N OTE : This disposition is non precedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

VEHICLE IP, LLC,

Plaintiff

- Appellant,

v.

AT& T MOBILITY, LLC AND TELENAV, INC., Defendants

- Appellees,

AND

CELLCO PARTNERSHIP, NETWORKS IN MOTION, INC. AND TELECOMMUNICATION SY STEMS, INC., Defendants

- Appellees.

______________________

2013

- 1380

______________________ Appeal from the United States D istrict Court for the District of Delaware in No. 09

- CV

- 1007, Judge Leonard P. Stark.

______________________

Decided: November 18, 2014

______________________

W ILLIAM R. W OODFORD , Fish & Richardson P.C., of Minneapolis, Minnesota, argued for plaintiff

- appellant. With him on the brief were M ICHAEL J. K ANE and J OHN A.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 2

D RAGSETH , of Minneapolis, Minnesota, and G EOFF D. B IEGLER , of San Diego, California.

D AVID R. C LONTS , Akin Gump Strauss Hauer & Feld LLP, of Houston, Texas, argued for defendants -appellees, AT&T Mobility, LLC, et al. With him on the brief were M ANOJ S. G ANDHI , of Houston, Texas

, and L. R ACHEL L ERMAN , of Los Angeles, California. Of counsel was R EX S. H EINKE , of Los Angeles , California.

V INCENT J. B ELUSKO , Morrison & Foerster LLP, of Los Angeles, California, argued for defendants -appellees Cellco Partnership, et al. With him o n the brief were M ARTIN M. N OONEN and A LEX S. Y AP

.

______________________

Before R EYNA , W ALLA CH , and H UGHES , Circuit Judges

. Opinion for the court filed by Circuit Judge R EYNA

.

Opinion d issenting in part filed by Circuit Judge W ALLACH

. R EYNA , Circuit Judge

. Vehicle IP, LLC (“V ehicle IP”) appeals from a final judgment of non

- infringement of U.S. Patent No. 5,987,377 (“the ’377 patent”) from the United States District Court for the District of Delaware in favor of Defendant s- Appellees AT&T Mobility, LLC ; TeleNav, Inc. ; Cellco Partnership ; Networks in Motion, Inc. ; and TeleC ommunication Systems, Inc. (collectively, “Appe llees”). Because we agree with Vehicle IP that the district court erred in its construction of the claim term s “e xpected time of arrival” and “way point (s) ,” we reverse the district court’s construction s , vacate the district court’s grant of summary judgment of non infringement, and remand for a determination of infringement based on the proper constructions of these terms

.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 3

B ACKGROUND

I. Background of the Technology

Vehicle IP alleges that the Appellees infringe the ’377 patent, entitled “Method and Apparatus for Determining an Expected Time of Arrival.” The ’377 patent is directed
to improving vehicle navigation systems through more efficient distribution of navigation functions between a remote dispat ch and a mobil e unit located in the vehicle. The ’377 patent claims a system in which a remotely located dispatch generates destination information for the vehicle, while a mobile unit in the vehicle determines vehicle position and calculates an expected time of arrival
at a destination. 1 Such destination information may include, for example, one or more destinations, routing information, information regarding tasks to be performed at each destination speci fi ed, average travel time to each destination, ru sh hour

, traf fi c and w eather information.
Figure 2 of the ’377 patent illustrates this process.

1 The patent provides that the destination info rmation may also be generated locally at the mobile unit. ’377 patent col. 6 ll. 2

- 4.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 4

’377 patent fig

. 2. Figure 2 shows that dispatch 20 co mmunicates with mobile unit 42 through mobile teleco mmunications switching office 32 and transmitter site 34. The destination information is then sent to mobile unit 42 and is used to determine the vehicle’s expected time of arrival at one or more destinations , such as C, D

, or E.
The ’377 patent also claims the use of a plurality of way points for a more accurate calculation of road di stance to the destination , allowing for a more accurate calculation of expected time of arrival at a final destin ation

. Once mobile unit 42 in the vehicle receives the destination information, it determines the vehicle’ s cu rrent position and compares it to the way points along the
route , such as way points C and D. Mobile unit 42 then determines the expected time of arrival for one or more destinations, such as C, D, or E

, to provide an updated expected time of arrival as the vehicle changes position throughout the trip.

Claim 1 is representative of the ’377 patent’s use of the disputed claim terms and is reproduced below.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 5

1. A system for determining an expected time of arrival of a vehicle equipped with a mobile unit, comprising: a dispatch remotely located from the vehicle, the dispatch operable to generate destin ation information for the vehicle, the de stination information specifying a plurality of way points ;
a communicatio ns link coupled to the di spatch, the communications link operable to receive the destination information for the vehicle from the dispatch; and
the mobile unit coupled to the communic ations link, the mobile unit operable to r eceive from the communications link the destination information for the vehicle generated by the dispatch, the mobile unit further operable to determine a veh icle position, the mobile unit further ope rable to determine in response to the vehicle position the expected time of arr ival of the vehicle at a way point identified by the destination information and wherein the communications link co mprises a cellular telephone network.
’377 patent col. 14 l. 62

- col. 15 l. 13 (claim 1) (emphases added)

. II. Procedural Background
On December 31, 2009, Vehicle IP filed this action against Appellees in the United States District Court for the District of Delaware

, asserting that Appellees infringe the ’377 patent

. On December 12, 2011, the district court issued an order construing the disputed claim terms of the ’377 patent

, including “expected time of arrival” and “way point (s) .” The district court construed “expectedVEHICLE IP , LLC v. AT & T MOBILITY , LLC 6

time of arrival” as “time of day at which the vehicle is expected to arrive somewhere (and not remaining travel time) .” The district court construed “way point(s)” as

“ intermediate point(s) on the way to the final destination (and not the final destination itself ) .”
After the district court construed the claims, Appe llees filed two motions for summary judgment. TeleCo mmunication Systems, Inc. ; Networks in Motion, Inc. ; and Cellco Partnership (collectively, “TCS/Cellco”) filed a motion for summary judgment of noninfringement as to the TCS/Cellco accused systems

. TeleNav, Inc. and AT&T Mobility LLC (collectively, “Tele Nav/AT&T”) filed a second motion for summary judgment of noninfringement as to the TeleNav/AT&T accused systems

. 2
The district court granted both motions. First, the distri ct court found that TCS/Cellco’s accused products did not literally infringe beca use the accused features do not “determine[] a ‘time of day at which the vehicle is expected to arrive somewhere’

. . . at ‘intermediate point(s) on the way to the final destination .’” The district
court note d that to the extent the features display an “expected time of arrival,” these features did so only for single destinations, not for a “way point .” The district court went on to hold that the TCS/Cellco defendants did not infringe under the doctrine of equivale nts because, under V ehicle IP’s theory, such a finding would vitiate the court’s construction of “expected time of arrival .” T he district court similarly found that TeleNav/AT&T’s a ccused products did not infringe because they only dete rmined the expected travel time to a final destination. Again, under V ehicle IP’s doctrine of equivalents theory of

2 The TCS/Cellco accused systems include, inter alia

, the TCS Navigator and AtlasBook Navigator pla tform . T he TeleNav/AT&T accused sy stems include Nav igator and Track Premium.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 7

infringement, the district court determined that a finding of infringement would vitiate the court’s claim constru ction of these terms . Thus, the district court granted both motions.
On April 19, 2013, t he district court entered judgment in favor of Appellees. V ehicle IP appeals the entry of judgment, challenging the district court’s claim constru ctions and summary judgment rulings. We have jurisdi ction pu rsuant to 28 U.S.C. § 1295(a)(1).

D ISCUSSION
We review district court claim constructions de novo. Lighting Ballast Control LLC v. Philips Elec. N. Am. Corp. , 744 F.3d 1272, 1276

- 77 (Fed. Cir. 2014) (en banc)

.

a. “expected time of arrival”
The district court construed “expected time of arrival” as “time of day at which the vehicle is expected to arrive somewhere (and not remaining travel time).” In doing so, the district court determined that “expected time of arrival” was consistently used by the patentee to mean a time of day. The district court held that “expected time of arrival” could not include remaining travel time because the mobile unit must be capable of compar ing t he “e xpected time of arrival ” to an appointment time , which the

s pecification repeatedly lists in clock

- time format.

Vehicle IP argues that the district court erred in e xcluding remaining travel time from the construction of “expected time of arrival.” Vehicle IP argues that “as a matter of common sense,” if someone were to ask what time one expects to arrive, the answers “in 30 minutes” and “2:00 p.m.” would be equally acceptable

. Vehicle IP asserts that the parties’ dispute regarding “expected time of arrival” centers on the term “time,” and the colloquial meaning of “time” is broad. V ehicle IP also contends that the language surrounding the term “time” indicates it should not be limited to a particular format.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 8

Appellees respond that the parties’ dispute is not focused on the term “time,” as V ehicle IP would like this court to believe, but instead is focused on the term “e xpected time of arrival .” 3 Appellees argue that V ehicle IP disregards the framework set forth by Phillips v. AWH Corp.

, 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc), cert. denied, 546 U.S. 117 0 (2006)

, by proposing a “dictionary

definition

- first” approach. Appellees further argue that “expected time of arrival” must be construed to enable comparison to an “appointment time ,” which shows it must be in cl ock

- time format

. Appellees reason that

“ expected time of arrival” cannot include “remaining travel time.”
The district court erred in excluding remaining travel time from the construction of “expected time of arrival.” Generally, claim terms are given their ordinary and customary meaning as u nderstood by one of skill in the art at the time of the invention. Id. at 1312

- 13 (citing Vitronics Corp. v. Conceptronic, Inc. , 90 F.3d 1576, 1582 (Fed. Cir. 1996); Innova Pure Water, Inc. v. Safari Water Filtration Sys., Inc. , 381 F.3d 1111, 1116 (Fed. Cir. 2004)). There are two exceptions to this rule: (1) when a patentee sets out a definition and acts as his own lexico grapher; or (2) when the patentee disavows the full scope of the claim term either in the specification or during prosecution. Thorner v. Sony Computer Entm ’ t Am. LLC

, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Vitronics , 90 F.3d at 1580). A patentee must clearly set forth a defin ition of the dispute d claim term other than its plain and ordinary meaning to act as his own lexicographer

. Id

. (citing CCS Fitness, Inc. v. Brunswic k Corp. , 288 F.3d 1359, 1366 (Fed. Cir. 2002)). In order to disavow claim

3 The TeleNav/AT&T appellees join the arguments made by the TCS /Cellco appellees in their brief as to the proper constructions of the terms in dispute.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 9

sc o pe, the specification must make clear that the inve ntion does not include a particular feature otherwise wit hin the scope of the claim term. Id . at 1366.
As an initial matter, we decline Vehicle IP’s invitation to focus our review on the embedded term “time.” Our review focuses on the district court’s construction of “expected time of arrival

, ” and our review focuses on this
term as a whole. See IGT v. Bally Gaming Int’l, Inc.

, 659 F.3d 1109, 1117 (Fed. Cir. 2011) (“Extrac ting a single word from a claim divorced from the surrounding limit ations can lead construction astray. ”).

We conclude that t he term “expected time of arrival” is not limited to clock

- time. The term is broadly used in the claims of the ’377 patent. See, e.g. , ’377 patent col. 14 l. 62

- col. 15 l. 13 (claim 1), col. 15 ll. 18

- 23 (claim 4). For example, claim 1 requires:

1. A system for determining an expected time of arrival of a vehicle equipped with a mobile unit, comprising:

. . . the mobile unit further operable to dete rmine in response to the vehicle position the expected time of arrival of the vehicle at the destination identified by the dest ination information, the mobile unit fu rther operable to determine if the expected time of arrival differs from the corr esponding appointment time for the dest ination by more than a predetermined
amount.

Id. col. 14 l. 62

- col. 15 l. 13 (claim 1) (emphases added). Nothing in t his or any other claim of the ’377 patent limits “exp ected time of arrival” to clock

- time.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 10

T he claim provides that the mobile unit determines the “expected time of arrival” in remaining travel time based on the destination information transmitted by th e dispatch. Id. col. 14 l. 62

- col. 15 l. 13 (claim 1). The mobile unit uses factors such as average travel time

, weather conditions, and traffic information to determine the “expected time of arrival.” See, e. g. , id. col. 3 ll. 1

- 7, col. 11 ll. 6

- 12. T o do so, the mobile unit will take the
average travel time contained in the destination info rmation and modify it based on other destination info rmation, such as traffic conditions, weather, and similar information. Thus, the expected time of arrival will be calculated in remaining travel time. The expected time of arrival may be then converted to clock

- time format, but the patent does not so require

. As such, “expected time of arrival” is a broad term that can encompass remaining travel time.
Appellee s are correct that some of the disclosed e mbodiments in the written description focus on clock

- time. See, e.g

. , id. fig. 4, col. 10 ll. 28

- 41. Yet, these examples are not limiting. T he written description of the ’377 patent uses the phrase “expected time of arrival” nume rous times

, and it never indicates that the time must be in any particular format. Many portions of the written description are ambiguous as to the format of the “e xpected time of arrival .” See, e.g.

, id. co l. 1 l. 44

- col. 2 l. 1

- 33 (Summary of the Invention section describing two embodiments). More importantly

, there is no dispute that the specification does not contain an express definition of the term, and nowhere in the specification do the inve ntors dis claim remaining travel time.

We also reject Appellees’ argument that the “expected ti me of arrival” must be in clock

- time format in order for the mobile unit to compare it to an appointment time. As noted previously, t he claims focus on the calculation of “expected time of arrival” by the mobile unit, which can

use one f ormat for comput ing and another format forVEHICLE IP , LLC v. AT & T MOBILITY , LLC 11

d isplay. Indeed, t he mobile unit could be programmed to maintain the time in a ny number o f different formats. No matter the format, a simple mathematical conversion performed by the device would allow the mobile unit to perform the claimed comparison. Appellees have failed to show that the ’377 patent requires the claim term to be in clock

- time format or that a cl ear disavowal or lexic ographic choice limit s this term to clock

- time format.
The prosecution history similarly fails to disavow scope or define the term in a limited manner, as Appellees suggest. Both parties point to the same portion of the prosecution history to support their respective positions

. This section of the prosecution history provides:
Furthermore, neither Ross nor Jones di sclose, teach, or suggest a mobile unit oper able to determine if an expected time of arrival differs from a corresponding a ppointment time for a destination by more than a predetermined amount, as recited in Applicants’ Claim 1.
J.A. 3117 (emphases omitted ). Th is portion of the pros ecution history is irrelevant to the parties’ dispute regar ding remaining travel time. Indeed, the prosecution history , like the specification, is ambiguous as there is no disavowal of remaining travel time , nor is the term li mited to clock

- time format.
In sum, the intrinsic evidence fails to show that “e xpected time of arrival” is limited to a time of day. Neither the district court nor Appellees point to any express disclaimer or independent lexicography in the intrinsic record that justifies including the negative limitation “not remaining travel time” in the proper constructio n of “expected time of arrival. ” Omega Eng’g, Inc. v. Raytek Corp. , 334 F.3d 1314, 1323 (Fed. Cir. 2003) (citing CCS Fitness , 288 F.3d at 1366

- 67). Thus, the district court

erre d in reading in this limitation . W e hold that theVEHICLE IP , LLC v. AT & T MOBILITY , LLC 12

p roper construction of “expected time of arrival” is “time of day at which the vehicle is expected to arrive som ewhere.”

b. “way point(s)” The district court construed “way point(s)” as “inte rmediate point(s) on the way to the final destination (and not the f inal destination itself).” The district court dete rmined that the patentee used the term “way point(s)” only in the context of determining whether a vehicle is out of route and for more accurate calculations of actual road distance.

Vehicle IP argues t hat the district court erred because the written description makes clear that “way point (s) ” may include the final destination. Vehicle IP argues that the written description distinguishes between “intermed iate” way points and other way points. Vehicle I P also argues that the district court’s construction is wrong because it excludes the preferred embodiment described with respect to figure 1. Finally, Vehicle IP argues that the claims recite the term “way point(s) ” without any modifiers and provide that the plurality of way points is included in the “ destination information.” Thus, Vehicle IP concludes that “way point(s)” may include the destin ation.
Appellees respond that the ’377 patent’s description of figure 2 shows that “way point(s)” may not include the final destination because it distinguishes way points C and D from destination E

. Appellees also argue that the district court’s construction properly excludes the embodiment in figure 1 because this embodiment was claimed by the parent of the ’377 patent. Finally, Appe llees point to contemporaneous dictionary definitions that support their position that a “way point” cannot include the final destination.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 13

T he district court erred in excluding final destinations from its construction of “way point(s).” T he independent claims require that the destination information sent by the dispatch include “a plurality of way points” and that the mobile unit b e capable of determining an “expected time of arrival” at a “way point.” See, e.g. , ’377 patent col. 14 ll. 66

- 67 (claim 1) (“the destination information specifying a plurality of way points”), col. 17 ll. 6

- 7 (claim 32) (“The method of claim 23, further comprising the step of displaying the way points on a map.”). The claims use the term “way poin t(s)” in a broad manner.

T he written description similarly uses the term in a broad manner. First, the written description disti nguishes between “way point (s) ” and “intermediate way points.” Id. col. 9 ll. 33

- 35 (“Besides reducing out -of- route mileage, the use of intermediate way points improves the calculation of expected time of arrival.”). It provides that “way points may be used as intermediate points between the position of vehicle 40 and the destination.” ’377 patent col. 9 ll. 37

- 39. This permis sive language indicates that “way point (s) ” may be more than just intermediate points along the route.

The district court misinterpreted the written descri ption. Th e portion of the written descrip tion that describes figure 2 provides:

To alleviate this problem, destinations C and D
may be used as way points to determine whether the operator of vehicle 40 has driven out of route 52a specified in the destination information ge nerated by dispatch 20. Referring to FIG. 2, di spatch 20 generates destination information specifying that vehicle 40 is to proceed to destin ation E along route 52a, thus passing through way points C and D.

Id. col. 9 ll. 5

- 12. As Vehicle IP points out, this portion of the written description focuses on determining whether aVEHICLE IP , LLC v. AT & T MOBILITY , LLC 14

vehicle has driven outside of the intended route. Doing so requires looking to way points C and D because they are intermediate to the starting point and destination

. The fact that the specification refers to “destination E” does not change this conclusion. Th e specification uses the
term s “destination” and “way point (s) ” interchangeably. E.g.

, compare ’377 patent col. 8 ll. 28

- 33 (referring to points C and D in figure 2 as destinations), with id. col. 9 ll. 12

- 32 (referring to points C and D in figure 2 as wa y points). Nothing about this example excludes the final destination E from also being viewed as a “way point .”
The parties present competing extrinsic evidence, i ncluding an owner’s manual for one of the first Garmin GPS navigation products from 1992, a contemporaneous patent from 1992, dictionary definitions from a technical dictionary published in 1994 and a non

- technical dictio nary published in 1993 , and two websites from 1998 and 2009. We need not look at this evidence because the intrinsic evidence is clear that there was no disavowal or lexicographic choice. See Phillips , 415 F.3d at 1324 (noting extrinsic evidence is properly used in claim co nstruction unless it is used to vary the meaning of an unambiguous claim term). A s this court noted in Ph illips

, there is an “unbounded universe” of potential extrinsic evidence having differing levels of relevance

, and each party will naturally choose the pieces most favorable to its position. Id. at 1318. Here we are presented with such a situation. The extrinsic evidence conflicts as to the proper meaning and is generally of marginal relevance to the meaning of the term “way point(s)” as used in the ’377 patent in February 1995.

A s with “expected timed of arrival,” nothing in the p atent shows a disavowal of claim scope or a lexicographic decision to limit the definition of this term. For this reason, the district court erred in limiting the term “way point(s)” to intermediate destinations along a route

. W e hold that the proper construction of “way point(s)” is “ aVEHICLE IP , LLC v. AT & T MOBILITY , LLC 15

geographical point of reference or destination along a
route .”

C ONCLUSION
The district court erred in its construction of the terms “expected time of arrival” and “way point(s)

, ” and

r elying on these erroneous constructions, grant ed su mmary judgment of non

- infringement in favor of Appellees. We reverse the district court’s claim constructions, vacate the final judgment of non

- infringement

, and remand for a determination of infringement based on the proper co nstructions of these terms in the first in stance

. REVERSED

- IN

- PART, VACATED

- IN

- PART, AND REMANDED

C OSTS

No costs.N OTE : This disposition is nonprecedential. 

# United States Court of Appeals **for the Federal Circuit**

______________________

VEHICLE IP, LLC,

Plaintiff

- Appellant,

v.

AT& T MOBILITY, LLC AND TELENAV, INC., Defendants

- Appellees,

AND

CELLCO PARTNERSHIP, NETWORKS IN MOTION, INC. AND TELECOMMUNICATION SY STEMS, INC., Defendants

- Appellees.

______________________

2013

- 1380

______________________ Appeal from the United States D istrict Court for the District of Delaware in No. 09

- CV

- 1007, Judge Leonard P. Stark.

______________________

W ALLACH , Circuit Judge , dissenting

- in

- part. While the majority opinion correctly recognizes that claim terms “are generally given their ordinary and customary meaning,” Phillips v. AWH Corp. , 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc), it ignores the ord inary and customary meaning of the claim t erm “wayVEHICLE IP , LLC v. AT & T MOBILITY , LLC 2

point(s)” in U.S. Patent No. 5,987,377 (“the ’377 P atent”). For this reason

, I respectfully dissent

- in

- part.

I. As the majority opinion correctly recites, claim terms

“ are generally given their ordinary and customary mea ning . . . [which ] 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 1312

– 13 (internal citations and quotation marks omitted). The majority opinion also acknowledges the two exceptions to this rule: (1) when a patentee acts as his or her own lexicographer by articula ting a definition in the specification; or (2) when the p atentee disavows the full scope of the ordinary and customary meaning of the claim term in the specification or during patent prose cution. Thorner v. Sony Computer Entm’t Am. LLC , 669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Vitronics Corp. v. Conceptronic, Inc. , 90 F.3d 1576, 1580 (Fed. Cir. 1996) ).
The ’377 Patent discloses a system in which a remot ely

- located dispatch generates destination information for

a vehicle, while a mobile unit in the vehicle determines vehicle position and calculates an “expected time of arr ival” at a destination. ’377 Patent col. 1 ll. 52

– 65

. The ’377 Patent also describes u sing “way points” “to determine whether the operator of [a] vehicle

. . . has driven out of route” or “to more accurately calculate actual road distance

. ” I d. col. 9 ll. 6

– 8, 39. In doing so, the ’377 Patent uses the term “ way point(s)” according to its ordinary and customary meaning in the pertinent art

. That is, in navigation

, a way point, like a way station, is aVEHICLE IP , LLC v. AT & T MOBILITY , LLC 3

point on the way to a destination. 1 As the majority opi nion recognizes, “nothing in the patent shows a disavowal of claim scope or a lexicographic decision to limit the definition of this term

. ” Maj. Op. at 1 4.

C laim 1 is representa tive of how “way point(s)” is used in the ’377 Patent ’s claims : “the mobile unit further operable to determine in response to the vehicle position the expected time of arrival of the vehicle at a way point identified by the destination information

. ” ’377 Patent col. 15 ll. 7 –12. The claims also describe traveling along “a predetermined route specified by the way points,” id. col. 15 ll. 19

– 20
, col. 15 ll. 26

– 27
, col. 16 l. 3

, col. 16 ll. 9

– 10
, col. 16 ll. 53

– 54
, col. 16 ll. 60

– 61
, col. 17 ll. 58

– 59
, col. 19 ll. 22

– 23
, col. 20 ll. 49

– 50, and include systems “wher ein the way points comprise highway crossings,” id. col. 15 ll. 16

– 17
, col. 15 ll. 66

– 67
, col. 16 ll. 4 8– 49
, col. 17 ll. 36

– 37
, col. 19 ll. 5 –6, col. 20 l. 42. Besides the use of the term “way point(s)” in the claim language itself, t he only part of the specification that discusses way point(s) is in the description of Figur e 2
, reproduced below. Nowhere else are way points di scussed

.

1 Indeed, the United States Army has for decades used intermediary points between points of origin and destinations to assist with, among other things, calcula ting the distance to a final destination. See, e.g. , Depar tment of the Army, Field Manual 21

- 26: Map Reading 3 7– 41 (1956); Department of the Army, Field Manual 21

- 26: Map Reading and Land Navigation App. J (1993).VEHICLE IP , LLC v. AT & T MOBILITY , LLC 4

Id. Fig. 2. According to the specification

, Figure 2 “illustrates a system 10a for determining expected times of arrival at a plurality of destina tions. . . . In this embodiment of the present invention, the destination information generated by dispatch 20 includes several destinations and corr esponding appointment times

, ” i d. col. 8 ll. 28

– 36
, and

“ mobile unit 42 determines the expected times of arrival of vehicle 40 at destinations C, D, and E

, ” id. col. 8 ll. 43

– 45.

In the context of this embodiment , the specification describes “ [a] problem that trucking companies have often faced ,” namely, “ that operators of trucks, either inte ntionally or unintentionally, drive considerable distances from their assigned routes. Because trucking companies must pay for the additional fuel and maintenance expen ses associated with the increased mileage, these out -ofroute miles are extremely costly to trucking companies. ”VEHICLE IP , LLC v. AT & T MOBILITY , LLC 5

Id. col. 8 l. 66

– col. 9 l. 5. Subsequently , in the first i nstance where “way point(s)” i s used in the patent, the specification states : To alleviate this problem, destinations C and D may be used as way points to determine whether the operator of vehicle 40 has driven out of route 52a specified in the destination information ge nerated by dispatch 20. Referring to FIG. 2, di spatch 20 generates destination information specifying that vehicle 40 is to proceed to destin ation E along route 52a, thus passing through way points C and D . Mobile unit 42 may be configured to update dispatch 20 when vehicle 40 has reached a way point. In this way, dispatch 20 may be notified that vehicle 40 is still in route.

Id. col. 9 ll

. 5– 14 (emphas e s added)

. In addition, s till in the context of the embodiment in Figure 2, the patent describes an alternate use of “way point(s)”:
Besides reducing out -of- route mileage, the use of intermediate way points improves the calculation of exp ected time of arrival. Specifically, the actual distance between the position of the vehicle 40 and the destination may not be the road distance. Way points may be used as intermediate points b etween the position of the vehicle 40 and the dest ination in order to more accurately calculate actual road distance.

Id. col. 9 ll. 33

– 39 (emphasis added).
Relying on this written description, t he district court construed “way point(s)” as “intermediate point(s) on the way to the final destination (and not the fina l destination itself).” Vehicle IP, LLC v. AT&T Mobility, LLC , No. 09

- 1007

- LPS, at 9 (D. Del. Dec. 12, 2011) (J.A. 1452

– 66) (“Cl. Const. Op.”). T he district court found support for its construction in “the language of the patent ,” which “ e x-VEHICLE IP , LLC v. AT & T MOBILITY , LLC 6

cludes a final destination from the definition of a way point” because “in a multiple

- destination route (having destinations C, D, and E ) . . . the patent distinguishes between intermediate destinations C and D that can be used as ‘way points’ on the route and destinati on E.” Id

. (citing ’377 Patent col. 9 ll. 6

– 8). As the district court points out, “ [a] vehicle that has reached the final destin ation is not ‘in route.’” Id. This construction reflects the ordinary and customary meaning of the term in the art.

II

. Nonetheless, w hile correctly articulating the gover ning law, the m ajority deviates from the ordinary and customary meaning of “way point(s)

, ” despite the absence of a lexicography or disavowal of claim scope

. Specifically

, the majority opinion points to t he patent’s use of the term “way point(s)” in a “broad manner,” Maj. Op. at 1 3
, to support its conclusion s that “[t]he district court erred in excluding final destinations from its construction of ‘ way point(s) ’” and “erred in limiting the term ‘ way point(s) ’ to intermediate destinations along a route ,” id. at 13, 1 4.
In support

, t he majority opinion points to the claim language and to the written description, which it states both use “way point(s)” “ in a broad manner.” Id

. at 1 3

. In particular, the majority points to language that disti nguishes between “way point(s)” and “intermediate way points

, ” and language that “provides that ‘ way points may be used as intermediate points between the position of vehicle 40 and the destination. ’ ” Id

. (quoting ’3 77 P atent col. 9 ll. 3 3– 39). The majority then inexplicably concludes that “[t] his permissive language indicates that ‘ way point(s) ’ may be more than just intermediate points along the route.” Id

. In so stating, the majority uses “permissive language” to broaden the term beyond its ordinary and customary meaning in the art as a point on the way to a destination

. While it is not appropriate to restrict the meaning of aVEHICLE IP , LLC v. AT & T MOBILITY , LLC 7

claim term to something less t han its ordinary meaning absent explicit lexicography or clear disavowal, Retractable Techs., Inc. v. Becton, Dickinson & Co. , 653 F.3d 1296, 1305 (Fed. Cir. 2011), it is equally inappropriate to e xpand the scope of a claim term beyond such a meaning. The majority does just that in holding “that the proper construction of ‘ way point(s) ’ is ‘ a geographical point of reference or destination along a route. ’” Maj. Op. at 14

– 15 (emphasis added). D efining “ way point (s)” as including final destination s is not part of the term’s ordinary and customary meaning, and i s unworkable in the context of navigation

, as explained below.

III

. The majority also finds support for its unusual co nst ru ction of “way point(s)” in the specification’s descri ption of Figure 2

, which it claims supports the notion that a final destination may also be used as a way point. See ’ 377 Patent col. 9 ll. 5

– 12. The majority states “ this portion of the written description focuses on determining whether a vehicle has drive n outside of the intended route,” and “[d] oing so requires looking to way points C and D because they are intermediate to the starting point and destination. . . . Nothing about this example excludes the final destination E from also being viewed as a ‘ way point. ’ ” Maj. Op. at 13–14. However, the majority ove rlooks the fact that point E cannot be used as a way point

, either “to determine whether the operator of [a] veh icle .

. . has driven out of route” as in this portion of the specification, or “to more accurately calculate road di stance,” ’377 Patent col. 9 ll. 6

– 8, l. 39. It is unclear why point E, which the patent characterizes as “destination E, ” would be considered a way point, in conflict with the ordinary and customary meaning of “way point(s) ,” when it cannot fulfill the func tion of that claim term.

In contrast to the majority’s view , the portion of the specification it quotes does not demonstrate that “wayVEHICLE IP , LLC v. AT & T MOBILITY , LLC 8

point(s)” i nclude s a final destination. Describing Figure 2, the specification states “dispatch 2 0 generates destin ation information specifying that vehicle 40 is to proceed to destination E along route 52a, thus passing through way points C and D.” Id. col. 9 ll. 9

– 12. This statement, describing “way points” as intermediate points on the way to the destination , comports with the ordinary and cu stomary meaning of term and does not evince a clear lexicography or disavowal of claim scope.
This conclusion is also made clear by the specific ation’s description of “way point(s)” as points on the way to a destination

. Id. col. 9 ll. 3 7– 39 (“Way points may be used as intermediate points between the position of vehicle 40 and the destination in order to more accurately calcu late actual road distance.”). Further more , the spec ification does n ot use the words “destination” and “way point” synonymously. In addressing multiple -destination routes, the specification refers to points C and D as dest inations, id. col. 8 ll. 28

– 65, while the part describing the use of way points distinguishes between a way point and a destination: “vehicle 40 is to proceed to destination E along route 52a, thus passing through way points C and D,” id. col. 9 ll. 10 –12 (emphas e s added)

. The written description does not lend support to a construction that would alter the ordinary and customary meaning of “way point(s).”

IV

. Finally, in regard to the single

- destination embod iment of Figure 1 of the ’377 Patent, a s the district court noted

, the ’377 Patent issued as a continuation of U.S. Patent No. 5,724,243 (“the ’243 Patent.”). The claims of the ’243 Patent were each directed to determining the “expected time of arrival ” at “the destination,” e.g. , ’243 Patent col . 15 ll. 10– 11
, while the claims of the ’ 377 P atent each determine the “expected time of arrival” at a “wa y point ,” e.g. , ’377 Patent col. 1 5 ll. 10

– 11 ; see Cl.VEHICLE IP , LLC v. AT & T MOBILITY , LLC 9

Const. Op. at 10 ( “ [T] he ’ 377 patent claims are directed at determining expected time of arrival at a way point, while its parent patent ’ 243 claims are directed at calculating ‘the expected time of ar rival of the vehicle at the destin ation.’” ). Thus, the district court concluded that since the ’ 243 P arent P atent already covers the single

destination embodiment , it was unremarkable that the ’ 377 Patent does not. Indeed, it is unclear how this embodiment fulfills the “ plurality of way points” requir ement of each independent claim of the ’377 Patent. Even if the destination were considered a way point, in order to
meet the claim limitations , the point of origin would also have to be considered a way point. Such a construction is not part of the term’s ordinary and customary meaning as understood by a skilled artisan ; it is simply bizarre in the context of navigation.

Nonetheless

, th at the patentee included the Fi gure 1 embodiment does not serve as evidence that the patentee “‘clearly set forth a definition of the disputed claim term’ other than its plain and ordinary meaning.” Thorner , 669 F.3d at 1365 (quoting CCS Fitness, Inc. v. Brunswick Corp.

, 288 F.3d 1359, 1366 (Fed. Cir. 2002)); see also id. (“It is not enough for a patentee to simply disclose a single embodiment or use a word in the same manner in all embodiments, the patentee must ‘clearly express an intent’ to redefine the term.” (quoting Helmsderfer v. Bobrick Washroom Equip., Inc. , 5 27 F.3d 1379, 1381 (Fed. Cir. 2008))). Nor does t he inclusion of the single

destination embodiment “‘demonstrate [an] intent to deviate from the ordinary and accustomed meaning of [way point (s) ] . . . by . . . representing a clear disavowal of claim scope .’ ” Id. at 1366 (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002)).

V.

In the absence of express lexicography or clear dis avowal, “way point(s)” should be given its ordinary andVEHICLE IP , LLC v. AT & T MOBILITY , LLC 10

customary meaning in the art . Because the majority fails to do so , but rather broadens the scope of the term beyond its ordinary and customary meaning, I respectfully di ssent.