            In the United States Court of Federal Claims
                                           No. 11-616C

                                (Filed Under Seal: August 5, 2013)
                                    (Reissued: August 9, 2013)


**********************************                     Patent case; claim construction for United
                                                )      States Patent No. 5,970,024
THOMAS SMITH,                                   )
                                                )
                         Plaintiff,             )
                                                )
       v.                                       )
                                                )
UNITED STATES,                                  )
                                                )
                         Defendant.             )
                                                )
**********************************

       David J. DeToffol, DeToffol & Associates, New York, New York, for plaintiff.

       Kirby W. Lee, Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for defendant. With him on the briefs were Stuart F.
Delery, Acting Assistant Attorney General, and John Fargo, Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C.

                                      OPINION AND ORDER1

LETTOW, Judge.

       In this patent case, plaintiff, Dr. Thomas Smith, alleges that the United States (“the
government”) has infringed Claims 8 and 15 of his U.S. Patent No. 5,970,024 (“the ’024
patent”), and thus is liable for damages under 28 U.S.C. § 1498(a). Compl. ¶ 4; Pl.’s Opening
Claim Construction Br. (“Pl.’s Br.”) at 2-3.2 This opinion addresses claim construction for terms
pertinent to the alleged infringement.
       1
         Because this opinion and order might have contained confidential or proprietary
information within the meaning of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims
(“RCFC”) and the protective order entered in this case, it was initially filed under seal. The
parties were requested to review this decision and to provide proposed redactions of any
confidential or proprietary information. No redactions were requested.
       2
           Subsection 1498(a) of Title 28 provides in pertinent part:
                                       BACKGROUND

        The invention at issue is Dr. Smith’s “Ac[o]usto-Optic Weapon Location System and
Method,” which relates to gunfire detection and countermeasure weapon systems. See Compl.
¶¶ 20-24; Pl.’s Br. 1-2. Dr. Smith alleges that the government infringed his ’024 patent when it
specified and contracted with private parties for the Common Remote Operated Weapon System
(“CROWS”), which uses acoustic and optic sensor fusion methods. Compl. ¶¶ 21-22; Pl.’s Br. at
2. Dr. Smith avers that his invention combined the benefits of acoustic sensing and optical
sensing in the field of weapon detection systems, “while eliminating their disadvantages as
discrete systems.” Pl.’s Br. at 1-2. According to Dr. Smith, the purpose of the system described
in the ’024 patent “is to derive as much location information as possible from a hostile,
uncooperative target, [and] to allow engagement and/or effective countermeasure deployment by
friendly forces employing the [s]ystem.” Pl.’s Responding Claim Construction Br. at 1.

        On April 30, 1997, Dr. Smith filed an application to patent his method. See Def.’s
Opening Claim Construction Br. (“Def.’s Br.”), Ex. 1 (“’024 patent”), at A2. He was granted the
patent on October 19, 1999. Id. The patent consists of eighteen claims, two of which, Claims 8
and 15, are the subject of this action. See Pl.’s Br. at 3; Def.’s Br. at 4. Claim 8, a claim
dependent on Claim 1, not asserted in this action, states:

       The weapon localization system according to claim 1 further comprising a
       display.

’024 patent, Claim 8.

       Claim 1 describes:

       A weapon localization system adapted to determine the location of hostile weapon
       fire, said system comprising:
                acoustical detection means for detecting energy of a first frequency
       originating from said hostile weapon fire, and for transmitting a first set of data
       describing the location of said hostile weapon fire;
                optical detection means for detecting energy of a second frequency
       originating from said hostile weapon fire, and for transmitting a second set of data
       describing the location of said hostile weapon fire; and



              Whenever an invention described in and covered by a patent of the
              United States is used or manufactured by or for the United States
              without license of the owner thereof or lawful right to use
              or manufacture the same, the owner’s remedy shall be by action
              against the United States in the United States Court of Federal
              Claims for the recovery of his reasonable and entire compensation
              for such use and manufacture.

28 U.S.C. § 1498(a).


                                                2
              processing means coupled to said acoustical and said optical detection
       means, for receiving said first and said second set of data, and for determining
       whether said location of said first set of data match said location of second set of
       data and for generating a signal output if said match occurs.

’024 patent, Claim 1.

       Claim 15, an independent claim, provides:

       A method for determining the location of hostile weapons fire, said method
       comprising the steps of:
             (a) sensing acoustical energy generated from said hostile weapons fire;
             (b) sensing optical energy generated from said hostile weapons fire;
             (c) calculating a first location using only the sensed acoustical energy;
             (d) calculating a second location using only the sensed optical energy;
             (e) comparing said first and said second locations; and
             (f) providing an output signal only if said first and said second locations
                 match.

’024 patent, Claim 15.

                                  PROCEDURAL HISTORY

        Dr. Smith filed suit in this court on September 26, 2011. The parties submitted briefs on
claim construction in April and May 2013, and presented arguments at a Markman hearing held
on May 17, 2013. Of the eight claim terms identified by parties, four have an agreed
construction. See Joint Proposed Constructions of Claim Terms, ECF No. 17-1. For those four
terms, the court accepts the mutually acceptable constructions proffered by the parties. The
constructions adopted by the court for the disputed terms of the ’024 patent are set forth below,
along with the terms agreed by the parties.

                                         DISCUSSION

                                  A. Standards for Construction

        “The purpose of claim construction is to ‘determin[e] the meaning and scope of the patent
claims asserted to be infringed.’” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d
1351, 1360 (Fed. Cir. 2008) (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 976
(Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996)). The construction and meaning of claims
in a patent are questions of law for the court to address. Markman, 517 U.S. at 388-91. The
court does not have to construe every term in a patent, but it must construe any term for which
claim scope is disputed. O2 Micro, 521 F.3d at 1360; see also Finjan, Inc. v. Secure Computing
Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010). The court should first look to the intrinsic
evidence of record because “intrinsic evidence is the most significant source of the legally
operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
1576, 1582 (Fed. Cir. 1996). Intrinsic evidence consists of the “patent itself, including the



                                                 3
claims, the specification[,] and . . . the prosecution history.” Id. (citing Markman, 52 F.3d at
979).

        In general, to construe claim terms properly, a court should look to the ordinary and
customary meanings attributed by those of ordinary skill in the art at the date of the invention,
which is the effective filing date of the patent application. Phillips v. AWH Corp., 415 F.3d
1303, 1313 (Fed. Cir. 2005) (en banc). “That starting point is based on the well-settled
understanding that inventors are typically persons skilled in the field of the invention and that
patents are addressed to and intended to be read by others of skill in the pertinent art.” Id.
Courts have recognized, however, that “a patentee may choose to be his own lexicographer and
use terms in a manner other than their ordinary meaning, as long as the special definition of the
term is clearly stated in the patent specification or file history.” Vitronics, 90 F.3d at 1582
(citing Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1578 (Fed. Cir. 1996);
Hormone Research Found., Inc. v. Genentech, Inc., 904 F.2d 1558, 1563 (Fed. Cir. 1990), cert.
dismissed pursuant to Sup. Ct. R. 46, 499 U.S. 955 (1991)). Accordingly, a court must review
the patent’s specification “to determine whether [an] inventor has used any terms in a manner
inconsistent with their ordinary meaning.” Id.

        This comports with the Federal Circuit’s repeated instruction that “[c]laims must be read
in view of the specification, of which they are a part.” Markman, 52 F.3d at 979 (citing Autogiro
Co. of Am. v. United States, 384 F.2d 391, 397 (Ct. Cl. 1967)). The specification is “always
highly relevant to the claim construction analysis,” and often is “dispositive; it is the single best
guide to the meaning of a disputed term.” Vitronics, 90 F.3d at 1582. Prosecution history may
also be examined, with its principal purpose being to exclude interpretations disclaimed during
prosecution. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005); Vitronics, 90
F.3d at 1582-83.

        Extrinsic evidence, which includes “all evidence external to the patent and prosecution
history, including expert and inventor testimony, dictionaries, and learned treatises,” Markman,
52 F.3d at 980, is “less significant than the intrinsic record in determining ‘the legally operative
meaning of claim language,’” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc. v. United
States Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004) (in turn quoting Vanderlande Indus.
Nederland BV v. International Trade Comm’n, 366 F.3d 1311, 1318 (Fed. Cir. 2004))). It should
be considered by the court only when intrinsic evidence cannot resolve ambiguities in the claim
language. Phillips, 415 F.3d at 1317.

                 B. Specific Terms of the Claims Requiring Construction

Term 1: “Location.”
Plaintiff’s Proposed Claim Construction           Government’s Proposed Claim Construction
Means a position or site occupied or of interest, Means the three-dimensional coordinates
by some distinguishing feature.                   describing the position of an entity.

        Term 1 appears in Claims 8 (by incorporation of Claim 1) and 15, as well as in Claims 2,
7, 9, 10, and 14. Generally, terms should be given the customary meaning attributed to them by
persons with ordinary skill in the relevant art, Phillips, 415 F.3d at 1313, although a patentee


                                                  4
may choose to be his own lexicographer, as long as the special definition is clearly stated in the
patent specification or history, Vitronics, 90 F.3d at 1582. A “‘person of ordinary skill in the art
is deemed to read the claim term not only in the context of the particular claim in which [it]
appears, but in the context of the entire patent, including the specification.’ While claim terms
are understood in light of the specification, a claim construction must not import limitations from
the specification into the claims.” Douglas Dynamics, LLC v. Buyers Prods. Co., 717 F.3d 1336,
1342 (Fed. Cir. 2013) (quoting Phillips, 415 F.3d at 1313) (internal citations omitted). Dr. Smith
argues that, with respect to Term 1 of the patent, he chose to be his own lexicographer as
evidenced by the specification which states: “As used in this [a]pplication, the terms ‘location’
and ‘localization’ each mean the location of an entity (e.g. hostile weapons fire) as well as the
processes to locate the firing entity. Thus, these words may be used interchangeably.” ’024
patent, col. 2, lines 52-56; see also Pl.’s Br. at 6. Although this statement purports to define
Term 1, it merely uses variations of the root word in its description, and thus is too indefinite to
be of use in providing the meaning and scope of the term. Instead, the claim construction should
delineate and clarify the customary meaning of the term as read in the context of the patent and
the specification.

        The government’s proffered construction is similarly unhelpful because it incorrectly
imports limitations from the specification. The government argues that its definition captures the
“three-dimensional aspects of ‘location’” as used in the patent. Def.’s Br. at 7. To support this
contention, it cites excerpts of the specification that describe data and locational characteristics
that can be determined by acoustical and optical detection systems which may be used in the
invention. See id.; see also ’024 patent, col. 5, lines 11-14 (“Acoustical detection system 24, and
more particularly processor or processor means 28, in the preferred embodiment of the invention,
determines values such as time of energy arrival, azimuth, elevation/depression angle, arrival
angle[,] and trajectory of the incoming acoustic energy.”), col. 6, lines 15-17 (“[O]ptical
detection system 32 will determine values such as azimuth, time of occurrence[,] and
elevation/depression angle of the incoming energy.”). The government asserts that the use of
this language “indicate[s] coordinates in three-dimensional space,” Def.’s Br. at 7, and should
limit the use of “location” to describing three-dimensional coordinates. This postulate is
disproved by the specification in a number of ways. Among other things, the specification notes
that the invention is not limited to use with the detection systems described. See ’024 patent, col.
5, lines 31-33, col. 6, lines 20-21. Moreover, the use of “such as” indicates that the locational
characteristics listed do not represent all of the possible results that can be obtained from the data
the detection systems generate.

        Most importantly, the government’s proffered construction does not comport with the
language of the claims as read in the context of the specification. Claim 1, which is incorporated
by reference in dependent Claim 8, describes an acoustical detection means that transmits “a first
set of data describing the location of said hostile weapon fire,” an optical detection means that
transmits “a second set of data describing the location of said hostile weapon fire,” and a
processing means that determines “whether said location of said first set of data match said
location of second set of data and for generating a signal output if said match occurs.” ’024
patent, Claim 1. Claim 15 describes a method in which acoustical energy and optical energy
generated from hostile weapons fire are sensed; a first location is calculated using only the
sensed acoustical energy; a second location is calculated using only the sensed optical energy;



                                                  5
the two locations are compared; and an output signal is provided “only if said first and said
second locations match.” ’024 patent, Claim 15. Nowhere in the claim language is location
specifically limited to three-dimensional coordinates. Instead, the claims and the specification
contemplate a meaning of Term 1 that encompasses a range of possibilities delineated by a
broader set of data. The specification comments that acoustical detection systems by themselves
“have a fairly large error in the determination of the location of the hostile weapon.” ’024
patent, col. 1, lines 54-55. The specification compares this problematic result to that provided by
the invention, stating that the invention can use

               an acoustic system to determine the general location of the hostile
               weapons fire . . . and then us[e] an optical system . . . in order to
               further refine the location within the field established by the
               acoustic system. In this manner, the relatively notorious “false
               alarms” associated with the optical systems [can] be minimized
               since the optical data only from the field of view formed or “fixed”
               by the acoustical technique [are] reviewed.

Id. at col. 2, lines 23-33 (emphasis added). This phrasing indicates that “location” may refer to a
broad area determined by data points, as well as a smaller area indicated by the use of more
discriminating data collection methods and analyses.

        Indeed, the specification later describes a “second embodiment of the . . . invention . . .
[which] includes an acoustical detection system 64, comprising an acoustic processor 68 . . . a
microphone array 66; a laser detection system 62, comprising a laser processor and a laser
scanner and detector system; a processing means 70 . . .; and an output display means 72.” ’024
patent at col. 8, lines 3-12; see also id. Sheet 6, Fig. 9.3 The specification states that the
acoustical detection system of the second embodiment “determines the location of the source of
the acoustic energy and transmits a first set of data describing such location to processing means
70 and laser processor 60.” Id. at col. 8, lines 18-21. According to the specification, the laser
processor that is part of the pertinent laser detection system “receives the first set of data
[describing the location] from acoustic processor 68, determines the approximate direction to the
missile trajectory and source and transmits this information to [a] laser scanner . . . which scans
the area received from laser processor 60.” Id. at col. 8, lines 40-46 (emphasis added). By using
“area” to describe the output of the first set of data, the specification illustrates that Term 1 may
refer to a relatively broad expanse indicated by the data culled by the invention’s detection
systems, and is not cabined to a specific site or position identified by a precise set of three-
dimensional coordinates.

       For the reasons stated, the court adopts the following construction of Term 1: “location”
means a bounded area indicated by data points that is not necessarily specific to a position
defined by three-dimensional coordinates.




       3
        This embodiment is encapsulated in independent Claim 10, which combines use of
acoustic detection means with laser detection means.


                                                 6
Term 2: “Match.”
Plaintiff’s Proposed Claim Construction               Government’s Proposed Claim Construction
Means data equal or similar to another by             Means when two separate sets of location data
suitable association, of the “location.”              are equal to each other, i.e., describe the same
                                                      position.

        Term 2 appears in Claim 8 (by incorporation of Claim 1) and Claim 15, as well as in
Claims 2, 9, and 10. Again, the government’s proffered construction, which requires the two sets
of locational data to describe an identical position, is too narrow and is not supported by the
specification. The government is correct, however, in its recognition that “match” is used with
reference to location, as a careful reading of the claims and specification confirms. Accordingly,
the court’s analysis and construction of Term 1, supra, bears on the construction of Term 2.
Location may refer to a bounded area indicated by data points, and can be broader than a position
identified by three-dimensional coordinates. To a person with ordinary skill in the art, then, it
follows that the first and second locations of data-bounded areas need not be identical to produce
a “match;” an overlap of the first and second locational areas suffices. The specification
confirms such a reading. First, the specification provides that a “‘match’ . . . is indicated when a
location and time from the first set of data (hereinafter referred to as the ‘acoustic event’) fall
within a predetermined range of a location and time from the second set of data (hereinafter
referred to as the ‘optic event’). If a match is detected, processing means 8 will generate a signal
output . . . [i]ndicating that both the acoustic and infrared systems ‘match’ and correspond to a
hostile weapons location.” ’024 patent, col. 6, lines 55-63 (emphasis added). 4 The instruction

       4
         Time is thus pertinent to whether a match is found. The specification draws upon the
fact that light travels much faster than sound to analyze the data from the sensing means. For
example, the specification states for one embodiment that:

               [t]he signal output will also indicate whether the acoustic event
               occurred before the optically sensed event. When the acoustic
               event occurs before the optically sensed event, the optical event
               actually represents a subsequent attack from the same location,
               since optical energy general reaches the observer before acoustic
               energy and the associated missile. In such a cases, a counter-
               measure against the incoming missile may be launched.

’024 patent, col. 6, line 67 through col. 7, line 7. The specification elaborates on the use of time
to refine location:

               To determine the range or distance to the hostile weapons fire, the
               invention uses a “flash-bang” analysis. In one embodiment,
               processing means 8 takes the second or optical data and notes the
               time of its arrival. Then, processing means 8 takes the first or
               acoustical data which arrives later than the optical data and note[s]
               the time of this arrival. Then processing means 8 takes the
               difference between the two times (which is directly proportional to
               the range) and by a known mathematical algorithm determines the


                                                  7
that a match occurs when data from a first set fall within a predetermined range of data from a
second set contemplates that some data points from each of the first and second sets may be
excluded and a match can still occur. In addition, the specification summarizes the method for
determining the location of hostile weapons fire detailed in Claim 15 and notes that an output
signal is provided “if the first location is substantially similar to the second location.” Id. at col.
3, lines 51-53. The method of Claim 15 instructs that an output signal is provided “if said first
and said second locations match.” Id., Claim 15. That the specification allows for an output
signal when the data points comprising each of the first and second locations are substantially
similar, even if they are not identical, undermines the government’s proffered construction and
supports a modified version of plaintiff’s proposed definition.

        For the reasons above, the court adopts the following construction of Term 2: “match”
means an overlap of at least some of the data points describing the first location with some
of the data points describing the second location.

Term 3: “Optical detection means for detecting energy of a second frequency originating from
said hostile weapon fire, and for transmitting a second set of data describing the location of said
hostile weapon fire.”

       Term 3 appears in Claim 1 (and thus Claim 8 by incorporation). The parties agree that
“optical detection means” refers to an electronic device for sensing optical energy. Joint
Proposed Constructions of Claim Terms at 1. The court accepts this mutually agreed
construction.

Term 4: “Processing means coupled to said acoustical and said optical detection means, for
receiving said first and said second set of data, and for determining whether said location of said
first set of data match said location of second set of data and for generating a signal output if
said match occurs.”

        Term 4 appears in Claim 8, via incorporation of Claim 1. The parties agree that
“processing means” refers to an electronic device that uses an algorithm, mathematical
analysis, or stored program control. Joint Proposed Constructions of Claim Terms at 2. The
parties further agree that “signal output” means a transmitted communication from an
electronic device containing information to convey location; or to position a weapon and
fire a counter-attack. Id. The court accepts these mutually agreed constructions.

        The parties diverge with regard to the meaning of “said first and said second set of data,”
a portion of the term which the court will refer to as Term 4.A. The parties’ proffered definitions
are:




                range. In one example, the difference is multiplied by the speed of
                sound and this value is used as the range.

Id. at col. 7, lines 30-40.


                                                   8
Plaintiff’s Proposed Claim Construction              Government’s Proposed Claim Construction
Means the electrical transmissions from              Means the information describing the position
acoustical detection means and optical               of an entity by three-dimensional coordinates
detection means, respectively, containing            from acoustical detection means and optical
information from which spatial orientation as        detection means, respectively.
to the position of the entity can be rendered.

         Once again, the construction of Term 4.A hinges on the court’s construction of Term 1,
“location.” The language of Claim 1 instructs that the first set of data describes a location and is
transmitted from acoustical detection means, while the second set of data describes a location
and is transmitted via optical detection means. See ’024 patent, Claim 1. The specification
confirms that both sets of data describe a location, and that the first set is derived from
acoustical detection means, with the second set being supplied by optical detection means. Id. at
col. 3, lines 8-16. The government’s proffered construction fails to capture this relationship
adequately because it refers to “three-dimensional coordinates” and attempts to use a narrow
construction of Term 1 that this court has rejected. See supra pp. 5-6. Plaintiff’s proposed
construction includes a clause, “from which spatial orientation as to the position of the entity can
be rendered,” which finds limited support in the specification because it would equate “spatial
orientation” with “location.” It seems preferable not to introduce yet a further variant of the
definition of location in deriving the construction of the “said first and second set of data.”
Those data represent distinct bounded areas delineated through acoustical and optical detection
means. Accordingly, the court concludes that Term 4.A, “said first and said second set of data,”
means information describing bounded areas indicated by acoustically and optically
derived data, which areas are not necessarily specific to a position defined by three-
dimensional coordinates.

Term 5: “Sensing optical energy generated from said hostile weapons fire.”

       Term 5 appears in Claim 15 and Claim 18. The parties agree that “sensing optical
energy” means detecting optical energy. Joint Proposed Constructions of Claim Terms at 2.
The court accepts this mutually agreed construction.

Term 6: “Calculating.”

       Term 6 appears in Claim 15 and Claim 18. The parties agree that “calculating” means
determining by algorithm, mathematical analysis, or stored program control. Joint
Proposed Constructions of Claim Terms at 2. The court accepts this mutually agreed
construction.

Term 7: “Comparing.”
Plaintiff’s Proposed Claim Construction              Government’s Proposed Claim Construction
Means generating the relative data and               Means determining the equivalence or
information equivalence or difference between        difference between two calculated locations.
two portrayed locations.




                                                 9
         Term 7 appears only in Claim 15 and is used in the context of “comparing said first and
said second locations” calculated by “sensed acoustical energy” and “sensed optical energy,”
respectively. ’024 patent, Claim 15. Claim 15 prescribes the step of “providing an output signal
only if said first and said second locations match.” Id. The language of the claim indicates that
the patentee used a meaning of Term 7 customary to those with ordinary skill in the relevant art:
that the difference or equivalence between the bounded areas obtained through the first and
second sensing means should be examined and analyzed. Contrary to the government’s assertion
that Term 7 involves a determination, this customary meaning does not necessarily encompass a
final decision, as “determining” would. Rather, it connotes an assessment of the correlation or
differences between locations, after which a decision may be made. The specification’s use of
“compare” or “comparing” is also in accord with the customary meaning of Term 7. See, e.g.,
’024 patent, col. 3, lines 50-53 (“comparing the first and second locations; and providing an
output signal if the first location is substantially similar to the second location”), col. 6, lines 51-
54 (“Processing means . . . holds and/or stores all locations from the second set of data for a
predetermined period of time and compares these stored locations with locations from the first
set of data.”), col. 9, lines 13-16 (“Processing means . . . will then hold all locations from the first
set of data for a predetermined period of time and compare with locations from the second set of
data.”).

       The parties agree that location must be a part of the construction of Term 7; however,
both plaintiff and the government add adjectives, “portrayed” and “calculated,” respectively, to
modify “location.” The court finds the additions without support from the specification, and thus
declines to incorporate them into a construction.

       For the stated reasons, the court adopts the following construction for Term 7:
“comparing” means assessing the equivalence, correspondence, or difference between
locations.

Term 8: “Providing an output signal only if said first and said second locations match.”

       Term 8 appears in Claim 15. The parties agree that “output signal” means a transmitted
communication from an electronic device containing information to convey location; or to
position a weapon and fire a counterattack. Joint Proposed Constructions of Claim Terms at
3. The court accepts this mutually agreed construction.

                                           CONCLUSION

        No extrinsic evidence is necessary for resolution of claim construction. For the reasons
detailed above, the terms identified by the parties shall be construed as stated.

        It is so ORDERED.


                                                     s/ Charles F. Lettow
                                                     Charles F. Lettow
                                                     Judge



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