UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

Miami Division

DECURTIS LLC,

Plaintiff,

v.

CARNIVAL CORPORATION,

Defendant.

 

Case No. 20-22945-CIV-SCOLA/Torres

CARNIVAL CORPORATION,

Plaintiff,

v.

DECURTIS CORPORATION and

DECURTIS LLC,

Defendants.

DECURTIS’S AMENDED MOTION FOR CLAIM CONSTRUCTION

OF “OPERATIVE” IN THE ’184 PATENT

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DeCurtis respectfully moves the Court to construe the term “operative” to mean 

“functional” or “work” to resolve the parties’ dispute over the scope of the claim term. 

Following the Court’s order [D.E. 524], the parties met and conferred at 6:30pm eastern today. 

Carnival disagrees with DeCurtis’s construction and asserts that “operative” needs no 

construction and carries its plain and ordinary meaning. As discussed below, adopting the plain 

and ordinary meaning of the term would not resolve the parties’ dispute as to claim scope.

A. The Parties Have a Dispute Over the Scope of the Claim Term “Operative”

That Is a Question of Law and Requires the Court’s Resolution

The term “operative” appears in each of the asserted claims of Carnival’s ’184 Patent 

(claims 1–3, 7, 11–15). For example, claim 1 recites the following elements:

• each guest device including a wireless communication antenna and operative to 

emit a periodic beacon signal broadcasting a unique identifier of the guest device 

using Bluetooth low energy (BLE) communications;

• a sensor network comprising a plurality of sensors each mounted at a different 

known location and operative to detect the periodic beacon signals including the 

unique identifiers emitted using BLE communications by portable guest devices

of the plurality of portable guest devices that are proximate to the sensor;

• each access panel is operative to detect the periodic beacon signals including the 

unique identifiers emitted using BLE communications by guest devices that are 

proximate thereto, and to selectively unlock the associated electronically controlled 

door lock based on the unique identifier of the detected periodic beacons.

’184 Patent, claim 1; see also claim 7 (reciting “operative to emit” and “operative to detect”), 

claim 15 (reciting “operative to detect”). Other claims recite limitations “operative to transmit”

(asserted claim 11), “operative to engage” (asserted claims 12, 13, 14), “operative to selectively 

unlock” (asserted claim 2), and “operative to report” (asserted claim 3).

The parties did not dispute the meaning of the “operative” term during claim construction 

and, thus, the Court did not construe the term in its Claim Construction Order. [D.E. 267 at 36–

37; D.E. 413 at 2–3.] Following the Court’s Claim Construction Order, it came to light that the 

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parties have a claim scope dispute regarding the meaning of “operative” in the ’184 Patent. 

Specifically, in response to DeCurtis’s motion for summary judgment of non-infringement,

Carnival dismissed evidence from Virgin Voyages’ Andy Schwalb that Virgin’s testing of the 

“Allure 2 Panel” with DXP was not “operational” and argued that there was evidence that

Virgin’s door lock access panels are “configured to communicate with the DXP wearable via 

BLE.” [D.E. 300 at 5–6, D.E. 301 at ¶ 22.] The Court denied DeCurtis’s summary judgment 

motion.

1

 [D.E. 426, 494.] Thus, the jury will be asked to determine, among other things,

whether testing of a non-operational system satisfies the “operative” limitations in the asserted 

claims. [D.E. 300 at 5–6 (Carnival asserting that “whether non-‘operational testing’ in an 

‘artificial environment’ constitutes testing for purposes of infringement” is a disputed fact “that 

must be litigated and resolved at trial”)].

It has become clear now through the parties’ pretrial exchanges and discussions,

including the pretrial conference and the parties’ meet-and-confer today, that it is up to the jury 

to decide whether the scope of the claim term “operative” means “functional” or “works” 

(DeCurtis’s position) or whether the claim term is broad enough to encompass capability to have 

such functionality i.e., “configured to operate” or “configured to.” While this dispute is 

meaningful to infringement, it is fundamentally a claim construction issue because the resolution 

of the dispute turns on the parties’ competing constructions of “operative” rather than facts 

1 In the Report and Recommendation denying DeCurtis’s motion for summary judgment of noninfringement, the Magistrate Judge suggested actual implementation was required. [D.E. 426 at 

14–15 (citing Waymark Corp. v. Porta Sys. Corp., 245 F.3d 1364, 1366 (Fed. Cir. 2001) (“No 

wrong is done the patentee until the combination is formed. His monopoly does not cover the 

manufacture or sale of separate elements capable of being, but never actually, associated to form 

the invention. Only when such association is made is there a direct infringement of his 

monopoly, and not even then if it is done outside the territory for which the monopoly was 

granted.”).] The Court adopted the Magistrate Judge’s R&R on this issue. [D.E. 494, at 5–6.]

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regarding the operation of the accused product. Specifically, if the term is given the meaning 

that DeCurtis proposes, at least some of Carnival’s alleged evidence of infringement is not 

probative of infringement, including non-operational testing of the accused products. 

“This dispute over the scope of the asserted claims is a question of law,” and where, as 

here, “the parties present a fundamental dispute regarding the scope of a claim term, it is the 

court’s duty to resolve it.” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 

1360–62 (Fed. Cir. 2008) (remanding because the parties presented their arguments to the jury 

about claim scope: “when the parties raise an actual dispute regarding the proper scope of these 

claims, the court, not the jury, must resolve that dispute”). That is the case here even though this 

issue was raised on the eve of trial. The Federal Circuit has made clear that even where a claim 

construction issue is raised during trial it is not necessarily untimely. See GPNE Corp. v. Apple 

Inc., 830 F.3d 1365, 1371–72 (Fed. Cir. 2016) (no waiver where claim construction dispute was 

raised during trial and “before the case went to the jury”).

2

 Thus, another court in this District 

construed a patent term less than a month before trial where the claim construction issue arose 

after the claim construction order. See Amgen, Inc. v. Apotex, No. 15-cv-61631-JIC, Dkts. 181 & 

184 (S.D. Fla. Jun. 24, 2016). Other district courts have done the same. See, e.g., Apple, Inc. v. 

Samsung Elecs. Co., Ltd., No. 12-CV-00630-LHK, 2014 WL 1322028, at *3 (N.D. Cal. Mar. 28, 

2014) (considering claim construction “three weeks before trial”); Intell. Ventures II LLC v. 

BITCO Gen. Ins. Corp., No. 6:18-CV-00298-JRG, 2019 WL 999902, at *2 (E.D. Tex. Feb. 28, 

2 See also Enovsys LLC v. Nextel Commc’ns, Inc., 614 F.3d 1333, 1344 (Fed. Cir. 2010) 

(“Though it had ample opportunity to do so, at no time before or during trial did Sprint Nextel 

object to the district court’s claim construction, request clarification, or offer the construction it 

now advances on appeal.”); Microchip Tech. Inc. v. Aptiv Servs. US, LLC, No. 1:17-CV-01194-

JDW, 2022 WL 4119755, at *3 (D. Del. Sept. 9, 2022) (“Microchip forfeited its claim 

construction argument because it did not request construction of the term ‘simultaneously 

configured’ before or during trial.”). 

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2019) (construing claim term “[f]ive days before a scheduled pretrial conference and on the very 

eve of trial”).

B. “Operative” in the ’184 Patent Means “Functional” or “Works”

’184 Patent Claim Term Carnival’s Proposed 

Construction

DeCurtis’s Proposed 

Construction

“operative” No construction necessary: 

plain and ordinary meaning “functional” or “works”

1. The Intrinsic Evidence Supports DeCurtis’s Proposed Construction

The words of the claims support DeCurtis’s proposed construction. See Phillips v. AWH 

Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005). For example, “operative to emit” must mean that 

the guest device is functional or works to emit “a” unique identifier in order to provide 

antecedent basis for the later claim elements requiring “the” unique identifier “emitted using 

BLE communications.” See, e.g., Pacing Techs., LLC v. Garmin Int’l, Inc., 778 F.3d 1021, 1024 

(Fed. Cir. 2015) (holding that the preamble provides antecedent basis for limitations in the body 

of the claim). This is clear from asserted claim 7 which requires first that the guest device is 

“operative to emit” a periodic beacon signal broadcasting a unique identifier of a guest device 

using BLE communications and then that the “unique identifiers emitted using BLE 

communications” are detected or used. 

7. A guest engagement system comprising:

a plurality of portable guest devices provided to users of the guest engagement 

system to be carried by the users, each guest device including a wireless 

communication antenna and operative to emit a periodic beacon signal 

broadcasting a unique identifier of the guest device using Bluetooth low energy 

(BLE) communications;

a sensor network comprising a plurality of sensors each mounted at a different 

known location and operative to detect the periodic beacon signals including the

unique identifiers emitted using BLE communications by portable guest devices 

of the plurality of portable guest devices that are proximate to the sensor;

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***

each access panel is operative to detect the periodic beacon signals including the

unique identifiers emitted using BLE communications by guest devices that are 

proximate thereto, and to selectively unlock the associated electronically controlled 

door lock based on the unique identifier of the detected periodic beacons, and

each interface device comprises an associated sensor of the plurality of sensors of 

the sensor network, and provides the personalized services to a user proximate 

thereto based on an identity of the user determined based on the unique identifier 

emitted using BLE communications by a guest device of the user.

’184 Patent, claim 7 (emphasis added). Similarly, asserted claims 1 and 7 require first that the 

sensor network is “operative to detect” the periodic beacon signals including the emitted unique 

identifiers, and then that the “detected” unique identifiers are associated or used:

1. A guest engagement system comprising:

***

a sensor network comprising a plurality of sensors each mounted at a different 

known location and operative to detect the periodic beacon signals including the 

unique identifiers emitted using BLE communications by portable guest devices 

of the plurality of portable guest devices that are proximate to the sensor;

***

a central server communicatively connected to each of the plurality of sensors of 

the sensor network via the communication network, and storing a log associating 

each unique identifier of a portable guest device detected using BLE 

communications by a sensor of the sensor network with the known location of the 

sensor and a timestamp,

***

each access panel is operative to detect the periodic beacon signals including the 

unique identifiers emitted using BLE communications by guest devices that are 

proximate thereto, and to selectively unlock the associated electronically controlled 

door lock based on the unique identifier of the detected periodic beacons . . . 

’184 Patent, claim 1; see also claim 7. Asserted dependent claims 2 and 3 also require “the 

unique identifier of the detected periodic beacon” and “the unique identifiers detected using BLE 

communications.” Id. at claims 2, 3 (emphasis added). 

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The claims also confirm that “operative” does not mean “configured” because Carnival

chose to use the term “configured for” with respect to other claim elements. Id. at claim 1

(reciting “a radio configured for . . .; a first transceiver configured for . . .; and a second 

transceiver configured for . . . .”), claim 5 (reciting “network transceiver configured for

communication across the communication network”), claim 11 (reciting “antennas respectively 

configured for Bluetooth low energy (BLE)”), claim 16 (reciting “configured to detect guest 

devices”). Having chosen to use the term “operative” rather than “configured” or “configured to 

operate,” Carnival cannot rewrite its claims now to give those different terms the same meaning. 

See, e.g., Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1370 (“[W]hen an 

applicant uses different terms in a claim it is permissible to infer that he intended his choice of 

different terms to reflect a differentiation in meaning of those terms.”).

The specification also supports DeCurtis’s proposed construction. Carnival’s alleged 

invention here is a “guest engagement system” whose components are functional to detect and 

emit BLE communications, and not a system that is configured to have that functionality without 

it being turned on. For example, the specification repeatedly discusses that the periodic beacon 

signals “are detected” and that the unique identifier is “detected using BLE communications.” 

See, e.g., ’184 Patent at 2:2-4, 28:11, 32:16. And the specification describes that “[t]he access 

panel 705 maintains its BLE transceiver (or the BLE transceiver of the associated sensor 15) 

activated so as to detect any beacon signals transmitted by medallions 11 operating in proximity 

to the access panel 705.” Id. at 20:7-11 (emphasis added). The specification also describes that 

the system is “used by the medallion 11 to emit periodic beacon signals.” Id. at 15:40.

Accordingly, the intrinsic evidence confirms that DeCurtis’s construction is correct 

because it “stays true to the claim language and most naturally aligns with the patent’s 

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description of the invention” in view of “what the inventors actually invented and intended to 

envelop with the claim.” AWH Corp., 415 F.3d at 1316 (quoting Renishaw PLC v. Marposs 

Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998)). 

2. Carnival’s Proposal to Construe the Term to Have its Plain and 

Ordinary Meaning Does Not Resolve the Parties’ Dispute

Carnival does not agree with DeCurtis’s proposed construction and opposes this motion, 

but Carnival has not provided its own construction beyond asking that the term be given its plain 

and ordinary meaning. This is contrary to O2 Micro International Ltd.:

A determination that a claim term “needs no construction” or has the “plain and 

ordinary meaning” may be inadequate when a term has more than one “ordinary” 

meaning or when reliance on a term's “ordinary” meaning does not resolve the 

parties’ dispute.

521 F.3d at 1361. Indeed, Carnival’s proposed construction to adopt the “plain and ordinary 

meaning” of the term “would leave unresolved the parties’ disputes and would largely negate the 

importance of the claims construction process.” Baxter Healthcare Corp. v. Mylan Lab’ys Ltd., 

346 F. Supp. 3d 643, 653 (D.N.J. 2016). 

District courts thus reject proposals that “disputed claim terms require no construction, or 

can be construed simply by reference, without explanation, to the ‘plain and ordinary meaning’” 

because such an approach is unhelpful to resolving the parties’ legal dispute as to claim scope. 

Id. And district courts have ordered that: “If a party believes that a term should be given its plain 

and ordinary meaning, then the party needs to state what that plain and ordinary meaning is.” 

Charles Smith Enters., LLC v. Catapult Sports, Inc., No. 1:21-1278-CFC, Dkt. No. 62, slip op. at

1–2 (D. Del. Feb. 8, 2023) (attached as Ex. A); see Hybrid Audio, LLC v. Asus Comput. Int’l 

Inc., No. 3:17-cv-05947-JD, 2022 WL 3348594, at *3 (N.D. Cal. Aug. 12, 2022) (rejecting 

“plain and ordinary meaning, without saying what that might be” as unhelpful).

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CONCLUSION

For these reasons, DeCurtis respectfully requests that the Court construe the term 

“operative” in the ’184 Patent to mean “functional” or “works.”

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.01(a)(3)

The undersigned certifies that on February 22, 2023, he conferred in good faith with 

counsel for Carnival (T. Vann Pearce, Jr., Melanie Bostwick, and Robert Uriarte) who advised 

that Carnival disagrees with DeCurtis’s construction and that Carnival’s position is that 

“operative” needs no construction and carries its plain and ordinary meaning.

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Dated: February 22, 2023

 By: /s/ Adam L. Schwartz 

Nicholas Groombridge (pro hac vice)

Nick.groombridge@groombridgewu.com

Jennifer H. Wu (pro hac vice)

Jennifer.wu@groombridgewu.com

Daniel J. Klein (pro hac vice)

Dan.klein@groombridgewu.com

Allison Penfield (pro hac vice)

Allison.penfield@groombridgewu.com

Kyle N. Bersani (pro hac vice)

Kyle.bersani@groombridgewu.com

GROOMBRIDGE, WU, BAUGHMAN & STONE LLP

565 Fifth Avenue, Suite 2900

New York, NY 10017

Tel. (332) 269-0030

Saurabh Gupta (pro hac vice)

Saurabh.gupta@groombridgewu.com

GROOMBRIDGE, WU, BAUGHMAN & STONE LLP

801 17th Street NW, Suite 1050

Washington, D.C. 20006

Tel. (202) 505-6566

Adam Louis Schwartz

aschwartz@homerbonner.com

Florida Bar No.: 103163

Brian Lechich

blechich@homerbonner.com

Florida Bar No.: 84419

Antonio M. Hernandez, Jr., Esq.

Email: ahernandez@homerbonner.com

Florida Bar No.: 117756

HOMER BONNER JACOBS ORTIZ, P.A.

1200 Four Seasons Tower

1441 Brickell Avenue

Miami, FL 33131

Tel. (305) 350-5100

Martha A. Leibell

Martha.leibell@morganlewis.com

Florida Bar No. 1106990

MORGAN LEWIS & BOCKIUS LLP

600 Brickell Avenue, Suite 1600

Miami, FL 33131

Tel. (305) 415-3000

Julie S. Goldemberg (pro hac vice)

Julie.goldemberg@morganlewis.com

MORGAN LEWIS & BOCKIUS LLP

1701 Market Street

Philadelphia, PA 19103

Tel. (215) 963-5095

Attorneys for DeCurtis LLC & DeCurtis Corporation

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