Groove Digital, Inc. v. United Bank

• Court: Court of Appeals for the Federal Circuit
• Decided: September 3, 2020
• Docket: 19-1857
• Status: Unpublished

Opinion

Case: 19-1857 Document: 60 Page: 1 Filed: 09/03/2020

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

GROOVE DIGITAL, INC., Plaintiff-Appellant

v.

UNITED BANK, Defendant-Appellee ______________________

2019-1857 ______________________

Appeal from the United States District Court for the Eastern District of Virginia in No. 1:18-cv-00966-LO-TCB, Judge Liam O’Grady. ______________________

Decided: September 3, 2020 ______________________

BRIAN SHERWOOD SEAL, Butzel Long, PC, Washington, DC, for plaintiff-appellant. Also represented by MITCHELL ZAJAC, Detroit, MI.

JEFFREY A. BERKOWITZ, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Reston, VA, for defend- ant-appellee. Also represented by KEVIN D. RODKEY, At- lanta, GA; UMBER AGGARWAL, J. MICHAEL JAKES, Washington, DC. ______________________ Case: 19-1857 Document: 60 Page: 2 Filed: 09/03/2020

Before CHEN, SCHALL, and HUGHES, Circuit Judges. SCHALL, Circuit Judge. This is an appeal from a final judgment of the United States District Court for the Eastern District of Virginia in a patent infringement case. Groove Digital, Inc. (“Groove Digital”) sued United Bank in the district court for in- fringement of claims 1–37 of U.S. Patent No. 9,454,762 (“the ’762 patent”). The court held a Markman hearing on April 16, 2019, during which it indicated it would issue a claim construction order that would rely upon the explana- tions provided in the parties’ briefing. J.A. 860. In due course, the court issued an order construing various claim terms. Order, Groove Digital, Inc. v. United Bank, 1:18-cv- 00966, Dkt. 94, 2019 WL 1869853, at *1 (E.D. Va. Apr. 24, 2019) (“Claim Construction Order”). The parties subsequently filed a joint stipulation stat- ing that, given the court’s constructions of certain claim terms in the court’s Claim Construction Order, Groove Dig- ital could not prove infringement of the ’762 patent by United Bank. Stipulation and Proposed Summary Judg- ment, 1:18-cv-00966, Dkt. 96 (E.D. Va. May 2, 2019); J.A. 862–65. In view of the parties’ stipulation, the district court granted summary judgment of non-infringement of claims 1–37 of the ’762 patent to United Bank. Groove Dig- ital timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). For the reasons stated below, we hold the district court’s claim constructions were not erroneous. We there- fore affirm the court’s grant of summary judgment of non- infringement as to claims 1–37 of the ’762 patent and the resulting judgment in favor of United Bank. Case: 19-1857 Document: 60 Page: 3 Filed: 09/03/2020

GROOVE DIGITAL, INC. v. UNITED BANK 3

BACKGROUND I. The ’762 patent discloses a method for delivering tar- geted content, such as advertisements, by serving an “ap- plet (also known as an alert or notification)” to an end user’s device over a network. ’762 patent col. 1 ll. 13–16, col. 2 ll. 55–60, col. 5 ll. 16–18. Independent claim 1 is representative of all 37 claims of the ’762 patent. It recites: 1. A system for delivering information to a net- worked device of a user, the system comprising: a microprocessor running a software application for delivering an applet application to the net- worked device and managing the delivery of the ap- plet application to the networked device, wherein the applet application passively deploys one or more applets at a time of deployment, wherein the applet application provides for deliv- ery of content to the networked device and a dis- play of the content in a predetermined portion of a user display that is less than an entire display of the networked device, by the one or more applets, wherein the one or more applet is configured to de- ploy at least one of independent of or in conjunction with an internet browser window, wherein an in- ternet browser is configured to deploy subsequent to deployment of the one or more applets based on at least one action or inaction of the user, wherein at least one of the applets is configured to become idle upon deployment of the internet browser, and wherein the deployment of the one or more applets is such that at the time of deployment of the one or more applets the user can continue to operate the networked device in a state prior to the deployment of the one or more applets; Case: 19-1857 Document: 60 Page: 4 Filed: 09/03/2020

a first database coupled to the microprocessor and storing a first set of information relating to the user; and a second database coupled to the microprocessor and including a second set of information for com- parison to the first set of information, wherein the microprocessor compares the first set of information to the second set of information to determine whether the content should be transmit- ted to the networked device for display by the one or more applets. Id. at col. 14 ll. 9–43. II. In the Claim Construction Order, the court construed the term “applet,” which appears in each of the ’762 pa- tent’s independent claims—claims 1, 14, 25, 36, and 37—to mean: [A] program installed by a user onto the user’s de- vice that is served based on a geotargeted specifi- cation, provides at least one browser link to a specific web page, is capable of displaying content from a party other than the party supplying the ap- plet application, and excludes email, fax, text mes- sages, telephone calls, mail notifications, and popups. 2019 WL 1869853, at *2. The court construed four “com- paring” phrases appearing in the claims 1 to similarly re- quire geotargeting.

1 The “comparing” phrases recite: (1) “wherein the microprocessor compares the first set of information to the second set of infor- mation to determine whether the content Case: 19-1857 Document: 60 Page: 5 Filed: 09/03/2020

GROOVE DIGITAL, INC. v. UNITED BANK 5

The court construed the term “internet browser,” which also appears in each of the ’762 patent’s independent claims, to mean “a program that enables [a] user to find, locate, retrieve, and navigate any web pages on the inter- net.” Id. DISCUSSION I. Claim construction is ultimately an issue of law that we review de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 325–26 (2015). We review the district court’s underlying factual findings for clear error. Id. at 325–33. However, “when the district court reviews only evidence in- trinsic to the patent (the patent claims and specifications,

should be transmitted to the networked device for display by the one or more applets” (claims 1 and 36); (2) “comparing the first set of information to a sec- ond set of information relating to parameters for transmission of the content to the networked device” (claim 14); (3) “computer readable program code used to com- pare the first set of information to a second set of information relating to parameters for trans- mission of the content to the networked device” (claim 25); and (4) “wherein the content is based on a comparison of a plurality of data sets via the microproces- sor, and wherein the microprocessor based on the comparison determines whether the content should be transmitted to the networked device for display by the one or more applets” (claim 37). Claim Construction Order, 2019 WL 1869853, at *2. Case: 19-1857 Document: 60 Page: 6 Filed: 09/03/2020

along with the patent’s prosecution history), the judge’s de- termination will amount solely to a determination of law,” which we review de novo. Id. at 331. Claim terms are generally given their ordinary and customary meaning as understood by persons of ordinary skill in the art in view of the specification and prosecution history. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). Where, however, the inventor has clearly set forth a different definition of a claim term, or has manifested that the invention does or does not include a particular aspect, that intention “is regarded as disposi- tive.” Id. at 1316 (citations omitted). II. A. Groove Digital’s first argument is that the district court erred when it construed the “applet” term and the “comparing” phrases to require “geotargeting.” Groove Digital objects to the Claim Construction Order’s lack of reasoning in support of its construction. Groove contends that, to the extent the court relied upon United Bank’s claim construction arguments that the terms require ge- otargeting, those arguments impermissibly incorporate features of embodiments disclosed in the specification into the claim construction. Appellant’s Br. 16–20 (citing col. 1 ll. 13–16; col. 3 ll. 25–36; col. 5 l. 65–col. 6 l. 3; col. 7 ll. 36– 43; col. 9 ll. 6–13, 17–21, 39–55; col. 10, ll. 40–42; col. 11 ll. 7–11, 17–35 and 45–50). According to Groove Digital, at most, these specification references describe specific em- bodiments that may use geotargeting “as an option,” but they do not characterize the invention as a whole and thus do not support a requirement of geotargeting in all in- stances. Id. at 18–19. In support of its position, Groove Digital directs us to our decision in Ancora Technologies, Inc. v. Apple, Inc., 744 F.3d 732, 735 (Fed. Cir. 2014), where we held non-limiting examples set forth in the specification to be “not sufficient to redefine [a claim] term” to include a Case: 19-1857 Document: 60 Page: 7 Filed: 09/03/2020

GROOVE DIGITAL, INC. v. UNITED BANK 7

feature provided in the examples. In addition, Groove Dig- ital asserts that the ’762 patent, at col. 6, ll. 38–62 and Fig. 2, describes an embodiment that does not require geotar- geting. Appellant’s Br. 20. 2 United Bank responds that “[g]eotargeting is the pri- mary objective of the patented system and method,” and asserts that each of the embodiments discussing applet de- livery described in the ’762 patent requires geotargeting. 3 Appellee’s Br. at 3, 14–15. United Bank contends that the district court properly construed the corresponding claim terms. 4

2 Groove Digital also notes that the Patent Trial and Appeal Board (“Board”) declined to require geotargeting in its construction of these claim terms in proceedings for in- ter partes review of the ’762 patent. Appellant’s Br. 16 (cit- ing J.A. 874 n.3); Appellant’s Notices of Supp. Authority under Fed. Cir. R. 28(i), No. 19-1857, Dkt. Nos. 57 (May 6, 2020) & 58 (May 29, 2020). 3 According to United Bank, the embodiment Groove Digital points to as not requiring geotargeting does not per- tain to how applets are targeted for delivery, but rather ad- dresses how a user may select an applet after it is deployed. Appellee’s Br. 35–36. 4 United Bank responds to Groove Digital’s reference to the Board’s claim construction in the inter partes review proceedings by pointing out that the Board construed claim terms under the broadest reasonable interpretation stand- ard, not the Phillips standard applied by the district court. Appellee’s Response to Groove Digital’s Notices of Supp. Authority under Fed. Cir. R. 28(i), No. 19-1857, Dkt. No. 59 (June 1, 2020) (citing 37 C.F.R. § 42.100(b) (2018); Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)). Case: 19-1857 Document: 60 Page: 8 Filed: 09/03/2020

B. We agree with United Bank that the district court’s claim construction was proper. An explicit definition is not required to inform a claim term’s meaning. Rather, a patent’s specification “may de- fine claim terms by implication such that the meaning may be found in or ascertained by a reading of the patent docu- ments.” In re Abbott Diabetes Care Inc., 696 F.3d 1142, 1148–50 (Fed. Cir. 2012) (quoting Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004)). We have held that a patent’s repeated and con- sistent description of a claim term may inform its construc- tion. In Abbott, we held a construction of “electrochemical sensor” that encompassed sensors with external cables or wires to be in error because the patents at issue “repeat- edly, consistently, and exclusively depict[ed] an electro- chemical sensor without external cables or wires while simultaneously disparaging sensors with external cables or wires.” Id. at 1150 (internal quotation marks and citation omitted); see also Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1321 (Fed. Cir. 2011) (“We agree . . . that the dis- puted claim terms are limited to information that origi- nates from a hard copy document. The written description repeatedly and consistently defines the invention as a sys- tem that processes information derived from hard copy doc- uments.”). Similarly, in Profectus Technology LLC v. Huawei Technologies Co., 823 F.3d 1375, 1380–81 (Fed. Cir. 2016), we upheld the district court’s construction of the term “mountable” to require “having a feature for mounting” where every disclosed embodiment in the patent specifica- tion included a “mounting” feature and plaintiff was unable to identify any disclosure that “contemplate[d] a situation where no mounting features exist.” See also Poly-America, L.P. v. API Indus., Inc., 839 F.3d 1131, 1137 (Fed. Cir. 2016) (concluding that the district court’s construction of Case: 19-1857 Document: 60 Page: 9 Filed: 09/03/2020

GROOVE DIGITAL, INC. v. UNITED BANK 9

the claim term “short seal” to require inward extension did not improperly import a limitation from the specification where “[e]very embodiment described in the specification has inwardly extended short seals and every section of the specification indicates the importance of inwardly ex- tended short seals.”). Here, like in Abbott, the ’762 patent ‘‘repeatedly, con- sistently, and exclusively’’ depicts applets as being geotar- geted. As an example, the Field of the Invention describes the “present invention” as “delivering and serving local content and advertisements.” ’762 patent col. 1 ll. 13–16 (emphasis added). Importantly, the patent explains: For any [advertising] campaign to work effectively, the system must be able to target the offer to the right audience. . . . Although the system adminis- trator may maintain multiple fields of information on a user post installation, the primary field needed for targeted delivery of applets is a zip code. Id. at col. 9 ll. 38–51 (emphasis added). Further, as in Profectus, in every pertinent embodiment disclosed in the specification, applets are served based on geotargeted spec- ifications. See, e.g., ’762 patent col. 5 ll. 49–50; col. 5 l. 65– col. 6 l. 3; col. 7 ll. 24–43; col. 9, ll. 6–55; col. 10 ll. 40–42; col. 11 ll. 7–50; Fig. 11. Groove Digital’s cites to col. 6, ll. 38–62 and Fig. 2 of the patent are unavailing because this discussion in the specification pertains to selection and de- ployment of an offer presented through an applet, not ap- plet delivery. 5

5 We do not find Groove Digital’s reference to the Board’s construction to be persuasive. As United Bank points out, the Phillips standard differs from the broadest reasonable interpretation standard applied in inter partes review proceedings. These different standards can result in different constructions. See PPC Broadband, Inc. v. Case: 19-1857 Document: 60 Page: 10 Filed: 09/03/2020

Accordingly, the district court did not err when it con- strued the “applet” term and the “comparing” phrases to require geotargeting. III. A. Groove Digital’s second argument is that the district court erred when it construed the term “internet browser.” According to Groove Digital, the specification of the ’762 patent only requires that the internet browser be the com- ponent of the applet that sends and receives information for display to the user and does not require the functions of “enabl[ing a user] to find, locate, retrieve, and navigate any web pages on the internet,” as required by the court’s con- struction. Appellant’s Br. 20–23. In support of its argu- ment, Groove Digital relies on the specification at col. 3, ll. 11–12, which states that the browser is “[t]he location in the applet where the content is located,” and at col. 10, ll. 53–55, which states that the internet browser is where con- tent “can be viewed.” Additionally, Groove Digital cites to extrinsic evidence in the form of (1) a Microsoft Computer Dictionary (5th ed. 2002) definition of “web browser” to mean “[s]oftware that lets a user view HTML documents and access files and software related to those documents,” J.A. 69; and (2) a Modern Dictionary of Electronics (7th ed. 1999) definition of “browser” as “[a]n application used to view information from the internet.” J.A. 63. United Bank responds by pointing out that the specifi- cation does not use the term “internet browser” but does provide two examples of “[]web browser[s],” which both

Corning Optical Commc’ns RF, LLC, 815 F.3d 734, 742–43 (Fed. Cir. 2016)); Google Inc. v. Network-1 Techs., Inc., 726 Fed. App’x 779, 784–85 (Fed. Cir. 2018). Case: 19-1857 Document: 60 Page: 11 Filed: 09/03/2020

GROOVE DIGITAL, INC. v. UNITED BANK 11

parties have recognized describe an internet browser. Spe- cifically, the specification states: The location in the applet where the content is lo- cated may be a mini-web browser, such as, for ex- ample, Microsoft Internet Explorer or Netscape Navigator. ’762 patent col. 3 ll. 11–13. United Bank contends that Mi- crosoft Internet Explorer or Netscape Navigator would have been understood by one of skill in the art as programs that enable users to find, locate, retrieve, and navigate web pages on the internet. Appellee’s Br. 37–38. United Bank also points to multiple dictionary definitions it provided to the district court in support of its claim construction. Ap- pellee’s Br. 40–43 (citing Compact American Dictionary of Computer Words (1998), J.A. 221–23 (the “Compact Dic- tionary”); Webster’s New World Computer Dictionary (10th ed. 2003), J.A. 225–227 (the “Webster’s Dictionary”); New- ton’s Telecom Dictionary (18th ed. 2002), J.A. 229–31 (the “Newton’s Dictionary”)). United Bank argues that these dictionary definitions, as well as the dictionary definitions Groove Digital provided, support the district court’s con- struction of the term “internet browser.” As noted, the district court did not set forth its analysis in the Claim Construction Order, so we have no subsidiary fact findings to review for clear error. However, even re- viewing the district court’s construction de novo, we do not believe the court erred. As noted, the specification provides limited guidance on the claim terms at issue, but the guidance it does pro- vide supports the district court’s construction. Signifi- cantly, Groove Digital does not dispute that both examples of “browsers” provided in the specification—Microsoft In- ternet Explorer and Netscape Navigator—can “enable a user to find, locate, retrieve, and navigate any web pages on the internet.” Reply Br. 7. Case: 19-1857 Document: 60 Page: 12 Filed: 09/03/2020

We also read the dictionary definitions provided by the parties to support the court’s construction. The Compact Dictionary defines “browser” as “[a] program, such as Netscape Navigator or Internet Explorer, that allows you to find and access documents from anywhere on the Inter- net.” J.A. 223 (emphasis added). The Webster’s Dictionary defines “browser” as “[a] program that enables the user to navigate the World Wide Web (WWW)” and includes Netscape Navigator and Microsoft Internet Explorer as two examples. J.A. 227. The Newton’s Dictionary defines “web browser” as “software which allows a computer user . . . to ‘surf’ the World Wide Web. It lets us select, retrieve and interact with resources on the web. It lets us move easily from one World Wide Web site to another.” J.A. 231 (em- phases added). The Modern Dictionary of Electronics, cited by Groove Digital, defines “browser” both as (1) “[a] soft- ware application that permits viewing and possibly search- ing of content in an information database” and (2) as “[a]n application used to view information from the Internet.” J.A. 63 (emphases added). The Modern Dictionary of Elec- tronics also states that “[b]rowsers provide a user-friendly interface for navigating through and accessing the vast amount of information on the Internet.” Id. (emphasis added). In our view, these definitions well support the court’s construction of “internet browser” to enable a user to find, locate, retrieve, and navigate any web pages on the Internet. At a minimum, these definitions illustrate that Groove Digital’s proposed claim construction (“a program capable of interacting with servers over the Internet to send and receive information,” Appellant’s Br. 20) is overly broad. In sum, we do not believe the district court’s claim construction of the term “internet browser” was in error. CONCLUSION For the foregoing reasons, we affirm the district court’s construction of the term “applet,” the “comparing” phrases, and the term “internet browser.” We therefore affirm the district court’s grant of summary judgment of non- Case: 19-1857 Document: 60 Page: 13 Filed: 09/03/2020

GROOVE DIGITAL, INC. v. UNITED BANK 13

infringement as to claims 1–37 of the ’762 patent and the resulting judgment in favor of United Bank. AFFIRMED COSTS No costs.