The opinion of the court was delivered by: Judge David S. Cercone
MEMORANDUM ORDER AND NOW, on this 11th day of May, 2011, after de novo review of the record and upon due consideration of  the Magistrate Judge's Report and Recommendation filed on October 6, 2009, [83, 84] Plaintiff's and Defendants' objections and [86, 87] their respective responses thereto, IT IS ORDERED that the Report and Recommendation as augmented below is adopted as the claim construction opinion of the Court.
I. Plaintiff's Objections
Plaintiff raises five objections to the Report and Recommendation's claim constructions. Its arguments are, however, all variations on the objection that the Report and Recommendation improperly imported limitations from the specification into the claims.
The first construction that Plaintiff objects to is "identification number." Plaintiff argues that requiring the "identification number" to be "hardware encoded" is an impermissible limitation because it imports a limitation from the a preferred embodiment that is not present in the claims. In particular, Plaintiff takes issue with the Report's statement that the patent does not contain language which expressly states that there are alternatives to a "hardware encoded identification number." (See Docket No. 82 at 21). Plaintiff first points to the section heading "Description of the Preferred Embodiments" as indicating that "hardware encoded" is just a preferred embodiment. See U.S. Patent No. 5,640,152 col. 5, ln. 23-24. ('152 Patent) Second, Plaintiff points to the final paragraph of the specification stating that "it should be understood that many changes and modifications may be made therein without departing from the scope of the appended claims." '152 Patent col 11., ln. 62-64.
The Report did recognized that claims are not to be limited to preferred embodiments and that Plaintiff's contention was that "hardware encoded" is simply a element of a preferred embodiment of the invention. However, the Report disagreed with this contention on the basis that specification stated that "[e]very transmitter unit has a unique hardware encoded identifying number." '152 Patent col. 7, ln. 5-6 (emphasis added). Furthermore, the Report discussed that the person having ordinary skill in the art would not read the specification to allow for the identification number to be otherwise "hardware encoded," i.e. "calculated by software" or otherwise manipulated as suggested by Plaintiff. The Report's analysis, therefore, did not fail to take into account that aspects of the specification are merely preferred embodiments. Rather, the Report's recommendation is based on how a person having ordinary skill in the art would read the claims in light of the entire specification, not simply a section heading and boilerplate language of alternative embodiments.
Although "hardware encoded" is used only once in the specification, the Court agrees with the Report that nothing in the intrinsic evidence would lead a person having ordinary skill in the art to understand that the identification number found in "[e]very transmitter" could be anything other than "hardware encoded." The proposition that the "unique identification number" could be calculated by software or somehow changed or manipulated from outside the transmitter is not supported by the intrinsic evidence. (See Docket No. 82 at 21.) There simply is no intrinsic support to require a person having ordinary skill in the art to read out "hardware encoded" but not "unique" from the line in the specification "[e]very transmitter unit has a unique hardware encoded identifying number." '152 Patent col 7, ln. 5-6. As a result, Plaintiff's objection to "Identification Number" is overruled.
2. Previously Designated & Designating
Plaintiff's second objection is to the Report's construction of "previously designated" and "designating." Plaintiff argues that the Report erred in finding that the "designating" step only designates the identification number in the connect packet as the "previously designated identification number." Essentially, Plaintiff argues that the Report erred in recommending a narrower construction that would not allow for a different number to be designated "in response" to the identification number found in the connect packet.
Plaintiff's contention that more than one number could be used to identify a transmitter has no support within the specification. The Report correctly found that the specification does not contain any of the additional steps suggested by Plaintiff. Furthermore, the "designating" is done "by" transmitting the connect data packet which does not require the inclusion of a step where the receiver is "designating" "in response to" the connect data packet. Indeed, it appears that Plaintiff's supposed alternative embodiments of using more than one number to designate the identification number is merely an additional step to what is already present in the claim under the recommended construction. As a result, Plaintiff's objection to "previously designated" and "designating" is overruled.
3. Connect Packet & Connect Data Packet Plaintiff's third objection is to "connect packet" and "connect data packet" and the Report's inclusion of the requirement that they contain "status data." Again, Plaintiff argues that the Report improperly imported limitations from the specification into the claims. In particular, Plaintiff points out that only Claim 5 contains the term "status data" and the other claims involving "connect packet" do not have the element of "status data" present.
The specification states, however, that "[e]very packet also contains a status byte and the two-byte identifying number of the transmitter unit." '152 Patent col. 11, ln. 4-5. The Report further points out that it is undisputed that the "connect packet" is a type of data packet, again which the specification states that contains at least the identification number and status data. As a result, the Report correctly concludes that a person having ordinary skill in the art would understand "connect packet" to contain "status data." Since the Report did not import elements of a preferred embodiment into the claims, Plaintiff's objection is overruled.
Plaintiff's fourth objection is to "rejecting." It argues that there should be a different construction for the term's use in Claim 1 and Claim 4. The Report recommends that Plaintiff's construction for "rejecting" be adopted as it provides the plain meaning of the term. Plaintiff's objection is that the Report uses the remainder of the language from Claim 1 in construing "rejecting" which is slightly different from Claim 4. There is no indication that "rejecting" in either claim has a different meaning or that rejecting should have separate constructions for each claim. Rather, the most useful construction for the jury is to simply construe "rejecting" and allow the remainder of the language in each of Claim 1 and 4 to speak for itself. As a result, the Court will augment the Report's construction as follows: "Rejecting" means "refusing to accept."
Plaintiff's final objection is that while the Report adopted a construction for the disputed terms in Claim 2, the Report did not adopt a construction for the similar language found in Claim 4. The Report recommended that the language from Claim 2 "different from the identification numbers generated by all other transmitters of said plurality of transmitter" means "the unique hardware encoded number identifying a specific transmitter is not the same as the unique hardware encoded number in all other transmitter." (Docket No. 82 at 39). This construction simply incorporates the construction for the term "identification number" with the construction for "different." While the Court agrees with the Report's construction for "identification number", for the sake of allowing the claim language and other claim constructions to speak for themself, the Court will decline to construe the entire phrase of Claims 2 and 4 and rather will only provide a construction to the term "different." The parties do not otherwise dispute that "different" means "not the same as." Therefore the Court's construction is "different" means "not the same as."
II. Defendants's Objections
Defendants also filed objections to the Report and Recommendation, which the ...