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

______________________
INTERVAL LICENSING L LC, Plaintiff

- Appellant,

v.

AOL, INC., Defendant

- Appellee,

AND

APPLE, INC., Defendant

- Appellee,

AND

GOOGLE, INC., Defendant

- Appellee,

AND

YAHOO! INC., Defendant

- Appellee.

______________________

2013

- 1282,

- 1283,

- 1284,

- 1285

______________________ Appeals from the United States District Court for the Western District of Wash ington in No s

. 13

- CV

- 0263, 13

- CV

- 0264, 13

- CV

- 0265 and 13

- CV

- 0266, Judge Marsha J. Pechman.

______________________INTERVAL LICENSING L LC v. AOL , INC

. 2

Decided: September 10, 2014

______________________

T HOMAS C. G OLDSTEIN , Goldstein & Russell, PC, of Washington, DC, argued for p laintiff

- appellant. Of cou nsel on the brief were M ICHAEL H EIM , N ATHAN J. D AVIS , and D OUGLAS R. W ILSON , Heim, Payne & Chorush LLP, of Houston, Texas; J USTIN A. N ELSON , Susman Godfrey L.L.P., of Seattle, Washington, and M AX L. T RIBBLE , J R

. , of Houston, Texas.

J. M ICHAEL J AKES , Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for all defendants

- appellees. With him on the brief were G ERALD F. I VEY , C ORTNEY S. A LEXANDER , R OBERT L. B URNS , II, and E RIK R. P UKNY S , for AOL Inc.; E LIZABETH D AY , D AVID A LBERTI , and M ARC C. B ELLOLI , Feinberg Day Alberti & Thompson LLP, of Menlo Park, California, and B RIAN B ERLINER , O’Melveny & Myers, LLP, of Los Ang eles, California, for Apple Inc.; W ARREN S. H EIT , C ARMEN L O , and W ENDI R. S CHEPLER , White & Case LLP, of Palo Alto, California, and K EVIN M C G ANN and D IMITRIOS T. D RIVAS , of New York, New York, for Google Inc.; and D EANNE M AYNARD , Morrison & Foerster LLP, of Washin gton, DC

, and M ICHAEL A. J ACOBS and M ATTHEW I. K REEGER , of San Francisco, California, for Yahoo! Inc.

______________________
Before T ARANTO and C HEN , Circuit Judges

. ∗

∗ Randall R. Rader, who retired from the position of Circuit Judge on June 30, 2014, did not participate in this decision.INTERVAL LICENSING L LC v. AOL , INC

. 3

C HEN , Circuit Judge.
Interval Licensing LLC (“Interval”) appeals from four stipulated final judgment orders of the United States District Court for the Western District of Washington

. 1 Each order granted : (1) final judgment of invalidity of claims 4– 8, 11, 34, and 35 of U.S. Patent 6,034,652 (“the ’652 patent”) and claims 1– 4 and 7

– 15 of U.S. Patent 6,788,314 (“the ’314 patent”)

, based on the court’s dete rmination that those claims are indefinite ; and (2) final judgment of non

- infringement of claims 15

– 18 of the ’652 patent, based on the court’s claim construction of the phrase “ during operation of an attention manager .” While

we agree with the court’s indefiniteness determination, we do not agree with the court’s construction of “attention manager” and thus modify that construction. Additiona lly, we modify the court’s construction of the term “instru ctions.” For the reasons set forth below , we affirm the judgments of invalidity, vacate the judgment s of non

infringement, and remand for further pro ceedings.

B ACKGROUND
The ’ 652 and ’ 314 patents are directed to an “attention manager for occupying the peripheral attention of a

person in the vicinity of a display device.” The patents, which share a common specif ication, describe a system that acquires data from a content provider

, schedules the display of the content data, generates images from the content data, and then displays the images on a device.

1 Interval sued the four appellees for infringement in the district court. Due to complicated procedural reasons not relevant here, the court severed all of the cla ims and counterclaims into four cases, issuing separate final judgment orders of invalidity and non

- infringement for each case. Interval appealed each order, and the four appeals were consolidated into the present appeal.INTERVAL LICENSING L LC v. AOL , INC

. 4

The patents explain that the term “image” is used “broa dly here to mean any sensory stimulus that is produced from the set of content data, including, for example, visual imagery (e.g., moving or still pictures, text, or numerical info rmation) and audio imagery (i.e., sounds).” ’652 patent, 6:60

– 64. The content data presented in the ima ges are “ virtually limitless,” and may include advertis ements, video nature scenes, and radio talk shows. Id. at 7:26

– 38. As for the users of the attention manager, the patents contemplate that the system will typically occupy the attention of human user s, but may also be used to occupy the attention of dogs, cats, and parrots. See i d. at 29:32

– 40. The primary issues raised on appeal center on the manner in which the patented invention displays
content data

— specifically, how the attention manager displays “ images ” so as to attract the peripheral attention of the user

. To engage the “peripheral attention” of a user in “the vi cinity of a display device,” t he attention manager “[g]enerally

. . . makes use of ‘unused capacity’ of the display device.” Id. at 2: 3–9

. The specification discloses two primary approaches to utilizing “ unused capacity. ” First, the specification describes a “screen saver embod iment” that displays images “automatically af ter detection of an idle period ” or after activation of the screen saver by the user. Id. at 3 :19

– 22 , 9:24

– 36

. The patents use screen

savers

— typically used for preventing screen burnout and for “aesthetic or entertainment value”

— for the purpose of “display[ing] content from a remote location via a compu ter network.” Id. at 1:39

– 67. The screen saver embod iment may be employed “while a primary interactio n is ongoing, but during inactive periods (i.e., when the user is not engaged in an intensive interaction with the app aratus).” Id. at 6:35

– 38.
Second, the specification describes a wallpaper e mbodi ment . “Wallpaper,” the specification explains, is “a

p attern generated in the background portions on a co m-INTERVAL LICENSING L LC v. AOL , INC

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puter display screen.” Id. at 1:51

– 52. The patents’ “wal lpaper embodiment” displays images “while the user is engaged in a primary interaction with the apparatus, which primary interaction can result in the display of an image or images in addition to the image or images ge nerated from the set of content data. ” Id. at 3: 25

– 31 . The wallpaper embodiment makes use of the “ unused ” spatial capacity of a screen , displaying information in areas not used by the user’s primary interaction. Id. at 6:38

– 51. On August 27, 2010, Interval sued AOL Inc., Apple Inc., Google Inc., and Yahoo ! Inc. (the “Defendants”) in the Western District of Washington, alleging infringeme nt of four patents, including the ’652 and ’314 patents. Inte rval’s suit alleged that the Defendants infringe the patents through products and software that use “pop

- up” notific ations to present information to users. In early 2011, two of the D efendants filed a request for ex parte reexamin ation of the ’652 patent, while another defendant filed a request for inter partes reexamination of the ’314 patent. The district court stayed the litigation pending the USPTO’s reexaminatio ns

. Examiners found the ass erted claims of both patents to be patentable in view of the cited prior art

. 2 The district court then lifted the stay with respect to the ’652 and ’314 patents, proceeding to claim constructio n. Of the twenty

- five claims Interval asserted in the ’652 and ’314 patents

, all but four contain or depend on the

2 After the present appeal was a rgued, the Patent Trial and Appeal Board reversed the examiner’s decision of the inter partes reexamination of the ’314 patent. The Board rejected all of the asserted claims of the ’314 patent as obvious, anticipated, or both. See Apple, Inc. v. Inte rval Licensing LLC , No. 2013

- 005424, 2014 WL 1322685, at *16 (Patent Tr. & App. Bd. Apr. 1, 2014). Interval has indicated that it intends to appeal the Board’s decision.INTERVAL LICENSING L LC v. AOL , INC

. 6

phrase “in an unobtrusive manner that does not distract a

user .” Claim 1 of the ’ 314 patent is representative:
A method for engaging the peripheral attention of a person in the vicinity of a display dev ice, comprising the steps of:
providing one or more sets of content data to a content display system associated with the display device and located entirely in the same physical location as the display device;
providing to the content display system a set of instructions for enabling the content display system to selectively display, in an uno btrusive manner that does not distract a user of the display device or an app aratus associated with the display device from a primary interaction with the display device or apparatus

, an image or images generated from a set of co ntent data ; and
auditing the display of sets of content data by the content display system;

wherein the one or more sets of content data are selected from a plurality of sets of co ntent data, each set being provided by an a ssociated content provider, wherein each associated content provider is located in a different physical location than at least one other content provider and each content pr ovider provides its content data to the content disp lay system independently of each other content provider and without the content d ata being aggregated at a common physical l ocation remote from the content display system prior to being provided to the content display system, and wherein for each set theINTERVAL LICENSING L LC v. AOL , INC

. 7

r espective content provider may provide scheduling instructions tailored to the set of content data to control at least one of the d uration, sequencing, and timing of the display of said image or images generated from the set of content data.

’ 314 patent, 2 9:53

– 30:18 (emphasis added).
Although all of the asserted claims in the ’314 patent depend on the “unobtrusive manner” language, four of the asserted claims in the ’ 652 patent d o not. Representative

c laim 15 recites : A computer readable medium encoded with one or more computer programs for enabling acquis ition of a set of content data and display of an image or images generated from the set of co ntent data on a display device during oper ation of an attention manager , comprising:
acquisition instructions for enabling acquisition of a set of content data from a specified i nformation source;

user interface installation instructions for en abling provision of a user interface that allows a person to request the set of content data from the specified informati on source; content data scheduling instructions for provi ding temporal constraints on the display of the image or images generated from the set of content data, wherein the content data scheduling instructions further comprise s equencing instructions that specify an order in which the images generated from a set of content data are displayed; andINTERVAL LICENSING L LC v. AOL , INC

. 8

display instructions for enabling display of the image or images generated from the set of content data.

’ 652 patent, 32 : 37

– 58 (emphasis added).

In its claim construction order, the district court found that “the terms ‘in an unobtrusive manner’ and ‘does not distract’ a user, whether used together or sep arately,” 3 are indefinite

. Interval Licensing, LLC v. AOL, Inc. , C10

- 1385MJP, 2013 WL 792791, at *3 (W.D. Wash. Feb. 28, 2013). After reviewing the claim language , the written description, and the prosecution history, t he district court offered two primary rea sons for h olding the claim language indefinite : (1) “because the patents fail to provide an objective standard by which to define the scope of [the ‘unobtrusive manner’ phrase ] ”; and (2) “because the determination of whether an accused product would meet the claim limitations depends on its usage in chan gin g circumstances. ” Id. at *5.
The district court also construed several disputed claim terms. Relevant here , the court construed the term “attention manager” as limited to the specific screensaver and wallpaper embodiments. See i d. at * 10

– 11 (adopting De fendants’ construction of “ a system that displays ima ges to a user either when the program detects that the user is not engaged in a primary interaction or as a bac kground of the computer screen”). The court also a dopted

3 As Interval observes, much of the district court’s indefinite ness analysis treats “unobtrusive manner” and “does not distract a user” as distinct claim limitations. Interval argues that “[b]ecause the phrase is used as a whole repeatedly throughout the specification and claims

. . . all of the words of the phrase shoul d be co nstrued together.” Appellant’s Br. 28 n.5. We agree and evaluate the phrase accordingly in this opinion.INTERVAL LICENSING L LC v. AOL , INC

. 9

the Defendants’ construction of “i nstructions,” a term which appears in many of the asserted claims

. See id. at *15– 16 ( construing “instructions” as “a statement in a programming language that specifies a function to be performed by a sys tem”).
Based on the claim construction order, the parties stipulated that twenty

- one claims in both patent s were invalid as indefinite, and that claims 15

– 18 of the ’ 652 patent were not infringed by the D efendants. On Febr uary 18, 2013, the district court issued final judgment order s to th at effect, which Interval timely appeals. Interval asks us to reverse the district court’s holding that the claim phrase “in an unobtrusive manner that does not distract a user” is indefinite

, 4 vacate the court’s constru ction of “attention manager,” and cla rify the court’s co nstruction of “instructions.”

4 The district court separately addressed indepen dent claim 4 of the ’652 patent, which uses the “unobtr usive manner” phrase in a means

- plus

- function limitation. See ’652 patent, 30:29

– 33 (claiming a “means for selectiv ely displaying on the display device, in an unobtrusive manner that does not distract a user”). The court held that claim 4 and its dependen t claims were indefinite because the specification does not disclose an algorithm that would constitute sufficient structure for accomplis hing the recited function

. Interval , 2013 WL 792791, at *9. Interval asks us to reverse that holding. However, b eca use we affirm the district court’s determinatio n that the “in an unobtrusive manner that does not distract a user” phrase is indefinite under 35 U.S.C. § 112, ¶ 2 for the reasons stated in this opinion, we find it unnecessary to address the district court’ s additional determination that the means

- plus

- function claims are indefinite due to a lack of corresponding structure in the specification.INTERVAL LICENSING L LC v. AOL , INC

. 10

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1).

D ISCUSSION

I. Indefiniteness
A patent must “c onclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as [the] invention.” 35 U.S.C. § 112, ¶ 2 (2006). 5 A claim fails to satisfy this statutory requirement and is thus invalid for indefinit eness if its language, when read in light of the specification and the prosecution history, “ fail [s] to inform, with re asonable certainty, those skilled in the art about the scope of the invention. ” Nautilus, Inc. v. Biosig Instruments, Inc. , 134 S. Ct. 2120, 2124 (2014)

. We review the district court’ s indefiniteness determination here de novo

. See Wellman, Inc. v. Eastman Chem. Co. , 642 F.3d 1355, 136 5 (Fed. Cir. 2011) ; Young v. Lumenis, Inc. , 492 F.3d 1336, 1344 (Fed. Cir. 2007). 6

5 Paragraph 2 of 35 U.S.C. § 112 was replaced with newly designated § 112(b) when § 4(c) of the America Inven ts Act (“AIA”), Pub. L. No. 112

- 29, took effect on September 16, 2012. Because the applications resulting in the patents at issue in this case were filed before that date, we will refer to the pre

- AIA version of § 112.

6 We note that the district court’s indefi niteness d etermination rests only on intrinsic evidence, and that there are no disputes about underlying questions of fact. Although the Defendants point to the testimony of Inte rval’s expert in support of their argument that the “uno btrusive manner” phra se is indefinite, see Appellee’s Br. 32, we find it unnecessary to rely on that testimony (or any other extrinsic evidence) to reach our conclusion. Like the district court, we find the claims indefinite based on theINTERVAL LICENSING L LC v. AOL , INC

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A
After the present appeal was argued, the Supreme Court issued its opinion in Nautilus, Inc. v. Biosig Instruments, Inc.

, which addressed our use of the expre ssions “ insolubly ambiguous” and “amenable to
constru c tion” in applying § 112, ¶ 2

. The Court explained that the statute’s definiteness requirement calls for a

“ delicate balance. ” Nautilus

, 134 S. Ct. at 2128 (quoting Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. , 535 U.S. 722, 731 (2002) ). The definiteness standard

“ must allow for a modicum of uncertainty ” to provide incentives for innovation, but must also require “ clear notice of what is claimed, thereby appris[ing] the public of what is still open to them.” Id. at 1228 , 12 29 (internal citations omi t ted). In light of that balance, the Court characterized our “insolubly ambiguous” and “amenable to construction” expressions as “ more amorphous than the statutory definiteness requirement allows. ” Id. at 21 31. What the statute requires, the Court clarified, “is that a patent ’ s claims, viewed in light of the specification and prosecution history, inform those skilled in the art about th e scope of the invention with reasonable certainty.” Id. at 2129. The key claim language at issue in this appeal i ncludes a term of degree (“unobtrusive manner”). We do not understand the Supreme Court to have implied in Nautilus , and we do not hold today, that terms of degree are inherently indefinite. Claim language employing terms of degree has long been found definite where it provided enough certainty to one of skil l in the art when read in the context of the invention. See

, e.g. , Eibel Pr ocess Co. v. Minnesota & Ontario Paper Co. , 261 U.S. 45, 65

– 66 (1923) (finding “substantial pitch” sufficiently

claims, the written description, and the prosecution history.INTERVAL LICENSING L LC v. AOL , INC

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definite because one skilled in the art “had no difficu lty

. . . in determining what was the substantial pitch needed” to practice the invention). As the Supreme Court recognized in Nautilus , “absolute precision” in claim language is “unattainable.” 134 S. Ct. at 2129; see also Enzo Biochem, Inc. v. Applera Corp. , 599 F.3d 1325, 1335 (Fed. Cir. 2010) (holding that the claim phrase “not inte rfering substa ntially” was not indefinite even though the construction “ define[d] the term without reference to a precise numerical measure ment”); Invitrogen Corp. v. Biocrest Mfg., L.P. , 424 F.3d 1374, 1384 (Fed. Cir. 20 05) (“ [A] patentee need not define his invention with math ematical precision in order to comply with the definiteness requirement.”).
Although absolute or mathematical precision is not required, it is not enough, as some of the language in our prior cases may have suggested, to identify “ some stan dard fo r measuring the scope of the phrase.” See Appe llant’s Br. 31 (quoting Datamize, LLC v. Plumtree Software, Inc. , 417 F.3d 1342, 1351 (Fed. Cir. 2005) ). The Supreme Court explained that a patent does not satisfy the definitene ss requirement of § 112 merely because “a court can ascribe some meaning to a patent’s claims.” Nautilus , 134 S. Ct. at 2130. The claims, when read in light of the specification and the prosecution history, must provide objective boundaries for those of skill in the art. See id. at 2130 & n.8 ( indicating that there is an indefiniteness problem if the claim language “might mean several different things and ‘no informed and confident choice is available among the contending definitions’” ( quoting Every Penny Counts, Inc. v. Wells Fargo Bank, N.A. , __ F. Supp. 2d __, 2014 WL 869092, a t *4 (M.D. Fla. Mar. 5, 2014)); see also Halliburton Energy Servs., Inc. v. M- I LLC

, 514 F.3d 1244, 1251 (Fed. Cir. 2008) (“ The fact that [the patent holder] can articulate a definition su pported by the specification

. . . does not end the inquiry. Even if a claim term ’ s definition can be reduced to words,INTERVAL LICENSING L LC v. AOL , INC

. 13

the claim is still indefinite if a person of ordinary skill in the art cannot translate the definition into me aningfully precise claim scope.”).

B

The patents’ “unobtrusive manner” phrase is highly subjective and, on its face, provides little guidance to one of skill in the art. Although the patented invention is a system that displays content, the claim language offers no objective indication of the m anner in which content ima ges are to be displayed to the user. As the district court observed, “ whether something distracts a user from his primary interaction depends on the preferences of the particular user and the circumstances under which any single user interacts with the display. ” Interval , 2013 WL 792791, at * 4. The lack of objective boundaries in the claim language is particularly troubling in light of the patents’ command to read “the term ‘image’

. . . broa dly to mean any sensory stimulus that is produced from the set of content data,” including sounds and video. ’652 patent, 6:60

– 64. The patents contemplate a variety of stimuli that could impact different users in different ways. As we have explained, a term of degree fails to provide suffi cient notice of its scope if it depends “on the unpredictable vagaries of any one per son’ s opinion.” Datamize, 417 F.3d at 1350

. Whe re, as here, we are faced with a “purely subje ctive ” claim phrase, we must look to the written descri ption for guidance. Id. at 1351; see also Chimie v. PPG Indus., Inc. , 402 F.3d 1371, 1377 (Fed. Cir. 2005)

. We find, however, that sufficient guidance is lacking in the written description of the asserted patents.

i

Interval contends that the “unobtrusive manner” phrase is s ufficiently defined through its relationship to one of the two primary embodiments

. T he phrase , Inte r-INTERVAL LICENSING L LC v. AOL , INC

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val maintains, is tied exclusively to the wallpaper embo diment, thus informing those of skill in the art that “uno btrusive” has only a spatial meaning in the context of the patents. “Because the district court failed to apprec iate that the language describing display ‘in an unobtr u sive manner that does not distract a user’ is tied to specific type of display described in the specification,” Interval
argues , the district court “improperly divorced its analysis from the context of the written de scription and incorrectly focused on irrelevant hypotheticals . . . .” Appellant’s Br. 23. We do not agree with Interval that it is reasonably clear that the “unobtrusive manner” lan guage is tied to a specific type of display. Although Interval identifies portions of the specification that appear to use the “uno btrusive manner” phrase in conjunction with the wallpaper embodiment, see ’652 patent, 2:12

– 19, 13:1 1– 14, other portions of the specification suggest that the phrase may also be tied to the screen saver embodiment

. According to one aspect of the invention, an atte ntion manager engages the peripheral attention of a person in the vicinity of a display devi ce of an apparatus by acquiring one or more sets of co ntent data from a content providing system and s electively displaying on the display device, in an unobtrusive manner that does not distract a user of the apparatus from a primary inte raction with the a pparatus , an image or images generated from the set of content data. Accor ding to a further aspect of the invention, the selective display of the image or images b egins automatically after detection of an idle period of predetermined duration (the

“ screen saver embodiment ”)

. This aspect can be implemented, for example, using the screen saver API (application program interface) that is part of many operating systems. According toINTERVAL LICENSING L LC v. AOL , INC

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another further aspect of the invention, the selective display of an image o r images o ccurs while the user is engaged in a primary interaction with the apparatus, which pr imary interaction can result in the display of an image or images in addition to the image or images generated from the set of content data (the “ wallpaper embod iment ” ).

Id. at 3:11

– 31 ( emphases added)

. The specification here suggests that possibly both the screen saver and wallpaper embodiments are “fu r ther aspects” of an attention manager that displays content “in an unobtrusive manner that does not distract a user of the apparatus from a primary interaction with the app aratus.” Although Interval disputes this reading

, we find that the specification is at best muddled, leaving one unsure of whether the “unobtrusive manner ” phrase has temporal dimensions as well as spatial dimensions. The hazy relationship between the claims and the written description fails to provide the clarity that the subjective claim language needs

. See Datamize, 417 F.3d at 1352 (holding claim term “aesthetically pleasing” indefi nite because, even though the preferred embodiment provided “examples of aesthetic features of screen displays that can be controlled by the authoring system,” the specification did not indicate “what selection of these features would be ‘aesthetically ple asing’”); In re Hammack , 427 F.2d 1378, 1381

– 82 (C.C.P.A. 1970) (finding claims invalid for inde finiteness where claims “serv[ed] as a shadowy framework upon which are located words lacking in precise referents in the specification ” (internal quotations om itted) ).
The prosecution history further illustrates the difficulty in pinning down the relationship between the wri tten description and the “in an unobtrusive manner that does not distract the user” claim phrase

. The statements of Interval

, and the respo nses of the US PTO, reflectINTERVAL LICENSING L LC v. AOL , INC

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considerable uncertainty about which embodiments were tied to the “unobtrusive manner” language. During prosecution in 1998, Interval relied on a different reading than the one it offers now, stat ing that “[t]he display of images in an unobtrusive manner in a system a s recited in Claim 1 can be implemented by, for example, displa ying images during an inactive period (e.g., when the user has not interacted with the apparatus for a predete rmined period of time) of a primary interaction with the apparatus (the ‘screensaver embodiment’).” J.A. 985. Interval points out, however, that the examiner appeared not to share Interval’s initial understanding : l ater in the prosecution, the examiner discussed the “unobtrusive manner” limitation in conjunction with the wallpaper embodiment but not the screen saver embodiment. J.A. 1073.

The US PTO expressed a similar understanding du ring reexaminations of the ’ 652 and ’314 patent s , with examiners finding that the specification links the “uno btrusive manner” language to the wallpaper embod iment, excluding the screensaver embodiment. See J.A. 1090

– 91
, 1311

. But in a recent decision addressing the scope and validity of the ’314 patent , the Patent Trial and Appeal Bo ard disagreed with the examiner. Apple, Inc. v. Inte rval Licensing LLC , No. 2013

- 005424, 2014 WL 1322685 (Patent Tr. & App. Bd. Apr. 1, 2014). 7 The Board co n7 The Board’s decision was a response to an appeal from an inter partes reexamination. Per 37 C.F.R. § 1. 906 , the Board was limited to the question of whether the challenged claims should be rejected on the basis of prior art patents or printed publications. Neither the examiner nor the Board could address claim definiteness. The claims were given “ their broadest reasonable co nstruc tion” during reexamination. In re Am. Acad. Of Sci. Tech Ctr. , 367 F.3d 1359, 1364 (Fed. Cir. 2004)

.INTERVAL LICENSING L LC v. AOL , INC

. 17

cluded that, in light of “the ambiguous nature” of the specification, “the claim term ‘unobtrusive manner’ i ncludes the screensaver embodiment.” Id. at *7. 8 After reviewing the specification and prosecution hi story, we find that the “un obtrusive manner” phrase has too uncertain a relationship to the patents’ embodiments. Contrary to Interval’s suggestion, the wallpaper embod iment does not provide a reasonably clear and exclusive definition, leaving the facially subjective claim language without an objective boundary.

ii In the alternative, Interval suggests that if we are not persuaded that th e wall paper embodiment defines the “unobtrusive manner” phrase , then we must at least adopt a “narrow example” from the specification. That example lies in the Summary of the Invention, which explains that information can be presented “in an uno btrusive m anner that does not distract the user from the primary interaction with the apparatus ( e.g ., the info rmation is presented in areas of a display screen that are not used by displayed information associated with the primary interaction with the apparatus ).” ’652 patent, 2:15

– 19 (emphasis added).
We recognize that a patent which defines a claim phrase through examples may satisfy the definiteness requirement. See , e.g., Enzo Biochem

, 599 F.3d at 1336

8 At the hearing before the Board, counsel for I nterval acknowledged the lack of clarity in column 3 of the specification: “I would say in this summary location within the specification [the drafters] were a little bit less precise, a little bit sloppy h ere

. . . it might seem less precise or even possibly contradictory.

. . . My point is simply that at best it’s ambiguous.” Id. at *6 (internal citations omitted).INTERVAL LICENSING L LC v. AOL , INC

. 18

(holding that “not interfering substantially” is sufficien tly definite because one of skill in the art could use “the examples in the specification to determine whether inte rference with hybridization is substantial”). In this case, however, we decline to cull out a single “e.g.” phrase from a lengthy written de scription to serve as the exclusive definition of a facially subjective claim term. See Naut ilus , 134 S. Ct. at 2130 (disfavoring “post hoc” efforts to “ascribe some meaning to a patent’s claims”).

Had the phrase been cast as a definition instead of as an example

— if the phrase had been preceded by “i.e.” instead of “e.g.”

— then it would help provide the clarity that the specification lacks. But as the specification is written, we agree with the district court that a person of ordinary skill in the art would not understand the “e.g.” phrase to constitute an exclusive definition of “unobtr usive manner that does not distract a user.” See Interval

, 2013 WL 792791, at * 4. With this lone example, a skilled artis an is still left to wonder what other forms of display are unobtrusive and non

- distracting. What if a displayed image takes up 20% of the screen space occupied by the primary application with which the user is interacting? Is the image unobtrusive? The specification offers no indic ation

, thus leaving the skilled artisan to consult the “ u npredictable vagaries of any one person’s opinion .” See Datamize , 417 F.3d at 1350. Such ambiguity falls within “the innovation

- discouraging ‘zone of uncertainty’ agai nst which [the Supreme Court] has warned.” Nautilus , 134 S. Ct. at 2130 (internal citation omitted).
In sum, the “unobtrusive manner that does not di stract a user” phrase, when viewed in light of the specific ation and prosecution history, fails to “ inform those skilled in the art about the scope of the invention with reason able certainty. ” See id

. at 2129 . The claims that depend on th at phrase are thus invalid for indefinite ness.INTERVAL LICENSING L LC v. AOL , INC

. 19

II. Claim Construction

We review claim construction de novo

. Lighting Ba llast Control LLC v. Philips Elecs. N. Am. Corp.

, 744 F.3d 1272, 1276

– 77 (Fed. Cir. 2014) (en banc) ; Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1451 (Fed. Cir. 1998) (en banc). The words of a claim “ are generally given their ordinary and customary me aning, ” 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 .” Phillips v. AWH Corp. , 415 F.3d 1303, 1312

– 13 (Fed. Cir. 2005) (en banc) (internal citations omitted). Claim langua ge must be viewed in light of the specification, which is “ the single best guide to the meaning of a disput ed term.” Id.
at 1315 (quoting Vitronics Corp. v. Conceptronic

, Inc. , 90 F.3d 1576, 1582 (Fed. Cir. 1996)). In addition to consul ting the specification, we may also consider the prosec ution history and any relevant extrinsic evidence. Id. at 1315

– 17.

A. Construction of “Attention Manager”
As discussed in the Background, supra , the phrase “attention manager” appears in claims 15

– 18 of the ’ 65 2 patent. In its claim construction order

, the district court adopted the Defendants ’ proposed construction: “ a system that displays images to a user either when the program detects that the user is not engaged in a primary intera ction or as a background of the computer screen .” Interval

, 2013 WL 792791, at *11. The court explained that it relied on “the only description in the specification that gives objective boundaries to the scope of this limitation: the ‘screensaver’ and ‘ wallpaper’ embodiments. ” Id.

In contrast to the “in an unobtrusive manner that does not distract a user” phrase, there is no uncertainty about the definitional relationship between the claim term “attention manager” and the written description

. The patented invention is a self -coined “attention mana ger. ” No one disputes that the “attention manager” isINTERVAL LICENSING L LC v. AOL , INC

. 20

defined by all of the disclosed embodiments . What is in dispute, and what we must consider in reviewing the construction of “attention manager,” is whether the district court rea d the embodiments too narrowly and thus improperly limited the scope of the claim term

. Interval proposes modifying the claim construction as follows:
a system that displays images to a user either when the program detects that the user is not e ngaged in a primary interaction or as a background of the computer screen an area of the display screen that is not substantially used by the user’s primary activity

. See Appellant’s Br. 53.
With regard to the first proposed modification

— the removal of “the program detects that” phrase

— Interval argues that the district court mistakenly limited the screen saver to a single mode of operation. Interval notes that the specification describes two ways of activating the

screen saver: (1) through the detection of an idle peri od

or , alternatively, (2) through direct user activation. See ’652 patent, 9:2 1– 36

. In response, the Defendants suggest that the system still “detect s ” user activation even in the alternative embodiment, and that the district court’s inclusion of “detects” is thus consistent with the patents’ description of the screen saver

. Although the Defendants’ reading is plausible, we think that Interval’s reading be tter conforms to the distinction drawn between “ detection” and “ user

- activation ” in the written description

. We therefore agree with Interval that the phrase “the pr ogram detects that” should be removed from the con struction.
With regard to the second proposed modification

— the replacement of “ a background of the computer screen ” with “ as an area of the display screen that is not substa n-INTERVAL LICENSING L LC v. AOL , INC

. 21

tially used by the user’s primary activity”

— Interval argues that its change is faithful to a “ lexicographical definition ” in the specification of the ’652 patent. Appe llant’s Br. 53 (citing Phillips , 4 15 F.3d at 1321). Interval faults the district court for basing its construction on a general definition of “wallpaper” in the specification. See ’652 patent, 1:50

– 52 (describing wallpaper as “a pattern generated in the background portions on a computer display”). Instead, Interval urges, the construction should be based on an express definition of “wallpaper embod iment”:
According to another further aspect of the inve ntion, the selective display of an image or images occurs while the user is engaged in a primary i nteraction with the apparatus, which primary i nteraction can result in the display of an image or images in addition to the image or images gene rated from the set of content data (the “ wallpaper embodiment” ).

Id. at 3:25

– 31.
We agree with Inte rval that the wallpaper embod iment of the attention manager should not be strictly limited to the “background” of a computer screen , a nd we agree that the specification’s description of the embod iment should inform our con struction. The district court’s

c onstruction suggests that displayed images must be integrated into the background display

, similar to the

“ patterns ” of the traditional wallpaper described in the background of the invention

. See id. at 1:50

– 52

. But the patents’ description of the wallpaper embodiment su pports a broader reading

. The patent describes the embo diment as making use of unused spatia l capacity

— that is,

space in the display not used by the user’s primary inte raction. See id. at 3:25

– 31, 6 :45

– 51. The specification does not indicate that the images must be displayed as part of the background of the display device.INTERVAL LICENSING L LC v. AOL , INC

. 22

We note, however, that Interval’s proposed modific ation (“ an area of the display screen that is not substantia lly used by the user’s primary activity ”) is not t aken directly from the cited “lexicography.” Rather, the pr oposed language appears to be Interval’s interpretation of where the images will be displayed while the user is

e ngaged in a primary interaction

. Based on our reading of the specification, the attention manager is better construed as displa ying images in areas “not used”

— instead of “not substantially used”

— by the user’s primary activity. The specification consistently describes how the attention manager makes use of “unused capacity.” Moreover, the specification twice contrasts a user’s “pr imary interaction with the apparatus” with the display of information in areas “not used” by the information assoc iated with the primary interaction. See id. at 2:15

– 19, 6:43

– 45. The phrase “not substantially used,” by contrast, appears nowhere in the specification.
In sum, with the exception of the addition of the word “substantially,” we agree with Interval’s proposed co nstruction of “attention manager.” Accordingly, we adopt the following construction: “a system that displays ima ges to a user either when the user is not engaged in a primary interaction or in an area of the display screen that is not used by the user’s primary activity. ”

B. Construction of “Instructions”

The district court construed “instruc tions” as “a statement in a programming language that specifies a function to be performed by a system.” Interval , 2013 WL 792791, at *15

– 16. Although the district court’s constru ction of “instructions” was not dispositive with respect to the final judgm ent of invalidity and non

- infringement, Interval asks us to review th at construction now . Specifically, Interval asks us to clarify that “ instructions ,” in the context of the patents, “may encompass ‘ data ’ ” and “needINTERVAL LICENSING L LC v. AOL , INC

. 23

not be written ‘in a programming langu age .’ ” Appel lant’s Br. 61

– 62. In the interest of judicial economy, we have the di scretion to review a non

- dispositive claim construction if we believe that the construction may become important on remand . See Deere & Co. v. Bush Hog, LLC , 703 F.3d 1349, 1357 (Fed. Cir. 2012) ; Advanced Software Design Corp. v. Fiserv, Inc. , 641 F.3d 1368, 1378 (Fed. Cir. 2011)

. Because we are vacating the judgment of non

infringement as to claims 15

– 18 of the ’652 patent, and because those claims include the term “instruc tions,” we take this opportunity to address the claim construction of that term. During claim construction, Interval argued that “i nstructions” should be construed to cover “data related to the accomplishment of a function.” J.A. 27. Relying principally on the distinction between “instructions” and “data” in the specification, the district court refused to adopt Interval’s construction. See Interval , 2013 WL 792791, at *15

– 16. We share the district court’s reading.

Interval notes that the specification refers to certain “instructions” as “functional components,” ’652 patent, 14:49

– 53, which may be represented by “data

. ” Id

. at 14: 53

– 57 (“Each of the functional components are repr esented by a set of instructions and/or data. In particular, each of the instructions may include, if appropriate, data related to accomplishment of the functions associated with the set of instructions

. . . .”). Although Interval reads the cited portion of the specification as showing that data alone can constit ute an “instruction,” we read the specification as maintaining a distinction between “i nstructions” and “data.” An instruction “may

. . . include data,” not consist of data; the instruction is not the data itself. As the district court observed, “[i]f ‘d ata’ is a type of ‘instructions,’ then the phrase ‘instructions and/or data’ would not make sense.” Interval , 2013 WL 792791, atINTERVAL LICENSING L LC v. AOL , INC

. 24

*16. Moreover, the district court’s reading is consistent with extrinsic evidence suggesting that the distinction between “in structions” and “data” is widely recognized in the field of art. See J.A. 845 (“The distinction between program (instructions) and data is a fundamental one in computing.” (quoting Oxford Dictionary of Computing )). For these reasons, we decline Interval’ s invitation to call into question the distinction between “instructions” and “data” in the district court’s construction.
As for Interval’s concerns regarding the “in a pr ogramming language” phrase, we find that a modification to the construction is nece ssary. Although the district court carefully explained why the intrinsic evidence supported the exclusion of the word “data” from its co nstruction, the court offered no direct explanation for its inclusion of the “in a programming language” limitation. T he patents’ specification does not indicate that instru ctions must take the form of programming language statements. The source of that limitation is the IEEE Standard Dictionary of Electrical and Electronics Terms (6th ed. 1996) (“IEEE Dictionary”), whic h the Defendants relied on for their proposed construction. See J.A. 419, 484

. The IEEE Dictionary includes five different defin itions of “computer instruction,” with two definitions specifically directed towards “software” computer instru ctions. The De fendants based their construction on one of those two definitions: “A statement in a programming language, specifying an operation to be performed by a computer and the addresses or values of the associated operands; for example, Move A to B.” Id. at 484 . The second definition, which the Defendants did not reference, reads: “Loosely, any executable statement in a computer program.” Id.
We have recognized that technical dictionaries “can assist the court in determining the meaning of particularINTERVAL LICENSING L LC v. AOL , INC

. 25

termin ology to those of skill in the art of the invention.” Phillips , 415 F.3d at 13 18. At the same time, we have cautioned against relying on dictionary definitions at the expense of a fair reading of the claims, which must be understood in light of the speci fication. See id. at 1321

– 22. Here, considering that the patents’ specification does not use “instructions” in relation to “programming la nguage statements,” we find that the broader dictionary definition (“any executable statement in a computer program” ) is preferable.
Moreover, we share Interval’s concern that the “in a programming language” limitation will breed unnecessary uncertainty about whether “instructions” may take the form of object code. As Interval notes, one could argue that object code

— wh ich may consist of strings of 1’s and 0’s

— is not a “programming language.” The IEEE Di ctionary, however, defines “object code” as “ [c]omputer in structions and data definitions in a form output by an assembler o r a compiler. ”
In sum, the extrinsic source on which the district court relied suggests a broader construction of “instru ctions” than the court adopted. We conclude that a co nstruction without the “in a programming language” phrase is both simpler and more accurate. Accordingly, we adopt the follo wing construction: “a statement that specifies a function to be performed by a system.”

C ONCLUSION We hold that the claim phrase “ in an unobtrusive manner that does not distract a user ” is indefinite under 35 U.S.C. § 112, ¶ 2. Therefore, the district court correc tly granted judgment s of invalidity as to claims 4

– 8, 11, 34, and 35 of the ’652 patent and claims 1

– 4 and 7

– 15 of the ’314 patent. However, the district court erred in granting judgments of non

- infringement as to c laims 15

– 18 of the ’652 patent based on the erroneous claim co nstruction of “attention manager .” We therefore affirm theINTERVAL LICENSING L LC v. AOL , INC

. 26

judgments of invalidity , vacate the judgments of non

infringement , and remand to the district court for further proceedings consistent with this opinion.

AFFIRMED

– IN

– PART, VACATED

– IN

– PART, AND REMANDED

C OSTS Each party shall bear its own costs.