Core Optical Technologies, LLC v. Infinera Corp.

BRIEF Infinera Responsive Claim Construction Brief

C.D. Cal.April 9, 2018

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:17-CV-00548 AG(JPRX) QUINN EMANUEL URQUHART & SULLIVAN, LLP Kevin P.B. Johnson (SBN 177129) kevinjohnson@quinnemanuel.com Ray Zado (SBN 208501) rayzado@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor Redwood Shores, CA 94065 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 Attorneys for Defendant INFINERA CORP. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CORE OPTICAL TECHNOLOGIES, LLC, Plaintiff, v. INFINERA CORP., Defendant. Case No.: 8:17-CV-00548 AG (JPRx) DEFENDANT INFINERA CORP’S RESPONSIVE CLAIM CONSTRUCTION BRIEF Honorable Andrew J. Guilford Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 1 of 14 Page ID #:3379 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 -i- INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV00548 AG(JPRX) TABLE OF CONTENTS Page I. “Cross Polarization Interference” (XPI) .......................................................... 1 A. Core Fails to Explain or Justify Its Fundamentally Changed Construction of XPI ............................................................................... 1 B. Core’s Citation to the File History Is Fully Consistent with Infinera’s Proposed Construction .......................................................... 2 C. Core Mischaraterizes the Specification in Trying to Improperly Limit XPI to Loss of Orthogonality ....................................................... 3 D. Core’s Reliance on the PTAB Proceedings is Misplaced ...................... 5 E. Core Provides No Affirmative Evidence Supporting its Proposal That XPI be Limited to Optical Signals ................................................. 5 II. “Cross Polarization Interference Canceler” (XPIC) ........................................ 6 III. “Diagonalizer Cross Polarization Interference Cancellation Network” .......... 7 IV. “A Plurality of Elements Each Supporting a Transfer Function” .................... 7 V. “General Inverse” ............................................................................................. 8 VI. “Generally Complex/Generally Complex Elements” ...................................... 9 VII. “Generally Orthogonal” ................................................................................... 9 VIII. “Eliminating/Elimination” ............................................................................. 10 Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 2 of 14 Page ID #:3380 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 -ii- INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV00548 AG(JPRX) TABLE OF AUTHORITIES Page Cases Exxon Chem. Patents v. Lubrizol Corp., 64 F.3d 1553 (Fed. Cir. 1995) ............................................................................... 1 Interval Licensing, LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014) ............................................................................. 8 M-I LLC v. Fpusa, LLC, 2016 WL 6088344 (W.D. Tex. Oct. 17, 2016) ...................................................... 4 Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120 (2014) ........................................................................................ 1, 8 PPC Broadband, Inc. v. Corning Optical Communications RF, LLC, 815 F.3d 734 (Fed. Cir. 2016) ............................................................................... 5 Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015) ..................................................................... 1, 6, 7 Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 3 of 14 Page ID #:3381 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 1 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) Defendant Infinera Corp. (“Infinera”) respectfully submits this responsive brief, and requests the Court to adopt its claim constructions. Plaintiff Core Optical Technologies, LLC’s (“Core”) construction of XPI ignores both Dr. Core’s representations to the Patent Office, and Core’s own prior admissions and expert testimony in the Ciena litigation, in arguing XPI excludes signal rotation. Core also fails to take into account the recent precedent of Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015) (en banc) regarding means plus function limitations, and further ignores the change in law presented by Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120 (2014), relating to the requirement that terms of degree provide objective boundaries. Finally Core constructions ignores the specification’s clear distinction between the mutually exclusive, alternative diagonalizer embodiment (which eliminates XPI) and the MMSE embodiment (which only mitigates XPI). I. “Cross Polarization Interference” (XPI) A. Core Fails to Explain or Justify Its Fundamentally Changed Construction of XPI Contrary to Core’s assertions that Infinera and its expert “do[] not meaningfully address this Court’s prior Claim Construction Order in Ciena,” (CB, 1), it is Core that walks away from this Court’s prior construction, and contradicts both its own and its experts’ prior statements, on XPI. While Core relies on the statement in the Ciena claim construction order that the construction of XPI therein “will suffice for this case,” (CB, 9) Core never explains why the construction is somehow insufficient for this case, what lead to its change in positions, or the fact that the Court in Ciena found that “there is adequate support for the agreed construction.” Ciena, Dkt. 90, p. 91. Core further ignores its own Technology Tutorial from the Ciena case, in which Core characterized XPI for the Court as 1 Parties cannot stipulate to an erroneous construction for the sake of convenience. See Exxon Chem. Patents v. Lubrizol Corp, 64 F.3d 1553, 1555 (Fed. Cir. 1995). Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 4 of 14 Page ID #:3382 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 2 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) merely crosstalk between polarized signals: “When the polarizations of the incoming signals are resolved into the reference axes, some component of each of the two signals is resolved into each of the two reference planes such that the signals are ‘mixed.’ Because some portion of each signal is resolved into each reference axis, crosstalk between the signals occurs. This crosstalk is known as cross polarization interference (XPI).” Fujitsu, Dkt. 64, Ex.4, p. 32-33. Core’s attempts to recast its own expert’s prior testimony also fails: as Core concedes Dr. Buckman testified in Ciena (CB, p. 10), “[w]hen the polarization changes during transmission, some of the power from the first signal (“channel A”) can appear as associated with the second signal (“channel B”). … This is known as Cross Polarization Interference (“XPI”).” Core never addresses that signal rotation is itself a change in polarization during transmission, where some of the power of a first signal is associated with some of the power of a second signal – thus, XPI under its own expert’s definition. See Prucnal, ¶27-28, 32. Indeed, after making the above statement, Core’s expert testified that a broader definition of XPI was accurate “in the context of the ’211 patent”: “In my opinion, there are other additional factors that may also contribute to XPI. It is my understanding that the parties have agreed that XPI means ‘signal crosstalk,’ which, in my opinion, accurately describes cross polarization interference in the context of the `211 Patent.” Ciena, Dkt. No. 79, ¶6. Core’s contention regarding Dr. Prucnal’s testimony from the PTAB proceeding (CB, p. 9) is also wrong. His prior testimony merely recognizes that loss of orthogonality as disclosed in a particular prior art reference is an example of XPI, but in no way states this is an exclusive limitation. Prucnal, ¶54, 62-62. B. Core’s Citation to the File History Is Fully Consistent with Infinera’s Proposed Construction Core contends the prosecution history supports its construction because the applicants allegedly distinguished U.S. Patent No. 5,608,560 (“Abram”) on the Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 5 of 14 Page ID #:3383 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 3 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) ground that XPI excludes rotation. CB, 8.2 In so doing, Core ignores that, on its face, the Applicant told the PTAB during prosecution that XPI is caused by signal rotation: “XPI may be caused by a differential phase retardation between two linear polarization components of the light beam. XPI is also caused by such effects as polarization dependent loss, where two polarization components of the light beam experience different attenuation, or by a rotation of the components, etc. The XPIC network addresses all possible forms of XPI.” See Dkt. 57 (“OP. B.”) p 5-7. Moreover, Core’s argument based on Abram is incorrect: the applicants distinguished Abram on the ground that the reference does not disclose using dual polarized signals, and thus cannot possibly disclose canceling XPI. Prucnal, ¶64; Dkt. 54, Ex. 20, CORE_I_000259. In particular, the system disclosed in Abram does not use concurrent transmission of orthogonally polarized signals to increase bandwidth (i.e., “polarization multiplexing”). Id., ¶65. Instead, the Abram system uses polarizations of different pulses of the same signal—spaced apart in time—to signify the binary 1s and 0s that make up the signal. Id.; Dkt. 54 Ex. 20, CORE_I_00038, 4:7-8 (“[T]he polarization of the pulses corresponds to the binary values of the sequence to be transmitted.”); 4:16-20. To ensure signal data is correctly recovered, a receiver compensates for random rotations of these individual pulses of the single signal. Id.; Dkt. 54, Ex. 20, CORE_I_00041, 9:22-31. C. Core Mischaraterizes the Specification in Trying to Improperly Limit XPI to Loss of Orthogonality Core begins by citing excerpts discussing the desirability of sending orthogonally polarized signals through an optical fiber to increase bandwidth. CB, p. 5. (citing 1:10-20; 2:23-49).) However, these excerpts do not suggest in any way that XPI is limited to loss of orthogonality or excludes rotation. If anything, they underscore why “XPI” includes rotation: to achieve the stated goal of increasing bandwidth, a receiver must correct for rotation. See Prucnal, ¶ 24-25, 30, 35. 2 Hereinafter, “CB” is used to refer to Core's opening claim construction brief. Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 6 of 14 Page ID #:3384 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 4 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) Core reads 2:29-50 to imply that XPI does not encompass signal rotation alone. See CB, 6-7. However, that passage merely states that there is no longer XPI from rotation after the rotation is adjusted for. OP. B. p. 7-9; Prucnal, ¶24-25, 27-31. This is also true for other causes of XPI interference which the patentee explicitly references in the specification, such as that resulting from a loss of orthogonality caused by differential phase retardation or polarization dependent loss: XPI from these effects would no longer exist after they are adjusted for. Id. But all of these effects—rotation, differential phase retardation, and polarization dependent loss—do cause XPI before corrective measures. Id. Core’s citations to excerpts distinguishing XPI from chromatic dispersion (CD) and polarization mode dispersion (PMD) are also inapposite. See CB 6-7, (citing 2:51-56, 8:54-57; 10:1-6,); see also CB 10 (alleging the Ciena court found loss of orthogonality is XPI and is different from “other dispersion effects”). Notably, while Core improperly seeks to conflate signal rotation with these dispersion effects, neither Core or its experts ever say that (1) signal rotation does not result in crosstalk, or (2) signal rotation is an example of CD, PMD, or a dispersion effect like CD or PMD. Indeed, the closest its expert ever comes to making such a statement is to call signal rotation an “effect of the fiber optic medium on the transmitted optical signals” (see Dkt. 54, Ex. 8, ¶48); however, so are polarization dependent loss and differential phase retardation, which Core does not dispute can cause XPI. Rather, the time based effects of CD and PMD (i.e., the pulse broadening of PMD, and the wavelength dependent delay of CD), are not in and of themselves a signal crosstalk penalty, which requires more than just a time delay. Prucnal ¶33-34. Core also contends the specification describes cross polarization interference cancelers and their method of operation as being limited to correcting for loss of orthogonality. CB, 7-8 (citing 2:65-3:7). However, that excerpt does not state or imply that XPI requires a loss of orthogonality—or even that XPI includes a loss of Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 7 of 14 Page ID #:3385 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 5 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) orthogonality. Rather, it only refers to one example of the desired operation of element and method referred to as a “cross polarization interference canceller.” Prucnal, ¶35. In this one example, the cross polarization interference canceller “could correct” for several different effects, although does not impose specific limitations or requirements. Id. Indeed, the same sentence states that a cross polarization interference canceller could correct for effects such as dispersion, which Core contends is not loss of orthogonality. See 3:33. D. Core’s Reliance on the PTAB Proceedings is Misplaced Core also argues this Court should adopt the PTAB’s construction of XPI. CB, 11. However, the PTAB uses a different legal standard for claim construction, and that panel’s constructions are not binding as a matter of law. See PPC Broadband, Inc. v. Corning Optical Communications RF, LLC, 815 F.3d 734, 740 (Fed. Cir. 2016); M-I LLC v. Fpusa, LLC, 2016 WL 6088344, at *5-6 (W.D. Tex. Oct. 17, 2016). Moreover, although while Core trumpets the alleged record before the PTAB panel, Core simply ignores that the PTAB did not consider the evidence and arguments presented herein, including in particular (i) the file history statements where the Applicant explicitly identified signal rotation as cause of XPI (as the Petitioner was denied leave to present such evidence), and (ii) the Cusani 97 Paper that Core and its witness withheld for the PTAB, and which explicitly stated that signal rotation causes XPI. See OP.B., p. 6-7, 10-11; Fujitsu, Dkt. 74, p. 5. E. Core Provides No Affirmative Evidence Supporting its Proposal That XPI be Limited to Optical Signals Core proffers no basis to limit XPI to optical signals. Core’s argument that the term “optical” is necessary to avoid jury confusion is wrong. See CB, 11. 3 Moreover, when defining the claimed XPIC, the specification merely notes that the XPIC “is designed to at least improve bandwidth efficiency of a fiber optic communication link by reconstructing two optical signals that are transmitted with generally orthogonal polarization states,” i.e., without any specific reference to loss of orthogonality. 4:21-25. Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 8 of 14 Page ID #:3386 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 6 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) Rather, jurors would not be confused about whether the claims require optical signals given that the claims expressly recite optical signals. Moreover, Core’s argument ignores both the intrinsic record, including the statements re: XPI in the Provisional Application, as well as the understanding one of ordinary skill in the art would have of XPI . See OP.B. p. 11-13. II. “Cross Polarization Interference Canceler” (XPIC) Core’s request that this Court adopt the Ciena construction of XPIC, with the addition of “to mitigate XPI,” as added by the PTAB should be rejected. CB, 12, 13-15. First, since the Ciena claim construction order, and as Core ignores in its brief4, the Federal Circuit abandoned its strong presumption that claim terms are not means-plus-function if they lack the word “means,” holding that a term that does not recite a definite structure is means-plus-function. See Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015) (en banc). That ruling applies here.5 Core’s Ciena expert opined that the term XPIC did not have an established meaning to a person of ordinary skill in the art. Ciena, Dkt. 65-5, ¶31. Dr. Prucnal likewise testified that the term XPIC is purely functional and does not connote any definite structure; he further identified (i) the functions for these claim limitations (either “cancelling” or “eliminating”), and (2) the three structures that the patent discloses to perform such functions . Id, ¶69-70. Because the claim language only describes function and fails to recite sufficient structure, the Court should hold an 4 Although Core, in its S.P.R. 3-4 submission, identified alterative constructions for terms that Infinera contends to be means plus function, Core’s Opening Brief omits any reference to these constructions, and fails to provide any support for them. Should Core seek to introduce belated argument and evidence in its Response brief, Infinera reserves the right to move to strike such arguments. 5 Although the PTAB construed the term XPIC, it did so under a “broadest reasonable interpretation” standard, Core ignores: (1) that the PTAB did so under a broadest reasonable interpretation standard, which is materially different than the standard to be applied here, and (2) neither party proposed, nor did the PTAB expressly consider, whether XPIC should be construed as 112 ¶6. Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 9 of 14 Page ID #:3387 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 7 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) XPIC to be a means-plus-function limitation. See Op. Br. 14-16; Prucnal, ¶69. Nor do Dr. Prucnal’s statements during the IPR support Core’s construction; indeed, the citations on which Core relies themselves use the more specific terms “cancel” and “eliminate” where appropriate. See CB, 14. Use of the term “mitigate,” as Core suggests, as opposed to the more accurate “cancel” and “eliminate” of the ’211 patent claims, would inappropriately conflate the minimum- mean-square-error (MMSE) XPIC embodiment, which cancels XPI, with that of the diagonalizer embodiment, which completely eliminates XPI. See Prucnal ¶87. III. “Diagonalizer Cross Polarization Interference Cancellation Network” As explained above in connection with XPIC, Core’s construction of this term fails to recognize that it is a means-plus-function limitation. See CB, 15. As Core’s own expert recognized, this term lacks an established meaning to one of skill in the art, and the claim language only describes a function; accordingly, this claim limitation fails to recite sufficient structure and should be construed pursuant to 112¶6. See Op. Br. 17-19; Prucnal, ¶81, 87-88. IV. “A Plurality of Elements Each Supporting a Transfer Function” As set forth in Sections II-III, supra, Core again ignores the intervening authority of the Federal Circuit’s en banc decision in Williamson. As the court held, nonce terms such as “element” –the very term used here– are tantamount to using the word ‘means’ because they ‘typically do not connote sufficiently definite structure.’” Williamson, 792 F.3d at 1349. Accordingly, Infinera respectfully submits Core’s reliance on the Ciena claim construction is misplaced. More particularly, Core’s construction does not recite adequate structure for this term (or, in fact, any structure at all). Core essentially replaces “elements” with “matrix elements.” But a matrix is not a structure; it is a mathematical abstraction (akin to a function or algorithm); as a result, it fails to provide the necessary structure to avoid application of 112 ¶6. Prucnal, ¶75, 76. Indeed, as Dr. Willner (Core’s expert) explained in the Ciena litigation, “when the ‘211 Patent refers to ‘a Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 10 of 14 Page ID #:3388 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 8 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) plurality of elements each supporting a transfer function,’ it is referring to an XPIC embodiment that includes a plurality of complex, frequency-dependent filters.” Ciena, Dkt. 65-5, ¶41; this is consistent with Infinera’s proposed identification of corresponding structure for this claim limitation. V. “General Inverse” Core’s arguments regarding “general inverse” (CB 18-20) ignore the Supreme Court’s holding in Nautilus (as well as subsequent Federal Circuit precedent), requiring that for a term of degree to be definite, it must provide “objective boundaries,” including a standard for measurement. See Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. at 2124; Interval Licensing, LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014); see also OP. B. p. 21-22.6 Core’s assertion that “general” is a “term of approximation” used to indicate that the XPIC “does not require an exact matrix inverse” (CB 19) fails to provide objective boundaries for “general inverse.” Core’s further assertion that a “general inverse” can be proportional to an actual inverse and that “such proportional inverses . . . need not be exact” also fails to provide objective boundaries. Id. The question is what a “general inverse” is, not what it need not be. Neither of these statements provide an objective boundary to allow one of ordinary skill in the art to determine if a matrix meets the limitation of claim 37 of a “general inverse.” Prucnal, ¶¶104-105. For example, a matrix can be “proportional to” the inverse of the transmission matrix, but still substantially deviate from the exact inverse, resulting in little mitigation of XPI (or other effects, such as PMD or chromatic dispersion). Id., ¶105. By reciting the term “general inverse,” with nothing more, a person of skill in the art would be unable to identify just how close to the “actual” inverse of the transmission matrix is required. Id. 6 Core’ reliance on One-E-Way, Inc. v. ITC, 859 F.3d 1059, 1064 (Fed. Cir. 2017) is inapposite, as in that case, the applicant defined the term during prosecution . Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 11 of 14 Page ID #:3389 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 9 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) Core’s argument that, during the IPR, Dr. Prucnal had no difficulty in applying the term to prior art (CB, 20) ignores that the reference Dr. Prucnal discussed in the IPR proceeding disclosed an exact inverse of the transmission matrix; therefore, a person of skill in the art could readily determine that an exact inverse fell within the scope of this claim term. Prucnal, ¶106. VI. “Generally Complex/Generally Complex Elements” Core’s construction of this term is grounded upon the argument that complex numbers may have real or imaginary parts equal to zero, which is accounted for by the term “generally.” CB, 21.7 However, because complex numbers may have zero-valued parts does not mean the term “generally” connotes that fact. This is especially true as the term “generally complex” does not appear in the specification and has no meaning to a person of skill in the art. Prucnal, ¶90-92. Core also alleges the term is definite because Dr. Prucnal applied it to a prior art reference during the IPR proceeding. CB, 22 (citing Prucnal IPR, ¶146). This contention is wrong: Dr. Prucnal determined that a reference necessarily disclosed true “complex” numbers, and thus would meet the term “generally complex” regardless of whatever boundaries the term may imply. Prucnal, ¶95. While Core further relies on statements from the Ciena claim construction to the effect that “elements” are not “necessarily complex,” (CB 20), these statements do not provide any guidance as to what is meant by “generally complex.” VII. “Generally Orthogonal” While Core argues that the claim term “generally” is a recognition of the limitations of man-made equipment and that polarization states of the signals are not always perfectly orthogonal (CB, 23), the term is indefinite for substantially the same reasons as the terms above—they lack reasonable certainty and fail to provide 7 Core’s construction of this term also relies heavily upon Ciena; however, such argument is misplaced, as the law has changed. Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 12 of 14 Page ID #:3390 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 10 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) any objective boundaries as to when two polarized signals are no longer “generally orthogonal.” OP. B. p. 24; Prucnal, ¶99-100. Core also contends the term is definite because Dr. Prucnal applied it to a prior art reference during the IPR proceeding. See CB, 24. However, Dr. Prucnal merely stated that a reference disclosed this claim element as it disclosed signals with actually orthogonal polarizations: “(e.g., ‘two orthogonal polarizations’)” See id. (citing Ex. 10, ¶210). VIII. “Eliminating/Elimination” As Core notes, Claim 37 is directed to the diagonalizer embodiment of the claimed XPIC. The specification specifically contrasts this diagonalizer embodiment, which completely eliminates XPI, with the minimum-mean-square- error (MMSE) embodiment, which only mitigates XPI-- without completely eliminating it. 16:21-27; see Prucnal, ¶87; 8:54-5; 7:59-8:14; 10:1-6; 16:21-24. Consistent with this distinction in the specification, the claims of the ’211 patent draw an express distinction between “mitigating” XPI (using the MMSE method) and “eliminating” it (using the diagonalization method). Id., ¶88. Compare cl. 35 (“mitigating” XPI using the MMSE method) with claim 37 (“eliminating” XPI using the diagonalization method). Because terms in different claims are presumed to have different meanings, the terms “eliminating” and “elimination” must be presumed to have a different scope than simply “mitigating”, i.e., it must require completely elimination, as opposed partial elimination or mitigation, of XPI. See Wi-LAN USA, Inc. v. Apple Inc., 830 F.3d 1374, 1391 (Fed. Cir. 2016). Core’s proposed construction renders the patentee’s use of these distinct terms a nullity. Although Core relies on statements from the Ciena claim construction (CB 25) regarding the achievement of a “perfect result,” that is not the case here; rather, the specification itself draws a clear distinction between the results achieved by the diagonalizer XPIC and MMSE XPIC embodiments; Core’s construction would obviate this distinction is a manner inconsistent with the ’211 patent disclosure. Case 8:17-cv-00548-AG-JPR Document 67 Filed 04/09/18 Page 13 of 14 Page ID #:3391 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 07615-00001/9965786.3 11 INFINERA’S RESPONSIVE CLAIM CONSTRUCTION BRIEF CASE NO. 8:16-CV--00548 AG(JPRX) Dated: April 9, 2018 QUINN EMANUEL URQUHART & SULLIVAN, LLP By: /s/ Ray Zado ___ __ __ __ __ __ __ ___ Ray Zado Kevin P.B. Johnson Attorneys for Defendant INFINERA CORP. 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