
741 F.Supp.2d 783 (2010)
EON CORP. IP HOLDINGS, LLC,
v.
SENSUS USA INC., et al.
No. 6:09-cv-116.
United States District Court, E.D. Texas, Tyler Division.
August 11, 2010.
*785 Cabrach John Connor, Daniel Scardino, Jeff R. Johnson, Reed & Scardino LLP, J. Stephen Ravel, Kelly Hart & Hallman, Austin, TX, Deron R. Dacus, Ramey & Flock, Tyler, TX, for Plaintiff.
Casey Lee Griffith, Klemchuk Kubasta LLP, Hilda Contreras Galvan, Henry Leon (Lon) Outland, III, Keith Bryan Davis, Jones Day, Dallas, TX, Robert Christopher Bunt, Charles Ainsworth, Parker, Bunt & Ainsworth, P.C., Tyler, TX, Krista Sue Schwartz, Jones Day, Chicago, IL, for Defendant.

MEMORANDUM OPINION & ORDER
JOHN D. LOVE, United States Magistrate Judge.
This claim construction opinion construes the disputed terms in U.S. Patent Nos. 5,388,101 ("the '101 Patent") and 5,481,546 ("the '546 Patent"). For the reasons stated herein, the Court adopts the constructions set forth below.

BACKGROUND
Plaintiff Eon Corp. IP Holdings, LLC ("Plaintiff") alleges Defendants Sensus USA Inc. ("Sensus") and Bell Industries, Inc. ("Bell") (collectively, "Defendants") infringe the '101 and '546 Patents. Co-pending before the Court is a related case, EON Corp. IP Holdings, LLC v. Verizon Clinton Center Drive, 6:08-cv-385 ("the Verizon case"). The parties have presented extensive claim construction briefing.
The Court was scheduled to hold a Markman hearing in the Verizon case ("the Verizon Markman") three months earlier than in this case. In advance of that hearing, Sensus requested, and the Court granted, leave to brief certain claim terms that were common to the two cases (Doc. Nos. 116, 121). The Court further granted Sensus leave to be heard at the Verizon Markman (Doc. No. 126). Pursuant to the Court's orders, Sensus submitted an initial brief on claim terms in common with the Verizon case (Doc. No. 124) ("SENSUS VERIZON BR.") and Plaintiff responded to it (Doc. No. 131) ("PL.'S VERIZON RESP."). On March 3, 2010, the Court held the Verizon Markman hearing and heard argument (Case No. 6:08-cv-385, Doc. Nos. 300, 308). Following that hearing, the Court granted Sensus and Plaintiff leave to file supplemental briefing regarding *786 the term "portable" (Doc. No. 142, 143, 147) ("SENSUS PORTABLE BR." and "PL.'S PORTABLE RESP.").
On April 23, 2010, Plaintiff filed its opening claim construction brief in this case (Doc. No. 157) ("PL.'S BR."). Sensus and Bell filed independent responses (Doc. Nos. 159, 162) ("SENSUS RESP." and "BELL RESP."). Plaintiff filed a reply, jointly addressing both responses (Doc. No. 167) ("PL.'S REPLY"). On June 10, 2010, the Court held a claim construction hearing and heard argument (Doc. No. 183). Pursuant to the Court's comments during that hearing, the Court ordered supplemental briefing regarding the reexamination file (Doc. Nos. 180, 185, 192) ("SENSUS REEXAM BR." and "PL.'S REEXAM RESP.").

CLAIM CONSTRUCTION PRINCIPLES
"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) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed.Cir.2004)). The Court examines a patent's intrinsic evidence to define the patented invention's scope. Id. at 1313-1314; Bell Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 F.3d 1258, 1267 (Fed.Cir.2001). Intrinsic evidence includes the claims, the rest of the specification, and the prosecution history. Phillips, 415 F.3d at 1312-13; Bell Atl. Network Servs., 262 F.3d at 1267. The Court gives claim terms their ordinary and customary meaning as understood by one of ordinary skill in the art at the time of the invention. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed.Cir. 2003).
Claim language guides the Court's construction of claim terms. Phillips, 415 F.3d at 1314. "[T]he context in which a term is used in the asserted claim can be highly instructive." Id. Other claims, asserted and unasserted, can provide additional instruction because "terms are normally used consistently throughout the patent." Id. Differences among claims, such as additional limitations in dependent claims, can provide further guidance. Id.
"[C]laims `must be read in view of the specification, of which they are a part.'" Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir.1995)). "[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). In the specification, a patentee may define his own terms, give a claim term a different meaning than it would otherwise possess, or disclaim or disavow some claim scope. Phillips, 415 F.3d at 1316. Although the Court generally presumes terms possess their ordinary meaning, this presumption can be overcome by statements of clear disclaimer. See SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1343-44 (Fed.Cir.2001). This presumption does not arise when the patentee acts as his own lexicographer. See Irdeto Access, Inc. v. EchoStar Satellite Corp., 383 F.3d 1295, 1301 (Fed.Cir.2004).
The specification may also 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. For example, "[a] claim interpretation that excludes a preferred embodiment from the scope of the claim `is rarely, if ever, correct.'" Globetrotter *787 Software, Inc. v. Elan Computer Group, Inc., 362 F.3d 1367, 1381 (Fed.Cir. 2004) (quoting Vitronics Corp., 90 F.3d at 1583). But, "[a]lthough the specification may aid the court in interpreting the meaning of disputed language in the claims, particular embodiments and examples appearing in the specification will not generally be read into the claims." 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 patentee may define a term during prosecution of 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"). The well established doctrine of prosecution disclaimer "preclud[es] patentees from recapturing through claim interpretation specific meanings disclaimed during prosecution." Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed.Cir.2003). The prosecution history must show that the patentee clearly and unambiguously disclaimed or disavowed the proposed interpretation during prosecution to obtain claim allowance. Middleton, Inc. v. 3M Co., 311 F.3d 1384, 1388 (Fed.Cir.2002). "Indeed, by distinguishing the claimed invention over the prior art, an applicant is indicating what the claims do not cover." Spectrum Int'l v. Sterilite Corp., 164 F.3d 1372, 1378-79 (Fed.Cir. 1998) (quotation omitted). "As a basic principle of claim interpretation, prosecution disclaimer promotes the public notice function of the intrinsic evidence and protects the public's reliance on definitive statements made during prosecution." Omega Eng'g, Inc., 334 F.3d at 1324.
Although "less significant than the intrinsic record in determining the legally operative meaning of claim language," the Court may rely on extrinsic evidence to "shed useful light on the relevant art." Phillips, 415 F.3d at 1317 (quotation omitted). Technical dictionaries and treatises may help the Court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but such sources may also provide overly broad definitions or may not be indicative of how terms are used in the patent. Id. at 1318. Similarly, expert testimony may aid the Court in determining the particular meaning of a term in the pertinent field, but "conclusory, unsupported assertions by experts as to the definition of a claim term are not useful." Id. Generally, extrinsic evidence is "less reliable than the patent and its prosecution history in determining how to read claim terms." Id.
When claim construction involves means-plus-function limitations, the Court must identify the claimed function and the corresponding structure that performs that function. Applied Medical Resources Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1332 (Fed.Cir.2006). The Court's construction of the function must include only the limitations in the claim language. Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., 296 F.3d 1106, 1113 (Fed.Cir.2002). "Ordinary principles of claim construction govern the interpretation of the claim language used to describe the function." Id. The Court must then determine if the specification discloses a structure that performs the claimed function and is clearly associated with the performance of the function. Id.

DISCUSSION

A. Overviews of the Patents-in-Suit
As the '546 Patent is a continuation of the '101 Patent, the patents are essentially identical except for the claims themselves. *788 The patents "relate[] to an interactive two-way data service network for conveying synchronously timed digital messages point to point through the network." '101 Patent at 1: 8-10. The invention was directed at facilitating long distance communication with subscriber units of maximum effective radiated power under twenty watts on the Federal Communication Commission ("FCC") authorized 218-219 MHz band. Id. at 1:28-35. The network consists of "portable subscriber units of milliwatt transmitting power capacity," id. at 3:35-36, base stations capable of transmitting data to the subscriber units, id. at 3:62-65, and "receive only stations" that relay communications from the subscriber units to the base stations. Id. at 3:65-4:2. Figure 2 illustrates an exemplary base station site:

The base station 3 is located at the center of a local area territory, delineated by ring 19. Id. at 5:40-47. Subscriber units × 4, 4', etc. are distributed throughout the local area territory. Id. at 5:54-6:4. As the subscriber units transmit at a lower power than the base station, remote receive-only relay stations 20A-20N are positioned at strategic locations within the territory to relay communications from the subscriber units to the base station. Id.
Plaintiff accuses Bell of literally infringing claims 1, 2, 3, and 5-14 of the '546 Patent and infringing claim 4 of the '546 Patent under the doctrine of equivalents. PL.'S BR. at 2. Plaintiff also accuses Bell of literally infringing claims 1, 2, 3, 8, 9, and 12-20 of the '101 Patent and infringing claims 4-7, 10, and 11 under the doctrine of equivalents. Id. Plaintiff accuses Sensus of literally infringing claims 1-3 and 5-14 of the '546 Patent and claims 1-3, 8, 9, 12, and 16-18 of the '101 Patent. Id. Plaintiff further accuses Sensus of infringing claims 4-6 and 10 of the '101 Patent under the doctrine of equivalents. Id.

B. Disputed Terms


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                            Plaintiff's Proposed        Sensus's Proposed                Bell's Proposed
Term                        Construction                Construction                     Construction
-------------------------------------------------------------------------------------------------------------------------
interactive video network   Preamble not limiting; no   A network combining television   A network combining television
'101 Patent, Claims 1-15    construction necessary.     broadcast and subscriber         broadcast and real time
'546 Patent, Claim 1                                    communications in which          communications between



*789
                                                        subscribers receive and          subscribers.
interactive video network                               respond to inquiries related
system                                                  to the television broadcast.     Alternate Proposal: An
'101 Patent, Claims 16-18                                                                Interactive Video and Data
'546 Patent, Claims 2-13                                Alternate Proposal: a            Services (IVDS) system as
                                                        network combining video          defined in Subpart F of Part
interactive video data                                  broadcast and subscriber         95 of the rules of Federal
system                                                  communications in which          Communications Commission,
'101 Patent, Claims 19-20                               subscribers interact.            47 C.F.R. § 95.801 et
                                                                                         seq. (1992).
-------------------------------------------------------------------------------------------------------------------------

Plaintiff incorporates by reference its briefing in the Verizon case (Case No. 6:08-cv-385, Doc. Nos. 270, 280, 281) and this case (Doc. Nos. 147, 148, 156).[1] In sum, Plaintiff contends the preamble is not limiting. Likewise, Sensus incorporates its Verizon case brief (Doc. No. 124) and Bell incorporates the defendant briefing in the Verizon case (Case No. 6:08-cv-385, Doc. Nos. 273, 274, 285).
"[A] preamble is not limiting `where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention.'" Catalina Mktg. Int'l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed.Cir.2002). However, the preamble to a claim is "given the effect of a limitation" when it is "considered necessary to give life, meaning, and vitality to the claims." Kropa v. Robie, 38 C.C.P.A. 858, 187 F.2d 150, 152 (1951). Additionally, the preamble may be limiting where "a particular disputed preamble phrase" provides the antecedent basis for claim elements. Catalina, 289 F.3d at 808. "Likewise, when the preamble is essential to understand limitations or terms in the claim body, the preamble limits claim scope." Id. Finally, the preamble is limiting when it is relied upon "during prosecution to distinguish the claimed invention from the prior art." Id. "Without such reliance ... a preamble generally is not limiting when the claim body describes a structurally complete invention." Id. at 809.
Sensus argues these preamble phrases direct the claims to an IVDS system. SENSUS VERIZON BR. at 2. Sensus further argues the preamble itself is limiting because it breathes life and meaning into the claims and provides antecedent bases and structural limitations. Id. at 3-4. Sensus concludes preambles limit the claims to an IVDS system. Id. at 4. Bell, through its incorporated briefing, argues similarly. Plaintiff contends the preambles merely state intended uses and are not limiting. PL.'S VERIZON RESP. at 2. Plaintiff argues the specification's disclosure of non-video alternate embodiments further supports this conclusion. Id. at 3.
The specific preamble phrases in dispute are not limiting because they recite a statement of use and do not provide antecedent basis for any element nor do they introduce necessary structure into the claim.
In Claim 1 of the '101 Patent, which is exemplary for the purposes of resolving this dispute, the allegedly limiting phrase is "interactive video network." The claim recites:
A base station configuration in a two-way communication interactive video network having a network hub switching center for routing communications from and to a plurality of subscriber units at various geographic locations served by a base station that processes digital data modulated on an r-f carrier and transmitted from a plurality of subscriber units dispersed over a predetermined *790 base station geographic area by presenting multiplexed digital data synchronously related to the base station broadcast signal for communication from identified individual subscriber units within designated geographic services areas
'101 Patent at 11:20-31. Said another way: Claim 1 claims "[a] base station configuration in a two-way communication interactive video network." Id. at 11:20-21. The network has "a network hub switching center" and "a plurality of subscriber units." Id. at 11:21-23. The subscriber units belonging to the network are "dispersed over a predetermined base station geographic area," id. at 11:26-27, and located "at various geographic locations served by a base station." Id. at 11:23-24. The base station "processes digital data." Id. at 11:24-25. This digital data has been "modulated on an r-f carrier and transmitted from a plurality of subscriber units." Id. at 11:25-26. The network hub switching center "rout[es] communications from and to" the subscriber units "by presenting multiplexed digital data ... for communication from identified individual subscriber units." Id. at 11:22-30. Thus, the preamble describes the network in which the claimed base station configuration is intended to be used. See Catalina, 289 F.3d at 809 (observing "preambles describing the use of an invention generally do not limit the claims because the patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure").
Additionally, the interactive video network phrase does not serve as the antecedent basis for an element in the claim body. The claim encompasses a base station configuration comprising "base station data processing and transmission facilities," '101 Patent at 11:33, "base station reception means," id. at 11:40, and "a set of local subscriber transceiver units." Id. at 11:49. The base station transmits and receives digital data messages to and from local subscriber units. Id. at 11:33-39. Although the preamble describes these components as being part of the intended network for this base station configuration, the claim body independently sets forth a structurally complete invention. See Catalina, 289 F.3d at 808; see also Schumer v. Lab. Computer Sys., 308 F.3d 1304, 1310 (Fed.Cir.2002) (finding preamble not limiting "where the language of the preamble is superfluous"). Furthermore, the preamble does not provide an antecedent basis for nearly all of the claim elements. The only element that seemingly does rely on the claim preamble, "said base station geographic area," '101 Patent at 11:43-44, is unrelated to the specific preamble phrase at issuei.e., the interactive video phrase. See Bristol-Myers Squibb Co. v. Ben Venue Labs., 246 F.3d 1368, 1374-75 (Fed.Cir. 2001) (considering the limiting effect of preamble phrases independently). Finally, Defendants do not suggest the applicant relied on the preamble phrase during prosecution to distinguish prior art.
Further, "interactive video" does not restrict the base station configuration to use in a particular type of network. As discussed in more detail, infra, the claimed invention was directed towards utilizing the FCC's 218-219 MHz band, which was referred to as "Interactive Video and Data Services." Apparently, however, the FCC did not intend to limit the use of this band to interactive television. See 47 C.F.R. § 95.801 (1992). Like the inventor, which noted the use of low power subscriber units for applications such as meter reading and soft drink inventory monitoring, the FCC recognized the possibility of other applications for low power subscriber units. FCC REPORT AND ORDER, May 16, 1996, WT Docket No. 95-47 at ¶ 12. Although the FCC would eventually rename the service to reflect the breadth of possible applications, the patents-in-suit were *791 prosecuted while the service was still inaptly named. FCC 99-228, ORDER, MEMORANDUM OPINION AND ORDER AND NOTICE OF PROPOSED RULEMAKING, released Sept. 18, 1998. Nonetheless, the patents-in-suit were not directed to "interactive video," or "interactive television." Nothing in the body of the claim would restrict the claimed structure to a "video" system, and the preamble phrase does not provide any essential structure to the complete invention described in the claim body. Additionally, it is noted that the patent discusses uses for the invention that do not involve "video" systems. See, e.g., '101 Patent at [57] (noting "monitoring of inventory, temperature, and other parameters for passive automatic alarm systems and the like, as well as active mobility of subscriber units for meter reading and the like is made possible with direct low-cost nationwide real time reporting capability"); id. at 6:5-8 (stating "this invention encourages such additional interactive services in the network as typified by meter reading, and inventory control in soft drink dispensing machines, etc."). Furthermore, to the extent the preamble phrase provides context for the invention, it merely explains that the base station configuration was designed for use with an "interactive video" network, as it was understood by one of skill in the art of that day; that is, as a network operating on the 218-219 MHz band. This does not restrict the network to a television or "video" network. Moreover, this would still not change the preamble phrase into a limitation because such context still serves only to state an intended use. Catalina, 289 F.3d at 809.
In its supplemental briefing, Sensus argues the preamble is limiting because Plaintiff purportedly relied on it during reexamination of the patents-in-suit to distinguish prior art. SENSUS REEXAM BR. at 2-4, 5-11. Sensus also argues it is limiting because Plaintiff purportedly relied on it as a limitation during claim construction. Id. at 4-5. Plaintiff states it did not rely on the preamble to describe the scope of the claims and argues Sensus mischaracterizes its statements to the PTO. PL.'S REEXAM RESP. at 6-11.
Plaintiff did not rely on the preamble phrase as a limitation during the reexamination proceedings or the claim construction process in this or the Verizon case. In rebutting obviousness challenges, Plaintiff explained the Morales-Garza and Cunningham references were incompatible and would be inoperable in combination. See DEF.'S REEXAM BR. Ex. P at 5-7, 25. Plaintiff further rebutted the alleged regulatory motivation to adapt the Morales-Garza reference to the FCC's IVDS system by noting its reliance on television signals would be incompatible with the FCC directive's allocation of bandwidth. Id. at 8. Plaintiff did distinguish the Morales-Garza reference on the basis of transmission on a carrier frequency of substantially 218 MHz, but it was in the context of a dependent claim that was specifically limited to that frequency. Id. at 17. None of the reexamination arguments that Defendant identified constitute clear, unambiguous disclaimers of claim scope. See Omega Eng'g Inc., 334 F.3d at 1323-26. Likewise, Plaintiff's claim construction argument did not rely on the preamble phrase to distinguish the entire invention from any of the defendants' proposed constructions. In one instance, a proposed construction would have limited the claim scope to television broadcast signals, which would have been incompatible with particular embodiments of the invention, such as the embodiment in the dependent claims restricting transmission to substantially the 218 MHz band. In the other instance, the proposed construction would have strictly limited claims cope to the FCC's IVDS definition, improperly limiting all the claims to a particular embodiment. In *792 neither case did Plaintiff rely on the interactive video preamble to distinguish all aspects of the invention from the proposed constructions.
The "interactive video" preamble phrases do not set forth essential structure of the invention, do not provide relevant antecedent bases, are unnecessary for understanding the limitations of the claim, and were not relied upon during prosecution. Relying on these "guideposts," Catalina, 289 F.3d at 808, the Court finds these preamble terms are not limiting and do not require further construction.


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                                 Plaintiff's Proposed         Sensus's Proposed                     Bell's Proposed
Term                             Construction                 Construction                          Construction
--------------------------------------------------------------------------------------------------------------------------------------
base station data processing     No construction Necessary.   If this term is subject to 35         This element should be
and transmission                                              U.S.C. § 112 ¶ 6, the construction    construed according to 35
facilities                                                    should be the                         U.S.C. § 112, ¶ 6
'101 Patent, Claims 1-15                                      same as "base station data
                                                              processing transmission               Function:
                                                              means":                               Transmitting to a set of
                                                                                                    local subscriber units and
                                                              Function:                             receiving from a subset of
                                                              Transmitting to a set of              those local subscriber units
                                                              local subscriber units and            multiplexed digital data
                                                              receiving from a subset of            messages of variable lengths
                                                              those local subscriber units          for point-to-point communication
                                                              multiplexed digital data              between individual
                                                              messages of variable lengths          subscribers with remotely
                                                              for point-to-point communication      located reception means.
                                                              between individual
                                                              subscribers with remotely             Structure: Cell base station
                                                              located reception means.              [local area base station repeater
                                                                                                    cell] 3 (Figs.1, 2, 6A,
                                                              Structure: Cell base station          7A), and communication
                                                              [local area base station cell]        protocols to the extent disclosed
                                                              3 (Figs. 1, 2, 6A, and 7A)            in Figs. 3, 4, 6B, 7B,
                                                              utilizing the communication           8A, 8B
                                                              protocols to the extent disclosed
                                                              in Figs 3, 4, 6B, 7B,
                                                              8A, 8B.
--------------------------------------------------------------------------------------------------------------------------------------

The parties again incorporate by reference previous briefing on this term. Although Sensus proposes a construction in the joint claim construction chart "[i]f the term is subject to 35 U.S.C. § 112 ¶ 6," it does not specifically brief the term in any of its papers. Bell incorporates the defendant briefing from the Verizon case and Plaintiff incorporates its previous submissions on the term. In that briefing, Plaintiff argues the presumption that this is not a means-plus-function limitation is not overcome. The Verizon case defendant argued "facilities" is a nonce word and neither the phrase itself nor the rest of the claim language connotes structure to a person of ordinary skill in the art.
This term is not governed by 35 U.S.C. § 112, ¶ 6. The paragraph presumptively does not apply because "base station data processing and transmission facilities" does not use "means." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1369 (Fed.Cir.2002). Defendant "can rebut this presumption by demonstrating the claim term fails to recite sufficiently definite structure or else recites a function without reciting sufficient structure for performing that function." Id. (internal quotation omitted). Generic terms "typically do not connote sufficiently definite structure." Mass. Inst. of Tech. v. Abacus Software, 462 F.3d 1344, 1354 (Fed.Cir.2006). However, "[c]laim language that further defines a generic term like `mechanism' can sometimes add sufficient structure to avoid 112 ¶ 6." Id. Plaintiff provides contemporaneous technical dictionaries defining "facilities, *793 transmission" as a "[g]eneral term for equipment which acts as a bearer of information signals: ... narrow and broadband radiocommunication systems." PL.'S REPLY at EX. D. Additional structural is connoted by the adjacent claim language "base station data processing and transmission." The McGraw-Hill Dictionary of Scientific and Technical Terms defines "base station," in the field of communications, as "[a] land station, in the land mobile service, carrying on a service with land mobile stations (a base station may secondarily communicate with other base stations incident to communications with land mobile stations)" and as "[a] station in a land mobile system which remains in a fixed location and communicates with the mobile stations." MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 197 (5th ed.1994). This definition is consistent with the applicant's use of the term throughout the specification. See, e.g., '101 Patent at 3:32-4:6 (describing the base station as transmitting and receiving messages to and from subscriber units). Thus, one of ordinary skill in the art would have understood "base station data processing and transmission facilities" to connote structure adequate to "transmit[] ... and receiv[e] ... digital data messages." Therefore, the Court finds this term is not governed by 35 U.S.C. § 112, ¶ 6.


--------------------------------------------------------------------------------------------------------------------------------------
                               Plaintiff's Proposed         Sensus's Proposed                         Bell's Proposed
Term                           Construction                 Construction                              Construction
--------------------------------------------------------------------------------------------------------------------------------------
base station data processing   No Construction Necessary    Should be construed according             This element should be
and transmission                                            to 35 U.S.C. § 112 ¶ 6.                   construed according to 35
means                                                                                                 U.S.C. § 112, ¶ 6.
'546 Patent, Claim 1                                        Function (base station data
                                                            processing and transmission               Function:
data processing and                                         means): Transmitting to a                 transmitting to a set of said
transmission means                                          set of local subscriber units             local subscriber units contained
'Patent, Claims 2-13                                        contained within said local               within said local base
                                                            base station geographic area              station geographic area associated
                                                            associated with said local                with said local base
                                                            base station repeater cell                station repeater cell means
                                                            means and receiving from a                and receiving from a subset
                                                            subset of said local set of               of said local set of subscriber
                                                            subscriber units multiplexed              units multiplexed synchronously
                                                            synchronously related digital             related digital
                                                            data messages of variable                 data messages of variable
                                                            lengths for point-to-point                lengths.
                                                            communication between
                                                            said local base station                   Structure: Cell base station
                                                            repeater cell means and said              [local area base station repeater
                                                            subset of said local subscriber           cell] 3 (Figs. 1, 2, 6A,
                                                            units.                                    7A) and communication protocols
                                                                                                      to the extent disclosed
                                                            Function (data processing                 in Figs. 3, 4, 6B, 7B,
                                                            and transmission means):                  8A, 8B.
                                                            Transmitting to and receiving
                                                            from at least one of said
                                                            plurality of said subscriber
                                                            units multiplexed synchronously
                                                            related data messages
                                                            of variable lengths,
                                                            such that point-to-point
                                                            communication between said
                                                            base station repeater cell
                                                            means and said at least one
                                                            of said plurality of subscriber
                                                            units is possible.
                                                            Structure (both terms): Cell
                                                            base station [local area base
                                                            station repeater cell] 3
                                                            (Figs. 1, 2, 6A and 7A) utilizing
                                                            the communication
                                                            protocols to the extent dis-

*794 Plaintiff and Bell incorporate by reference earlier briefing from the Verizon case. Sensus largely joins with the Verizon case defendant's proposal, but omits "processor 486" as part of the corresponding structure if the terms are governed by U.S.C. § 112, ¶ 6. SENSUS VERIZON BR. at 7-8. In the Verizon briefing, the defendant advocated a means-plus-function construction and Plaintiff argued the claim language proves adequate structure to overcome this presumption.
Unlike the base station facilities term, these terms "invoke a rebuttable presumption that § 112 ¶ 6 applies" because they use "means." CCS Fitness, 288 F.3d at 1369. The presumption is overcome if "the claim recites sufficient structure for performing the described functions in their entirety." TriMed, Inc. v. Stryker Corp., 514 F.3d 1256, 1259 (Fed.Cir.2008). As discussed, supra, "base station" possessed a well defined meaning in the art connoting structure for transmitting and receiving digital data messages, the function in both independent claims of the '546 Patent. The disputed terms must be read in the context of the entire patent. Phillips, 415 F.3d at 1314. In both independent claims the "base station data processing and transmission means," '546 Patent at 10:65, and the "data processing and transmission means" are components further comprising a "base station repeater cell." See, e.g., '546 Patent at 11:35-36. A repeater is "[a]n amplifier or other device that receives weak signals and delivers corresponding strong signals with or without reshaping of waveforms," MCGRAWHILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 1688 (5th ed.1994), and a "repeater station," i.e., "repeater cell," is simply "[a] station containing one or more repeaters." MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 1688 (5th ed.1994). The specification uses these terms in accordance with their ordinary meaningthat is, it describes a base station repeater as relaying a data message to another cell for delivery. See '101 Patent at 4:16-21 (describing the base station relaying received messages to a switching hub for ultimate delivery to individual subscribers in remote base stations). Reception, data processing and transmission components are standard, essential elements of a repeater cell, as one of ordinary skill would understand the term. Thus, read in context, the terms connote structure adequate to perform the transmission and receiving function.
Therefore, the Court finds these terms are not governed by 35 U.S.C. § 112, ¶ 6.


-----------------------------------------------------------------------------------------------------------------
                               Plaintiff's Proposed         Sensus's Proposed           Bell's Proposed
Term                           Construction                 Construction                Construction
-----------------------------------------------------------------------------------------------------------------
portable                       No Construction Necessary    Readily movable while       Readily movable while
'101 Patent, Claims 17, 19,                                 operable to communicate     operable to communicate
20
'546 Patent, Claim 14
-----------------------------------------------------------------------------------------------------------------
mobile                         No Construction Necessary    Readily movable while       Readily movable while
'101 Patent, Claims 1-15                                    operable to communicate     operable to communicate
'546 Patent, Claims 1, 5
-----------------------------------------------------------------------------------------------------------------
stationary                     No Construction Necessary    Not mobile or portable
'101 Patent, Claims 16-18
-----------------------------------------------------------------------------------------------------------------

*795 The issue of portability has been extensively briefed. Plaintiff and Sensus briefed the terms "portable" and "mobile" in their supplemental Verizon case briefing.[2]See SENSUS VERIZON BR. at 1-2; PL.'S VERIZON RESP. at 1-2. Additionally, Plaintiff and Sensus provided additional supplemental briefing on "portable." See SENSUS PORTABLE BR.; PL.'S PORTABLE RESP. In their primary claim construction briefs, Plaintiff and Sensus largely rest on their previous argument but introduce additional argument regarding "stationary." See PL.'S BR. at 4-5; SENSUS RESP. at 5-6. Bell incorporates by reference argument for "portable" and further advocates an identical construction for "mobile." See BELL RESP. at 4-6. Bell did not address "stationary." Finally, Plaintiff and Sensus discussed "portable" and "mobile" in the context of the reexamination. See SENSUS REEXAM BR. at 12-13; PL.'S REEXAM RESP. at 13.
The parties' disagreement can fairly be summarized as three-pronged. First, Defendants contend the specification requires "portable" and "mobile" devices to be operable while moved. See SENSUS VERIZON BR. at 1-2; BELL RESP. at 4-6. Second, Sensus argues its construction is necessary in light of Plaintiff's infringement contentions. SENSUS PORTABLE BR. Finally, Sensus argues that Plaintiff, while distinguishing prior art, confirmed portability requires mobile operation. SENSUS REEXAM BR. at 12-13.
As an initial matter, the Court declines to construe "stationary." Nothing in the specification indicates the term possesses anything other than its ordinary meaning. Sensus's attempt to use the term to draw a distinction between it and "mobile" or "portable" is flawed. Mobile and portable are used in the claim language to describe subscriber units, whereas stationary is used to describe receive only terminals. Thus, even if "stationary" had a special meaning when describing receiver only terminals, the relevancy of that meaning is not readily apparent to the meaning of "mobile" or "portable" when describing subscriber units. Moreover, the term "stationary" does not bear on whether a given device may or may not be operable when moving. Claims 16-18 of the '101 Patent require only that the receive only terminals of the claimed system are stationary within that system. Nothing compels the conclusion that the receive only terminals may not be operable while moving nor that they may not be readily movable when not utilized in that specific system. In sum, the construction of this term is irrelevant to the parties' genuine dispute over "mobile" and "portable." Construing this term, when it is used in its plain and ordinary sense, is unnecessary and would only serve to distract or confuse a jury.
The specification does not use "portable" or "mobile" in a manner that requires a device to be "readily movable while operable to communicate." In some instances, the term is used to describe a device capable of operating while moving. For example, in the Background Art section, the specification refers to "portable telephone communication systems." '101 Patent at 1:68-2:1. However, the specification also uses the term where a device capable of operating while moving is not necessarily implied. See, e.g., id. at 6:27-30 (describing "[s]mall and portable home units are also possible. There is considerable advantage of longer battery life for portable units.") And in other instances, the disclosed embodiment is one which does not suggest operation while moving. See, e.g., *796 id. at 1:40-43 (describing "battery powered, portable subscriber units, suitable for such functions as meter reading"); id. at 6:5-8 (describing use of subscriber units for "meter reading, and inventory control in soft drink dispensing machines, etc."). Thus, nothing in the specification suggests that the terms were used in a way inconsistent with their plain and ordinary meaningsi.e., "capable of being carried or moved about," MERRIAN-WEBSTER'S COLLEGIATE DICTIONARY 907 (10th ed.1999), or "capable of being easily and conveniently transported." MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 1550 (5th ed.1994); see also CCS Fitness, 288 F.3d at 1366 (stating there is "a heavy presumption that a claim term carries its ordinary and customary meaning" (quotation omitted)). In some embodiments, these portable or mobile units may be operable while moving, but in other embodiments they are not. Thus, it would be improper to read such a limitation into the claims. Vitronics Corp., 90 F.3d at 1583. Although Plaintiff maintains the terms are not synonymous, see PL.'S VERIZON BR. at 1; PL.'S REPLY at 1 n. 1, it has not explained how the terms are meaningfully different.
The Court declines to construe the terms in light of the Sensus's accused products. In its supplemental briefing, Sensus cites Plaintiff's infringement contentions, which accuse certain metering devices that must be affixed to gas and water lines. SENSUS PORTABLE BR. at 1. Sensus argues that failing to explicitly require mobile operation subjects its "fixed" and "stationary" devices to infringement allegations. Id. at 1-3. In response, Plaintiff notes Sensus's claim construction position is inconsistent with its own trade use of the term "portable." PL.'S PORTABLE RESP. at 3-5 (observing Sensus markets products that must be affixed to water lines as `portable'). Sensus's claim construction argument is essentially a request for the Court to pass judgment on the merits of its non-infringement position. This is improper at this stage. The question is what these terms mean as used in the patents-in-suit, not whether Sensus's accused products are "portable" or "mobile." "A claim is construed in the light of the claim language, the other claims, the prior art, the prosecution history, and the specification, not in light of the accused device." SRI Int'l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1118 (Fed.Cir.1985) (en banc) (emphasis original).
Finally, nothing in the cited portion of the reexamination file compels the Court to construe "mobile" and "portable" as Sensus wishes. Plaintiff distinguished claim 19 from the prior art, noting that the Martinez reference did not teach "facilities for communicating from the subscriber units when moved through different geographic zones." See SENSUS REEXAM BR. EX. P at 23-24. Plaintiff also noted the Martinez reference "does not teach or suggest movement through geographic zones," but this was in the context of a discussion focused on the claimed facilities and offered as support for the conclusion the Martinez reference "accordingly, does not teach or suggest any such facilities...." Id. at 24. Therefore, Sensus's reexamination briefing does not affect the Court's conclusions.
Having resolved the parties' claim scope dispute, the Court finds the terms do not require construction because their meanings are clear in the context of the claims and will be readily understandable to the jury. O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir.2008); Fenner Inv. Ltd. v. Microsoft Corp., No. 6:07-cv-8, 2008 WL 3981838, at *3 (E.D.Tex. Aug. 22, 2008) (finding a court need no construe a disputed term so long as it has resolved the claim scope dispute between the parties). Although the Court does not construe these terms, *797 the parties may not interpret them in a manner inconsistent with this opinion.


---------------------------------------------------------------------------------------------------------------------------------------------
                              Plaintiff's Proposed                   Sensus's Proposed                    Bell's Proposed
Term                          Construction                           Construction                         Construction
----------------------------------------------------------------------------------------------------------------------------------------------
base station reception        Subject to § 112 ¶ 6;                  Should be construed according        This element should be
means                                                                to 35 U.S.C. § 112 ¶ 6               construed according to 35
'101 Patent, Claims 1-15      Function: receiving and                                                     U.S.C. § 112, ¶ 6.
                              processing data messages               Function: Receiving and
                              from the set of local subscriber       processing data messages             Function: Receiving and
                              units at that base                     from the set of local subscriber     processing data messages
                              station;                               units at that base                   from the set of local subscriber
                                                                     station.                             units at that base
                              Structure: "remote receivers                                                station.
                              20A-20N or 22-22",                     Structure: Indefinite.
                              each connected by a link 21                                                 Structure: Remote receivers
                              to a local area base station                                                20A-N or 22-22', each
                              repeater cell [cell base                                                    connected by a link 21 to a
                              station] 3 (Figs. 1-2, 6A                                                   local area base station repeater
                              and 7A), and equivalents;                                                   cell [cell base station]
                                                                                                          3 (Figs. 1-2, 6A and 7A),
                                                                                                          including the communication
                                                                                                          protocol to the extent disclosed
                                                                                                          in Figs. 3, 4 6B, 7B,
                                                                                                          8A, 8B.
---------------------------------------------------------------------------------------------------------------------------------------------
reception means               No construction necessary              Should be construed according        This element should be
'546 Patent, Claims 2-13      with respect to claim 1 of             to 35 U.S.C. § 112 ¶ 6.              construed according to 35
                              the '546 Patent. In 546:2-13,                                               U.S.C. § 112, ¶ 6.
                              subject to § 112 ¶ 6;                  Function [546:1]: Receiving
                                                                     and processing data messages         Function: Receiving and
                              Function: receiving and                from said set of local               processing said multiplexed
                              processing said multiplexed            subscriber units.                    synchronously related data
                              synchronously related data                                                  messages from said at least
                              messages from said at least            Function [546:2]: Receiving          one of said plurality of subscriber
                              one of said plurality of subscriber    and processing said multiplexed      units and relaying
                              units and relaying                     synchronously related                said multiplexed synchronously
                              said multiplexed synchronously         data messages from said              related data messages
                              related data messages                  at least one of said subscriber      from said at least one
                              from said at least one                 units and relaying said              of said plurality of subscriber
                              of said plurality of subscriber        multiplexed synchronously            units to said base station
                              units to said base station             related data messages from           repeater cell means.
                              repeater cell means;                   at least one of said plurality
                                                                     of subscriber units to said          Structure: Remote receivers
                              Structure: "local area repeater        base station repeater cell           20A-N or 22-22', each
                              station, local base                    means.                               connected by a link 21 to a
                              station repeater cell, cell                                                 local area base station repeater
                              base station, cell (item 3 in          Structure (both claims):             cell [cell base station]
                              FIG. 1, 2, 6A, 7A); relay              Indefinite.                          repeater cell [cell base station]
                              station(s) 20A-20N (FIG.                                                    3 (Figs. 1-2, 6A and
                              2); 22-22'(FIG. 6A, 7A);                                                    7A), including the communication
                              remote receiver(s) 20-20A                                                   protocol to the extent
                              (FIG. 1); cell site transmission                                            disclosed in Figs. 3, 4, 6B,
                              system 40 (FIG. 2);                                                         7B, 8A, 8B.
                              switch control center 14
                              (FIG. 1); terminal directory
                              13 (FIG. 1); and as described
                              in the specification
                              of the '546 Patent at 7:38-43,
                              3:58-63, 4:63-5:5, and
                              5:18-54, and
                              equivalents;
---------------------------------------------------------------------------------------------------------------------------------------------

Plaintiff and Bell largely rest on the Verizon case briefing. Sensus agrees with the Verizon case defendant's proposal with respect to the receiving and relaying portions of the function. SENSUS VERIZON BR. at 8-9. Sensus argues the limitation is ultimately indefinite for failing *798 to disclose structure for processing data messages. Id. Thus, apart from Sensus's indefiniteness allegation, the parties' positions do not differ substantially from those argued in the Verizon case. There, the defendant argued Plaintiff's proposals ignore that processing and receiving is performed at the base station and not elsewhere. Defendant additionally argued Plaintiff's corresponding structure included extraneous elements that were unnecessary to performing the claimed function. Plaintiff argued Figures 1 and 2, and their accompanying text, completely describe the corresponding function and the defendant's proposals improperly import unnecessary elements from other figures.
These terms are subject to § 112, ¶ 6. As noted in the discussion of "processing and transmission means" terms, "base station" connotes structure to one of ordinary skill in the art. However, the claimed reception means are unlike reception means one of ordinary skill in the art would generally associate with a "base station." As noted in the Background Art section, "[t]here has been no known interactive video data service system available heretofore that has the capability of servicing an assigned base station area with subscriber units transmitting in a milliwatt power range." '101 Patent 1:36-39. An objective of the invention was to provide "two-way interactive communications with simplified low-cost subscriber units transmitting in milliwatt peak power ranges under parameters compatible with FCC licensing restrictions." Id. at 3:19-21. Thus, the invention comprised not only "a central transmitter and data processing site" but also "[a] plurality of receive only stations distributed throughout the region and connected ... to the central data processing site." Id. at 3:62-68. The ordinary meaning of "base station" implied a single fixed communication and processing site, with which the "processing and transmission means" terms conformed, but would not include dispersed receivers as claimed by the "reception means" terms. Thus, although "base station" connotes some structure, it does not connote structure adequately supporting the claimed function here. Therefore, the terms as used in claims 1-15 of the '101 Patent and claim 2-13 of the '546 Patent are governed by 35 U.S.C. § 112, ¶ 6.
The Verizon defendant correctly identified the functions of the terms in the '101 and '546 Patents. The parties disagreed as to the corresponding structure. Figures 1 and 2 depict "a set of subscribers at response units 4 communicat[ing] ... to either a set of local remote receivers 20, each connected by a link 21 ... to repeater cell 3, or to a local area base station repeater cell 3." '101 Patent at 5:2-7. Local remote receivers 20A through 20N are likewise arranged. Id. at 5:54-62. The specification alternatively refers to the remote receivers as items 22 through 22' in Figures 6A and 7A, which describes the base station as a cell base station and cell, respectively. The set of local remote receivers 20 through 20N (Figs. 1, 2), 22 through 22' (Figs. 6A, 7A), and repeater cell, local are base station repeater cell, cell base station, cell 3 (collectively, "base station") (Figs. 1, 2, 6A, 7A) perform the function of receiving and processing data messages from the local subscriber units. Local remote receivers 20 through 20N (Figs. 1, 2), 22 through 22' (Figs. 6A, 7A), base station 3 (Figs. 1, 2, 6A, 7A), and link 21 (Figs. 2, 6A) perform the function of relaying the data messages to the base station repeater cell means. In its proposal, the Verizon defendant included link 21 and the communication protocols disclosed in Figures 3, 4, 6B, 7B, 8A, and 8B. Link 21 connects the remote receiver to the base station repeater cell, and is essential for relaying messages, but unnecessary for performing the receiving and processing *799 function. Finally, the communication protocols are unrelated to either receiving messages from the subscriber units or to relaying the messages to the repeater cell. Plaintiff also identified additional structures from Figure 1, which it describes are "additional structure for carrying out the functions associated with `reception means.'" These structures are dissociated from either the remote receivers or the base station. The functions here relate only to receiving data messages at a remote receiver and relaying that message to the base station. The various control and billing centers Plaintiff identified, elements 2, 13, 14, 15, and 16 in Figure 1, are not part of that function, nor is cell site transmission system 40, which transmits to other base stations. Those elements may only be of relevance after a base station has already received a relayed message. Thus, the additional structure Plaintiff cited is unnecessary for performing those specific functions.
Finally, Sensus argues the limitation includes a processing function without any corresponding structure. As explained in the Court's Report and Recommendation, the processing function is performed by the remote receiver. Therefore, adequate structure is recited to perform that function.
Accordingly, the function of the term in the '101 Patent is "receiving and processing data messages from the set of local subscriber units at that base station." '101 Patent at 11:40-42. The corresponding structure is "remote receivers 20-20N (Figs. 1, 2), 22-22' (Figs. 6A, 7A), and repeater cell, local are base station repeater cell, cell base station, cell 3 (Figs. 1, 2, 6A, 7A), and statutory equivalents." The functions of the term in the '546 Patent are "receiving and processing said multiplexed synchronously related data messages from said at least one of said plurality of subscriber units and relaying said multiplexed synchronously related data messages from said at least one of said plurality of subscriber units to said base station repeater cell means." '546 Patent at 11:44-49. The corresponding structure is "remote receivers 20-20N (Figs. 1, 2), 22-22' (Figs. 6A, 7A), and repeater cell, local are base station repeater cell, cell base station, cell 3 (Figs. 1, 2, 6A, 7A), link 21 (Figs. 2, 6A), and statutory equivalents."


------------------------------------------------------------------------------------------------------------------------------
                            Plaintiff's Proposed             Sensus's Proposed               Bell's Proposed
Term                        Construction                     Construction                    Construction
------------------------------------------------------------------------------------------------------------------------------
base station broadcast      a wireless signal transmitted    A wireless television signal    A wireless video signal
signal                      to a plurality of subscriber     transmitted from a base         transmitted from a base station
'101 Patent, Claims 1-15    units and/or                     station to all subscriber       to disseminate identical
'546 Patent, Claim 1        receivers                        units in the base station's     information to a plurality of
                                                             geographic area.                subscriber units
                                                             Alternatively, "a wireless
                                                             video signal transmitted by
                                                             a base station to a plurality
                                                             of subscribers and/or
                                                             receivers."
------------------------------------------------------------------------------------------------------------------------------

Plaintiff and Sensus address this term in their supplemental Verizon case briefing. Bell and Plaintiff also incorporate the other relevant briefing filed by the parties in that case. Sensus's proposal differs from the Verizon defendant's in that it requires the wireless signal be a television signal, rather than video signal. SENSUS VERIZON BR. at 3. Additionally, Sensus's proposal requires the signal be transmitted *800 to all subscriber units in the range of the base station. Id.
The patents-in-suit are not restricted video (or television) applications. Throughout the specification, the applicant referenced video or television broadcast. See, e.g., '101 Patent at 3:51-52 (describing synchronization with "television frames of a master TV channel"); id. at 5:46-47 (referring to the FCC's "interactive video data service"). Despite these references, it is clear the patents-in-suit are broader than video or television transmission. See, e.g., '101 Patent at 6:5-13 (disclosing use of invention for "meter reading, and inventory control in soft drink dispensing machines" and noting in such applications "subscriber units 4 may be provided without the necessity for video displays"). The video references stem from FCC's original name for short distance transmission on the 218-219 MHz band. See id. at 3:6-16 (explaining "[i]t is an objective of this invention to improve the state of the art by effectively using licensed interactive communication channels" and describing requirements of "the FCC licensing conditions for interactive video data service"); id. at 4:2-6 (stating "the base station serves a gridwork of receiver sub-cell sites distributed at locations permitting reliable response by subscribers transmitting with milliwatt digital signal levels in the FCC authorized 218-219 MHz band"). However, the FCC did not limit the Interactive Video and Data Service ("IVDS") to television or video broadcast, acknowledging its utility as "a short distance communications service." 47 C.F.R. § 95.801 (1992). Indeed, "the 218-219 MHz band is insufficient for the transmission of conventional full-motion video," FCC 218-219 MHz RADIO SERVICE, available at http://wireless.fcc. gov/services/index.htm?job=service_home & id=XXX___XXX, and the FCC rejected a request to limit IVDS to video applications, noting it was adaptable to "providing video, voice, or data" and that it "envision[ed] a variety of uses for IVDS." FCC REPORT AND ORDER, May 16, 1996, WT Docket No. 95-47 at ¶ 12. In 1998, the FCC "[r]edesignate[d] this service as the `218-219 MHz Service' to reflect the breadth of services evolving in this spectrum." FCC 99-228, ORDER, MEMORANDUM OPINION AND ORDER AND NOTICE OF PROPOSED RULEMAKING, released Sept. 17, 1998. Thus, although the specification frequently refers to video, the claimed invention is not so limited.
Furthermore, the specification and the prosecution history distinguish between a "broadcast signal" and a "television signal." The specification describes a broadcast signal as including signals other than a video or television signal. '101 Patent at 6:63-68 (describing a ringing signal for activating a unit); id. at 7:3-5 (describing a control signal). Likewise, restricting a broadcast signal to a video or television signal would exclude preferred embodiments. See, e.g., id. at 1:40-43 (describing "battery powered, portable subscriber units, suitable for such functions as meter reading"); id. at 6:5-8 (describing use of subscriber units for "meter reading, and inventory control in soft drink dispensing machines, etc."). The applicant similarly distinguished the claimed invention from a system restricted to television signals, stating in response to an office action "the Martinez reference specifically disclose[s] transmitting data messages which are integral with a conventional television signal. Such is not the case in the present invention." OFFICE ACTION RESPONSE, Dec. 12, 1994, at 4. Finally, dependent claim 11 specifically limits the broadcast signal to a television signal, indicating a broadcast signal is broader. See Nazomi Commc'ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1370 (Fed.Cir.2005) (observing "[t]he concept of claim differentiation normally means that limitations stated in dependent claims are not to be read into the independent *801 claim from which they depend" (quotation omitted)).
Finally, a broadcast signal may be intended for a specific subscriber unit, but it must be broadcast to all units. This is inherent in the term, as the claim language specifically describes the signal as a broadcast signal, as opposed to a multicast or unicast signal. Any given message transmitted by the base station to a subscriber unit is sent to all units. This does not foreclose sending a given message for a specific subscriber unit or units, see '101 Patent at 7:34-37 (describing addressing messages to specific units), but even a message intended for a specific unit is transmitted to all subscriber units within the base station geographic area.
Therefore, the Court construes this term as "a wireless signal transmitted to a plurality of subscriber units and/or receivers."


---------------------------------------------------------------------------------------------------------------------
                                     Plaintiff's Proposed              Sensus's Proposed             Bell's Proposed
Term                      Construction                      Construction                  Construction
---------------------------------------------------------------------------------------------------------------------
synchronously related     Related in time and/or frequency  A wireless television signal  Transmitted during response
'101 Patent, Claims 1-15  (which is the Plain               transmitted from a base        or blanking intervals
'546 Patent, Claims 1-14  and Ordinary Meaning)             station to all subscriber     of [base station broadcast
                                                            units in the base station's   signal] Indefinite in claims
                                                            geographic area.              546:2-13
                                                            Alternatively, "a wireless
                                                            video signal transmitted by
                                                            a base station to a plurality
                                                            of subscribers and/or
                                                            receivers."
-----------------------------------------------------------------------------------------------------------------

Plaintiff and Bell again incorporate the Verizon case briefing. Sensus argues the data messages are synchronized in time and frequency by the base station broadcast signal "in order to avoid interference." SENSUS VERIZON BR. at 6-7. Plaintiff disagrees with this construction, arguing it introduces two unnecessary limitations: 1) that the synchronization achieves a particular result; and 2) that the synchronization must be caused by the base station broadcast signal. PL.'S VERIZON RESP. at 4. Additionally, in its briefing on the reexamination proceedings, Sensus argues Plaintiff distinguished prior art on the basis that it only taught frequency synchronization. SENSUS REEXAM BR. at 13. Plaintiff argues it distinguished the prior art based on what was synchronously related, rather than how it was synchronously related. PL.'S REEXAM RESP. at 19. Plaintiff further argues its reexamination position did not affect the scope of all claims because the specific claim being distinguished expressly requires timing synchronization. Id. at 20.
With respect to the Verizon defendant's argument, incorporated as Bell's position, the claimed invention is not restricted to the protocol disclosed in the Morales patent. To the extent the parties' arguments in the Verizon case turned on whether the broadcast signal is a television signal, the Court has resolved the issue for the reasons explained when discussing the "interactive video" and "broadcast signal" terms. The specification uses the "synchronous" and related words to discuss not only synchronization with a television signal, '101 Patent 3:50-52, but also speaks of "communications and switching connections [that] are synchronized throughout a nationwide network." Id. at 3:52-54. This suggests synchronization is not necessarily limited to blanking intervals. Although the specification refers to the Morales patent during its discussion of synchronization, see id. at 7:43-53 (citing the Morales *802 patent), the discussion primarily served to distinguish the invention "from any former telephone switching system art which is asynchronously switched." Id. at 7:53-55. In sum, while Defendant's proposal encompasses one of the disclosed embodiments, it is unnecessarily limiting.
Turning to Sensus's argument, the Court rejects the proposed additional limitations. First, although a benefit of synchronization may be avoiding interference, Sensus provides no intrinsic evidence that this is the necessary result of synchronization as the term is used in the patents-in-suit. Second, although the patents-in-suit disclose synchronization to the base station signal in some embodiments, not all embodiments are so limited. Indeed, some claims specifically require such synchronization, see '546 Patent at claim 1, while other claims do not. See id. at claim 2. Finally, Plaintiff's comments during reexamination regarding the Martinez reference's teaching of synchronously related frequencies does not limit the present invention to synchronization in both time and frequency. Plaintiff distinguished the Martinez reference based on what was synchronized, but not on how it was synchronized.
Therefore, the Court construes this term as "related in time and/or frequency."


-----------------------------------------------------------------------------------------------------------------------------------
                                Plaintiff's Proposed       Sensus's Proposed                     Bell's Proposed
Term                            Construction               Construction                          Construction
-----------------------------------------------------------------------------------------------------------------------------------
means for providing for         No Construction Necessary  Should be construed according         This element should be
two-way digital communications                             to 35 U.S.C. § 112 ¶ 6.               construed according to 35
between two different                                                                            U.S.C. § 112, ¶ 6
subscriber units                                           Function [101:16]:
'101 Patent, Claims 16-18                                  Providing for two-way digital         Function: providing for
                                                           communications between                two-way digital communications
                                                           two different subscriber                  between two different
                                                           units by a serial communication       subscriber units
                                                           path extending through
                                                           a base station, the satellite,        Structure: a serial communication
                                                           the central station, the satellite,   path from subscriber
                                                           and back to a base                    units 4, 4', 4", or 4"'
                                                           station, wherein at least             (Figs. 1, 2, 6A, 7A, 9A) connected
                                                           some of said base stations            to remote receivers
                                                           serve a set of subscriber             20A-N or 22-22', each connected
                                                           units dispersed over a predetermined  by a link 21 to a local
                                                           geographic area                       area base station repeater
                                                           and comprise communication            cell [cell base station] 3,
                                                           means . . ., subscriber               which is connected to satellite
                                                           transmitter units . . ., and          1 to audience control
                                                           data processing means. . . .          and data center 2 back to
                                                                                                 satellite 1 to another base
                                                           Function [101:17]:                    station to a different subscriber
                                                           Providing for two-way digital         scriber unit, and utilizing
                                                           communications between                the communication protocols
                                                           two different subscriber              to the extent disclosed in
                                                           units by a serial communication       Figs. 3, 4, 6B, 7B, 8A, 8B
                                                           path extending through
                                                           a base station, the satellite,
                                                           the central station, the satellite,
                                                           and back to a base
                                                           station, wherein at least
                                                           some of said base stations
                                                           serve a set of subscriber
                                                           units dispersed over a predetermined
                                                           geographic area
                                                           and comprise communication
                                                           means . . ., subscriber
                                                           transmitter units . . ., data
                                                           processing means . . . [and]
                                                           means to receive. . . .
                                                           Function [101:18]:
                                                           Providing for two-way digital
                                                           communications between



*803
                                                                                                 two different subscriber
                                                                                                 units by a serial communication
                                                                                                 path extending through
                                                                                                 a base station, the satellite,
                                                                                                 the central station, the satellite,
                                                                                                 and back to a base
                                                                                                 station, wherein at least
                                                                                                 some of said base stations
                                                                                                 serve a set of subscriber
                                                                                                 units dispersed over a predetermined
                                                                                                 geographic area
                                                                                                 and comprise communication
                                                                                                 means . . ., subscriber
                                                                                                 transmitter units . . ., data
                                                                                                 processing means . . . [and]
                                                                                                 means for selecting. . . .
                                                                                                 Structure: A serial communication
                                                                                                 path from subscriber
                                                                                                 units 4, 4', 4", or 4"'
                                                                                                 (Figs. 1, 2, 6A, 7A, 9A) connected
                                                                                                 to remote receivers
                                                                                                 20A-N or 22-22', each connected
                                                                                                 by a link to a local
                                                                                                 area base station repeater
                                                                                                 cell [cell base station] 3,
                                                                                                 which is connected to satellite
                                                                                                 1 to audience control
                                                                                                 and data center 2 back to
                                                                                                 satellite 1 to another base
                                                                                                 station to a different subscriber
                                                                                                 unit, and utilizing
                                                                                                 the communication protocols
                                                                                                 to the extent disclosed in
                                                                                                 Figs. 3, 4, 6B, 7B, 8A, 8B.
-----------------------------------------------------------------------------------------------------------------------------------

The parties rest essentially on the Verizon case briefing, although Sensus argues for expanding the identified function if construed as a means-plus-function term. SENSUS VERIZON BR. at 10. The parties in the Verizon case disagreed whether the claim language recited sufficient structure remove the term from the ambit of 35 U.S.C. § 112, ¶ 6.
Although the claim uses "means," the claim includes sufficient structure to avoid construction as a means-plus-function term. Claim 16 of the '101 Patent, which is exemplary of the usage of this term, recites:
means for providing for two-way digital communications between two different subscriber units by a serial communication path extending through a base station, the satellite, the central station, the satellite and back to a base station, wherein at least some of said base stations serve a set of subscriber units dispersed over a predetermined geographic area and comprise communication means between the subscriber units with the base station including a set of station receive only terminals remote from the base station coupled by a communication link with the base station for conveying transmitted messages from subscriber units in the subdivided portion of said geographic area in the vicinity of the receive only terminals to the base station
'101 Patent at 13:5-19. Where, as here, "a claim recites a function, but then goes on to elaborate sufficient structure, material, or acts within the claim itself to perform entirely the recited function, the claim is not in means-plus-function format." Sage Products, Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1427-28 (Fed.Cir.1997). Accordingly, the Court finds this term is not governed by 35 U.S.C. § 112, ¶ 6.


*804
------------------------------------------------------------------------------------------------------------------------------
                              Plaintiff's Proposed             Sensus's Proposed            Bell's Proposed
Term                          Construction                     Construction                 Construction
------------------------------------------------------------------------------------------------------------------------------
facilities for communicating  Subject to § 112, ¶ 6:           Sensus takes no position on  This element should be
from the subscriber                                            the construction of this     construed according to 35
units when moved              Function:                        claim term.                  U.S.C. § 112, ¶ 6
through different             communicating from the
geographic zones              subscriber units when                                         Function:
'101 Patent, Claims 19-20     moved through different                                        communicating from the
                              geographic zones;                                             subscriber units when
                                                                                            moved through different
                              Structure: Subscriber units                                   geographic zones
                              4, 4', 4", or 4"' (Figs. 1, 2,
                              6A, 7A, 9A), including software                               Structure: Subscriber units
                              control facilities or                                         4, 4', 4", or 4"' (Figs. 1, 2,
                              Software Control Data Processor                               6A, 7A, 9A), including software
                              54 and the corresponding                                      control facilities or
                              set-up algorithm                                              Software Control Data
                              to the extent disclosed in                                    Processor 54 and the corresponding
                              FIG. 6B and '101 Patent                                       set-up algorithm
                              8:15-62, 9:14-19, and                                         to the extent disclosed in
                              equivalents.                                                  FIG. 6B and 8:15-62, 9:14-19
------------------------------------------------------------------------------------------------------------------------------

Plaintiff and Bell incorporate the Verizon briefing by reference. Sensus does not address the term. No party adds additional argument in the present claim construction briefing.
Although the claim does not use "means," the use of "facilities" here is inadequate to connote structure capable of performing the claimed function. As the Court previously observed, generic terms "typically do not connote sufficiently definite structure." Mass. Inst. of Tech., 462 F.3d at 1354. Unlike "base station facilities," the claim language does not "further define[] a generic term . . . [to] add sufficient structure to avoid 112 ¶ 6." Cf. id. Plaintiff's dictionary defines "facilities, transmission" as a "[g]eneral term for equipment which acts as a bearer of information signals: . . . narrow and broadband radiocommunication systems." PL.'S REPLY AT EX. D. Without further context, "facilities" is essentially a nonce word encompassing virtually anything from performing the recited function. Thus, this is a means-plus-function term.
In the Verizon case, the defendant correctly identified the claimed function. The parties' disagreement as to corresponding structure relates primarily to whether the function necessitates the set-up algorithm depicted in Figure 6 and discussed at length in column 8. Plaintiff contended the set-up algorithm is not part of the function of "communicating." The specification explicitly states the algorithm depicted in Figure 6B "relate[s] to the communication sequences . . . between home units 4, the cell site utilizing local base station 3 and local remote stationary receivers 20A-20N." '101 Patent at 8:8-12. Although Plaintiff accurately noted the hand-off procedure is separately claimed in independent claim 20, the set-up algorithm cannot be divorced from the communication function recited in both claims 19 and 20. "This set up procedure is important for `hand-off' of a portable unit from one stationary local remote receiver site 22 to another as fringe areas are encountered," id. at 8:63-65, i.e., the set-up algorithm is important when communicating from subscriber units moving through different geographic zones. This important procedure would be lacking from claim 20 if it was not incorporated in the communication function. Therefore, the Court adopts the Verizon defendant's corresponding structure and defines the function as "communicating from the subscriber units when moved through different geographic zones" *805 and defines the corresponding structure as "Subscriber units 4, 4', 4", or 4'" (Figs. 1, 2, 6A, 7A, 9A), including software control facilities or Software Control Data Processor 54 and the corresponding set-up algorithm to the extent disclosed in FIG. 6B and '101 Patent 8:15-62, 9:14-19, and statutory equivalents."


--------------------------------------------------------------------------------------------------------------------
                         Plaintiff's Proposed         Sensus's Proposed            Bell's Proposed
Term                     Construction                 Construction                 Construction
--------------------------------------------------------------------------------------------------------------------
means for transmitting   Plain and Ordinary Meaning,  Sensus takes no position on  This element should be
digital data derived by  and this term is not         the construction of this     construed according to 35
said transducers         governed by 35 U.S.C.        claim term.                  U.S.C. § 112, ¶ 6
'101 Patent, Claim 19    § 112, ¶ 6.
                                                                                  Function:
                         If this element is to be                                 transmitting digital data
                         construed according to 35                                derived by said transducers
                         U.S.C. § 112, ¶ 6:
                                                                                  Structure: Software control
                         Function:                                                data processor 54, output
                         transmitting digital data                                register fixed variable 52,
                                                                                  frequency control 57, transceiver
                         Structure:                                               50 and antenna 49
                         transceiver 50 (FIG. 9A)                                 (FIG. 9A), including communication
                         101[10:9-13]; transceiver 4                              protocols and algorithms
                         (FIG. 2) 101[5:59-66]                                    to the extent disclosed
                                                                                  in Figs. 3, 4, 6B, 7B, 8A, 8B
                                                                                  and at 8:8-62
--------------------------------------------------------------------------------------------------------------------

Plaintiff and Bell incorporate the Verizon briefing by reference. Sensus does not address the term. No party adds additional argument in the present claim construction briefing.
This term is presumptively a means-plus-function term and Plaintiff failed to overcome this presumption. The Verizon defendant correctly identified the function of "transmitting digital data derived by said transducers." The Verizon defendant's proposal of corresponding structure, however, unnecessarily incorporated structure unrelated to transmitting. Defendant identified several components from Figure 9 "all connected to transceiver 50." DEF.'S RESP. at 25. However, it does not necessarily follow that every component connected to some corresponding structure is also involved in the claimed function. The additional components may play a role in generating the "digital data derived by said transducers," but the claimed function is simply transmitting that data, however generated or whatever the source. Plaintiff's proposal correctly limited the corresponding structure to only those elements that are essential, yet adequate, to performing the function. Therefore, the Court defines the corresponding structure as "transceiver 50 (FIG. 9A) as described at '101 Patent 10:9-13 and transceiver 4 (FIG. 2) as described at '101 Patent 5:59-66, and statutory equivalents."


-------------------------------------------------------------------------------------------------------------------------
                      Plaintiff's Proposed            Sensus's Proposed                   Bell's Proposed
Term                  Construction                    Construction                        Construction
-------------------------------------------------------------------------------------------------------------------------
remote receiver       A receiver remote from or       Equipment located in a subdivided   Equipment located in subdivided
'546 Patent, Claim 1  collocated with a transmitter,             portion of a base            portions of a base
                      base station, and/or            station's geographic area           station's geographic area to
                      repeater                        that detects digital transmissions  relay transmissions from
                                                      from subscriber                     subscriber units to the base
                                                      units and relays them to the        station
                                                      base station, and does not
                                                      transmit to the subscriber
                                                      units.
--------------------------------------------------------------------------------------------------------------------



*806
--------------------------------------------------------------------------------------------------------------------
receive only stations      A receiver for receiving         Equipment located in a subdivided   Equipment located in subdivided
'101 Patent, Claim 20      transmissions                    portion of a base                   portions of a base
                                                            station's geographic area           station's geographic area to
                                                            that detects digital transmissions  relay transmissions from
                                                            from subscriber                     subscriber units to the base
                                                            units and relays them to the        station
                                                            base station, and does not
                                                            transmit to the subscriber
                                                            units.
---------------------------------------------------------------------------------------------------------------------------
receive only digital       A receiver for receiving and     Equipment located in a subdivided   Equipment located in subdivided
receiver                   relaying digital communications  portion of a base                   portions of a base
'546 Patent, Claim 14                                       station's geographic area           station's geographic area to
                                                            that detects digital transmissions  relay transmissions from
                                                            from subscriber                     subscriber units to the base
                                                            units and relays them to the        station
                                                            base station, and does not
                                                            transmit to the subscriber
                                                            units.
---------------------------------------------------------------------------------------------------------------------------
receive only terminals     No construction necessary        Equipment located in a subdivided
'101 Patent, Claims 16-18                                   portion of a base
                           Alternatively: a receiver        station's geographic area
                           for receiving and relaying       that detects digital transmissions
                           digital communications           from subscriber
                                                            units and relays them to the
                                                            base station, and does not
                                                            transmit to the subscriber
                                                            units.
---------------------------------------------------------------------------------------------------------------------------

The parties agree that the claimed receivers are equipment that relays transmissions from subscriber units to base stations. Their disagreement over the interpretation of this term primarily turns on whether the remote receivers must only relay transmissions from the subscriber units and may never transmit anything to the subscriber units. Sensus's proposed construction would forbid any communication from the remote receiver to the subscriber unit, or any communication from the subscriber unit which was intended for that remote receiver and which would terminate at the receiver and not be relayed to the base station.
Each of the relevant claims includes location language making Sensus's location language redundant and unnecessary. See '101 Patent at 14:42-45 ("a base station of defined geographic area for serving a set of said subscriber units, said area is subdivided into a plurality of zones, and receive only stations located in said zones"); '546 Patent at 10-12 ("a local remote receiver disposed within one of a plurality of cell subdivision site[s] partitioned from said local base station geographic area"); '546 Patent at 14:2-3 ("a set of receive only digital receivers positioned in said subdivided zones"). Plaintiff is correct the invention encompasses a "remote receiver" collocated with a local area repeater station. See '101 Patent at FIG. 1. Finally, Sensus's "does not transmit to the subscriber units" language improperly imports a limitation to the claim and excludes preferred embodiments. See '101 Patent at Figure 1 (depicting signal 5 between subscriber unit 4 and remote receiver 20 as two-way), at 7:3-7 (describing error-checking and control signals sent between the receiver units and the subscriber units). Sensus's proposal also takes the "receive only" claim language out of context and stretches it to achieve an absurd result. In the context of the entire specification, it is clear "receive only" refers to the communication of messages to and from the base stations cells and the subscriber units. That is, the subscriber unit can only receive digital data message directly from the base station cell and not from the reception units. The reception *807 unit's role with respect to those messages is simply to receive them from the low powered subscriber units and to pass them along to the base station cell. This does not, however, forbid routine handshaking, error checking, and other control signals from being communicated between the reception units and the subscriber units. Therefore, the Court adopts Plaintiff's proposed constructions and construes "remote receiver" as "a receiver remote from or collocated with a transmitter, base station, and/or repeater;" "receive only stations" as "a receiver for receiving transmissions;" and "receive only digital receiver" as "a receiver for receiving and relaying digital communications."


---------------------------------------------------------------------------------------------------------------------------------------
                                 Plaintiff's Proposed                 Sensus's Proposed            Bell's Proposed
Term                             Construction                         Construction                 Construction
---------------------------------------------------------------------------------------------------------------------------------------
facilities in said base station  Subject to 35 U.S.C. § 112,          Sensus takes no position on  This element should be
and subscriber units             ¶ 6.                                 the construction of this     construed according to 35
for handing off communications                                        claim term.                  U.S.C. § 112, ¶ 6
between zones                    Function: handing off communications
when communicated                between zones                                                     Function: handing off communications
signals deteriorate below        when communicated signals                                         between zones
a given threshold                deteriorate below a given                                         when communicated signals
'101 Patent, Claim 20            threshold                                                         deteriorate below a given
                                                                                                   threshold
                                 Structure:
                                 local area repeater station,                                      Structure: FIG. 6B, 8:8-9:30
                                 local base station repeater                                       (describing receive signal
                                 cell, cell base station, cell                                     strength indicators
                                 (item 3 in FIG. 1, 2, 6A,                                         (RSSI) located in the base
                                 7A); software control facilities;                                 stations and subscriber
                                 101[5:28-31]; software                                            units)
                                 control data processor                                            * * *
                                 54 (FIG. 9A); transceiver                                         If the Court concludes that
                                 50 (FIG. 9A); transceiver 4                                       this term should not be
                                 (FIG. 2) software at SU                                           construed according to 35
                                 (item 17 in FIG. 1);                                              U.S.C. § 112, ¶ 6, this term
                                 101[8:8-9:44]; FIG. 6B;                                           should be construed as:
                                 response unit 4 (FIG. 1);
                                 remote receiver (FIG. 6B)                                         Receive signal strength indicators
                                                                                                   (RSSI) located in the
                                                                                                   base station and subscriber
                                                                                                   units
---------------------------------------------------------------------------------------------------------------------------------------

Plaintiff and Bell incorporate the Verizon briefing by reference. Sensus does not address the term. No party adds additional argument in the present claim construction briefing.
This is a means-plus-function term because "facilities" is used as a nonce word to represent virtually anything. Unlike "facilities for communicating," this term does have some base station context, akin to the context provided in "transmission and processing facilities." However, unlike the transmission and processing facilities, where the facilities were components of the base station, here the facilities are simply located in a base station. The facilities here are not basic, essential elements of a base station as one of ordinary skill would understand that word to include. Indeed, the specification enters into a lengthy discussion of how this complex function of handing off is performed. See '101 Patent at 8:8-9:44. Thus, the presumption that this is not a means-plus-function term is overcome.
The Verizon defendant properly identified the claimed function. As noted, the specification discusses the hand-off and associated set-up procedures in Columns 8 and 9. The relevant figures and components include those Plaintiff identified. The parties further disputed whether this *808 disclosure restricts the hand-off determination to depend on receive signal strength indicators (RSSI). The specification states a RSSI "measurement may serve as a criterion for hand-off," '101 Patent at 9:8-9, indicating RSSI is not the only, nor even a necessary, criterion for hand-off. The specification does not, however, provide support for or examples of any other criterion. Therefore, the Court combines the Verizon defendant's proposed structure with Plaintiff's and defines the corresponding structure as "local area repeater station, local base station repeater cell, cell base station, cell (item 3 in FIG. 1, 2, 6A, 7A); software control facilities as described at '101 Patent 5:28-31; software control data processor 54 (FIG. 9A); transceiver 50 (FIG. 9A); transceiver 4 (FIG. 2) software at SU (item 17 in FIG. 1); the description at '101 Patent 8:8-9:44; FIG. 6B; response unit 4 (FIG. 1); remote receiver (FIG. 6B), and statutory equivalents."


-----------------------------------------------------------------------------------------------------
                              Plaintiff's Proposed        Sensus's Proposed           Bell's Proposed
Term                          Construction               Construction                Construction
-----------------------------------------------------------------------------------------------------
lower power                   No Construction Necessary  Maximum transmission
'101 Patent, Claim 1                                     power of approximately one
'546 Patent, Claims 1, 5, 7,                             thousandth of a watt.
9
limited power
'546 Patent, Claim 14
-----------------------------------------------------------------------------------------------------
peak power in the             No Construction Necessary  Maximum transmission
milliwatt range                                          power of approximately one
'101 Patent, 16-18                                       thousandth of a watt.
-----------------------------------------------------------------------------------------------------

The parties dispute whether these terms require construction. Plaintiff argues the terms meanings are readily apparent in light of the patents-in-suit. PL.'S BR. at 7. Plaintiff further argues Sensus's proposals are overly narrow and would render the claimed system inoperable. Id. Sensus contends its proposals are consistent with the specification. SENSUS RESP. at 8-10. In its supplemental briefing, Sensus argues the scope of these terms is limited by Plaintiff's arguments distinguishing prior art that operated with a peak transmission power of 2 watts. SENSUS REEXAM BR. at 11-12. Plaintiff states its representations did not constitute a clear disavowal of scope and do not support capping the power range at 1 watt. PL.'S REEXAM RESP. at 22-23. Plaintiff further states "peak power" describes effective radiated power rather than maximum transmission power. Id. at 23-24.
Sensus's original proposals[3] limiting transmission power to approximately one thousandth of a watt are unsupported by the specification. An objective of the patents was to provide two-way communications "with simplified low-cost subscriber units transmitting in milliwatt peak power ranges under parameters compatible with FCC licensing restrictions." '101 Patent at 3:17-21. Those parameters require a subscriber unit's maximum effective radiated power be "under twenty watts." Id. at 1:34-35. The specification discloses embodiments incompatible with a construction of "one thousandth of a watt." See id. at 9:51-57 (describing operation in a cell area with a diameter of two miles). "A claim interpretation that excludes a preferred embodiment from the scope of the *809 claim `is rarely, if ever, correct.'" Globetrotter Software, 362 F.3d at 1381 (quoting Vitronics Corp., 90 F.3d at 1583).
Ultimately, Plaintiff's representations during reexamination provide the best indication of the meaning of "peak power in the milliwatt range." In response to an office action, Plaintiff argued the Martinez reference "does not teach subscriber transmitter units transmitting . . . at a peak power in the milliwatt range" because it "teaches peak power in the 2 watts range, and average power in the 1.5 milliwatt range." SENSUS REEXAM BR. EX. P at 20. Thus, "peak power in the milliwatt range" must be less than peak power in the 2 watts range. The parties seem to agree the floor for that range would be approximately one thousandth of a watt. Thus, the construction of "peak power in the milliwatt range" is "peak power between one milliwatt and 2 watts."
Finally, the specification provides the best guide for determining the meaning of "limited power" and "low power." Although the parties' briefing tends to equate these terms with "peak power in the milliwatt range," there is nothing in the specification strictly linking the meanings of these terms. On the contrary, the specification describes "low power subscriber interaction units" as the sort of units intended for use on the FCC 218-219 MHz band. '101 Patent at 1:30-35. The maximum effective radiated power of such units was less than twenty watts. id. at 1:33-35. Thus, the specification defines "lower power" and "limited power" to "a maximum effective radiated power of less than twenty watts."


-------------------------------------------------------------------------------------------------------------
                              Plaintiff's Proposed        Sensus's Proposed                  Bell's Proposed
Term                          Construction                Construction                       Construction
-------------------------------------------------------------------------------------------------------------
multiplexed                   No construction necessary.  Combining multiple
'101 Patent, Claim 1                                      subscriber messages with a
'546 Patent, Claims 1, 2, 5,  Alternate Proposal          single carrier signal by assigning
6                             [multiplexed synchronously  each subscriber unit
                              related digital data        its own time slot during
                              messages means]:            which it receives and sends
                              messages combined in a      messages.
                              single communication path
                              and related in time or
                              frequency
--------------------------------------------------------------------------------------------------------

The parties dispute whether the digital data messages must be multiplexed in time, or whether other methods of multiplexing fall within the scope of the claim language. Sensus argues the patent only discloses multiplexing base on assigned time intervals. SENSUS RESP. at 12. Plaintiff contends other methods of multiplexing, such as frequency division, are disclosed in the specification. PL.'S REPLY at 7. Plaintiff further argues that, even if other methods are not disclosed, the claims should not be limited to a preferred embodiment Id.
The claims are not limited to multiplexing by time division. Multiplexing is "[a] technique used in communications . . . for transmitting a number of separate signals simultaneously over a signal channel or line." COMPUTER DICTIONARY 235 (1991); see also HARRY NEWTON, NEWTON'S TELECOM DICTIONARY 395 (11th ed.1996) (defining multiplex as "to transmit two or more signals over a single channel"). The McGraw-Hill Dictionary of Scientific and Technical Terms defines "multiplex transmission" in the field of communications as "[t]he simultaneous transmission of two or more programs or signals over a single *810 radio-frequency channel, such as by time division, frequency division, or phase division." McGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 1309 (5th ed.1994). The specification uses the term consistent with this ordinary meaning. The specification describes both time division multiplexing, see '101 Patent 6:56-63 (describing assigning time intervals for a unit to transmit during), and frequency division multiplexing. Id. at 9:67-10:2. The claim language, however, is not limited to those two methods. "Even when the specification describes only a single embodiment, the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using `words or expressions of manifest exclusion or restriction.'" Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed.Cir.2004).
Having resolved the parties' scope dispute, the Court finds a jury may benefit from an explanation of the term. The parties' proposals, once stripped of the language restricting the claim scope to particular multiplexing methods, are consistent with each other and the plain and ordinary meaning of the term, which is the sense in which the specification uses it. Accordingly, the Court construes the term as "combined messages transmitted over a single radio-frequency channel."


----------------------------------------------------------------------------------------------------
                            Plaintiff's Proposed        Sensus's Proposed           Bell's Proposed
Term                        Construction                Construction                Construction
----------------------------------------------------------------------------------------------------
routing communications      No construction necessary.  No construction necessary.
'101 Patent, Claim 1
'546 Patent, Claims 1, 2
routing designated digital
data messages
'546 Patent, Claim 11
----------------------------------------------------------------------------------------------------

The parties agree these terms do not require construction.


----------------------------------------------------------------------------------------------------
                            Plaintiff's Proposed        Sensus's Proposed           Bell's Proposed
Term                        Construction                Construction                Construction
----------------------------------------------------------------------------------------------------
remotely located           No construction necessary.  Located at a place other
'101 Patent, Claim 1                                   than a base station's
                                                       location.
remote from the base
station
'101 Patent, Claims 16-18
located remotely [from
said plurality of base
station repeater cell
means / from said base
station]
'101 Patent, Claim 2
'546 Patent, Claim 11
--------------------------------------------------------------------------------------------------

The parties seemingly agree that where the claim language explicitly states something is located remote from a base station, it is located remote from a base station. PL.'S BR. at 14; SENSUS RESP. at 13-14; PL.'S REPLY at 6. The parties disagree, however, whether this limitation is also found in claim 1. Sensus's proposal would prohibit a remote receiver from being collocated with a base station, to the exclusion of the preferred embodiment depicted *811 in Figure 1. See '101 Patent at FIG. 1 (depicting "local area repeater station and remote receiver" located together). Moreover, although claims 2 and 16-18 of the '101 Patent and claim 11 of the '546 Patent expressly state switching centers or terminals are remote from the base station, claim 1 of the '101 Patent does not include such a limitation. Claim terms should not be read to contain a limitation "where another claim restricts the invention in exactly the [same] manner." See TurboCare Div. of Demag Delaval Turbomachinery Corp. v. Gen. Elec. Co., 264 F.3d 1111, 1123 (Fed.Cir.2001); see also Phillips, 415 F.3d at 1325 (explaining TurboCare). Sensus's proposal improperly attempts to import limitations from other claims into claim 1.
Having resolved the parties' claim scope dispute, the Court finds the terms do not require construction because their meanings are clear in the context of the claims and will be readily understandable to the jury. O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir.2008); Fenner Inv. Ltd. v. Microsoft Corp., No. 6:07-cv-8, 2008 WL 3981838, at *3 (E.D.Tex. Aug. 22, 2008) (finding a court need no construe a disputed term so long as it has resolved the claim scope dispute between the parties). Although the Court does not construe these terms, the parties may not interpret them in manners inconsistent with this opinion.


---------------------------------------------------------------------------------------------------
                               Plaintiff's Proposed   Sensus's Proposed   Bell's Proposed
Term                           Construction           Construction        Construction
---------------------------------------------------------------------------------------------------
base unit                      Base station.          Base station.
'101 Patent, Claims 9, 16-18
---------------------------------------------------------------------------------------------------

The parties agree to the construction of this term.


--------------------------------------------------------------------------------------------------------------------------
                                  Plaintiff's Proposed                Sensus's Proposed                Bell's Proposed
Term                              Construction                        Construction                     Construction
--------------------------------------------------------------------------------------------------------------------------
assembling digital                No construction necessary.          No construction necessary
subscriber messages                                                   apart from "data processing
'101 Patent, Claims 16-18                                             means at the base station."
--------------------------------------------------------------------------------------------------------------------------
disassembling said multiplexed    No construction necessary.          No construction necessary
synchronously                                                         apart from "digital message
related data messages of                                              organization means."
variable lengths
'546 Patent, Claim 6
--------------------------------------------------------------------------------------------------------------------------
digital message                   No construction necessary,          Function [101:12]:
organization means                and this term is not governed       Disassembles a variable
'101 Patent, Claim 12             by 35 U.S.C. § 112,            length digital message for
'546 Patent, Claim 6              ¶ 6.                                transmission on a sequence
                                                                      of fixed length transmission
                                  Function (101:12):                  frames.
                                  disassembling a variable
                                  length data message                 Function [546:6]:
                                                                      Disassembling said multiplexed
                                  Function (546:1): disassembling     synchronously related
                                  data messages and                   data messages of variable
                                  transmitting data                   lengths and for transmitting
                                                                      data in a sequence of fixed
                                  Structure: transceiver and          length transmission frames.
                                  equivalents thereof, as described
                                  as 50 (FIG. 9A);                    Structure: Indefinite.
                                  software control data processer
                                  54 employing the
                                  message protocol of Fig. 4,
                                  input register 51, and



*812
                                  output register 52 (all as
                                  shown in FIG. 9A); or
                                  packet builder (Assemble
                                  43 as shown in FIG. 5).
--------------------------------------------------------------------------------------------------------------------------

The parties appear to agree that no construction is necessary for the assembling / disassembling terms. For the reasons stated in the Court's Report & Recommendation, "digital message organization means" is a means-plus-function limitation without corresponding structure. Accordingly, the limitation is indefinite and not amenable to construction.


--------------------------------------------------------------------------------------------------------------------------
                             Plaintiff's Proposed                Sensus's Proposed                       Bell's Proposed
Term                         Construction                        Construction                            Construction
--------------------------------------------------------------------------------------------------------------------------
network hub switching        No construction necessary,         Function [546:1]:
center means                 and this term is not governed      Routing communications
'546 Patent, Claims 1-2      by 35 U.S.C. § 112,                from and to a plurality of
                             ¶ 6.                               subscriber units.
                             Function: routing communications   Function [546:2]:
                             from and to                        Routing communications to
                             subscriber units                   and from a plurality of
                                                                subscriber units.
                             Structure: switch or, data
                             control center and equivalents     Structure: Indefinite.
                             thereof as described
                             as: switch control center 14
                             (FIG. 14)
--------------------------------------------------------------------------------------------------------------------------
hub switching center         No construction necessary,         Function: Routing designated
means located remotely       and this term is not governed      digital data messages
from said plurality of       by 35 U.S.C. § 112,                between a first plurality of
base station repeater cell   ¶ 6.                               subscriber units and a corresponding
means                                                           first base station
'546 Patent, Claim 11        Function: routing data             repeater cell in a first geographic
                             messages                           area and a second
                                                                plurality of subscriber units
                             Structure: switch or, data         and a corresponding second
                             control center and equivalents     base station repeater cell
                             thereof as described               located in a second
                             as: switch control center 14       geographic areas [sic].
                             (FIG. 14)
                                                                Structure: Indefinite.
--------------------------------------------------------------------------------------------------------------------------

Plaintiff argues "network hub switching center means" and "hub switching center means" were well known in the art and connote adequate structure to rebut the presumption that these are means-plus-function terms. PL.'S BR. at 12-13. Sensus argues one of ordinary skill would not understand "from the claim language alone" that either term "was the structure for performing the recited function in the claimed system." SENSUS RESP. at 16.
One of ordinary skill in the art would understand these terms to describe structure adequate to perform the claimed functions. See Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed.Cir.1996) (finding "`preformation means . . . for tearing' describes the structure for supporting the tearing function (i.e., perforations)"). Network hub switching centers and hub switching centers were well-known networking components that one of ordinary skill in the art would have recognized were capable of performing the routing functions. See MOBILE RADIO COMMUNICATIONS 681-82 (1992) (describing "[t]he Mobile Switching Centre (MSC) is liked to the BS [Base Station] . . . and performs all the switching functions needed for the operation of the [subscriber equipment] in the *813 group of cells it services"); STEPHEN W. GIBSON, CELLULAR MOBILE RADIOTELEPHONE 49, 55-56 (1987) (discussing various names and acronyms given to telecommunications networking switching components). As in Cole v. Kimberly-Clark, the drafter of the patents-in-suit "was clearly enamored of the word `means.'" 102 F.3d at 531. Although the use of the word "means" creates a presumption these are means-plus-function terms, the "perfunctory addition of the word `means' [does] nothing to diminish the precise structural character of" the claim language. Id. Sensus's argument based on the reexamination, see SENSUS REEXAM BR. at 13-14; PL.'S REEXAM RESP. at 25-26, does not disturb this conclusion. Accordingly, Plaintiff has rebut the presumption that these are means-plus-function terms. The Court also finds the terms do not require construction because their meanings are clear in the context of the claims and will be readily understandable to the jury. O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed.Cir.2008); Fenner Inv. Ltd. v. Microsoft Corp., No. 6:07-cv-8, 2008 WL 3981838, at *3 (E.D.Tex. Aug. 22, 2008) (finding a court need no construe a disputed term so long as it has resolved the claim scope dispute between the parties). Although the Court does not construe these terms, the parties may not interpret them in manners inconsistent with this opinion.


-----------------------------------------------------------------------------------------------------------------------------------------------------
                                  Plaintiff's Proposed                    Sensus's Proposed                   Bell's Proposed
Term                              Construction                            Construction                        Construction
-----------------------------------------------------------------------------------------------------------------------------------------------------
communication means between       No construction necessary,              Function: Conveying transmitted     This element should be
the subscriber units              and this term is not governed           messages from subscriber            construed according to 35
with the base station including   by 35 U.S.C. § 112,                     units in a subdivided               U.S.C. § 112, ¶ 6.
a set of stationary               ¶ 6.                                    portion of said geographic
receive only terminals                                                    area in the vicinity of the         Function: Conveying transmitted
remote from the base              Alternate Proposal:                     receive only terminals to the       messages from subscriber
station coupled by a                                                      base station                        units located in a
communication link with           Function: conveying transmitted                                             subdivided portion of base
the base station                  messages from                           Structure: Receive only terminals   station's geographic area to
'101 Patent, Claims 16-18         subscriber units to the                 (remote receiver) 20,               the base station.
                                  base station                            20A; cable, microwave, or
                                                                          telephone line connections          Structure: Receivers 20A-N
                                 Structure: remote receivers/relay        21 between these receive            or 22 located in subdivided
                                 stations and wireline,                   only terminals and local            portions of the base
                                 telephone line, microwave,               area repeater station 3; and        station 3 geographic area
                                 or radio link and                        the communication protocols         (Figs. 2 and 3) and linked to
                                 equivalents thereof as described         for subscriber unit transmissions   the base station 3.
                                 at: relay station(s)                     being received by the               * * *
                                 20A-20N (FIG. 2); 22-22'(FIG. 6A, 7A);   remote receivers and conveyed       If the Court concludes that
                                 remote                                   to the base station as              this term should not be
                                 receiver(s) 20-20A (FIG. 1);             disclosed by Figs. 3, 4, 6B,        construed according to 35
                                 link (21 in FIG. 1 of '546               7B, 8A & 8B                         U.S.C. § 112, ¶ 6, this term
                                 patent) between 20 and 3                                                     should be construed as:
                                 (FIG. 1); link 21 (FIG. 2);
                                 101[5:2-7]; 101[3:65-4:2];                                                   Equipment located in subdivided
                                 101[5:2-9]; 101[5:54-65].                                                    portions of a base
                                                                                                              station's geographic area
                                                                                                              conveying transmissions
                                                                                                              from subscribers to the base
                                                                                                              station for retransmission to
                                                                                                              a hub switching center.
-----------------------------------------------------------------------------------------------------------------------------------------------------

Plaintiff observes the claim language provides structure for performing the claimed function: "communication means. . . including a set of stationary receive only terminals remote from the base station coupled by a communication link with the base station." See PL.'S BR. at 17. "[W]here a claim recites a function, but then goes on to elaborate sufficient structure, *814 material, or acts within the claim itself to perform entirely the recited function, the claim is not in means-plus-function format." Sage Products, 126 F.3d at 1427-28. Sensus and Bell argue this is a means-plus-function term. Bell essentially argues that Plaintiff has not carried its burden of rebutting the presumption that § 112, ¶ 6 applies. BELL RESP. at 8-9. Sensus argues the recitation of "a set of stationary receive only terminals remote from the base station coupled by a communication link with the base station" is insufficient to rebut the presumption because "[t]he claimed `receive only terminals' are not well known structure . . [and][o]ne cannot determine from the claim language itself, without consulting the specification, what is meant by the term." SENSUS RESP. at 19. Sensus offers no legal authority for its apparent contention that the claim language must be read in isolation when determining whether it recites adequate structure to rebut the means-plus-function presumption. On the contrary, "claims must be read in view of the specification, of which they are a part." Phillips, 415 F.3d at 1314 (quotation omitted); see also TurboCare, 264 F.3d at 1121 (turning to the written description and considering the preferred embodiment while determining whether claim language connoted structure). Although this term includes "means" language, the claim goes on to recite sufficient structure to perform the claimed function. See Sage Products, 126 F.3d at 1427-28. Accordingly, this is not a means-plus-function term.


----------------------------------------------------------------------------------------------------------------------------------------------
                             Plaintiff's Proposed                 Sensus's Proposed                Bell's Proposed
Term                         Construction                         Construction                     Construction
----------------------------------------------------------------------------------------------------------------------------------------------
data processing means at     If this term is governed by          Function:                        This element should be
the base station             35 U.S.C. § 112, ¶ 6:                Assembling and retransmitting    construed according to 35
'101 Patent, Claims 16-18                                         digital subscriber messages      U.S.C. § 112, ¶ 6.
                             Function: assembling and             from the subscriber
                             re-transmitting digital subscriber   units via the satellite to the   Function:
                             messages from the                    central station.                 Assembling and retransmitting
                             subscriber units via the satellite                                    digital subscriber messages
                             to the central station               Structure: Indefinite.           from the subscriber
                                                                                                   units via the satellite to the
                             Structure:                                                            central station.
                             packetizer/assembler, and
                             satellite, and equivalents                                            Structure: Fig. 5.
                             thereof, as described at 1
                             (FIG. 1); 1A (FIG. 1); 3A                                             * * *
                             (FIG. 1); 43 (FIG. 5); 44                                             If the Court concludes that
                             (FIG. 5); 40 (FIG. 2);                                                this term should not be
                             101[8:43-47]; 101[7:60-8:7];                                          construed according to 35
                             101[4:13-21]; FIG. 1.                                                 U.S.C. § 112, ¶ 6, this term
                                                                                                   should be construed as:
                                                                                                   Data processing and transmission
                                                                                                   equipment at the
                                                                                                   base station segregating, accumulating
                                                                                                   and formatting
                                                                                                   the messages from subscribers
                                                                                                   for retransmission to a
                                                                                                   hub switching center.
----------------------------------------------------------------------------------------------------------------------------------------------

The parties agree this is a means-plus-function term and agree the function is "assembling and re-transmitting digital subscriber messages from the subscriber units via the satellite to the central station." PL.'S MOT. at 19; SENSUS RESP. at 20; BELL RESP. at 10. The parties disagree as to the corresponding structure. Sensus argues the specification does not include structure for performing the assembling function. SENSUS RESP. at 20-21. Bell argues all of the structure disclosed in Figure 5 is necessary for performing both of the claimed functions. BELL. RESP. at 10-11. *815 Plaintiff identifies structure from Figures 1, 2, and 5. PL.'S MOT. at 19. Plaintiff argues some of the structure identified by Bell in Figure 5 is not essential to the claimed functions. Id.
The corresponding structure includes the transmitters 1A, 3A, and 2F from Figure 1 and 40 from Figure 2. See '101 Patent at 5:47-50 (stating "local base station repeater cell 3 communicates with the satellite system via directed dish antenna 3A"). The specification describes the process of assembling messages with reference to Figure 5:
The cell site transmission system 40 thus processes a set of packets in the manner shown in FIG. 5 to accumulate subscriber messages of variable length in a set of serial transmissions for transmitting to the satellite at higher transmission frequency. Accordingly packet builders 41, 41A, etc. are individually assigned to a responding one of simultaneously active subscribers until the subscriber's variable length message of n 240 bit frames is completed, and after pricing 42 the messages are accumulated 43, synchronously timed 45 and transmitted to the satellite 44.
Id. at 7:60-8:2. One of ordinary skill in the art would understand the packet building, pricing, accumulating, and synchronizing structures of Figure 5 to reference a packet builder or packetiser, a device well-known in the art. See RAYMON STEELE, MOBILE RADIO COMMUNICATIONS 68-69 (1992); see also Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359-60 (Fed.Cir.2004) (stating "it is sufficient if the claim term is used in common parlance or by persons of skill in the pertinent art to designate structure"); S3 Inc. v. nVIDIA Corp., 259 F.3d 1364, 1371 (Fed.Cir.2001) (stating "patent documents need not include subject matter that is known in the field of the invention and is in the prior art").
Therefore, the Court defines the function of this term as "assembling and re-transmitting digital subscriber messages from the subscriber units via the satellite to the central station" and identifies the corresponding structure as "transmitters 1A, 3A, 2F (FIG. 1), 40 (FIG. 2); Packet Builders 41-41A, Price Packets 42, Assemble 43, Time 45, and VSAT 44 (FIG. 5), and statutory equivalents."


------------------------------------------------------------------------------------------------------------------
                              Plaintiff's Proposed             Sensus's Proposed                Bell's Proposed
Term                          Construction                     Construction                     Construction
------------------------------------------------------------------------------------------------------------------
said base station including   No construction necessary,       Function: To receive messages
means to receive messages     and this term is not governed    from said subscriber
from said subscriber          by 35 U.S.C. § 112,              units through a single one of
units through a single one    ¶ 6.                             said receive only terminals.
of said receive only
terminals                     Alternate Proposal:              Structure: Indefinite.
'101 Patent, Claim 17
                              Function: receive messages
                              from subscriber units
                              through a single receive
                              only terminal.
                              Structure: discrete subscriber
                              unit transmission
                              frequencies assigned to
                              different remote receivers
                              and equivalents thereof as
                              described at 101[8:27-9:14].
---------------------------------------------------------------------------------------------------------------------

The Court declines to construe this term at this time.


*816
------------------------------------------------------------------------------------------------------------------------------------------------
                              Plaintiff's Proposed                  Sensus's Proposed                     Bell's Proposed
Term                          Construction                          Construction                          Construction
------------------------------------------------------------------------------------------------------------------------------------------------
subscriber units having       Function: selecting a transmission    Function: Selecting a transmission    This element should be
means for selecting a         carrier frequency.                    carrier frequency in                  construed according to 35
transmission carrier                                                a plurality of the frequency          U.S.C. § 112, ¶ 6.
frequency in a plurality of   Structure:                            bands.
the frequency bands          Frequency control 57 in                                                     Function: Selecting a transmission
'101 Patent, Claim 18        Fig. 9A, the algorithm of             Structure: Indefinite.                carrier frequency.
                              selecting frequency is disclosed
                              in Fig. 6B and at                                                           Structure: Frequency control
                              101[8:8-62] & [9:4-13].                                                     57 in Fig. 9A, the algorithm
                                                                                                          of selecting frequency
                                                                                                          is disclosed in Fig. 6B and
                                                                                                          at 8:8-62.
------------------------------------------------------------------------------------------------------------------------------------------------

The parties agree this is a means-plus-function term. PL.'S MOT. at 21; SENSUS RESP. at 24; BELL RESP. at 11. The parties agree the function is "selecting a transmission carrier frequency," with Sensus further adding "in a plurality of the frequency bands." PL.'S MOT. at 21; SENSUS RESP. at 24; BELL RESP. at 11. Plaintiff and Bell agree the corresponding structure is control 57 in Figure 9A and the algorithm for selecting frequency disclosed in Figure 6B and in the '101 Patent at 8:8-62. PL.'S MOT. at 21-22; BELL RESP. at 11-12.
The specification discloses the process of a subscriber unit selecting a transmission carrier frequency. See '101 Patent at 8:8-62 (discussing Figure 6B). Frequency control section 57 is clearly linked to this process of "set[ting] the transmission carrier frequence during set up procedures." Id. at 10:28-30. Even without this detailed explanation of the frequency control unit, one of ordinary skill in the art would have understood the necessary structure based on its disclosure in Figure 9. See S3 Inc., 259 F.3d at 1371 (an applicant need not "include a technical treatise for the unskilled reader" when disclosing elements widely known in the art). Accordingly, the Court defines the function as "selecting a transmission carrier frequency in a plurality of the frequency bands" and identifies the corresponding structure as "Frequency Control 57 (FIG. 9) operating as described in '101 Patent 8:8-62, 10:28-30, and statutory equivalents."


--------------------------------------------------------------------------------------------------------------------
                        Plaintiff's Proposed        Sensus's Proposed                     Bell's Proposed
Term                    Construction                Construction                          Construction
--------------------------------------------------------------------------------------------------------------------
message accumulation    Function [101:3]:                 Function [101:3]:
means                   store and retransmit digital      Operative to store and retransmit
'101 Patent, Claim 3    message packets from identified   digital message
'546 Patent, Claim 12   subscriber units                  packets from identified subscriber
                                                          units comprising a
                        Function [546:12]:                sequence of subscriber
                        store and retransmit digital      transmission frames.
                        message packets received
                        from subscriber units             Function [546:12]: Storing
                                                          and retransmitting digital
                        Structure: EON agrees             message packets received
                        with the structure                from said at least one of
                        identified by Sensus.             said plurality of subscriber
                                                          units, said message packets
                                                          comprising a sequence of
                                                          subscriber transmission
                                                          frames.
                                                          Structure: Buffer memory
                                                          (7:10-12), and directed dish
                                                          antenna 3A that communicates
                                                          with satellite 1 (Figs. 1
                                                          & 2).
----------------------------------------------------------------------------------------------------------

*817 The parties agree this is a means-plus-function term and agree on the corresponding structure. The parties generally agree on the claimed functions, but Sensus's proposal is more complete. Therefore, the Court defines the claimed functions as "operative to store and retransmit digital message packets from identified subscriber units comprising a sequence of subscriber transmission frames" and "storing and retransmitting digital message packets received from said at least one of said plurality of subscriber units, said message packets comprising a sequence of subscriber transmission frames" and identifies the corresponding structure as "buffer memory (7:10-12), and directed dish antenna 3A that communicates with satellite 1 (Figs. 1 & 2), and statutory equivalents."


--------------------------------------------------------------------------------------------------------
                        Plaintiff's Proposed         Sensus's Proposed              Bell's Proposed
Term                    Construction                 Construction                   Construction
--------------------------------------------------------------------------------------------------------
processing means        Function:                    Function:
'101 Patent, Claim 3    Retransmission of the        Retransmission of the
                        digital message packets to   digital message packets to
                        the hub switching center by  the hub switching center by
                        satellite                    satellite.
                        Structure: satellite and     Structure: A satellite and
                        equivalents thereof.         equivalents thereof.
--------------------------------------------------------------------------------------------------------

The parties agree on the function and corresponding structure.


----------------------------------------------------------------------------------------------------------------
                        Plaintiff's Proposed                  Sensus's Proposed              Bell's Proposed
Term                    Construction                          Construction                   Construction
----------------------------------------------------------------------------------------------------------------
assembling means        No construction necessary,            Function:
'101 Patent, Claim 5    and this term is not governed         Accumulating the messages
                        by 35 U.S.C. § 112,                   from said n cell sites and
                        ¶ 6.                                  transmitting the accumulated
                                                              messages over said
                        Function:                             transmission means at a
                        accumulating and transmitting         message data bit capacity of
                        messages                              n times 2.560 kbaud.
                        Structure: packet builder/assembler   Structure: Indefinite.
                        and satellite
                        link and equivalents thereof,
                        as described at: 1 (FIG.
                        1); 1A (FIG. 1); 3A (FIG.
                        1); 43 (FIG. 5); 44 (FIG.
                        5); 40 (FIG. 2); 101[8:43-47];
                        101[7:60-8:7];
                        101[4:13-21].
----------------------------------------------------------------------------------------------------------------

The parties generally agree on the identified function but disagree whether the specification contains adequate corresponding structure to perform that function. For the reasons stated in the Report & Recommendation, this term is not indefinite. The Court defines the function as "accumulating the messages from said n cell sites and transmitting the accumulated messages over said transmission means at a message data bit capacity of n times 2.560 kbaud" and identifies the corresponding structure as "transmitters 3A (FIG. 1), 40 (FIG. 2); Packet Builders 41-41A, Price Packets 42, Assemble 43, Time 45, and VSAT 44 (FIG. 5), and statutory equivalents."


*818
---------------------------------------------------------------------------------------------------------------------
                             Plaintiff's Proposed                Sensus's Proposed                 Bell's Proposed
Term                         Construction                        Construction                      Construction
---------------------------------------------------------------------------------------------------------------------
means for interlacing 64   Function: interlacing 64            Function: Interlacing 64
subscriber units           subscriber units for transmitting   subscriber units for transmitting
'101 Patent, Claim 6       simultaneously                      simultaneously
                           multiplexed messages at             multiplexed messages at
                           said base station                   said base station.
                           Structure: frequency                Structure: Indefinite.
                           control 57 (FIG. 9A); and
                           packet builder/assembler
                           and timer, and equivalents
                           thereof as described at: 41,
                           41A, 43, 45 (FIG. 5);
                           101[6:34-46].
---------------------------------------------------------------------------------------------------------------------

The parties agree on the identified function but disagree whether the specification contains adequate corresponding structure to perform that function. For the reasons stated in the Report & Recommendation this term is not indefinite. The Court defines the function as "interlacing 64 subscriber units for transmitting simultaneously multiplexed messages at said base station" and identifies the corresponding structure as "frequency control 57 (FIG. 9A); and packet builder/assembler and timer, and statutory equivalents thereof as described at: 41, 41A, 43, 45 (FIG. 5); '101 Patent at 6:34-46."


------------------------------------------------------------------------------------------------------------------------------
                         Plaintiff's Proposed              Sensus's Proposed                 Bell's Proposed
Term                     Construction                      Construction                      Construction
------------------------------------------------------------------------------------------------------------------------------
means for transmitting [Means for transmitting           Function [101:8]:                 This element should be
'101 Patent, Claim 8     messages from the different       Transmitting messages from        construed according to 35
'546 Patent, Claim 10    subdivided cell areas             the different subdivided cell     U.S.C. § 112, ¶ 6.
                         on different carrier              areas on different carrier
                         frequencies.]                     frequencies.                      Function:
                                                                                             Transmitting digital data.
                         [Means for transmitting           Function [546:10]:
                         messages from each of at          Transmitting messages from        Structure: Fig. 9A, the
                         said least one base station       each of at said [sic] least one   algorithm of selecting
                         repeater cell means subdivision   base station repeater cell        frequency is disclosed in
                         sites on a different              means subdivision sites on a      Fig. 6B and at 8:8-62.
                         carrier frequency.]               different carrier frequency.
                         No construction necessary,        Structure: Indefinite.
                         and this term is not governed
                         by 35 U.S.C. § 112,
                         ¶ 6.
                         Alternate Proposal:
                         Function
                         transmitting digital data
                         Structure: discrete
                         transmission frequencies
                         selected by the algorithm
                         described at: FIG. 9A;
                         FIG. 6B; 101[8:8-62];
                         101[9:14-20]
------------------------------------------------------------------------------------------------------------------------------

The Court declines to construe this term at this time.


----------------------------------------------------------------------------------------------------------------
                           Plaintiffs Proposed             Sensus's Proposed            Bell's Proposed
Term                       Construction                    Construction                 Construction
----------------------------------------------------------------------------------------------------------------



*819
means for retransmitting   No construction necessary,      Function: Retransmitting
'546 Patent, Claim 12      and this term is not governed   said message packets to a
                           by 35 U.S.C. § 112,             hub switching center of an
                           ¶ 6.                            interactive video network
                                                           system via a satellite.
                           Alternate Proposal: If this
                           element is to be construed      Structure: Indefinite.
                           according to 35 U.S.C.
                           § 112, ¶ 6:
                           Function:
                           Retransmitting message
                           packets to a hub switching
                           center via a satellite
                           Structure: satellite link and
                           equivalents thereof.
----------------------------------------------------------------------------------------------------------------

The parties disagree whether this is a means-plus-function term. Sensus argues the specification must be consulted to identify appropriate structure because the claim language does not recite adequate structure for performing the claimed function. Plaintiff argues the claim language expressly calls for retransmission by satellite. The claim recites "means for retransmitting said message packets to a hub switching center of an interactive video network system via a satellite." The specification expressly refers to retransmitting messages from a given base station to other base stations or to a service center by way of satellite. See, e.g., '101 Patent at 8:3-7. Thus, the satellite recited in the claim language is adequate structure for performing the claimed retransmission function. Accordingly, this is not a means-plus-function term. Given the claim language's express recitation of the means for retransmitting, further construction is unnecessary.


------------------------------------------------------------------------------------------------------------------------
                          Plaintiff's Proposed               Sensus's Proposed                     Bell's Proposed
Term                      Construction                       Construction                          Construction
------------------------------------------------------------------------------------------------------------------------
means for compensating    No construction necessary,         Function [101:9]: Compensating
'101 Patent, Claim 9      and this term is not governed      for the time of propagation
'546 Patent, Claim 13     by 35 U.S.C. § 112,                of messages between
                          ¶ 6.                               the different individual subscriber
                                                             units and the base
                          Alternate Proposal: If this        station data processing
                          element is to be construed         facilities.
                          according to 35 U.S.C.
                          § 112, ¶ 6:                        Function [546:13]: Compensating
                                                             for the time of propagation
                          Function [546:13]:                 of said multiplexed
                          compensating for the time          synchronously related data
                          of propagation                     messages between said subscriber
                                                             units and said data
                          Structure: guard bands             processing means of said
                          between transmission time-frames   base station repeater cell
                          and equivalents                    means.
                          thereof as described at: 4,
                          22, and 3 (FIG. 7A); guard         Structure: Indefinite.
                          band (FIG. 7B, 8A); 36
                          (FIG. 2); 546[9:16-36];
                          101[9:44-66].
------------------------------------------------------------------------------------------------------------------------

This is presumably a means-plus-function term and the claim language does not recite any structure for rebutting the presumption. The claimed function, "compensating for the time of propagation of said multiplexed synchronously related data messages between said subscriber units and said data processing means of said *820 base station repeater cell means," refers to compensating for the time it takes a signal to travel from one place to another. This specification depicts this problem in Figure 7A and observes "[f]or keeping the message bits accurately synchronized within the system, the delays in transit time of r-f transmissions must be accounted for." '101 Patent at 9:46-49. The specification goes on to illustrate a solution in Figure 7B. Figure 7B depicts "guard bands" separating transmission frames by some amount of time. See id. at 9:51-66. The specification explicitly states this feature solves the transmission delay problem and negates the need for other corrective measures. Id. Plaintiff also advocates including in the corresponding structure the guard bands depicted in Figure 8A. Those guard bands, however, provide buffer between transmission frequencies and do not compensate for transmission propagation delay. Therefore, the Court defines the function as "compensating for the time of propagation of said multiplexed synchronously related data messages between said subscriber units and said data processing means of said base station repeater cell means" and identifies the corresponding structure as "guard bands as depicted in Figure 7B and described at '101 Patent 9:44-66, and statutory equivalents."


---------------------------------------------------------------------------------------------------------------------
                             Plaintiff's Proposed             Sensus's Proposed                    Bell's Proposed
Term                         Construction                     Construction                         Construction
---------------------------------------------------------------------------------------------------------------------
base station repeater cell   No construction necessary,       Function:
means                        and this term is not governed    Communicating with a plurality
'546 Patent, Claim 2         by 35 U.S.C. § 112,              of subscriber units.
                             ¶ 6.
                                                              Structure: Local area
                             Alternate Proposal:              repeater station 3 (Fig.1),
                                                              local base station repeater
                             Function:                        cell 3 (Fig.2), cell base station
                             communicating with a plurality   3 (Fig.6A).
                             of subscriber units.
                             Structure: local area repeater
                             station, local base
                             station repeater cell, cell
                             base station, cell (3 in
                             FIGS. 1, 2, 6A, 7A), cell site
                             transmitter 8 (FIG. 2);
                             546[4:635:5]; 546[6:47-51];
                             546[7:54-61]; 546[8:5-16];
                             546[5:30-34].
---------------------------------------------------------------------------------------------------------------------

The parties disagree whether this is a means-plus-function term. As discussed, supra, "base station" possessed a well defined meaning in the art connoting structure. Nothing in the claim language implies the claimed function is such that a traditional base station repeater cell is inadequate structure. Accordingly, the presumption that this is a means-plus-function claim is rebutted. No further construction is necessary.


-------------------------------------------------------------------------------------------------------------
                            Plaintiff's Proposed      Sensus's Proposed                 Bell's Proposed
Term                        Construction              Construction                      Construction
-------------------------------------------------------------------------------------------------------------
two-way communication       No construction necessary.   Having subscriber units that
'101 Patent, Claim 1                                     receive messages from and
'546 Patent, Claims 1, 2                                 send messages to the
                                                         network system.
two-way digital
communications
'101 Patent, Claims 16-18
-------------------------------------------------------------------------------------------------------------

*821 The parties dispute whether these terms require construction. Sensus's claim construction proposal is essentially a request for the Court to pass judgment on the merits of its non-infringement position. This is improper at this stage. The question is what these terms mean as used in the patents-in-suit, not whether Sensus's accused products are "portable" or "mobile." "A claim is construed in the light of the claim language, the other claims, the prior art, the prosecution history, and the specification, not in light of the accused device." SRI Int'l, 775 F.2d at 1118. Therefore, the Court declines to construe this term at this time.

CONCLUSION
For the foregoing reasons, the Court adopts the constructions set forth above.
NOTES
[1]  Presumably, Plaintiff also intended to incorporate PL.'S VERIZON RESP. (Doc. No. 131).
[2]  "Mobile" was not at issue in the Verizon case, but Sensus urged its consideration at that time.
[3]  Sensus's advocated range has evolved through the claim construction process, eventually settling at less than one watt. See SENSUS REEXAM BR. at 12.
