       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 VEHICLE IP, LLC,
                 Plaintiff-Appellant,

                           v.

    AT&T MOBILITY, LLC AND TELENAV, INC.,
             Defendants-Appellees,

                          AND

CELLCO PARTNERSHIP, NETWORKS IN MOTION,
INC. AND TELECOMMUNICATION SYSTEMS, INC.,
              Defendants-Appellees.
             ______________________

                      2013-1380
                ______________________

    Appeal from the United States District Court for the
District of Delaware in No. 09-CV-1007, Judge Leonard P.
Stark.
                 ______________________

              Decided: November 18, 2014
                ______________________

   WILLIAM R. WOODFORD, Fish & Richardson P.C., of
Minneapolis, Minnesota, argued for plaintiff-appellant.
With him on the brief were MICHAEL J. KANE and JOHN A.
2                       VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



DRAGSETH, of Minneapolis, Minnesota, and GEOFF D.
BIEGLER, of San Diego, California.

    DAVID R. CLONTS, Akin Gump Strauss Hauer & Feld
LLP, of Houston, Texas, argued for defendants-appellees,
AT&T Mobility, LLC, et al. With him on the brief were
MANOJ S. GANDHI, of Houston, Texas, and L. RACHEL
LERMAN, of Los Angeles, California. Of counsel was REX
S. HEINKE, of Los Angeles, California.

    VINCENT J. BELUSKO, Morrison & Foerster LLP, of Los
Angeles, California, argued for defendants-appellees
Cellco Partnership, et al. With him on the brief were
MARTIN M. NOONEN and ALEX S. YAP.
                ______________________

    Before REYNA, WALLACH, and HUGHES, Circuit Judges.
     Opinion for the court filed by Circuit Judge REYNA.
      Opinion dissenting in part filed by Circuit Judge
                        WALLACH.
REYNA, Circuit Judge.
    Vehicle IP, LLC (“Vehicle IP”) appeals from a final
judgment of non-infringement of U.S. Patent No.
5,987,377 (“the ’377 patent”) from the United States
District Court for the District of Delaware in favor of
Defendants-Appellees AT&T Mobility, LLC; TeleNav,
Inc.; Cellco Partnership; Networks in Motion, Inc.; and
TeleCommunication Systems, Inc. (collectively, “Appel-
lees”). Because we agree with Vehicle IP that the district
court erred in its construction of the claim terms “ex-
pected time of arrival” and “way point(s),” we reverse the
district court’s constructions, vacate the district court’s
grant of summary judgment of noninfringement, and
remand for a determination of infringement based on the
proper constructions of these terms.
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                     3



                         BACKGROUND
            I.     Background of the Technology
     Vehicle IP alleges that the Appellees infringe the ’377
patent, entitled “Method and Apparatus for Determining
an Expected Time of Arrival.” The ’377 patent is directed
to improving vehicle navigation systems through more
efficient distribution of navigation functions between a
remote dispatch and a mobile unit located in the vehicle.
The ’377 patent claims a system in which a remotely
located dispatch generates destination information for the
vehicle, while a mobile unit in the vehicle determines
vehicle position and calculates an expected time of arrival
at a destination. 1 Such destination information may
include, for example, one or more destinations, routing
information, information regarding tasks to be performed
at each destination specified, average travel time to each
destination, rush hour, traffic and weather information.
    Figure 2 of the ’377 patent illustrates this process.




    1   The patent provides that the destination infor-
mation may also be generated locally at the mobile
unit. ’377 patent col. 6 ll. 2-4.
4                      VEHICLE IP, LLC   v. AT&T MOBILITY, LLC




’377 patent fig. 2. Figure 2 shows that dispatch 20 com-
municates with mobile unit 42 through mobile telecom-
munications switching office 32 and transmitter site 34.
The destination information is then sent to mobile unit 42
and is used to determine the vehicle’s expected time of
arrival at one or more destinations, such as C, D, or E.
    The ’377 patent also claims the use of a plurality of
way points for a more accurate calculation of road dis-
tance to the destination, allowing for a more accurate
calculation of expected time of arrival at a final destina-
tion. Once mobile unit 42 in the vehicle receives the
destination information, it determines the vehicle’s cur-
rent position and compares it to the way points along the
route, such as way points C and D. Mobile unit 42 then
determines the expected time of arrival for one or more
destinations, such as C, D, or E, to provide an updated
expected time of arrival as the vehicle changes position
throughout the trip.
    Claim 1 is representative of the ’377 patent’s use of
the disputed claim terms and is reproduced below.
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                  5



          1. A system for determining an expected
      time of arrival of a vehicle equipped with a
      mobile unit, comprising:
      a dispatch remotely located from the vehicle,
         the dispatch operable to generate destina-
         tion information for the vehicle, the des-
         tination     information   specifying    a
         plurality of way points;
      a communications link coupled to the dis-
         patch, the communications link operable
         to receive the destination information for
         the vehicle from the dispatch; and
      the mobile unit coupled to the communica-
         tions link, the mobile unit operable to re-
         ceive from the communications link the
         destination information for the vehicle
         generated by the dispatch, the mobile
         unit further operable to determine a vehi-
         cle position, the mobile unit further oper-
         able to determine in response to the
         vehicle position the expected time of arri-
         val of the vehicle at a way point identified
         by the destination information and
         wherein the communications link com-
         prises a cellular telephone network.
’377 patent col. 14 l. 62-col. 15 l. 13 (claim 1) (emphases
added).
                  II. Procedural Background
    On December 31, 2009, Vehicle IP filed this action
against Appellees in the United States District Court for
the District of Delaware, asserting that Appellees infringe
the ’377 patent. On December 12, 2011, the district court
issued an order construing the disputed claim terms of
the ’377 patent, including “expected time of arrival” and
“way point(s).” The district court construed “expected
6                      VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



time of arrival” as “time of day at which the vehicle is
expected to arrive somewhere (and not remaining travel
time).” The district court construed “way point(s)” as
“intermediate point(s) on the way to the final destination
(and not the final destination itself).”
    After the district court construed the claims, Appel-
lees filed two motions for summary judgment. TeleCom-
munication Systems, Inc.; Networks in Motion, Inc.; and
Cellco Partnership (collectively, “TCS/Cellco”) filed a
motion for summary judgment of noninfringement as to
the TCS/Cellco accused systems. TeleNav, Inc. and AT&T
Mobility LLC (collectively, “TeleNav/AT&T”) filed a
second motion for summary judgment of noninfringement
as to the TeleNav/AT&T accused systems. 2
    The district court granted both motions. First, the
district court found that TCS/Cellco’s accused products
did not literally infringe because the accused features do
not “determine[] a ‘time of day at which the vehicle is
expected to arrive somewhere’ . . . at ‘intermediate
point(s) on the way to the final destination.’” The district
court noted that to the extent the features display an
“expected time of arrival,” these features did so only for
single destinations, not for a “way point.” The district
court went on to hold that the TCS/Cellco defendants did
not infringe under the doctrine of equivalents because,
under Vehicle IP’s theory, such a finding would vitiate the
court’s construction of “expected time of arrival.” The
district court similarly found that TeleNav/AT&T’s ac-
cused products did not infringe because they only deter-
mined the expected travel time to a final destination.
Again, under Vehicle IP’s doctrine of equivalents theory of


    2   The TCS/Cellco accused systems include, inter
alia, the TCS Navigator and AtlasBook Navigator plat-
form. The TeleNav/AT&T accused systems include Navi-
gator and Track Premium.
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                  7



infringement, the district court determined that a finding
of infringement would vitiate the court’s claim construc-
tion of these terms. Thus, the district court granted both
motions.
    On April 19, 2013, the district court entered judgment
in favor of Appellees. Vehicle IP appeals the entry of
judgment, challenging the district court’s claim construc-
tions and summary judgment rulings. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(1).
                           DISCUSSION
   We review district court claim constructions de novo.
Lighting Ballast Control LLC v. Philips Elec. N. Am.
Corp., 744 F.3d 1272, 1276-77 (Fed. Cir. 2014) (en banc).
                  a.   “expected time of arrival”
    The district court construed “expected time of arrival”
as “time of day at which the vehicle is expected to arrive
somewhere (and not remaining travel time).” In doing so,
the district court determined that “expected time of
arrival” was consistently used by the patentee to mean a
time of day. The district court held that “expected time of
arrival” could not include remaining travel time because
the mobile unit must be capable of comparing the “ex-
pected time of arrival” to an appointment time, which the
specification repeatedly lists in clock-time format.
    Vehicle IP argues that the district court erred in ex-
cluding remaining travel time from the construction of
“expected time of arrival.” Vehicle IP argues that “as a
matter of common sense,” if someone were to ask what
time one expects to arrive, the answers “in 30 minutes”
and “2:00 p.m.” would be equally acceptable. Vehicle IP
asserts that the parties’ dispute regarding “expected time
of arrival” centers on the term “time,” and the colloquial
meaning of “time” is broad. Vehicle IP also contends that
the language surrounding the term “time” indicates it
should not be limited to a particular format.
8                      VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



    Appellees respond that the parties’ dispute is not fo-
cused on the term “time,” as Vehicle IP would like this
court to believe, but instead is focused on the term “ex-
pected time of arrival.” 3 Appellees argue that Vehicle IP
disregards the framework set forth by Phillips v. AWH
Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc), cert.
denied, 546 U.S. 1170 (2006), by proposing a “dictionary-
definition-first” approach. Appellees further argue that
“expected time of arrival” must be construed to enable
comparison to an “appointment time,” which shows it
must be in clock-time format. Appellees reason that
“expected time of arrival” cannot include “remaining
travel time.”
     The district court erred in excluding remaining travel
time from the construction of “expected time of arrival.”
Generally, claim terms are given their ordinary and
customary meaning as understood by one of skill in the
art at the time of the invention. Id. at 1312-13 (citing
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
(Fed. Cir. 1996); Innova Pure Water, Inc. v. Safari Water
Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir.
2004)). There are two exceptions to this rule: (1) when a
patentee sets out a definition and acts as his own lexicog-
rapher; or (2) when the patentee disavows the full scope
of the claim term either in the specification or during
prosecution. Thorner v. Sony Computer Entm’t Am. LLC,
669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Vitronics, 90
F.3d at 1580). A patentee must clearly set forth a defini-
tion of the disputed claim term other than its plain and
ordinary meaning to act as his own lexicographer. Id.
(citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
1359, 1366 (Fed. Cir. 2002)). In order to disavow claim



    3   The TeleNav/AT&T appellees join the arguments
made by the TCS/Cellco appellees in their brief as to the
proper constructions of the terms in dispute.
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                      9



scope, the specification must make clear that the inven-
tion does not include a particular feature otherwise with-
in the scope of the claim term. Id. at 1366.
    As an initial matter, we decline Vehicle IP’s invitation
to focus our review on the embedded term “time.” Our
review focuses on the district court’s construction of
“expected time of arrival,” and our review focuses on this
term as a whole. See IGT v. Bally Gaming Int’l, Inc.,
659 F.3d 1109, 1117 (Fed. Cir. 2011) (“Extracting a single
word from a claim divorced from the surrounding limita-
tions can lead construction astray.”).
     We conclude that the term “expected time of arrival”
is not limited to clock-time. The term is broadly used in
the claims of the ’377 patent. See, e.g., ’377 patent col. 14
l. 62-col. 15 l. 13 (claim 1), col. 15 ll. 18-23 (claim 4). For
example, claim 1 requires:
          1. A system for determining an expected
      time of arrival of a vehicle equipped with a
      mobile unit, comprising:
      ...
      the mobile unit further operable to deter-
         mine in response to the vehicle position
         the expected time of arrival of the vehicle
         at the destination identified by the desti-
         nation information, the mobile unit fur-
         ther operable to determine if the expected
         time of arrival differs from the corre-
         sponding appointment time for the desti-
         nation by more than a predetermined
         amount.
Id. col. 14 l. 62-col. 15 l. 13 (claim 1) (emphases added).
Nothing in this or any other claim of the ’377 patent
limits “expected time of arrival” to clock-time.
10                       VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



     The claim provides that the mobile unit determines
the “expected time of arrival” in remaining travel time
based on the destination information transmitted by the
dispatch. Id. col. 14 l. 62-col. 15 l. 13 (claim 1). The
mobile unit uses factors such as average travel time,
weather conditions, and traffic information to determine
the “expected time of arrival.” See, e.g., id. col. 3 ll. 1-7,
col. 11 ll. 6-12. To do so, the mobile unit will take the
average travel time contained in the destination infor-
mation and modify it based on other destination infor-
mation, such as traffic conditions, weather, and similar
information. Thus, the expected time of arrival will be
calculated in remaining travel time. The expected time of
arrival may be then converted to clock-time format, but
the patent does not so require. As such, “expected time of
arrival” is a broad term that can encompass remaining
travel time.
    Appellees are correct that some of the disclosed em-
bodiments in the written description focus on clock-time.
See, e.g., id. fig. 4, col. 10 ll. 28-41. Yet, these examples
are not limiting. The written description of the ’377
patent uses the phrase “expected time of arrival” numer-
ous times, and it never indicates that the time must be in
any particular format. Many portions of the written
description are ambiguous as to the format of the “ex-
pected time of arrival.” See, e.g., id. col. 1 l. 44-col. 2 l. 1-
33 (Summary of the Invention section describing two
embodiments). More importantly, there is no dispute that
the specification does not contain an express definition of
the term, and nowhere in the specification do the inven-
tors disclaim remaining travel time.
    We also reject Appellees’ argument that the “expected
time of arrival” must be in clock-time format in order for
the mobile unit to compare it to an appointment time. As
noted previously, the claims focus on the calculation of
“expected time of arrival” by the mobile unit, which can
use one format for computing and another format for
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                  11



display. Indeed, the mobile unit could be programmed to
maintain the time in any number of different formats. No
matter the format, a simple mathematical conversion
performed by the device would allow the mobile unit to
perform the claimed comparison. Appellees have failed to
show that the ’377 patent requires the claim term to be in
clock-time format or that a clear disavowal or lexico-
graphic choice limits this term to clock-time format.
    The prosecution history similarly fails to disavow
scope or define the term in a limited manner, as Appellees
suggest. Both parties point to the same portion of the
prosecution history to support their respective positions.
This section of the prosecution history provides:
          Furthermore, neither Ross nor Jones dis-
      close, teach, or suggest a mobile unit opera-
      ble to determine if an expected time of
      arrival differs from a corresponding ap-
      pointment time for a destination by more
      than a predetermined amount, as recited in
      Applicants’ Claim 1.
J.A. 3117 (emphases omitted). This portion of the prose-
cution history is irrelevant to the parties’ dispute regard-
ing remaining travel time.          Indeed, the prosecution
history, like the specification, is ambiguous as there is no
disavowal of remaining travel time, nor is the term lim-
ited to clock-time format.
    In sum, the intrinsic evidence fails to show that “ex-
pected time of arrival” is limited to a time of day. Neither
the district court nor Appellees point to any express
disclaimer or independent lexicography in the intrinsic
record that justifies including the negative limitation “not
remaining travel time” in the proper construction of
“expected time of arrival.” Omega Eng’g, Inc. v. Raytek
Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003) (citing CCS
Fitness, 288 F.3d at 1366-67). Thus, the district court
erred in reading in this limitation. We hold that the
12                      VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



proper construction of “expected time of arrival” is “time
of day at which the vehicle is expected to arrive some-
where.”
                     b. “way point(s)”
    The district court construed “way point(s)” as “inter-
mediate point(s) on the way to the final destination (and
not the final destination itself).” The district court deter-
mined that the patentee used the term “way point(s)” only
in the context of determining whether a vehicle is out of
route and for more accurate calculations of actual road
distance.
    Vehicle IP argues that the district court erred because
the written description makes clear that “way point(s)”
may include the final destination. Vehicle IP argues that
the written description distinguishes between “intermedi-
ate” way points and other way points. Vehicle IP also
argues that the district court’s construction is wrong
because it excludes the preferred embodiment described
with respect to figure 1. Finally, Vehicle IP argues that
the claims recite the term “way point(s)” without any
modifiers and provide that the plurality of way points is
included in the “destination information.” Thus, Vehicle
IP concludes that “way point(s)” may include the destina-
tion.
    Appellees respond that the ’377 patent’s description of
figure 2 shows that “way point(s)” may not include the
final destination because it distinguishes way points
C and D from destination E. Appellees also argue that
the district court’s construction properly excludes the
embodiment in figure 1 because this embodiment was
claimed by the parent of the ’377 patent. Finally, Appel-
lees point to contemporaneous dictionary definitions that
support their position that a “way point” cannot include
the final destination.
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                    13



    The district court erred in excluding final destinations
from its construction of “way point(s).” The independent
claims require that the destination information sent by
the dispatch include “a plurality of way points” and that
the mobile unit be capable of determining an “expected
time of arrival” at a “way point.” See, e.g., ’377 patent col.
14 ll. 66-67 (claim 1) (“the destination information specify-
ing a plurality of way points”), col. 17 ll. 6-7 (claim 32)
(“The method of claim 23, further comprising the step of
displaying the way points on a map.”). The claims use the
term “way point(s)” in a broad manner.
    The written description similarly uses the term in a
broad manner. First, the written description distin-
guishes between “way point(s)” and “intermediate way
points.” Id. col. 9 ll. 33-35 (“Besides reducing out-of-route
mileage, the use of intermediate way points improves the
calculation of expected time of arrival.”). It provides that
“way points may be used as intermediate points between
the position of vehicle 40 and the destination.” ’377
patent col. 9 ll. 37-39. This permissive language indicates
that “way point(s)” may be more than just intermediate
points along the route.
    The district court misinterpreted the written descrip-
tion. The portion of the written description that describes
figure 2 provides:
    To alleviate this problem, destinations C and D
    may be used as way points to determine whether
    the operator of vehicle 40 has driven out of route
    52a specified in the destination information gen-
    erated by dispatch 20. Referring to FIG. 2, dis-
    patch 20 generates destination information
    specifying that vehicle 40 is to proceed to destina-
    tion E along route 52a, thus passing through way
    points C and D.
Id. col. 9 ll. 5-12. As Vehicle IP points out, this portion of
the written description focuses on determining whether a
14                     VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



vehicle has driven outside of the intended route. Doing so
requires looking to way points C and D because they are
intermediate to the starting point and destination. The
fact that the specification refers to “destination E” does
not change this conclusion. The specification uses the
terms “destination” and “way point(s)” interchangeably.
E.g., compare ’377 patent col. 8 ll. 28-33 (referring to
points C and D in figure 2 as destinations), with id. col. 9
ll. 12-32 (referring to points C and D in figure 2 as way
points). Nothing about this example excludes the final
destination E from also being viewed as a “way point.”
     The parties present competing extrinsic evidence, in-
cluding an owner’s manual for one of the first Garmin
GPS navigation products from 1992, a contemporaneous
patent from 1992, dictionary definitions from a technical
dictionary published in 1994 and a non-technical diction-
ary published in 1993, and two websites from 1998 and
2009. We need not look at this evidence because the
intrinsic evidence is clear that there was no disavowal or
lexicographic choice. See Phillips, 415 F.3d at 1324
(noting extrinsic evidence is properly used in claim con-
struction unless it is used to vary the meaning of an
unambiguous claim term). As this court noted in Phillips,
there is an “unbounded universe” of potential extrinsic
evidence having differing levels of relevance, and each
party will naturally choose the pieces most favorable to its
position. Id. at 1318. Here we are presented with such a
situation. The extrinsic evidence conflicts as to the proper
meaning and is generally of marginal relevance to the
meaning of the term “way point(s)” as used in the ’377
patent in February 1995.
    As with “expected timed of arrival,” nothing in the pa-
tent shows a disavowal of claim scope or a lexicographic
decision to limit the definition of this term. For this
reason, the district court erred in limiting the term “way
point(s)” to intermediate destinations along a route. We
hold that the proper construction of “way point(s)” is “a
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                 15



geographical point of reference or destination along a
route.”
                          CONCLUSION
    The district court erred in its construction of the
terms “expected time of arrival” and “way point(s),” and
relying on these erroneous constructions, granted sum-
mary judgment of non-infringement in favor of Appellees.
We reverse the district court’s claim constructions, vacate
the final judgment of non-infringement, and remand for a
determination of infringement based on the proper con-
structions of these terms in the first instance.
  REVERSED-IN-PART, VACATED-IN-PART, AND
                REMANDED
                             COSTS
    No costs.
       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                  VEHICLE IP, LLC,
                  Plaintiff-Appellant,

                            v.

    AT&T MOBILITY, LLC AND TELENAV, INC.,
             Defendants-Appellees,

                           AND

CELLCO PARTNERSHIP, NETWORKS IN MOTION,
INC. AND TELECOMMUNICATION SYSTEMS, INC.,
              Defendants-Appellees.
             ______________________

                       2013-1380
                 ______________________

    Appeal from the United States District Court for the
District of Delaware in No. 09-CV-1007, Judge Leonard P.
Stark.
                 ______________________

WALLACH, Circuit Judge, dissenting-in-part.
    While the majority opinion correctly recognizes that
claim terms “are generally given their ordinary and
customary meaning,” Phillips v. AWH Corp., 415 F.3d
1303, 1312 (Fed. Cir. 2005) (en banc), it ignores the ordi-
nary and customary meaning of the claim term “way
2                       VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



point(s)” in U.S. Patent No. 5,987,377 (“the ’377 Patent”).
For this reason, I respectfully dissent-in-part.
                             I.
     As the majority opinion correctly recites, claim terms
“are generally given their ordinary and customary mean-
ing . . . [which] is the meaning that the term would have
to a person of ordinary skill in the art in question at the
time of the invention.” Id. at 1312–13 (internal citations
and quotation marks omitted). The majority opinion also
acknowledges the two exceptions to this rule: (1) when a
patentee acts as his or her own lexicographer by articulat-
ing a definition in the specification; or (2) when the pa-
tentee disavows the full scope of the ordinary and
customary meaning of the claim term in the specification
or during patent prosecution. Thorner v. Sony Computer
Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)
(citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1580 (Fed. Cir. 1996)).
     The ’377 Patent discloses a system in which a remote-
ly-located dispatch generates destination information for
a vehicle, while a mobile unit in the vehicle determines
vehicle position and calculates an “expected time of arri-
val” at a destination. ’377 Patent col. 1 ll. 52–65.
The ’377 Patent also describes using “way points” “to
determine whether the operator of [a] vehicle . . . has
driven out of route” or “to more accurately calculate actual
road distance.” Id. col. 9 ll. 6–8, 39. In doing so, the ’377
Patent uses the term “way point(s)” according to its
ordinary and customary meaning in the pertinent art.
That is, in navigation, a way point, like a way station, is a
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                         3



point on the way to a destination. 1 As the majority opin-
ion recognizes, “nothing in the patent shows a disavowal
of claim scope or a lexicographic decision to limit the
definition of this term.” Maj. Op. at 14.
     Claim 1 is representative of how “way point(s)” is used
in the ’377 Patent’s claims: “the mobile unit further
operable to determine in response to the vehicle position
the expected time of arrival of the vehicle at a way point
identified by the destination information.” ’377 Patent
col. 15 ll. 7–12. The claims also describe traveling along
“a predetermined route specified by the way points,” id.
col. 15 ll. 19–20, col. 15 ll. 26–27, col. 16 l. 3, col. 16 ll. 9–
10, col. 16 ll. 53–54, col. 16 ll. 60–61, col. 17 ll. 58–59, col.
19 ll. 22–23, col. 20 ll. 49–50, and include systems “where-
in the way points comprise highway crossings,” id. col. 15
ll. 16–17, col. 15 ll. 66–67, col. 16 ll. 48–49, col. 17 ll. 36–
37, col. 19 ll. 5–6, col. 20 l. 42.
    Besides the use of the term “way point(s)” in the claim
language itself, the only part of the specification that
discusses way point(s) is in the description of Figure 2,
reproduced below. Nowhere else are way points dis-
cussed.




    1   Indeed, the United States Army has for decades
used intermediary points between points of origin and
destinations to assist with, among other things, calculat-
ing the distance to a final destination. See, e.g., Depart-
ment of the Army, Field Manual 21-26: Map Reading 37–
41 (1956); Department of the Army, Field Manual 21-26:
Map Reading and Land Navigation App. J (1993).
4                       VEHICLE IP, LLC   v. AT&T MOBILITY, LLC




Id. Fig. 2.
    According to the specification, Figure 2 “illustrates a
system 10a for determining expected times of arrival at a
plurality of destinations. . . . In this embodiment of the
present invention, the destination information generated
by dispatch 20 includes several destinations and corre-
sponding appointment times,” id. col. 8 ll. 28–36, and
“mobile unit 42 determines the expected times of arrival
of vehicle 40 at destinations C, D, and E,” id. col. 8 ll. 43–
45.
    In the context of this embodiment, the specification
describes “[a] problem that trucking companies have often
faced,” namely, “that operators of trucks, either inten-
tionally or unintentionally, drive considerable distances
from their assigned routes. Because trucking companies
must pay for the additional fuel and maintenance expens-
es associated with the increased mileage, these out-of-
route miles are extremely costly to trucking companies.”
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                     5



Id. col. 8 l. 66–col. 9 l. 5. Subsequently, in the first in-
stance where “way point(s)” is used in the patent, the
specification states:
    To alleviate this problem, destinations C and D
    may be used as way points to determine whether
    the operator of vehicle 40 has driven out of route
    52a specified in the destination information gen-
    erated by dispatch 20. Referring to FIG. 2, dis-
    patch 20 generates destination information
    specifying that vehicle 40 is to proceed to destina-
    tion E along route 52a, thus passing through way
    points C and D. Mobile unit 42 may be configured
    to update dispatch 20 when vehicle 40 has
    reached a way point. In this way, dispatch 20
    may be notified that vehicle 40 is still in route.
Id. col. 9 ll. 5–14 (emphases added). In addition, still in
the context of the embodiment in Figure 2, the patent
describes an alternate use of “way point(s)”:
    Besides reducing out-of-route mileage, the use of
    intermediate way points improves the calculation
    of expected time of arrival. Specifically, the actual
    distance between the position of the vehicle 40
    and the destination may not be the road distance.
    Way points may be used as intermediate points be-
    tween the position of the vehicle 40 and the desti-
    nation in order to more accurately calculate actual
    road distance.
Id. col. 9 ll. 33–39 (emphasis added).
    Relying on this written description, the district court
construed “way point(s)” as “intermediate point(s) on the
way to the final destination (and not the final destination
itself).” Vehicle IP, LLC v. AT&T Mobility, LLC, No. 09-
1007-LPS, at 9 (D. Del. Dec. 12, 2011) (J.A. 1452–66) (“Cl.
Const. Op.”). The district court found support for its
construction in “the language of the patent,” which “ex-
6                      VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



cludes a final destination from the definition of a way
point” because “in a multiple-destination route (having
destinations C, D, and E) . . . the patent distinguishes
between intermediate destinations C and D that can be
used as ‘way points’ on the route and destination E.” Id.
(citing ’377 Patent col. 9 ll. 6–8). As the district court
points out, “[a] vehicle that has reached the final destina-
tion is not ‘in route.’” Id. This construction reflects the
ordinary and customary meaning of the term in the art.
                            II.
    Nonetheless, while correctly articulating the govern-
ing law, the majority deviates from the ordinary and
customary meaning of “way point(s),” despite the absence
of a lexicography or disavowal of claim scope. Specifically,
the majority opinion points to the patent’s use of the term
“way point(s)” in a “broad manner,” Maj. Op. at 13, to
support its conclusions that “[t]he district court erred in
excluding final destinations from its construction of ‘way
point(s)’” and “erred in limiting the term ‘way point(s)’ to
intermediate destinations along a route,” id. at 13, 14.
     In support, the majority opinion points to the claim
language and to the written description, which it states
both use “way point(s)” “in a broad manner.” Id. at 13. In
particular, the majority points to language that distin-
guishes between “way point(s)” and “intermediate way
points,” and language that “provides that ‘way points may
be used as intermediate points between the position of
vehicle 40 and the destination.’” Id. (quoting ’377 Patent
col. 9 ll. 33–39). The majority then inexplicably concludes
that “[t]his permissive language indicates that ‘way
point(s)’ may be more than just intermediate points along
the route.” Id.
    In so stating, the majority uses “permissive language”
to broaden the term beyond its ordinary and customary
meaning in the art as a point on the way to a destination.
While it is not appropriate to restrict the meaning of a
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                   7



claim term to something less than its ordinary meaning
absent explicit lexicography or clear disavowal, Retracta-
ble Techs., Inc. v. Becton, Dickinson & Co., 653 F.3d 1296,
1305 (Fed. Cir. 2011), it is equally inappropriate to ex-
pand the scope of a claim term beyond such a meaning.
The majority does just that in holding “that the proper
construction of ‘way point(s)’ is ‘a geographical point of
reference or destination along a route.’” Maj. Op. at 14–15
(emphasis added). Defining “way point(s)” as including
final destinations is not part of the term’s ordinary and
customary meaning, and is unworkable in the context of
navigation, as explained below.
                               III.
     The majority also finds support for its unusual con-
struction of “way point(s)” in the specification’s descrip-
tion of Figure 2, which it claims supports the notion that
a final destination may also be used as a way point.
See ’377 Patent col. 9 ll. 5–12. The majority states “this
portion of the written description focuses on determining
whether a vehicle has driven outside of the intended
route,” and “[d]oing so requires looking to way points C
and D because they are intermediate to the starting point
and destination. . . . Nothing about this example excludes
the final destination E from also being viewed as a ‘way
point.’” Maj. Op. at 13–14. However, the majority over-
looks the fact that point E cannot be used as a way point,
either “to determine whether the operator of [a] vehi-
cle . . . has driven out of route” as in this portion of the
specification, or “to more accurately calculate road dis-
tance,” ’377 Patent col. 9 ll. 6–8, l. 39. It is unclear why
point E, which the patent characterizes as “destination
E,” would be considered a way point, in conflict with the
ordinary and customary meaning of “way point(s),” when
it cannot fulfill the function of that claim term.
    In contrast to the majority’s view, the portion of the
specification it quotes does not demonstrate that “way
8                      VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



point(s)” includes a final destination. Describing Figure
2, the specification states “dispatch 20 generates destina-
tion information specifying that vehicle 40 is to proceed to
destination E along route 52a, thus passing through way
points C and D.” Id. col. 9 ll. 9–12. This statement,
describing “way points” as intermediate points on the way
to the destination, comports with the ordinary and cus-
tomary meaning of term and does not evince a clear
lexicography or disavowal of claim scope.
    This conclusion is also made clear by the specifica-
tion’s description of “way point(s)” as points on the way to
a destination. Id. col. 9 ll. 37–39 (“Way points may be
used as intermediate points between the position of
vehicle 40 and the destination in order to more accurately
calculate actual road distance.”). Furthermore, the speci-
fication does not use the words “destination” and “way
point” synonymously. In addressing multiple-destination
routes, the specification refers to points C and D as desti-
nations, id. col. 8 ll. 28–65, while the part describing the
use of way points distinguishes between a way point and
a destination: “vehicle 40 is to proceed to destination E
along route 52a, thus passing through way points C and
D,” id. col. 9 ll. 10–12 (emphases added). The written
description does not lend support to a construction that
would alter the ordinary and customary meaning of “way
point(s).”
                            IV.
    Finally, in regard to the single-destination embodi-
ment of Figure 1 of the ’377 Patent, as the district court
noted, the ’377 Patent issued as a continuation of U.S.
Patent No. 5,724,243 (“the ’243 Patent.”). The claims of
the ’243 Patent were each directed to determining the
“expected time of arrival” at “the destination,” e.g., ’243
Patent col. 15 ll. 10–11, while the claims of the ’377 Pa-
tent each determine the “expected time of arrival” at a
“way point,” e.g., ’377 Patent col. 15 ll. 10–11; see Cl.
VEHICLE IP, LLC   v. AT&T MOBILITY, LLC                      9



Const. Op. at 10 (“[T]he ’377 patent claims are directed at
determining expected time of arrival at a way point, while
its parent patent ’243 claims are directed at calculating
‘the expected time of arrival of the vehicle at the destina-
tion.’”). Thus, the district court concluded that since
the ’243 Parent Patent already covers the single-
destination embodiment, it was unremarkable that
the ’377 Patent does not. Indeed, it is unclear how this
embodiment fulfills the “plurality of way points” require-
ment of each independent claim of the ’377 Patent. Even
if the destination were considered a way point, in order to
meet the claim limitations, the point of origin would also
have to be considered a way point. Such a construction is
not part of the term’s ordinary and customary meaning as
understood by a skilled artisan; it is simply bizarre in the
context of navigation.
     Nonetheless, that the patentee included the Figure 1
embodiment does not serve as evidence that the patentee
“‘clearly set forth a definition of the disputed claim term’
other than its plain and ordinary meaning.” Thorner, 669
F.3d at 1365 (quoting CCS Fitness, Inc. v. Brunswick
Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)); see also id.
(“It is not enough for a patentee to simply disclose a single
embodiment or use a word in the same manner in all
embodiments, the patentee must ‘clearly express an
intent’ to redefine the term.” (quoting Helmsderfer v.
Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed.
Cir. 2008))).     Nor does the inclusion of the single-
destination embodiment “‘demonstrate [an] intent to
deviate from the ordinary and accustomed meaning of
[way point(s)] . . . by . . . representing a clear disavowal of
claim scope.’” Id. at 1366 (quoting Teleflex, Inc. v. Ficosa
N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002)).
                               V.
   In the absence of express lexicography or clear disa-
vowal, “way point(s)” should be given its ordinary and
10                    VEHICLE IP, LLC   v. AT&T MOBILITY, LLC



customary meaning in the art. Because the majority fails
to do so, but rather broadens the scope of the term beyond
its ordinary and customary meaning, I respectfully dis-
sent.
