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Trustees of Columbia University in City of New York v. Nortonlifelock, Inc.

United States District Court, E.D. Virginia, Richmond Division

December 20, 2019

THE TRUSTEES OF COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK, Plaintiff,
v.
NORTONLIFELOCK, INC., Defendant.

          MEMORANDUM OPINION

          M. Hannah Lauck, United States district Judge

         This matter comes before the Court on Plaintiff the Trustees of Columbia University in the City of New York ("Columbia") and Defendant NortonLifeLock, Inc.'s ("Norton," and collectively with Columbia, the "Parties") Supplemental Markman[1] Briefs. (ECF Nos. 292, 293.) Each Party has also filed a rebuttal Markman Brief. (ECF Nos. 300, 301.) The Parties seek claim construction on a single phrase found in the remaining patent claims of Patent No. 8, 074, 115 (the "115 Patent") and Patent No. 8, 601, 322 (the "322 Patent"). On December 18, 2019, the Court held a supplemental Markman hearing. This matter is ripe for adjudication. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.[2]

         I. Background

         The Court presumes familiarity with the background of this matter which has been detailed in three prior opinions: (1) the Inter Partes Review Opinion, Trs. of Columbia Univ. in the City of N.Y. v. Symantec Corp., 390 F.Supp.3d 665 (E.D. Va. 2019); (2) the Markman Opinion, Trs. of Columbia Univ. in the City of N.Y. v. Symantec Corp., No. 3:13cv808, 2019 WL 2774321 (E.D. Va. July 2, 2019); and, (3) the Section 101 Invalidity Opinion, Trs. of Columbia Univ. in the City of N.Y.v. Symantec Corp., No. 3:13cv808, 2019 WL 613 8419 (E.D. Va. Nov. 19, 2019).

         The 115 Patent and the 322 Patent relate to computer virus scanning and provide "[m]ethods, media, and systems for detecting anomalous program executions." (115 Patent 1:48-49, ECF No. 12-5; 322 Patent 1:49-5O, ECF No. 12-6.) In this second Markman proceeding, the Parties have presented a single phrase-"model of function calls for the at least a [part/portion] of the program"-for construction.

         As explained in the Court's Section 101 Invalidity Opinion, claim 2 of the 322 Patent is representative of the overall idea of the patent claims remaining at issue in this litigation. Section 101 Invalidity Opinion, 2019 WL 6138419, at *9. It states:

A method for detecting anomalous program executions, comprising:
executing at least a portion of a program in an emulator;
comparing a function call made in the emulator to a model of Junction calls for the at least a portion of the program, wherein the model is a combined model created from at least two models created using different computers; and
identifying the function call as anomalous based on the comparison.

(322 Patent 20:47-55 (emphasis added).)

         II. Legal Standard: Claim Construction

         "The purpose of claim construction is to 'determin[e] the meaning and scope of the patent claims asserted to be infringed.'" Samsung Elecs. Co., LTD v. NVIDIA Corp., No. 3:14cv757, 2015 WL 4622472, at *l (E.D. Va. July 30, 2015) (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995) (en banc), qff`d 517 U.S. 370 (1996)). The Court must decide the correct construction of a claim term. See generally Markman, 517 U.S. 370.

         A court construing a patent claim generally applies the "ordinary and customary meaning" of the words. Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc) (citations omitted). "[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention." Id. at 1313 (citations omitted).

         "It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history."[3] Vitronics Corp, v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (citations omitted). "[T]he claims themselves provide substantial guidance as to the meaning of particular claim terms," Phillips, 415 F.3d at 1314 (citations omitted). However, "the 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. at 1315 (citing Vitronics, 90 F.3d at 1582). Although the specification may be dispositive, a court should not impose a limitation on the patent claims based on an embodiment found in the specification- even if it constitutes a preferred embodiment or the only embodiment. See Cont 7 Circuits LLC v. Intel Corp., 915 F.3d 788, 800 (Fed. Cir. 2019). The Federal Circuit has instructed that "[t]o avoid improperly importing limitations into the claims, 'it is important to keep in mind that the purposes of the specification are to teach and enable those of skill in the art to make and use the invention and to provide a best mode for doing so.'" Id. at 797 (citations omitted).

         "Where the intrinsic record is ambiguous, and when necessary, [the Court may] rely on extrinsic evidence, which consists of all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Samsung Elecs,, 2015 WL 4622472, at *2 (citations omitted). "Extrinsic evidence, however, may not be used to contract or expand the ...


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