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Gammino v. Sprint Communication Co.

United States District Court, Third Circuit

July 3, 2013

JOHN R. GAMMINO, Plaintiff,
v.
SPRINT COMMUNICATIONS COMPANY, L.P., et al., Defendants.

MEMORANDUM OPINION AND CLAIM CONSTRUCTION ORDER

CYNTHIA M. RUFE, J.

Plaintiff John Gammino brings this patent infringement action against Defendant Sprint Nextel and its subsidiaries (“Sprint”), alleging that Sprint infringed Gammino’s patent. Currently pending before the Court are the parties’ claim construction briefs in which they seek to have the Court construe the patent pursuant to Markman v. Westview Instruments, Inc..[1] Upon consideration of the parties’ submissions, and following a technology tutorial and Markman Hearing, [2] the Court construes the disputed terms herein.

I. Standard of Review for Claim Construction

In Markman v. Westview Instruments, Inc., the Supreme Court held that the issue of claim construction is a question of law to be decided by the Court.[3] Courts resolve the construction of claims before trial at what is now commonly referred to as a “Markman Hearing.” Once a court rules on the claim construction issues explored at the Markman Hearing, cases may either settle or proceed to trial where the jury decides the factual question of whether an infringement occurred.

A court’s claim construction analysis begins with the language of the claim itself, as the patentee specifically chose this language to describe his invention.[4] If the claim language is clear, then a court may consider other intrinsic evidence, such as the specification and the prosecution history, but only to determine whether such intrinsic evidence requires deviation from the clear language of the claim.[5] If the claim language is unclear, then the court uses the intrinsic evidence to resolve the ambiguity.[6] For example, deviation may be necessary where the patentee chooses to use terms in a manner other than by giving them their ordinary meaning.[7]

If the meaning of the claim cannot be determined from a consideration of the totality of the intrinsic evidence, the court may consider extrinsic evidence.[8] However, a court should be hesitant to turn to extrinsic evidence for the purpose of claim construction.[9] Relying on extrinsic evidence is “proper only when the claim language remains genuinely ambiguous after consideration of the intrinsic evidence. . . . Such instances will rarely, if ever, occur.”[10] Extrinsic evidence may never be used to contradict the terms in the claims themselves.[11]

II. THE PATENT

Gammino is the owner of U.S. Patent No. 5, 809, 125 (the ’125 Patent or the Patent).[12]The ’125 Patent was designed to block potentially fraudulent international calls.[13] Gammino developed the Patent in early 1992, after being contacted by a representative from the New York City Port Authority Bus Terminal (“PABT”) about fraudulent international calls being placed from PABT payphones and billed to calling cards.[14] The Patent describes algorithms and apparatuses for preventing or enabling international telephone calls based on dialing a series of prior to a telephone number.[15]

All telephone calls are initiated by dialing a sequence of numbers. The numbers in the sequence are grouped into several “pluralities” or groups of numbers. Each plurality is a code which conveys different types of information. For example, a caller might dial “101-0288-011-44-207-499-9000.” In that sequence, “101, ” the first plurality, makes the call an “access-code call” to be routed to a different carrier than the default carrier. The second plurality, “0288, ” identifies the specific carrier, in this case AT&T, and the third plurality, “011, ” signals that the call is a direct-dialed international call, billable to the line from which it was dialed.[16] If the third plurality is replaced with the code “01, ” the call is an operator-assisted international call; this code signals to the network to bill the call to a calling card or to the recipient as a collect call, and not to the line from which it was dialed.[17]

Gammino asserts that the ’125 Patent selectively blocks international calls based on predetermined digits occurring in certain locations in the dialing sequence, and does not—like prior art[18]—block all international calls.[19] Sprint argues, that like the prior art, the ’125 Patent blocks all international calls.

The ’125 Patent Claims at issue in this case are Claims 8-14, 22-28, and 35-41.[20] The parties present 10 disputed terms which the Court must construe:

(1) “selectively enabling, ” “transmitting said dialing sequence, ” and “transmits said dialing sequence” (appearing in claims 8 and 10);
(2) “means for receiving” (appearing in claim 8);
(3) “means for evaluating” (appearing in claim 8);
(4) “means for transmitting” (appearing in claim 8);
(5) “predetermined signals [or “predetermined digit sequences” or “test signal value sequences”] which are used to accomplish [or “for”] international dialing” (appearing in claims 8, 22, and 35);
(6) “irrespective of said second plurality or dialing signals [or “said plurality of further signal values” or “said second group of signal values”]” (appearing in claims 8, 22, and 35);
(7) “telecommunications device” (appearing in claims 22-28 and 35-41);
(8) “telecommunications apparatus” (appearing in claims 8-14);
(9) “means for preventing, ” and “at least partially preventing operation of” (appearing in claims 14, 22, 28, 35, and 38); and
(10) “signal value(s)” (appearing in claims 22, 24, 25, 27, 35, 26, 38, 39, 40, and 41).

The parties filed a Joint Statement on Disputed Terms and the Parties’ Proposed Interpretations of those contested terms.[21]

III. THE PARTIES’ PROPOSED CONSTRUCTIONS

The Court begins by framing the parties’ dispute. Sprint asserts that the ’125 Patent system took analog-only dual-tone multi-frequency (“DTMF”) signals representing the number sequence dialed from a wireline payphone and converted these analog signals into a digital sequence which enabled a microprocessor to analyze the sequence to determine if the call was international. If the number was international, the system would block the call. If the number was a domestic call, the dialed number sequence was re-encoded into DTMF signals and sent out on the telecommunications pathway.

Gammino, however, asserts that though the ’125 Patent is capable of blocking all international calls, it does not require the blocking of all international calls. He submits that the claims may selectively block international access calls when the third plurality of numbers within the sequence indicates that the call is international and are predetermined numbers. Thus, the crux of the parties’ argument is whether the ’125 patent blocks all international, access code calls or whether it selectively blocks such calls.

The parties’ proposed claim constructions are as follows:

Contested Term

Sprint’s Proposed Construction

Gammino’s Proposed Construction

(1) “selectively enabling, ” “transmitting said dialing sequence, ” and “transmits said dialing sequence”

Establishing a phone call unless the phone call is an international, access code call (i.e., if the call is an international, access code call, it is always blocked).

Transmitting dialing sequence to communications pathway if dialed signals in third plurality are not predetermined signals used for international dialing and if first plurality of dialing signals are not further predetermined signals.

(2) “means for receiving”

Decoder 120 in telephone 100, or decoder/DTMF generator/tone converter 260 in interface unit 200, or decoder 330 in personal computer 300. [22]

Telephone Device 100, Input device 110, Decoder 120, Switch 150, Switch 150a, Telecom Interface and Tone Generation 160, Telecommunications lines 170, Phone handset 180, Alternative audio source 190, Interface Unit 200, Telephone 210, Switch 240, Switch 240A, Telecommunication lines 250, Decoder 260, DTMF to Binary 260, Alternate Audio source 290, PBX system 310, DTMF & Detect and Decode 330, Signaling Device 340, Telecommunication lines 350, PC System 360, Switch 370, Customer Premise Equipment 320A-320n.

(3) “means for evaluating”

Microprocessor 130 in telephone 100, or microcontroller 230 in interface unit 200.

Telephone Device 100, Decoder 120, Microprocessor 130, Program memory 140, interface Unit 200, Memory 220, Microcontroller 230, Decoder 260, DTMF to Binary 260, MTMF & Detect and Decode 330, Signaling Device 340, PC System 360

(4) “means for transmitting”

To the extent any structure is disclosed, the means for transmitting must include:

Within telephone 100, either one or more of the microprocessor 130, switch 150/150A, and telecom interface and tone generation 160;

In interface unit 200, microcontroller 230 and/or decoder/DTMF generator/tone converter 260.

Telephone Device 100, Microprocessor 130, Switch 150, Switch 150A, Telecom Interface and Tone Generation 160, Telecommunication lines 170, Phone handset 180, Alternate Audio Sources 190, Interface Unit 200, Telephone 210, Microcontroller Telephone Device 100, Microprocessor 130, Switch 150, Switch 150A, Telecom Interface and Tone Generation 160, Telecommunication lines 170, Phone handset 180, Alternate Audio Sources 190, Interface Unit 200, Telephone 210, Microcontroller

(5) “predetermined signals [or “predetermined digit sequences” or “test signal value sequences”] which are used to accomplish [or “for”] international dialing”

The set of all sequences of digits which are used for international dialing.

Signals programmed into a telecommunications device or telecommunications apparatus at a particular location in a dialing sequence to be compared to subsequently dialed signals for a determination of whether the dialed signals are the same as the predetermined signals.

(6) “irrespective of said second plurality or dialing signals [or “said plurality of further signal values” or “said second group of signal values”]”

Without analyzing the content of said second plurality of dialing signals, said plurality of further signal values, or said second group of signal values.

(a) “enabled or prevented regardless of the second plurality.”

(b) “Enabled or prevented without caring about the second plurality.”

(7)“telecommunications device”

“A telephone” or telecommunications device as described in the specification as “telecommunications device 100” depicted in Figures 1A and 1B and described at column 3, lines 13-21, or “telecommunications device 210” depicted in Figures 2A, 2B, and 2C and described in column 6, lines 47-53.

(a) “Telecommunication device 100” depicted in Figures 1A and 1B and described at column 3, lines 13 to column 4, line 37 (including an input device, decoder, microprocessor, program memory switch, telecom interface and tone generation, alternate audio source and phone handset) or

(b) “Telecommunications device 210” depicted in Figures 2A, 2B and 2C, and described in column 6, lines 47-53.

(8) “telecommunications apparatus”

A telephone or telecommunications device 100 or 210 and interface unit 160 or 200, located outside of an external network (or on the same side of a commercial telecommunications network)

Apparatus used in telecommunications, including apparatus described at 100-190. 200-290 or 310-370 of the specification, column 3, line 12 to column 9, line 12, and depicted at FIG 1A, 1B. 2A, 2B, 2C, 3A or 3B. Such apparatus is located in devices including switches within and external to the telephone network.

(9) “means for preventing, ” and “at least partially preventing operation of”

Means for preventing:

In telecommunications device 100, either one or more of, microprocessor 130, switch 150/150A, and telecom interface and tone generation 160; or

In interface unit 200, either one or more of, microcontroller 230, decoder/DTMF generator/tone converter 260, and switch 240.

Preventing step:

Preventing a phone call if the phone call is an international, access code call (i.e., if the call is an international, access code call, it is always blocked).

Means for preventing:

Apparatus used in telecommunications, including the apparatus described at 100-190, 200-290 or 310-370 of the specification, column 3, line 12 to column 9, line 12 and depicted at FIG 1A, 1B, 2A, 2B, 2C, 3A or 3B.

(a) “Telecommunication device 100” depicted in Figures 1A and 1B and described at column 3, lines 13 to column 4, line 37 (including an input device, decoder, microprocessor, program memory switch, telecom interface and tone generation, alternate audio source and phone handset) or

(b) “Telecommunications device 210” depicted in Figures 2A, 2B and 2C, and described in column 6, lines 47-53.

Preventing step:

(claim 38) at least partially prevent use of telecommunications device if third group of signal values is located to accomplish international dialing and is identical dialing and is identical to first test signal value sequences and the first group of signal values are identical to the plurality of second test value sequences; or

(claim 22) At least partially prevent use of telecommunications device if at least two of plurality of signal values (in the third plurality) are identical to any one of respective predetermined digit sequences and if further predetermined signal value is identical to further signal value in the first plurality).

(10) “signal value(s)”

Frequency values, in hertz, of an analog, dual-tone multi-frequency (“DTMF”) signal; or signals transferred by hertz tones.

A dual-tone multi-frequency (“DTMF”) analog signal transferred by hertz tones. Under the telecommunications industry’s adopted system, two transmitted hertz tones (or two signal values) can be converted to one corresponding dialing digit of 0, 1, 2, 3, 4, 5, 6, 7, 8, 9, *and # The following table shows the corresponding digits:

Frequencies

1209hz 1336hz 1477hz 1633hz

697hz 1 2 3 A

770hz 4 5 6 B

852hz 7 8 9 C

941hz * 0 # D [23]

As an example, hertz tones 697hz and 1209hz correspond to digit “1” and those two hertz tones can be converted to dialed digit “1.” Another example is that 852hz and 1477hz convert to digit “9.” [24]

A. Sprint’s Proposed Claim Construction

Sprint submits that the claim interpretation issues can be narrowed into four categories of claim limitations: (i) “telecommunications, ” “apparatus, ” or “device;” (terms (2), (3), (4), (7) and (8)); (ii) “preventing” or “transmitting” dialing signals (terms (1) and (9)); (iii) “predetermined” or “test” “signals” or “digit sequences” (term (5)); and (iv) “irrespective of” “said second plurality” or “said plurality of further digit sequences” (term (6)).[25]

Sprint asserts that Limitations (ii), (iii), and (iv) were fully contested by Gammino in a case before the United States District Court for the Northern District of Texas, Gammino v. Southwestern Bell Telephone, L.P., Civ. A. No. 05-850 (“Southwestern Bell”), and that Gammino’s interpretation was rejected by that court.[26] According to Sprint, this Court can save considerable effort by adopting the interpretations of Southwestern Bell, thereby rejecting Gammino’s attempt to broaden the definitions of these terms. Sprint does not assert that Southwestern Bell has a preclusive effect on the construction of contested terms here; rather, Sprint asserts that the decision is nevertheless instructive given its thorough and well-reasoned analysis.

(i) Limitation One: “telecommunications” “apparatus” or “device”: (terms (2), (3), (4), (7) and (8))

The claim construction proposed by Sprint with respect to these terms cross-references numbered telecommunications devices specifically depicted in the written descriptions and drawings of the claims. The relevant dispute with respect to these terms is the location of the “telecommunications” “apparatus” or “device” (the interface unit). According to Sprint, the interface unit “must necessarily be located on one side of a commercial telecommunications network . . . because the specification clearly describes only a system in which the telephone and interface unit are located on the same side of the telecommunications network.”[27] Sprint submits that this interpretation is strengthened by the “means-plus-function” legal standard analysis because the structures/figures cited by Sprint as being a “telecommunications” “apparatus” or “device” are the only structures that have a “clear linkage” to the defined function of the apparatus or device.

(ii) Limitation Two: “preventing” or “transmitting” dialing signals (term (9))

Sprint asserts that the Court need not look beyond Southwestern Bell for the meaning of this claim. Southwestern Bell held that the “preventing step” requires the blocking of all international calls. In addition, Sprint submits that even if the Court is to reconsider the Southwestern Bell interpretation, it will find that the same interpretation controls. Additionally, Sprint submits that Gammino made several admissions during the Southwestern Bell litigation that establish that the patent blocks all international calls.

(iii) Limitation Three: “predetermined” or “test” “signals” or “digit sequences” (term (5))

Sprint urges the Court to adopt the Southwestern Bell interpretation of this claim. The Southwestern Bell court construed the term “predetermined sequences [signals] which are used for international dialing” as “the set of all digits which are used for international dialing.”[28]According to Sprint, “[b]ecause the claimed systems block all international calls it is only logical to interpret the set of digits to which the portions of the dialed number are compared to include all possible sets of digits that signify an international call.”[29]

(iv) Limitation Four: “irrespective of” “said second plurality” or “said plurality of further digit sequences” (term (6))

Again, Sprint urges the Court to adopt the Southwestern Bell interpretation of this claim.

Southwestern Bell construed the term “irrespective of” to mean “without analyzing the content of” the second plurality and Sprint argues that this construction is proper because it is undisputed that the value of the second plurality has no effect on whether the call is blocked.

B. Gammino’s Proposed Claim Construction

Gammino emphasizes that the Southwestern Bell court’s construction of claims does not have a preclusive effect on the claim construction here and urges the Court to adopt a different construction of the relevant claims guided by the plain language of the claim language and specification.

According to Gammino, language in the specification reflects selective disablement of international calls, not disablement of all international calls. For example, the specification states that the patent describes a method that “selectively disables the device if particular digits are detected at defined locations in the sequence.”[30] Gammino argues that the “selectively disables” language in the claim and specification indicates that the claims should be construed as describing a patent that selectively prevents certain international access code calls; he asserts that the user controls which calls to prevent and may prevent none, some, or many types of international calls. Therefore, Gammino argues that the Court should interpret “predetermined” or “test” “signals” or “digit sequences” (term (5)) as “signals programed into a telecommunications device or telecommunications apparatus at a particular location in a dialing sequence to be compared to subsequently dialed signals for a determination of whether the dialed signals are the same as the predetermined signals.”

Gammino submits that “predetermined signals which are used for international dialing” means “signals used for international dialing in the third plurality which are input into a telecommunications device for later comparison with signals dialed in the third plurality by dialer.” According to Gammino, the only calls which are prevented are those in which the number dialed in the third plurality matched the predetermined number or numbers selected by the user. Again, Gammino points to the “selectively disables” language of the claim description in support of this construction. Gammino advances this same argument with respect to each claim involving this “selective disabling” language.

As to the “irrespective of the second plurality” language, which Sprint maintains means the content of the second plurality is irrelevant and therefore not analyzed, Gammino asserts the second plurality is analyzed but its content does not affect whether the call is prevented or enabled. The second plurality designates the carrier of the call. Although ...


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