PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF i

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

LEXINGTON LUMINANCE LLC 

Plaintiff, 

v. 

ELLIOTT ELECTRIC SUPPLY, INC. 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

 § 

Civil Action No. 6:20-cv-546-ADA 

JURY DEMANDED 

LEXINGTON LUMINANCE LLC’S OPENING CLAIM CONSTRUCTION BRIEF 

 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF ii

TABLE OF CONTENTS 

I. INTRODUCTION ..................................................................................................................1

II. LEGAL STANDARDS ..........................................................................................................1

III. TECHNOLOGY BACKGROUND ........................................................................................1

IV. BACKGROUND RELATING TO THE DISPUTED TERMS .............................................2

V. ARGUMENTS AND AUTHORITIES REGARDING DISPUTED CLAIM TERMS .........4

A. “having” .......................................................................................................................... 4

B. “sloped [smooth] etching profile... with a smooth rotation of microfacets” ................. 5

C. “a sloped etching profile... without a prescribed angle of inclination” ......................... 9

D. “layer” ........................................................................................................................... 12

E. “[comprising a plurality of] inclined lower portions” .................................................. 13

F. “whereby said plurality of inclined lower portions are configured to guide extended 

lattice defects away from propagating into the active layer” ....................................... 15

G. “upper planar portion with a low defect density” ......................................................... 16

H. “without sharp corners” ................................................................................................ 18

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF iii

TABLE OF AUTHORITIES 

Cases

Abbott Labs. v. Baxter Pharm. Prods., Inc., 471 F.3d 1363 (Fed. Cir. 2006) .............................. 19 

Acumed LLC v. Stryker Corp., 483 F.3d 800 (2007) .................................................................... 19 

Amgen Inc. v. Amneal Pharms. LLC, 945 F.3d 1368 (Fed. Cir. 2000) ............................................. 14 

Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298 (Fed. Cir. 2003) ...... 18 

Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443 (Fed.Cir.1986) ................. 8 

Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 22 S.Ct. 698, 46 L.Ed. 968 (1902) ....... 18 

Cordis Corp. v. Medtronic AVE, Inc., 339 F.3d 1352 (Fed. Cir. 2003)........................................ 18 

Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l Inc., 246 F.3d 1336 (Fed. Cir. 

2001) ........................................................................................................................................ 5 

Dayco Prods. v. Total Containment, 258 F.3d 1317 (2001) ..................................................... 2, 14 

Eibel Process Co. v. Minn. & Ont. Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523 (1923) 18 

Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed. Cir. 2014) ......................................... 17 

Lexington Luminance LLC v. Amazon.com Inc., 601 F. App’x. 963 (Fed. Cir. 2015) ... 2, 5, 15, 17 

Lexington Luminance LLC v. Amazon.com, Inc., No. 12-122216-DJC (D. Mass. April 4, 2016)

 ......................................................................................................................................... 14, 16 

Lexington Luminance LLC v. Feit Electric Company, Inc., No. 2:18-cv-10513-PSG-KS (June 24, 

2020) ...................................................................................................................................... 13 

Lexington Luminance LLC v. Google, Inc., No. 12-12218-RGS (D. Mass. Mar. 29, 2016)) ... 9, 16 

Modine Mfg. Co. v. U.S. Int'l Trade Comm'n, 75 F.3d 1545 (Fed.Cir.1996) ............................... 19 

Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) ........................................... 9, 18 

One E-Way, Inc. v. Intern. Trade Com’n, 859 F.3d 1059 (Fed. Cir. 2017) .................................. 18 

Pieczenik v. Dyax Corp., 76 F. App’x 293, 296 (Fed. Cir. 2003)................................................... 4 

Playtex Prods., Inc. v. Procter & Gamble Co., 400 F.3d 901 (Fed. Cir. 2005) ........................... 18 

PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351 (Fed. Cir. 1998) ...................................... 19 

U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554 (Fed. Cir. 1997)............................................ 9 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF iv

TABLE OF EXHIBITS

Exhibit A United States Patent No. 6,936,851 (“the ‘851 Patent”) 

Exhibit B Lexington Luminance LLC v. Amazon.com Inc., 601 F. App’x 963 (Fed. Cir. 

2015) 

Exhibit C Lexington Luminance LLC v. Google, Inc., No. 12-12218-RGS (D. Mass. Mar. 

29, 2016) 

Exhibit D Lexington Luminance LLC v. Amazon.com Inc., No. 12-12216-DJC (D. Mass. 

Apr. 4, 2016) 

Exhibit E Lexington Luminance LLC v. Feit Electric Company, Inc., No. 12-10513-PSG-KS 

(C.D. Cal. June 24, 2020) 

Exhibit F Encarta World English Dictionary – definition of “sloped” 

Exhibit G Reexamination Submission Sept. 30, 2013 

Exhibit H Reexamination Submission May 14, 2014 

Exhibit I United States Patent No. 6,452,216 (“Tsuda”) 

Exhibit J United States Patent No. 7,683,386 (“Tanaka”) 

Exhibit K United States Patent No. 7,759,140 (“Lee”) 

Exhibit L Webster’s New World College Dictionary – definition of “smooth” 

Exhibit M New Oxford American Dictionary – definition of “smooth” 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 1

I. INTRODUCTION 

Plaintiff Lexington Luminance LLC (“Lexington” or “Plaintiff”) submits this Opening 

Claim Construction Brief wherein it offers its proposed constructions, which are consistent with 

the intrinsic and extrinsic record, and disputes the proposals of Elliott Electric Supply, Inc. 

(“Elliott” or “Defendant”). U.S. Patent No. 6,936,851 (“the ’851 Patent”) appears in Ex. A.1 

II. LEGAL STANDARDS 

This Court is familiar with the pertinent claim construction principles. For convenience, 

Lexington cites to relevant authority in the body of its brief. 

III. TECHNOLOGY BACKGROUND 

U.S. Patent No. 6,936,851 (the “’851 Patent”), entitled “Semiconductor Light-Emitting 

Device and Method For Manufacturing The Same,” is directed to a novel use of etched patterns 

on the “substrate” of a light-emitting diode, or “LED”, to improve the operation of certain 

semiconductor devices. See Ex. A. LEDs are devices that convert electricity into light and are 

increasingly used for lighting applications. An LED generally consists of layers of different 

semiconductor material that are grown on a base material known as a substrate. Much recent 

LED fabrication has used a crystalline layer on top of a crystalline substrate. However, the 

combination of these materials has led to a lattice mismatch problem – that is, the two materials 

exhibit different lattice constants – an unequal distance between the unit cells that comprise a 

crystal lattice. This mismatch leads to dislocations in the material system in which the atoms in 

the grown crystalline semiconductor layers do not exactly line up with those in the substrate, 

causing cracks or dislocations to form in the layers. The introduction of increased defects limits 

the size of the wafers that may be reliably produced. 

1

 The Certificate of Correction appears on p. A-15, and the Reexamination Certificate appears on 

pp. A-16 & A-17. 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 2

The inventor of the ’851 Patent, Dr. Tien Wang2, recognized that the direction of such 

defect propagation is generally perpendicular to the plane where the two materials meet. He 

determined that if the surface of the substrate were etched to form certain trench shapes, the 

number of defects that could propagate into the active layer and affect the operation of the LED 

was substantially reduced. Dr. Wang made use of an etching of the substrate surface that 

resulted in a textured district made up of smooth trenches. Because the trenches are smooth, the 

angle of orientation of the surface of the trench varies over the width of the trench so that there is 

no constant angle of orientation as there might be if the trenches followed a sharp saw-tooth 

pattern. Put another way, if one assumes that the surface of the trench was modeled by many 

very tiny facets, the angle of orientation of these microfacets would approximate a smooth 

surface. Dr. Wang found that by using the smooth trenches, some of the propagating defects 

would bend away before reaching the active layer. The overall dislocation density in the active 

layer is thus reduced and the performance of the light-emitting device is improved. 

IV. BACKGROUND RELATING TO THE DISPUTED TERMS 

Most of the claim construction issues before the Court involve this claim limitation: 

a textured district defined on the surface of said substrate comprising a plurality 

of etched trenches having a sloped etching profile with a smooth rotation of 

microfacets without a prescribed angle of inclination 

The Federal Circuit has construed “trenches” as “areas in the surface of the substrate 

from which some amount of material is removed in order to create a pattern on the surface of the 

substrate.” Ex. B, Lexington Luminance LLC v. Amazon.com Inc., 601 F. App’x. 963, 970-971 

(Fed. Cir. 2015). A “plurality” means “two or more.” See Dayco Prods. v. Total Containment, 

258 F.3d 1317, 1328 (2001). The Federal Circuit has also construed “having” in the context of 

2

 Dr. Tien Y. Wang obtained his PhD. in Material Science and Engineering from the University 

of Utah in 1990 and since that time has worked in many capacities related to the design and 

development of LED technology. 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 3

this claim to require an open construction. Ex. B, Lexington, 601 F. App’x. at 971. Thus, the 

claim limitation requires that “two or more etched trenches” must (1) include (but not be limited 

to) a sloped etching profile with a smooth rotation of microfacets and (2) the sloped etching 

profile be without a prescribed angle of inclination. The following helps to visualize the “etched 

trenches” and the “sloped etching profiles” used in the embodiments of the invention: 

Thus, the claim limitation requires that the “sloped etching profile” has a “smooth 

rotation of microfacets” (and thus no corners) and the “sloped etching profile” be without a 

“prescribed angle of inclination” (and thus no straight segments). 

Fig. 1A, 1B, 1C Exemplary 

Etched Trench

Fig. 2A Exemplary 

Etched Trench

Fig. 2B Exemplary 

Etched Trench

smooth rotation 

of microfacets

prescribed angle 

of inclination

a textured district defined on the 

surface of said substrate

comprising a plurality of 

Figs. 1A, 1B, 1C 

etched trenches

having a 

sloped etching profile 

with a without a 

Fig. 2A 

Fig. 2B & 

Claim language: 

Figures appearing in the patent: 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 4

In contrast, distinguishable trench-shapes from other inventions include the following: 

U.S. Patent No. 6,452,216 (“Tsuda”) Fig. 3 (Ex. I): 

 

United States Patent No. 7,683,386 (“Tanaka”) Fig 5A (Ex. J): 

 

United States Patent No. 7,759,140 (“Lee”) Fig 2C (Ex. K): 

 

V. ARGUMENTS AND AUTHORITIES REGARDING DISPUTED CLAIM TERMS 

A. “having” 

Term Lexington’s Proposal Defendant’s Proposal 

having [Claims 1, 2, 15-18] including but not limited to No construction necessary 

1. “having” requires an open construction 

The term “having” appears in asserted claims 1 and 15 in two contexts: (1) “a plurality of 

etched trenches having a sloped etching profile with a smooth rotation of microfacets without a 

prescribed angle of inclination” and (2) “said substrate having at least one of a group consisting 

of group III-V, group IV, group II-VI elements and alloys, ZnO, spinel and sapphire”. 

Generally, the term “having” may be construed as open or closed, depending on the context of 

the patent. See Pieczenik v. Dyax Corp., 76 F. App’x 293, 296 (Fed. Cir. 2003); Crystal 

Semiconductor Corp. v. TriTech Microelectronics Int’l Inc., 246 F.3d 1336, 1348 (Fed. Cir. 

No rotation of 

microfacets 

+ 

Prescribed (constant) 

angle of inclination 

No rotation of 

microfacets 

+ 

Prescribed (constant) 

angle of inclination

No rotation of 

microfacets 

+ 

Prescribed (constant) 

angle of inclination 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 5

2001). In the context of the present claims, the term must be construed as open. The term 

requires an open construction because the trenches shown in Figures 2B and 4B include a flat 

bottom in addition to a “sloped etching profile”. This issue was previously addressed by the 

Federal Circuit, which reversed a district court for construing “having” as closed. See Ex. B,

Lexington, 601 F. App’x. at 971. 

B. “sloped [smooth] etching profile... with a smooth rotation of microfacets” 

“sloped [smooth] etching profile” 

 “smooth” 

Term Lexington’s Proposal Defendant’s Proposal 

a sloped [smooth] 

etching profile with 

a smooth rotation of 

microfacets 

[Claims 1 and 2] 

when viewed in outline from the side, the 

trenches have etched sloped [smooth] sides 

made up of a rotation of microfacets that 

approximate a smooth curve 

No construction 

necessary beyond the 

terms “a sloped etching 

profile” and 

“microfacets” 

sloped [smooth] 

etching profile 

[Claims 1, 2, 15-18] 

when viewed in outline from the side, the 

trenches have etched sloped sides 

 Furthermore, “etching” is threedimensional. 

 Furthermore, the entire portion of the 

etching profile that is sloped is to be 

curved 

 Should be construed as part of the term 

“a sloped [smooth] etching profile . . . 

without a prescribed angle of inclination” 

the outline of the sloped 

surfaces of the etched 

trenches, when the 

etched trenches are 

viewed from the side 

smooth 

[Claims 1, 15 & 16] 

plain and ordinary meaning 

 This term should be construed as part of 

the phrases: 

 smooth rotation of microfacets [Claim 1], 

 sloped smooth etching profile [Claims 

15-18], and 

 a sloped etching profile with a smooth 

rotation of microfacets [Claims 1 and 2] 

Indefinite 

1. The “sloped etching profile” is the same curved area as “sloped etched sides” 

The primary difference between the parties’ proposals is that Lexington’s proposal makes it 

more clear to the jury that the “sloped etching profile” refers to the “sloped sides” of the etching 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 6

profile and it reduces the possibility that the jury include the inflection points and flat areas (which 

have no slope) in its consideration of the “sloped etching profile”. The “sloped etching profile” and 

the “sloped etched sides” includes the curved portion of the etched trenches and excludes the 

portions of the etched trenches having zero slope, e.g., the very apex (top) and nadir (bottom) of 

the patterns.3 The “sloped etching profile” means the “sloped etched sides” of the trench, and the 

restriction on the “sloped etching profile” is applied to the sloped portion of the etching profile (not 

any flat portions or non-inclined portions). Lexington’s proposal is consistent with the fact that the 

sloped portion of the profile constitutes the sides of the profile, consistent with all disclosed 

embodiments of the invention. 

There should be no dispute that sides of the “sloped etching profiles” are the portions that 

are sloped, consistent with all disclosed embodiments. In sum, the proposal properly 

incorporates the “sloped” and “etched” aspects of the claim language, while imparting a more 

understandable meaning to “a smooth rotation of microfacets.” 

2. Lexington’s proposal assists with the jury’s understanding of the extent of 

the “sloped etching profile” and reduces the possibility that the jury could apply 

the claim criteria to inappropriate portions of the etching profile 

The breakdown of the term in the context of claim 1 is as follows: 

a textured district defined on the surface of said substrate comprising a plurality 

of etched trenches having a sloped etching profile with a smooth rotation of 

microfacets without a prescribed angle of inclination 

3

 The term “sloped” requires “to be at or have an angle that deviates from horizontal”. See Ex. F 

at F-3. 

Fig. 1A, 1B, 1C Exemplary 

Etched Trench 

Fig. 2A Exemplary 

Etched Trench

Fig. 2B Exemplary 

Etched Trench

Sides are 

sloped

Sides are 

sloped

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 7

All of the “etched trenches” include “sloped etching profiles” that are free from sharp 

corners in the cited embodiments. In other words, the original claim language properly includes 

the embodiments disclosed in the figures of the invention. The claim phrase in question modifies 

“a plurality of etched trenches.” This means at least two etched trenches. The cross-section of 

the trench regions of the embodiments of Figs. 2A and 2B are shown below. 

. 

 

 

 

Outline of two (plurality) Fig. 2A trenches: 

Fig. 2A of the patent: 

An “etched trench” according to the Fig. 2A 

embodiment is highlighted below: 

This “plurality of etched trenches” has “a 

sloped etching profile with a smooth 

rotation of microfacets” as required by the 

claim language sloped etching profiles ... 

with a smooth rotation of microfacets 

Lexington’s proposal reduces the 

possibility that the jury could consider the 

inflection points (which have no slope) as 

part of the “sloped etching profile” 

sharp corner 

Lexington’s Proposal: this “plurality of 

etched trenches” has “when viewed in 

outline from the side, the trenches have 

etched sloped sides made up of a 

rotation of microfacets that approximate 

a smooth curve” 

etched sloped sides ... 

made up of a rotation of microfacets that 

approximate a smooth curve 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 8

 

. 

 

 

 

 

3. “smooth” is not indefinite 

The term “smooth” appears in claims 1 as “a sloped etching profile with a smooth

rotation of microfacets”, claim 15 as “a sloped smooth etching profile with a smooth rotation of 

microfacets”, and in claim 16 as “wherein the sides of said etched trenches are smooth”. The 

term “smooth” is not technical, and is readily understandable to a jury. For example, the term 

“smooth” was considered by the Federal Circuit, and was found to be definite. See Bausch & 

Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443, 450 (Fed.Cir.1986) (defining 

“smooth” functionally, i.e., “that smooth means smooth enough to serve the inventor’s 

purpose.”) 

This is Fig. 2B of the patent: 

This “plurality of etched trenches” has “a 

sloped etching profile . . . without a 

prescribed angle of inclination” as 

required by the claim language sloped etching profiles ... 

without a prescribed angle of inclination 

Lexington’s Proposal: this “plurality of 

etched trenches” has “when viewed in 

outline from the side, the trenches have 

etched sloped sides without a constant 

angle of inclination” 

etched sloped sides ... 

without a constant angle of inclination 

(i.e., curved along the entire sloped 

etching profile) 

Lexington’s proposal reduces the possibility 

that the jury could consider the flat portions 

of the etching profile (which have no slope) 

as part of the “sloped etching profile” Flat portions 

A plurality of “etched trenches” according to the Fig. 2B 

embodiment are highlighted below:

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 9

The standard for indefiniteness is whether “a patent's claims, viewed in light of the 

specification and prosecution history, inform those skilled in the art about the scope of the 

invention with reasonable certainty.” Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 

2129 (2014). Here, the term “smooth” has a plain and ordinary meaning that would be evident to 

a person skilled in the relevant art. See, e.g., Exs. L & M. However, the Court need not define 

the term “smooth” to the jury. Non-technical terms may not require construal by the Court. 

Terms need not be construed or modified where the terms have plain, ordinary meanings that 

would not be confusing to a jury. The purpose of claim construction is “to clarify and when 

necessary to explain what the patentee covered by the claims.” U.S. Surgical Corp. v. Ethicon, 

Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). 

4. The appropriate construction 

The phrase “sloped etching profile ... with a smooth rotation of microfacets” should be 

construed as “when viewed in outline from the side, the trenches have etched sloped sides made 

up of a rotation of microfacets that approximate a smooth curve”. This properly explains that, as 

explained above, the limitation applies to the etched sloped sides of the trenches. It also explains 

that the etched sloped sides of the trenches are made up of a rotation of microfacets that 

approximates a smooth curve. As found by the Google court, this construction is consistent with 

the reexamination file history. Ex. C at C-8, Lexington Luminance LLC v. Google, Inc., No. 12-

12218-RGS (D. Mass. Mar. 29, 2016) at 8 citing Decl. of David P. Bour, Ph.D. in Support of 

Patent Owner’s Response to Office Action, May 13, 2014 (Ex. H) (“that the sloped surface of the 

trench is made up of many very tiny facets, a smooth rotation of these microfacets approximates 

a smooth, curved surface.”)4 

The term “smooth” has its plain and ordinary meaning and is not otherwise indefinite. 

C. “a sloped etching profile... without a prescribed angle of inclination” 

“without a prescribed angle of inclination” 

4

 The Google court construed “a sloped etching profile with a smooth rotation of microfacets” to 

mean “when viewed in outline from the side, the trenches have etched sloped sides made up of a 

rotation of microfacets that approximate a smooth curve.” Ex. C at C-9, Google, at 9. 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 10

Term Lexington’s Proposal Defendant’s Proposal 

a sloped 

[smooth] 

etching profile 

... without a 

prescribed angle 

of inclination 

[Claims 1 & 15]

when viewed in outline from the side, the 

trenches have etched sloped [smooth] sides 

without a constant angle of inclination 

Furthermore, the term “without a prescribed 

angle of inclination” modifies the entire sloped 

sides of the etching profile, and not only its 

constituent segments. 

For “sloped etching profile”: 

“the outline of the sloped 

surfaces of the etched trenches, 

when the etched trenches are 

viewed from the side” 

For “without a prescribed angle 

of inclination”: “curved along 

the full length, without any 

straight portions”

without a 

prescribed angle 

of inclination 

[Claims 1 & 15]

curved along the entire sloped sides of the 

etching profile 

 Alternatively: without a constant angle of 

inclination. 

 Furthermore, the term “without a prescribed 

angle of inclination” modifies the entire 

sloped sides of the etching profile, and not 

only its constituent segments. 

 This phrase should be construed as part of 

the term “a sloped [smooth] etching profile . 

. . without a prescribed angle of inclination”

curved along the full length, 

without any straight portions 

The parties appear to agree that the phrase “without a prescribed angle of inclination” 

requires a curved shape, i.e., the absence of a constant angle of inclination. The dispute focuses 

on whether the jury should be instructed that the curve applies to “the entire sloped sides of the 

etching profile” (plaintiff’s position) or “along the full length” (defendant’s position). 

Defendant’s proposal that includes the phrase “the full length” may introduce confusion, i.e., the 

full length of what? Because some of the disclosed embodiments of the invention include 

“etched trenches” that have flat portions between the curved portions, the Court’s construction 

should make clear that the flat portions do not need to satisfy the “without a prescribed angle of 

inclination” element. Plaintiff’s construction does this by referring to the sloped sides of the 

etching profile. Defendant’s construction does not make it clear that the flat portions are 

excluded, but instead uses the term “full length”, which suggests that the flat portions between 

the curved portions is included. Defendant’s construction also uses the definite article “the” 

preceding “full length” suggesting that there is a single full length. It thus improperly introduces 

ambiguity into the infringement determination. 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 11

. 

 

 

 

1. The “sloped etching profile” is the same curved area as “sloped etched sides” 

The very area that constitutes the “sloped etching profile” also constitutes the “sloped 

etched sides.” The “sloped etching profile” and the “sloped etched sides” includes the curved 

portion of the etched trenches and excludes the portions of the etched trenches having zero slope, 

e.g., the very apex (top) and nadir (bottom) of the patterns. 

2. The appropriate constructions 

In the context of the patent, “prescribed” means “constant.” Lexington’s proposal is 

consistent with the fact that the sloped portion of the profile constitutes the sides of the profile, 

consistent with all disclosed embodiments of the invention. Further, the requirement “without a 

A plurality of “etched trenches” according to the Fig. 2B 

embodiment are highlighted below: 

This is Fig. 2B of the patent: 

This “plurality of etched trenches” has “a 

sloped etching profile . . . without a 

prescribed angle of inclination” as 

required by the claim language sloped etching profiles ... 

without a prescribed angle of inclination 

Lexington’s Proposal: this “plurality of 

etched trenches” has “when viewed in 

outline from the side, the trenches have 

etched sloped sides without a constant 

angle of inclination” 

etched sloped sides ... 

without a constant angle of inclination 

(i.e., curved along the entire sloped 

etching profile) 

Lexington’s proposal reduces the possibility 

that the jury could consider the flat portions 

of the etching profile (which have no slope) 

as part of the “sloped etching profile” Flat portions 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 12

constant angle of inclination” means that the inclined sides of the etching profile must be curved, 

consistent with the written description and figures of the patent. 

D. “layer” 

Term Lexington’s Proposal Defendant’s Proposal 

layer 

[Claims 1 & 15]

a thickness of material, which may be made up 

of sublayers, but does not refer to a substrate

No construction necessary 

1. A “layer” may be made up of sublayers

The patent’s specification states that the composition of layers may change as deposition 

proceeds due to a number of factors. See, e.g., Ex. A, ’851 patent col. 2:44-48; 6:19-21; 7:13-18. 

Therefore, the portions of the layer having different compositions could be considered “sublayers” 

which, as explained in the patent, may change as deposition proceeds. Id. col. 4:50-52 (“the inclined 

layers 12 emerging from the adjacent slopes meet and combine in the trench region”); accord Figs. 

1A & 1B: 

Further, claim 2 explains that the “first layer has an upper planar portion”. The “upper planar 

portion” is “14” in Fig. 1B above. Ex. A, ’851 patent col. 4:52-53. Accordingly, the first layer 

includes both “inclined layers” (labelled as “12” in Fig. 1B) and an “upper planar portion” (labelled 

as “14” in Fig. 1B). The layer can therefore be made up of sublayers. Furthermore, an active layer is 

made up of sublayers. Ex. G at G-13 (“so as to guide the extended lattice defects (11) away from 

propagating into the active layer (the layer (5, 6 and 7) in the light-emitting device that emits the 

light).”) 

Persuasive authority favors Lexington. For example, the court in Lexington Luminance v. 

Feit Electric Company, Inc. found: 

As to the parties’ third dispute, the Court agrees with Plaintiff that the ’851 Patent 

does not exclude the possibility of a layer being made up of “sublayers.” The 

claims already refer to, for example, the “first layer” as having “inclined lower 

portions.” See, e.g., ’851 Patent, Claim 1. Claim 2 further states, “wherein said 

first layer has an upper planar portion.” Id. at Claim 2. In comparison, the ’851 

Patent specification describes Figure 1B as showing “inclined layers 12” and an 

“upper section 14 of the structure [that] becomes planar.” ’851 Patent, 4:47–54. 

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PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 13

Id. at Fig. 1B. The claims’ references to “portions” of the “first layer,” including 

an “upper planar portion,” and the comparison to Figure 1B’s disclosure, 

including of an “upper section,” supports Plaintiff’s position. That the claims and 

specification of the ’851 Patent do not use the word “sublayer” does not warrant a 

different outcome on the current record. There is no basis presented to support 

limiting the meaning of the term “layer” in the context of the patent to exclude 

layers made up of sublayers. 

The term “layer” is construed consistent with Plaintiff’s proposal as “a 

thickness of material, which may be made up of sublayers, but does not refer to a 

substrate.” 

Ex. E, Lexington Luminance LLC v. Feit Electric Company, Inc., No. 2:18-cv-10513-

PSG-KS (June 24, 2020), pp. 9-10. 

2. “layer” does not refer to a substrate 

Claim 1 recites two layers, a “first layer” and an “active layer”, and the “first layer” is 

disposed on a substrate: (1) “a first layer disposed on said textured district [on the surface of the 

substrate]”, and (2) “a light-emitting structure containing an active layer disposed on said first layer”. 

Thus, in the context of the claims, a “substrate” would not be “disposed on a substrate”, and therefore 

a “layer” cannot refer to a substrate. 

3. The appropriate construction 

The Court should construe “layer” as “a thickness of material, which may be made up of 

sublayers, but does not refer to a substrate”, which is the agreed construction adopted by Lexington 

Luminance LLC v. Amazon.com, Inc., No. 12-122216-DJC (D. Mass. April 4, 2016) claim 

construction order (hereinafter “Amazon”), Ex. D. at D-10. 

E. “[comprising a plurality of] inclined lower portions” 

“having at least one of a group consisting of group . . . sapphire” 

Term Lexington’s Proposal Defendant’s Proposal 

Case 6:20-cv-00546-ADA Document 24 Filed 12/08/20 Page 17 of 23
PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 14

Term Lexington’s Proposal Defendant’s Proposal 

[comprising a plurality of] 

inclined lower portions 

[Claims 1 & 15] 

[including two or more] lower 

portions that are inclined relative to 

the overall plane of the substrate 

No construction necessary 

having at least one of a 

group consisting of group 

III-V, group IV, group IIVI elements and alloys, 

ZnO, spinel and sapphire 

[Claims 1 & 15] 

said substrate including, but not 

limited to, at least one of the 

following: group III-V, group IV, 

group II-VI elements and alloys, 

ZnO, spinel, and sapphire 

No construction necessary 

beyond the terms “group 

III-V . . . elements and 

alloys,” “group IV . . . 

elements and alloys,” and 

“group II-VI . . . elements 

and alloys”

1. The “comprising a plurality of inclined lower portions” phrase 

The claim phrase at issue recites: “a first layer disposed on said textured district, 

comprising a plurality of inclined lower portions”. The claims make clear that it is the “textured 

district” that includes “a plurality of inclined lower portions”. The claims also make clear that 

the “textured district [is] defined on the surface of said substrate”. Accordingly, the “lower 

portions” of the first layer are “inclined” relative to the overall plane of the substrate. 

In addition, a “plurality” means “two or more.” See Dayco Prods., 258 F.3d at 1328. 

Lexington’s proposal provides the meaning of “plurality” to the jury. Accordingly, “[comprising 

a plurality of] inclined lower portions” should be construed as “[including two or more] lower 

portions that are inclined relative to the overall plane of the substrate”. 

2. The “having at least one of a group” phrase 

The phrase “having at least one of a group consisting of” means that at least one of one of the 

enumerated groups must be included, but that there can also be other groups that are not members of 

the enumerated list. See Amgen Inc. v. Amneal Pharms. LLC, 945 F.3d 1368, 1378 (Fed. Cir. 2000) 

(“There is no language in Amgen's claim indicating that every binder or disintegrant in the claimed 

formulation must be within the Markush groups. Instead, the claim recites ‘at least one’ binder or 

disintegrant ‘selected from the group consisting of’ various excipients.”) Accordingly, the phrase 

should be construed as “said substrate including, but not limited to, at least one of the following 

[groups]”. This is also consistent with the “open” meaning of “having” discussed in § I.A above. 

Case 6:20-cv-00546-ADA Document 24 Filed 12/08/20 Page 18 of 23
PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 15

F. “whereby said plurality of inclined lower portions are configured to guide 

extended lattice defects away from propagating into the active layer” 

Term Lexington’s Proposal Defendant’s Proposal 

whereby said plurality of inclined 

lower portions are configured to guide 

extended lattice defects away from 

propagating into the active layer5

[Post-Reexamination Claim 1]

such that the inclined lower 

portions are configured to 

reduce the propagation of 

extended lattice defects into 

the active layer

No construction necessary

1. The “whereby” clause should be construed as a claim limitation 

The Federal Circuit confirmed that the purpose of the invention is to reduce the propagation 

of extended lattice defects into the active layer: 

The court, however, reasoned that “it is clear that the goal of the invention is to 

‘reduce’ the number of lattice defects” and held that the claim was not indefinite for 

not specifying “exactly how many defects [were] reduced.” The court then construed 

the term to mean “such that free propagation of extended lattice defects into the 

active layer is significantly reduced relative to a device made by the same process 

without the textured districts.” 

Ex. B, Lexington, 601 F. App’x at 966-967 (internal citations omitted). The Federal Circuit then 

went on to find no error in this portion of the district court’s construction: 

As the district court correctly noted, the specification explains that “the goal of the 

invention is to ‘reduce’ the number of lattice defects.” The contested claim language 

specifies the intended function or purpose of the claimed structure. It thus applies 

wherever the function or purpose requires. 

Ex. B, Lexington, 601 F. App’x at 969 (noting “agree[ment] with the district court that the claim is 

not indefinite for not specifying ‘exactly how many defects [were] reduced’”). 

Moreover, the plain language of the claim suggests that “inclined lower portions” “guide 

extended lattice defects” “away from propagating into the active layer.” The plain language of the 

claim does not require that the inclined lower portions are configured to have an effect on all

extended lattice defects. 

Other aspects of the patent reveal that all extended lattice defects emanating from the inclined 

lower portions of the first layer are not eliminated. The patent discusses the use of a mask district in 

5

 This is the text appearing in the claim after reexamination. The pre-reexamination claim 

recited “so as to guide extended lattice defects away from propagating into the active layer”. 

Case 6:20-cv-00546-ADA Document 24 Filed 12/08/20 Page 19 of 23
PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 16

order to further reduce the propagation of extended lattice defects into the active layer. See, e.g., Ex. 

A, ’851 patent, Fig. 4B; col. 2:35-41; Abstract (“By incorporating a blocking mask in the structure, 

the free propagation of extended defects into the active layer is further restricted.”). A skilled artisan 

would understand that if the mask region of Fig. 4B provided an additional reduction in the 

propagation of extended lattice defects into the active layer, then, according to the ’851 patent, the 

“lower inclined portions” of the first layer could not possibly be eliminating the propagation of all

extended lattice defects into the active layer. 

During the re-examination process, Lexington explained that “Claim 1 was [] amended to 

more particularly point out that the plurality of inclined lower portions of layer 1 guide extended 

lattice defects away from propagating into the active layer.” See Ex. H at H-7, May 14, 2014 

Response to Office Action. The Google court construed the limitations as follows: 

The court will construe both the “whereby” and the “so as to” phrases as meaning: 

“such that the inclined lower portions are shaped to reduce the propagation of 

extended lattice defects into the active layer.” 

Ex. C at C-18, Google, p. 18. 

2. The appropriate construction 

The “whereby” clause should be construed as “such that the inclined lower portions are 

configured to reduce the propagation of extended lattice defects into the active layer” which is 

consistent with the Google claim construction order. 

G. “upper planar portion with a low defect density” 

Term Lexington’s Proposal Defendant’s Proposal

upper planar portion with a 

low defect density 

[Claim 2]

the upper planar portion of the first layer 

has a lower defect density than it otherwise 

would without the claimed textured district

Indefinite 

1. The disputed phrase is sufficiently definite 

Claim 2 recites: “The device of claim 1, wherein said first layer has an upper planar 

portion with low defect density.”6 This claim depends from claim 1, which (according to 

6

 The Certificate of Correction states, in relevant part as to claim 2, “Col. 8, line 53, replace "or" 

with --of--; line 54, replace "slow" with --a low--. 

Case 6:20-cv-00546-ADA Document 24 Filed 12/08/20 Page 20 of 23
PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 17

Lexington’s proposed construction) requires that “the inclined lower portions are configured to 

reduce the propagation of extended lattice defects into the active layer”. Claim 2 adds the 

additional requirement that “the upper planar portion of the first layer has a lower defect 

density”. In response to the potential question of “lower than what?”, Lexington proposes the 

comparison to the defect density that would exist without the claimed textured district. This 

follows the same approach used by the Amazon district court that was cited approvingly by the 

Federal Circuit: 

The court, however, reasoned that “it is clear that the goal of the invention is to 

‘reduce’ the number of lattice defects” and held that the claim was not indefinite for 

not specifying “exactly how many defects [were] reduced.” The court then construed 

the term to mean “such that free propagation of extended lattice defects into the 

active layer is significantly reduced relative to a device made by the same process 

without the textured districts.” 

Ex. B, Lexington, 601 F. App’x at 966-967 (internal citations omitted, emphasis added). The Federal 

Circuit then went on to find no error in this portion of the district court’s construction. Id. at 969. 

The Federal Circuit has explained that relative terms and words of degree – even the term 

“high” – are sufficiently definite under the Nautilus standard: 

[R]elative terms and words of degree do not render patent claims invalid. Interval 

Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370 (Fed. Cir. 2014). To determine 

whether a particular term is indefinite, "[o]ne must bear in mind . . . that patents 

are `not addressed to lawyers, or even to the public generally,' but rather to those 

skilled in the relevant art." Nautilus, 134 S.Ct. at 2128-29 & n.5 (quoting 

Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 437, 22 S.Ct. 698, 46 

L.Ed. 968 (1902), and citing Eibel Process Co. v. Minn. & Ont. Paper Co., 261 

U.S. 45, 58, 65-66, 43 S.Ct. 322, 67 L.Ed. 523 (1923)). For example, in 1923, the 

Supreme Court "uph[eld] as definite a patent for an improvement to a papermaking machine, which provided that a wire be placed at a `high' or `substantial 

elevation.'" Nautilus, 134 S.Ct. at 2129 n.5 (citing Eibel Process, 261 U.S. at 58, 

43 S.Ct. 322). The Court explained that these relative terms—"substantial" and 

"high"—were sufficiently definite because "`readers . . . skilled in the art of paper 

making and versed in the use of the . . . machine' would have `no difficulty . . . in 

determining . . . the substantial [elevation] needed' for the machine to operate as 

specified." Id. (quoting Eibel Process, 261 U.S. at 65-66, 43 S.Ct. 322). 

One E-Way, Inc. v. Intern. Trade Com’n, 859 F.3d 1059, 1063 (Fed. Cir. 2017). 

Furthermore, no numeric limits should be imposed. The intrinsic evidence provides no 

numerical standard for measuring a degree relating to “low defect density”. Where no specific 

Case 6:20-cv-00546-ADA Document 24 Filed 12/08/20 Page 21 of 23
PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 18

standard is established by the intrinsic evidence, the Federal Circuit has held that it is error to impose 

a more exact construction on terms of degree. See, e.g., Playtex Prods., Inc. v. Procter & Gamble 

Co., 400 F.3d 901, 907 (Fed. Cir. 2005) (“[T]he definition of ‘substantially flattened surfaces’ 

adopted by the district court introduces a numerical tolerance to the flatness of the gripping area 

surfaces of the claimed applicator. That reading contradicts the recent precedent of this court, 

interpreting such terms of degree.”) (citing Cordis Corp. v. Medtronic AVE, Inc., 339 F.3d 1352, 

1361 (Fed. Cir. 2003); Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, 340 F.3d 1298, 1311 

(Fed. Cir. 2003)). 

2. The appropriate construction 

The disputed term should be construed as “the upper planar portion of the first layer has a 

lower defect density than it otherwise would without the claimed textured district” and is not 

otherwise indefinite. 

H. “without sharp corners” 

Term Lexington’s Proposal Defendant’s Proposal 

without sharp corners [Claim 17] plain and ordinary meaning Indefinite 

1. The phrase “without sharp corners” is not indefinite 

The Federal Circuit has previously held that the term “sharp corners” (indeed, the 

circumstances, as here, involved the absence of sharp corners) was sufficiently definite: 

Stryker also argues that the district court's exclusion of “sharp corners or sharp 

angles” renders the construction insufficiently definite, since the court did not 

specify precisely how “sharp” is too sharp. However, a sound claim construction 

need not always purge every shred of ambiguity. The resolution of some linedrawing problems — especially easy ones like this one — is properly left to the 

trier of fact. See PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351, 1355 (Fed. 

Cir. 1998) (“[A]fter the court has defined the claim with whatever specificity and 

precision is warranted by the language of the claim and the evidence bearing on 

the proper construction, the task of determining whether the construed claim reads 

on the accused product is for the finder of fact.”); Modine Mfg. Co. v. U.S. Int'l 

Trade Comm'n, 75 F.3d 1545, 1554 (Fed.Cir.1996) (whether claim limitation 

requiring diameter of “about 0.040 inch” embodied held a matter of “technologic 

fact”); see also Abbott Labs. v. Baxter Pharm. Prods., Inc., 471 F.3d 1363, 1368 

(Fed. Cir. 2006) (where result is the same under any reasonable construction, “we 

need not construe [the disputed] phrase with numerical exactitude.”). 

Acumed LLC v. Stryker Corp., 483 F.3d 800, 816 (2007). 

Case 6:20-cv-00546-ADA Document 24 Filed 12/08/20 Page 22 of 23
PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF 19

2. The appropriate construction 

The disputed term need not be construed or modified because it is a non-technical term 

that has a plain and ordinary meaning that would not be confusing to a jury, and is not otherwise 

indefinite. 

DATED: December 8, 2020 Respectfully submitted, 

 /s/Robert D. Katz

Robert D. Katz 

Texas Bar No. 24057936 

KATZ PLLC 

6060 N. Central Expressway, Suite 560 

Dallas, TX 75206 

214-865-8000 

888-231-5775 (fax) 

rkatz@katzfirm.com 

 ATTORNEY FOR PLAINTIFF

 LEXINGTON LUMINANCE LLC

Case 6:20-cv-00546-ADA Document 24 Filed 12/08/20 Page 23 of 23