-time utility operating in conjunction with said processor to execute said application and said libraries to facilitate data collection operations. 13. The computer of claim 12 wherein said different functional libraries include: a sequential library of said possible responses configured for display on said screen in selected ones of said formats; a consequential library of one of actions and executable instructions associated with said possible responses for changing the flow of said data collection applications; and a pictogram library for storing graphical images of objects. 14. A portable, keyboardless, data collection unit comprising: an input/output device for displaying and entering information on a touch-sensitive screen; a memory for storing a data collection application and various functional libraries relating to contents and formats of said information displayed on said screen; a processor coupled to said memory and said input/output device for executing said data collection application; and a run-time utility operating in conjunction with said processor to execute said application and said libraries to facilitate data collection operations. 15. The unit of claim 14 wherein said libraries include: a sequential library of possible responses configured for display on said screen in selected ones of said formats; a consequential library of one of actions and executable instructions associated with said possible responses for changing the flow of said data collection application; and a pictogram library of pictograms. U.S. Patent No. 5,675,362 1. A portable, keyboardless computer including an input/output device for entering and displaying information, said computer comprising: A. a memory for storing a data collection application and an operating system, said data collection application determining contents and formats of the information displayed by the input/output device; B. a processing unit connected to said memory for executing said data collection application; C. an application generator operating in conjunction with said operating system to generate said data collection application and to create different functional libraries relating to said contents and said formats displayed by the input/output device; and D. a run-time executor operating in conjunction with said processing unit to execute said application and said libraries to facilitate data collection operations. 2. The portable, keyboardless computer of claim 1 further comprising means for powering said memory and processing unit. 3. The portable, keyboardless computer of claim 2 wherein a first library created by said application generator includes a sequential library of possible responses configured for display by the input/output device in selected ones of said formats. 4. The portable, keyboardless computer of claim 3 wherein a second library created by said application generator includes a consequential library of one of actions and executable instructions associated with said 34 possible responses for changing the flow of said data collection application. 5. The portable, keyboardless computer of claim 4 wherein said possible responses are one of text and pictograms. 6. The portable, keyboardless computer of claim 5 wherein said pictograms comprise graphical images of objects and wherein a third library created by said application generator includes a pictogram library of said pictograms. 7. The portable, keyboardless computer of claim 6 wherein a fourth library created by said application generator includes a syntax library for changing the syntax of the information displayed by the input/output device. 8. The portable, keyboardless computer of claim 7 wherein said application generator further includes means for cross-referencing said responses with one of said libraries of said possible responses. 10. A portable, keyboardless computer including an input/output device for entering and displaying information, said computer comprising: a memory for storing at least one data collection application configured to determine the contents and formats of the information displayed by the input/output device; a processor coupled to said memory for executing said data collection application; and an application generator for generating said data collection application for generating different functional libraries relating to said contents and said formats displayed by the input/output device said application generator operating in conjunction with said processor to partition said memory for storing said data collection application and libraries. 11. The computer of claim 10 wherein said libraries include: a sequential library of possible responses configured for display by the input/output device in selected ones of said formats; a consequential library of one of actions and executable instructions associated with said possible responses for changing the flow of said data collection application; and a syntax library for changing the syntax of the information displayed by the input/output device. 12. A portable, keyboardless computer including an input/output device for entering and displaying information, said computer comprising: a memory for storing a data collection application and various libraries relating to contents and formats of the information displayed by the input/output device; a processor coupled to said memory and the input/output device for executing said data collection application; and a run-time executor for executing said application and said libraries to facilitate data collection operations. 13. The unit of claim 12 wherein said libraries include: a sequential library of possible responses configured for display by the input/output device in selected ones of said formats; a consequential library of one of actions and executable instructions associated with said possible responses for changing the flow of said data collection application; and a syntax library for changing the syntax of the information displayed by the input/output device. 35 APPENDIX B U.S. Patent Nos. 5,675,362 & 5,379,057 Disputed Claim Term Court s Construction self-contained [AGREED] - Includes in a single compact housing all components necessary for computing a central processing unit, a memory, an input/output device, and a battery pack for power '057 Patent claims 1-2, 6-11 general-purpose No Construction Necessary '057 Patent claims 1-2, 6-11 portable Physically configured to be easily carried by an individual '057 Patent claims 1-2, 6-12, 14 '362 Patent claims 1-8, 10, 12 keyboardless W ithout a mechanically integrated keyboard '057 Patent claims 1-2, 6-12, 14 '362 Patent claims 1-8, 10, 12 input/output device [AGREED] - A device that includes a touch-sensitive screen, which recognizes an input and displays an output. '057 Patent claims 1-2, 12, 14 '362 Patent claims 1, 3, 7, 10-13 touch-sensitive screen A screen which is responsive to touch. '057 Patent claims 1, 12, 14 memory [means] for storing A memory that must perform the recited function (i.e., storing a plurality of data collection applications, an operating system and data/ at least one data collection application/ data collection application and various libraries / functional libraries/ a data collection application and an operating system). '057 Patent claims 1, 12, 14 '362 Patent claims 1, 10, 12 data collection application A computer program that collects responses to a predetermined series of questions. '057 Patent claims 1, 7, 12-15 '362 Patent claims 1, 4, 10-13 36 for executing The recited function must be performed (namely, executing the application and the libraries to facilitate data collection operations). '057 Patent claims 1, 12, 14 '362 Patent claims 1, 10, 12 application generator A software tool used to develop data collection applications and libraries. '057 Patent claims 1, 6-7, 9-12 '362 Patent claims 1, 3-4, 6-8, 10 library A collection of possible responses, messages, or images used by the data collection application. '057 Patent claims 1, 6-7, 9-15 '362 Patent claims 1, 3-4, 6-8, 10-13 operating in conjunction with No Construction Necessary. '057 Patent claims 1, 12, 14 '362 Patent claims 1, 10 to partition said memory [means] To divide a memory into multiple locations recognized by the operating system as separate sections of memory for storing data. '057 Patent claims 1 '362 Patent claims 10 means for powering '057 Patent claims 2 [AGREED] Function: Powering [said] memory, [input/output device,] and processing unit. '362 Patent claims 2 Structure: A power supply, and equivalents thereof. sequential library [AGREED] - A library of possible responses in text or pictogram form stored in memory and fetched with the associated subject or question for display on the device that does not affect the flow of the application. '057 Patent claims 6, 13, 15 '362 Patent claims 3, 11, 13 consequential library '362 Patent claims 4, 11, 13 [AGREED] - Consequential libraries are similar to sequential libraries except that associated with one or more of the possible responses stored in the memory are actions or executable instructions also stored therein which change the flow of the application. said possible responses the possible responses of the sequential library. '057 Patent claims 7, 13, 15 '057 Patent claims 7, 8, 11, 13, 15 '362 Patent claims 4-5, 8, 11, 13 37 for changing the flow changing the next question presented from the data collection application depending on the response to the previous question. '057 Patent claims 7, 13, 15 '362 Patent claims 4, 11, 13 pictogram library [AGREED] - A library used to store graphical images of objects. '057 Patent claims 9, 13, 15 '362 Patent claims 6 syntax library [AGREED] - A library of standard messages that are displayed on the screen to interact with the user. '057 Patent claims 10 '362 Patent claims 7, 11, 13 means for cross-referencing Indefinite '057 Patent claims 11-12 '362 Patent claims 8 run-time utility '057 Patent claims 12, 14 A software program invoked during execution of a data collection application to manage the various tasks involved in executing the data collection application. data collection unit A device to collect data for transfer. '057 Patent claims 14 run-time executor A software program invoked during execution of a data collection application to manage the various tasks involved in executing the data collection application. '362 Patent claims 1, 12 38
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