N OTE : This disposition is nonprecedential. 

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

______________________ REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

MORGAN STANLEY, THE GOLDMAN SACHS

GROUP, INC., J.P. MORGAN CHASE & CO., MORGAN STANLEY & CO. , INC., GOLDMAN SACHS & CO., GOLDMAN SACHS EXECUTION & CLEARING, LP, J.P. M ORGAN SECURITIES, IN C.,

AND J.P. MORGAN CLEARING CORP. (formerl y known as Bear, Stearns Securities Corp.), Defendants

- Appellees,

AND

CREDIT SUISSE HOLDINGS (USA), INC. AND

CREDIT SUISSE SECURI TIES (USA), LLC, Defendants

- Appellees,

AND

HSBC BANK USA, N.A. AND HSBC SECURITIES (USA ), INC., Defendants

- Appellees,

AND

BNY CONVERGEX GROUP, LLC ANDREALTIME DATA , LLC v. MORGAN STANLEY 2

BNY CONVERGEX EXECUTION SOLUTIONS, LLC, Defendants.

______________________

2013

- 1092

______________________ Appeals from the United States District Court for the Southern District of New York in No. 11

- CV

- 6696, Judge Katheri ne B. Forrest.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

CME GROUP, INC., BOA RD OF TRADE OF THE CITY OF CHICAGO, INC ., NEW YORK MERCANTILE EXCHANGE, INC. (agent of Nymex) , Defendants

- Appellees,

AND

BATS TRADING, INC., (also known as BATS E xchange, Inc.) Defendant

- Appellee

,

AND

INTERNATIONAL SECURI TIES EXCHANGE, Defendant

- Appellee

,

AND

NASDAQ OMX GROUP, IN C., AND NASDAQ OMX PHLX, INC ., Defendant s- Appellees,REALTIME DATA , LLC v. MORGAN STANLEY 3

NYSE EURONEXT, OPTIONS PRICE REPORTING AUTHORITY, NYSE ARCA , INC., NYSE MKT, LLC (formerly known as NYSE Amex, LLC) , AND

SECURITIES INDUSTRY AUTOMATION CORPORATION, Defendants

- Appellees.

______________________

2013

- 1093

______________________ Appeal from the United States District Court for the Southern District of New York in No. 11

- CV

- 6697, Judge Katherine B. Forrest.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

THOMSON REUTERS CORPORATION, Defendant

- Appellee,

AND

BLOOMBERG L.P., Defendant

- Appellee,

AND

FACTSET RESEARCH SYS TEMS, INC., Defendant

- Appellee,

ANDREALTIME DATA , LLC v. MORGAN STANLEY 4

INTERACTIVE DATA COR PORATION, Defendant

- Appellee.

______________________

2013

- 1095

______________________ Appeal f rom the United States District Court for the Southern District of New York in No. 11

- CV

- 6698, Judge Katherine B. Forrest.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

CME GROUP, INC., BOA RD OF TRADE OF THE CITY OF CHICAGO, INC ., NEW YORK MERCANTILE EXCHANGE, INC. (agent of Nymex) , Defendants

- Appellees,

AND

BATS TRADING, INC., (also known as BATS E xchange, Inc.) Defendant

- Appellee

,

AND

INTERNATIONAL SECURI TIES EXCH ANGE, Defendant

- Appellee

,

AND

NASDAQ OMX GROUP, IN C., AND NASDAQ OMX PHLX, INC ., Defendant s- Appellees,REALTIME DATA , LLC v. MORGAN STANLEY 5

NYSE EURONEXT, OPTIONS PRICE REPORTING AUTHORITY, NYSE ARCA , INC., NYSE MKT, LL C (formerly known as NYSE Amex, LLC) , AND

SECURITIES INDUSTRY AUTOMATION CORPORATION, Defendants

- Appellees.

______________________

2013

- 1097

______________________ Appeal from the United States District Court for the Southern District of New York in No. 11

- CV

- 6699, Judge Katherine B. Forrest.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

THOMSON REUTERS CORP ORATION, Defendant

- Appellee,

AND

BLOOMBERG L.P., Defendant

- Appellee,

AND

FACTSET RESEARCH SYS TEMS, INC., Defe ndant

- Appellee,

ANDREALTIME DATA , LLC v. MORGAN STANLEY 6

INTERACTIVE DATA COR PORATION, Defendant

- Appellee.

______________________

2013

- 1098

______________________ Appeal from the United States District Court for the Southern District of New York in No. 11

- CV

- 6700, Judge Katherine B. Forre st.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

MORGAN STANLEY, THE GOLDMAN SACHS

GROUP, INC., J.P. MORGAN CHASE & CO., MORGAN STANLEY & CO., INC., GOLDMAN SACHS & CO., GOLDMAN SACHS EXECUTION & CLEARING, LP, J.P. M ORGAN SECURITIES, IN C.,

AND J.P. MORGAN CLEARING CORP. (formerly known as Bear, Stearns Securities Corp.), Defendants

- Appellees,

AND

CREDIT SUISSE HOLDINGS (USA), INC. AND

CREDIT SUISSE SECURI TIES (USA), LLC, Defenda nts

- Appellees,

AND

HSBC BANK USA, N.A. AND HSBC SECURITIES (USA ), INC., Defendants

- Appellees,

ANDREALTIME DATA , LLC v. MORGAN STANLEY 7

BNY CONVERGEX GROUP, LLC, BNY CONVERGEX EXECUTION SOLUTIONS, LLC, THE

BANK OF NEW YORK MELLON CORPORATION, BANK OF AMERICA CORP ORATION, BANC OF AMERICA SE CURITIES, LLC, MERRI LL LYNCH & CO., INC., AND MERRILL LYNCH, PIERC E, FENNER & SMITH, INC. , Defendants,

______________________

2013

- 1099

______________________ Appeal from the United States District Court for the Southern District of New York in No. 11

- CV

- 6701, Judge Katherine B. Forrest

.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

CME GROUP, INC., BOA RD OF TRADE OF THE CITY OF CHICAGO, INC ., NEW YORK MERCANTILE EXCHANGE, INC. (agent of Nymex) , Defendants

- Appellees,

AND

BATS TRADING, INC., (also known as BATS E xchange, Inc.) Defendant

- Appellee

,

AND

INTERNATIONAL SECURI TIES EXCHANGE,REALTIME DATA , LLC v. MORGAN STANLEY 8

Defendant

- Appellee

,

AND

NASDAQ OMX GROUP, IN C., AND NASDAQ OMX PHLX, INC ., Defendant s- Appellees,

NYSE EURONEXT, OPTIONS PRICE REPORTING AUTHORITY, NYSE ARCA , INC., NYSE MKT, LL C (formerly known as NYSE Amex, LLC) , AND

SECURITIES INDUSTRY AUTOMATION CORPORATION, Defendants

- Appellees.

______________________

2013

- 1100

______________________ Appeal from the United States District Court for the Southern District of New York in No. 11

- CV

- 6702, Judge Katherine B. Forrest.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

THO MSON REUTERS CORPORA TION, Defendant

- Appellee,

AND

BLOOMBERG L.P., Defendant

- Appellee,

ANDREALTIME DATA , LLC v. MORGAN STANLEY 9

FACTSET RESEARCH SYS TEMS, INC., Defendant

- Appellee,

AND

INTERACTIVE DATA COR PORATION, Defendant

- Appellee.

______________________

2013

- 1101

______________________ Appeal from the United States District Court for the Southern District of New York in No. 11

- CV

- 6703, Judge Katherine B. Forrest.

- - - - - - - - - - - - - - - - - - - - - - - - -
REALTIME DATA, LLC ( doing business as IXO) , Plaintiff

- Appellant,

v.

MORGAN STANLEY, THE GOLDMAN SACHS

GROUP, INC., J.P. MORGAN CHASE & CO., MORGAN STANLEY & CO., INC., GOLDMAN SACHS & CO., GOLDMAN SACHS EXECUTION & CLEARING, LP, J.P. M ORGAN SECURITIES, IN C.,

AND J.P. MORGAN CLEARING CORP. (formerly known as Bear, Stearns Securities Corp.), Defendants

- Appellees,

AND

CREDIT SUISSE HOLDINGS (USA), INC. AND

CREDIT SUISSE SECURI TIES (USA), LLC, Defendants

- Appellees,

ANDREALTIME DATA , LLC v. MORGAN STANLEY 10

HSBC BANK USA, N.A. AND HSBC SECURITIES (USA ), INC., Defendants

- Appellees,

AND

BNY CONVERGEX GROUP, LLC, BNY CONVERGEX EXECUTION SOLUTIONS, LLC, THE

BANK OF NEW YORK MELLON CORPORATION, BANK OF AMERICA CORP ORATION, BANC OF AMERICA SECURITIES, LLC, MERRILL LYNCH & CO., INC., AND MERRILL LYNCH, PIERC E, FENNER & SMITH, INC. , Defendants,

______________________

2013

- 1103

______________________ Appeal from the United States District Court for the Southern District of New York in No. 11

- CV

- 6704, Judge Katherine B. Forrest.

______________________

Decided: January 27, 2014

______________________

D IRK D. T HOMAS , McKool Smith, P.C.

, of Washington, DC, argued for plaintiff

- appellant. With him on the brief were J OEL L. T HOLLANDER , of Austin, Texas ; R OBERT A. C OTE , B RET T E. C OOPER , D ANIEL J. M E LMAN , L AUR A A. H ANDLEY , and L AUREN L. F ORNAROTTO , of New York, New York ; and J. M ICHAEL H ENNIGAN and R ODERICK G. D ORMAN , of Los Angeles, California

.

W ILLIAM F. L EE , Wilmer Cutler Pickering Hale and Dorr, LLP, of Boston, Massachusetts, argued for allREALTIME DATA , LLC v. MORGAN STANLEY 11

defendants

- appellees. With him on th e brief were M ARK G. M ATUSCHAK , M ONICA G REWAL , and K EVIN P RUSSIA , of Boston, Massachusetts; and G REGORY H. L ANTIER , of Washington, DC, for defendants

- appellees, Credit Suisse Holdings (USA) Inc., et al.; D ANIEL A. D EVITO and S TACEY L. C OHEN , Skadden, Arps, Slate, Meagher & Flom, LLP, of New York, New York, J AMES J. E LACQUA , G ARETH D E W ALT , and M ICHAEL D. S AUNDERS , Skadden, Arps, Slate, Meagher & Flom, LLP, of Palo Alto, California, for d efendants

- appellees, Morgan Stanley, et al.; R OY W. H ARDIN , M. S COTT F U LLER , Locke Lord LLP, of Dallas, Texas, for defendants

- appellees, HSBC Bank USA, et al. ; J OHN M. D I M ATTEO , Willkie Farr & Gallagher LLP, of New York, New York, for defendant

- appellee, Bloomberg L.P.; C ONSTANCE S. H UTTNER and S TEPHANIE L. D ONAHUE , Vinson & Elkins, LLP, of New York, New York, D AVID J. T OBIN , of Dallas, Texas, and S YED K. F AREED , of Austin, Texas, for defendant

- appellee Thomson Reuters Corp.; B RIAN E. M ORAN , Robinson & Cole, LLP, of Stamford Connecticut, for defendant

- appellee, FactSet Researc h Systems Inc. and B ENJAMIN W. H ATTENBACH and A RKA D. C HATTERJEE , Irell & Manella LLP, of Los Angeles, Cal ifornia, for defendant

- appellee Interactive Data Corpor ation.

______________________

Before L OURIE , M AYER , and W ALLACH , Circuit Judges.

L OURIE , Circuit Judge.

Realtime Data, LLC (“Realtime”) appeals from mult iple decisions of the United States District Court for the Southern District of New York, granting motions filed by several companies in the financial services industry (the “Defendants”) for summary judgment of (i) noninfring ement of various claims of U.S. Patents 7,417,568 (the “’568 patent”), 7,714,747 (the “’747 patent”), and 7,777,651 (the “’651 patent”), and (ii) invalidity under 35 U.S.C. § 112 of several claims of the ’651 and ’747 pate nts. SeeREALTIME DATA , LLC v. MORGAN STANLEY 12

Realtime Data, LLC v. Morgan Stanley

, No. 11 Civ. 6696, 2012 WL 5835303 (S.D.N.Y. Nov. 15, 2012) (“ Summary Judgment Opinion ”) ; Realtime Data, LLC v. Morgan Stanley , No. 11 Civ. 6696, 2012 WL 2545096 (S.D.N.Y. June 27, 2012) (“ Written Description Opinion ”)

. Additio nally, Realtime appeals from the district court’s constru ction of certain claim terms and its decision to preclude Realtime from asserting infringement under the doctrine of equivalents. See Realtime Data, LLC v. Morgan Sta nley , 875 F. Supp. 2d 276 (S.D.N.Y. 2012) (“ Claim Co nstruction Opinion ”); Realtime Data, LLC v. Morgan Stanley , No. 11 Civ. 6696, 2012 WL 3158196 (S.D.N.Y. Aug. 2, 2012) (“ DOE Opinion ”)

. We conclude that t he district court did not err in co nstruing the disputed claim terms of the patents or in granting summary judgment of noninfringement of the appealed claims based on that construction. Additionally, the court did not err in granting summary judgment of invalidity of the appealed claims under § 112 or in pr ecluding Realtime from assert ing infringement under the doctrine of equivalents. Accordingly, we af firm

. B ACKGROUND I. The ’568, ’651, and ’747 P atents Realtime owns the ’568, ’651, and ’747 patents, which relate to compressing data for transmission. Th e patents disclose content

- based compression

, a process that uses specialized encoders to compress data based on the co ntent of those data

. E.g. ’747 patent col. 4 ll. 4

– 20. The data are received by a system in a data stream and pr ocessed in blocks. E.g

. id. col. 8 ll. 1

– 9. If the compression system analyzes a data block and determines that the block is a specific data block type, i.e.

, it consists of a specific type of content (such as text or video), then a content specific data encoder will be used to maximize the compression for that block of data

, i d. col. 4 ll. 27

– 34 ; otherwise a content

- independent encod er will be used, id.REALTIME DATA , LLC v. MORGAN STANLEY 13

col. 4 ll

. 21

– 26

. After compression, the system appends a content type descriptor to indicate the encoder that was used to compress the data block

. Id. col. 8 ll. 52

– 53. This descriptor is needed to tell the system receiving the data how to decompress it

. Id. col. 15 ll. 20

– 31.
’747 patent claim 14 is exemplary and is reproduced below:
14. A method of compressing a plural ity of data blocks to create a compressed data packet in a data stream using a data compression processor, wherein multiple encoders applying a plurality of lossless compression techniques are applied to data blocks, the method comprising:
receiving a data block;
analyzing content of the data block to determine a data block type;
selecting one or more lossless encoders based on the data block type and a computer file, wher ein the computer file indicates data block types and associated lossless encoders;

com pressing the data block with a selected e n coder utilizing content dependent data co m pre ssion, if the data block type is recognized as associated with a lossless encoder utilizing content dependent data compression;
compressing the data block with a selected los sless encoder utilizing content independent d a ta compression, if the data block type is not re cognized as associated with a lossless e ncoder utilizing content dependent data co m pression; and
providing a descriptor for the compressed data packet in the data stream, wherein the d escriptor indicates the one or more selected los sless encoders for the encoded data block.REALTIME DATA , LLC v. MORGAN STANLEY 14

’747 patent col. 27 l. 44

– col. 28 l. 10.

The Defendants all utilize systems incorporating a financial industry standard for transferring financial information called FAST. Summary Judgment Opinion

, 2012 WL 5835303, at *2. FAST transmits financial data in “messages,” which conform to pre

- defined Templates. Id. at *3. Th o se Templates are not attached to a message

. Id. FAST systems compress messages using a process known as “field encoding.” The system will analyze each field of a message and determine whether the field is: (1) a copy of the same value in the same field from a previous

message ; (2) an increment, i.e. , the value in th at message is one more than the value of the previous message ; or (3) the default value of that field in the message Template

. See CME Br. 15

– 16. By field encoding, some message fields may be removed, thus reducing the message size. Based on the result of the field encoding, the FAST sy stem will generate a presence map ( “ PMAP ” ) that indicates whether a field in a message is present or not. J.A. 18 13. After field encoding, transfer encoding is applied to the message to remove redundant information, further redu cing the message size. J.A. 1812. The message is then sent with both a Template ID (to tell the receiving system what message Template to use) and the PMAP (to inform the system of the field encoding parameters). See Morgan Stanley Br. 22

– 23.
II. District Court Proceedings

Realtime initially sued a variety of financial industry companies in the Eastern District of Texas , loosely cat egoriz ed as stock exchanges, banks, and market data providers , alleging that the D efendants infringe d its patents by utilizing systems incorporating FAST. Realtime brought three suits, each against defendants in a similar line of business

, alleging infringe ment of several patents including the ’568 patent. J.A. 4918

– 48. That suit was transferred to the Southern District of New York.REALTIME DATA , LLC v. MORGAN STANLEY 15

See DOE Opinion , 2012 WL 3158196, at *1. After the suits were transferred, the ’651 and ’747 patents issued and new actions for each patent were brought against members of each of the three defendant categories, tota ling nine cases. Realtime Br. 5. These actions were co nsolidat ed with the three original cases for purposes of pretrial proceedings. See DOE Opinion , 2012 WL 31 58196, at *1.
The district court construed several disputed claim terms, including: (1) “ descriptor indicates” to mean “[r]ecognizable data that is appended to the encoded data for specifying [an encoder]” ; (2) “data field/block type” to

mean “[c]ategori zation of the data in the field (or block) as one of [several types of data], or other data type” ; and (3) “data stream” to mean “[o]ne or more blocks transmitted in sequence from an external source . . . .” Claim Co nstruction Opinion , 875 F. Supp. 2d at 296. The court analyzed both the written description and the claims in construing the terms “descriptor indicates” and “data field/block type .” Id. at 295

– 96, 290

– 91. For construction of the term “data stream ,” the court relied on statements that Realti me made during reexamination of similar related patents and in another litigation involving related

pa tents

. Id. at 287

– 88.

The D efendants moved for summary judgment of i nvalidity of several claims of the ’651 and ’747 patents for failure to meet the definiteness and written description requirements of 35 U.S.C. § 112 based on the recitation of “content dependent data decompression” in those claims. The court granted the motion as to nine claims of those patents, holding that t he content of the originally co mpressed file was irrelevant for purposes of decompres sion. The court found that “[a] ll that matters [after content is compressed] is what encoder was used

— not the method of its selection ( i.e. , not the content on which the encoder selection was based).” Written Description Opinion , 2012 WL 2545096, at *8. In other words, “decompression hasREALTIME DATA , LLC v. MORGAN STANLEY 16

everything to do with the algorithm used at the front

- end compression and nothing to do with the content on which the selection of that algorithm was based.” Id. Because the term itself could not be construed, the court found claims utilizing that term to be indefinite. Id . Additio nal ly, because the written description of the ’651 and ’747 patents did not provide guidance on “what is meant to be captured by content dependent data decompression that is distinct from content independent data decompression,” the court found that claims reciting that limitation failed
to satisfy the written description require ment. Id.
The court also precluded Realtime from asserting i nfringement under the doctrine of equivalents due to Realtime’s failure to comply with both : (1) the local rules of the Easter n District of Texas

, requiring disclosure to the Defendants “not later than 10 days ” prior to the case management conference whether Realtime was alleging infringement under the doctrine of equivalents ; and (2) the local rules of the Sou thern District of New York

, requiring a similar disclosure within 14 days after a ppearing in an action. DOE Opinion

, 2012 WL 3158196, at *1, *4.

The Defendants also moved for summary judgment of noninfringement , which the district court granted , finding that the accused products did not meet the “descriptor indicates,” “data field /block type,” and “data stream” limita tions of the remaining asserted patent claims

. Summary Judgment Opinion , 2012 WL 5835303, at *19. Specifically, the court found that many of the accused products did not meet the “descriptor indicates” limitation because the Template s utilized in the FAS T systems were not “with” or “appended” to the encoded data , nor did the Template ID or PMAP , either alone or together, indicate the encoders that were used to compress the message

. Id. at *18

– 19. The court concluded that the accused products did not mee t the “data field/block type” limitation because the values identified by Realtime in the PMAP

— copy,REALTIME DATA , LLC v. MORGAN STANLEY 17

increment, and default —d id not specify the type of data being encoded, only how the system should treat cert ain fields within the message. Id. at *15

– 16. The court held that the accused products did not meet the “data stream” limitation because none of the products received data for compression from an external source. Id. at *12. Finally,
t he court concluded that some accused decompression products did not meet an encoding requirement of claims 95, 97, 108, and 112 of the ’651 patent , which require d select ion of encoders based on analysis of the data blocks during decompression

. Id. at *13.
In summary, the court granted summary judgment of noninfringement for all claims asserted in the litigation that were not found invalid under § 112.
Realtime timely appealed. We have jurisdiction pu rsuant to 28 U.S.C. § 1295(a)(1).

D ISCUSSION

I. St andard of Review
This appeal comes to us as nine separate appeals pr esented in one appellate brief and three appellee briefs from the three groups of defendants in related businesses. At oral argument, we heard from appellant’s counsel and three counsel for the appellee groups of defendants.

We review de novo the district court ’ s grant of su mm ary judgment, drawing all reasonable inferences in favor of the nonmovant. Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 255 (1986); Hologic, Inc. v. SenoRx, Inc. , 639 F.3d 1329, 1334 (Fed. Cir. 2011). Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We address claim construction as a matte r of law, which we review without deference. See Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). “Compliance with the written description require ment is a question of factREALTIME DATA , LLC v. MORGAN STANLEY 18

but is amenable to summary judgment in cases wher e no reasonable fact finder could return a verdict for the no nmoving party.” PowerOasis, Inc. v. T

- Mobile USA, Inc.

, 522 F.3d 1299, 1307 (Fed. Cir. 2008).

II. Claim Construction
Realtime first argues that the district court erred in its construction of three claim terms: “descriptor ind icates,” “data field/block type,” and “data stream.”
A. “Descriptor indicates”
Realtime argues that the term “d escriptor indicates” in claim s 15 and 32 of the ’568 patent ; claims 1, 7, 8, 13

, 14, and 19 of the ’747 paten t; and claims 1, 4, 6, 7, 12, 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent, is defi ned in the written description as “any recognizable data token or descriptor that indicates which data encoding technique has been applied to the data.” E.g. ’747 patent col. 8 ll. 53

– 56

. Realtime contends that t he court added additional limit ations, requiring that the indicator be appended to the encoded data for the purposes of specifying the encoder used

, limitations that ar e not required by the claim la nguage or the written description of the patents

. The Defendants respond that , i n the patented system, the encoder is selected dynamically after determining the type of data being encoded

, and therefore it must be appended to the data message to identify what type of encoding was used.
We agree with the Defendants. Although the written description does define the “data compression type d escriptor” as “any recognizable data token or descriptor that indicates which data encoding technique has been applied to the data, ” ’747 patent col. 8 ll. 53

– 56 , ’568 patent col. 16 ll. 9

– 12

, the preceding sentence also teaches that “[a]n appropriate data compression type descriptor is appended [to the encoded data blo ck]

. ” ’747 patent col. 8REALTIME DATA , LLC v. MORGAN STANLEY 19

ll. 52

– 53 ; see also ’568 patent col. 16 ll. 6 –9 (stating that the system “appends a corresponding compression type descriptor to each encoded data block . . . so as to indicate the type of compression format”)

. That requirement is further highlighted by figure 3b of the ’747 patent , which shows an “append corresponding descriptor” step after a step requiring selection of an encoded data block with the greatest compression ratio. ’747 patent fig

. 3b. Additio nally, the claims requi re receiving a data packet and e xtracting from that packet the descriptor s , which were previously selected based on an analysis of the content of the pre

- encoded data blocks, highlighting that the d escriptors must be sent with the block

. E.g. id. col. 26 ll. 24

– 31. The district court thus did not err in constru ing the “descriptor indicates” term in claims 15 and 32 of the ’568 patent ; claims 1, 7, 8, 13, 14, and 19 of the ’747 patent ; and claims 1, 4, 6, 7, 12, 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent, to mean “[ r]ecognizable data that is appended to the encoded data for specifying [an encoder] .”
B. “Data field/block type”

Realtime a rgues that the “d ata field/block type” lim itation in claims 15, 20 , 22, and 32 of the ’568 patent; claims 1, 7, 8, 13, 14, and 19 of the ’747 patent ; and claims 1, 4, 6, 7, 12, 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent, should be construed as any characteristic, attribute, or parameter of the data field or block that is used to select an appropriate encoder. Realtime contends that t he district court na rrowed the claim limitation to specific data types, and that such narrowing is specifically discouraged in the written description of the ’74 7 patent

. The Defendants respond that the written description and the claim language support the construction of “ data field/block type ” as being one of several different types of data and that the exa mples included in the construction of the term are only exemplary and do not narrow the limitation

.REALTIME DATA , LLC v. MORGAN STANLEY 20

We also agree with the Defendants on this claim lim itation

. As the district court recognized, the construction urged by Re altime could encompass “any characteristic or any attribute of data.” Claim Construction Opinion , 875 F. Supp. 2d at 290. The claims of the patents consistently

use the terms “ data field type ” and “ data block type ” to refer to the content of the data. E .g. ’568 patent col. 23 ll. 38

– 41 (requiring the claim to recognize a data field type and select an encoder based on t hat recognized data field type); id. col. 24 ll. 56

– 59 (disclosing that the method recognizes data field types within a data stream and

se lect s encoders based on those reco gnized data field types ); ’747 patent col. 27 ll. 50

– 51 (requiring method to analyze the content of a data block in order to determine a data block type). Although the written description of the ’747 patent does discuss, as a limitation of the prior art, requiring a data field to be categorized into certain data types
, that prior art reference limited the data field to a small subset of possible data types. The district court

, however, did not unnecessarily limit the types of data for the data field/block type by including the open -ended

“ other data type” in the construction of the term.
The district court was correct in concluding that

, based on the specifications of the patents, the “data field/block type” term in claims 15, 20, 22, and 32 of the ’568 patent ; claims 1, 7, 8, 13, 14, and 19 of the ’747 patent ; and claims 1, 4, 6, 7, 12, 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent, must b e tied to some analysis of the content of the data field or block and can no t simply encompass any characteristic or attribute of data. The court thus did not err in construing the term to mean “[c] ategorization of the data in the field (or block) as one o f ASCII, image data, multimedia data, signed and unsigned integers, pointers, or other data type .”REALTIME DATA , LLC v. MORGAN STANLEY 21

C. “Data stream”
Realtime next argues that the term “data st r eam” in claims 15, 20, 22, and 32 of the ’568 patent ; claims 1, 7, 8, 13, 14, and 19 of the ’747 patent; and claims 1, 4, 6, 7, 12, 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent, s hould be construed

, co nsistent with the written description

, as “one or more data blocks transmitted in sequence.” Realtime c ontends that the court improperly added the limitation , “ from an external source whose characteristics are not controlled by the data encoder or decoder ,” which is not inherent in the ordinary meaning of “data stream.” Realtime asserts that t he court added this limitation based on declarations made in reexamination of a non

- asserted patent , which focus ed on the limitation “receiving” a data stream

— a posi tion that was rejected by the United States Patent and Trademark Office (“PTO ”)

. The Defe ndants respond that t he sworn statements in the related patent reexamination une quivocally show that

a person of ordinary skill in the art would under stand that the data stream limitation in the patents at issue here require s an external source. The Defen dants acknowledge that the declarations were submitted during reexamination of Realtime’s U.S. Patent 7,161,506 (the “’506 patent”)

, but assert that the ’506 patent shares the

same specification as the ’747 patent and is incorporated by reference in the ’5 68 and ’651 patents.

Courts look to both intrinsic and extrinsic evidence in construing claim terms, focusing first on the intrinsic record. Nazomi Comm., Inc. v. Arm Holdings, PLC , 403 F.3d 1364, 1368 (Fed. Cir. 2005). I ntrinsic evidence includes the claims and the written description

. However, additional statements made by the patentee during prosecution can prove useful in determining how the patentee understood and explained the invention to the PTO

. Phillips v. AWH Corp. , 415 F.3d 1303, 1317 (Fed.REALTIME DATA , LLC v. MORGAN STANLEY 22

Cir. 2005) (en banc)

. Statements made during reexamin ation can prove useful in determining the meaning of the claims. See 01 Communique Lab., Inc. v. LogMeIn, Inc.

, 687 F.3d 1292, 1298 (Fed. Cir. 2012) (considering stat em ents made during reexamination as intrinsic evidence for purposes of claim construction)

. In connection with patents that are part of an extended family of patents, a patentee’ s disclaimers made during prosecution are “relevant” both as a statement made w ith regard to th e patent at issue and with regard to related or “sibling” patent s. See Microsoft Corp. v. Multi

- Tech Sys., Inc. , 357 F.3d 1340, 1349

– 50 (Fed. Cir. 2004)

. T he written description of the ’747 patent describe s a “data stream comprising one or more data blocks[] input into the data compression system . . .

. ” ’747 patent col. 8 ll. 3 –5. However, the declarations made by Realtime’s expert , Dr. Modestino, during reexamination of the ’506 patent also dealt with the meaning of “data stream.” The ’506 patent share s the same written description as the ’747 patent. Claim Construction Opinion , 875 F. Supp. 2d at 287. Dr. Modestino declared that “data stream” meant “a continuous stream of data blocks.” J.A. 970. Dr. Modestino then stated that t he “’506 specification makes it clear to one of ordinary skill in the art that the use of the term ‘data stream’ was intended by the inventor to convey a continuous stream of data elements received from or transmitted.” Id. While discussing the term “rec eiving a data stream,” Dr. Modestino stated that one of ordinary skill would “imply a stre am of data transmi tted from a s our c e (whose characteristics are therefore not controlled by the data compression system) and received at the input of a system or devi ce.” Id. at 971. Dr. Modestino described the process of “receiving a data stream” from an external source as a “passive one requi ring no control over the characteristics of the received data stream by the receiver” and that the written description of the ’506 patent “would lead one of ordinary skill in the artREALTIME DATA , LLC v. MORGAN STANLEY 23

to conclude that the inventor teaches a passive process of receiving the data stream without initiation by the recei ver . . . or any participation in controlling that stream.” Id. (emphasis added).

Dr. Modestino conclude d that “[i]t should be unde rstood that the passive process of receiving a data stream [from an external source] as practiced in the ’506 patent is quite different from the active process of retrieving, or fetching, a block of data from a storage device internal to a computer system using standard storage device access tech niques, ” i d. (emphasis added), and that “one of ord inary skill in the art would distinguish this active process of retrieving a data block from an internal storage device

as fundamentally different from the passive process of receiving a data stream as recited in independent claims 1, 69 and 86 of the ’506 patent, ” i d. at 972 (em phasis added).
Although Dr. Modestino’s declaration dealt, in part, with a narrower term “receiving a data stream,” the declaration makes clear that a person of ordinary skill would understand that a data stream as disclosed in the written description of the ’747 patent means a data stream received from an external source

. Given this distinction advanced by Realtime’s own expert in the reexamination, the district court did not err by including the external source requirement in the construction of “data stream” in claims 15, 20, 22, and 32 of the ’568 patent ; claims 1, 7, 8, 13, 14, and 19 of the ’747 patent ; and claims 1, 4, 6, 7, 12, 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent.

III. I nfringement
Realtime argues that the district court erred in gran ting summary judgment of noninfringement of claims 15, 20, 22, and 32 of the ’568 patent ; claims 14 and 19 of the ’747 patent ; and claims 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent, byREALTIME DATA , LLC v. MORGAN STANLEY 24

the accused sys tems because aspects of the Defe ndants’ FAST systems meet the “descriptor indicates,” “data field/block type,” and “data stream” limitations as co nstrued by the court. Realtime also contends that the district court erred by granting summary judgment of noninfringement based on the court ’s requirement that certain decoding methods in the ’651 patent require the selection of both an encoder and a decoder

. Realtime first argues that the Defendants’ accused FAST systems meet the “descriptor indicates” limitation by appending both a PMAP and Template ID to the message for purposes of specifying the encoders used to encode that message

. However, the FAST system PMAP and Template IDs do not indicate which encoders have been utilized to encode ; t he Template itself conta ins that information. Summary Judgment Opinion , 2012 WL 5835303, at *8. The Templa te is not sent with the me ssage; a set of Templates are known in advance to the FAST systems. Id. at *8. The Tem plate is thus not “appended to the encoded data for specifying” an encoder

, and the accused systems cannot infringe the claims of the patents requiring this

. Realtime further argues that the encoding techniques in the PMAP, which determine whether certain fields of the message are a copy, increment, or default value, meets the data field/block type limitation. Realtime asserts that by categorizing each data field as one of these three possible types, the encodin g techniques in the PMAP act as content categorization as construed by the district court. Howev er, tho se values do not relate to the content of the message, only to whether certain values in the message can be skipped, incremented, or set to their defaul t value. Summary Judgment Opinion , 2012 WL 5835303, at *15. This process does not analyze the co ntent of the data block for categorization as one of several different data types, as required by the “data field/block type” claim construction, but simply l ooks to see whetherREALTIME DATA , LLC v. MORGAN STANLEY 25

certain fields in the Template can be encoded to minimize the size of the message. Id. at *15. The accused systems thus cannot infringe the claims requiring a “data field/block type” limitation.
Realtime next argues that the accused products su bmit one or more data blocks from an external source, such as a market server, to the data encoder. The Defendants respond that the evidence at trial showed that the enco ding is performed only on data from other components within the accused s ystem and not from an external

source

. The Defendants ’ argument is supported by the evidence before the district court, which described it as “one sided” in showing that the accused products rece ived data from internal sources, i d. at *11 , and the district court thus did not err in concluding that the accused systems did not meet the “data stream” limitation.
Additionally, Realtime argues that the district court erred by concluding that claims 95, 97, 108, and 112 of the ’651 patent require the selection of both an encoder and a decoder in those “method for decoding” claims. Realtime asserts that although the ’651 patent teaches both enco ding and decoding systems, the claims do not require one system to perform both functions. The Defen dants r espond that Realtime stipulated to a construction that requires selection of an encoder based on an analysis of the data blocks at trial and that t hey cannot now change that construction on appeal.
We agree with the Defendants. The decoding claim s disclose the limitation “wherein the lossless encoders are selected based on analysis of content of the data blocks ” ’651 patent col. 31 ll. 36

– 37, col. 33 ll. 10

– 11. The parties stipulated that this limitation mean s that “the system (or method) select s the lossless encoders based on an analysis of content of the data blocks (or data fields).” J .A. 5341, 5334. According to the stipulated claim construction, these decoding claims thus require the selection of anREALTIME DATA , LLC v. MORGAN STANLEY 26

encoder. Realtime cannot now change the construction that it had agreed to in the district court. Versata Software, Inc. v. SAP Am. Inc. , 717 F.3d 1255, 1262 (Fed. Cir. 2013). The district court thus did not err in granting the Defendants’ motion for summary judgment of noni nfringement of cla ims 95, 97, 108, and 112 of the ’651 patent

. In conclusion, we agree with the Defendants in all r espects concerning the district court’s holding of noni nfringement. The district court thus did not err in granting summary judgment of noninfringement of claims 15, 20, 22, and 32 of the ’568 patent; clai ms 14 and 19 of the ’747 patent; and claims 13, 18, 19, 21, 22, 25, 26, 29, 34, 35, 43, 47, 49, 95, 97, 108, and 112 of the ’651 patent.

IV

. V alidity

Realtime next contends that the district court erred in concluding that claims 1, 7, 8, and 13 of the ’747 patent and claims 1, 4, 6, 7, and 12 of the ’651 patent were inv alid under 35 U.S.C. § 112, ¶ 1. 1 To support its position

, Realtime asserts that content

- dependent decompression means that the decoders simply correspond to th ose used for content

- dependent compression

, i.e.

, content

dependent decompression decompresses da ta encoded with a content

- dependent compres sor

. The Defendants respond that t he written description describes decompression as checking the descriptor to determine whether it is “null,” meaning the data were not compressed, or “not null,” meaning that the descriptor

1 Paragraph 1 of 35 U.S.C. § 112 was re placed with newly designated § 112 (a) when § 4(c) of the Leahy

- Smith America Invents Act (“AIA”), Pub. L. No. 112

- 29, took effect on September 16, 2012. Because this case was filed before that date, we will refer to the pre

- AIA version of § 112

.REALTIME DATA , LLC v. MORGAN STANLEY 27

corresponds to a decoder. The Defendants contend that the limitation lacks written description support under § 112, ¶ 1 bec ause t here is no mention of con tent

- based or
content

- dependent decompression in the written descri ption of the ’651 and ’747 patents.
We agree with the Defendants that the ’651 and ’747 patents lack adequate written description of the “content dependent data decompression” limitation

. The written description is a statutory requirement set forth in 35 U.S.C. § 112. The written description “must clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co. , 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (citation and quotations omitted). The test is whether the disclosure “conveys to those skilled in the art that the inventor had possession of the claimed subject
matte r as of the filing date.” Id.

A s the district court found, the written descrip tions of the ’651 and ’747 patents do not contain a ny definition of

“ content dependent data decompression .” Written D escription Opinion , 2012 WL 2545096, at *8. The written description describes the process of data decompression as determining “whether the data compression type d escriptor is null” (meaning that the content is not co mpressed), or not null meaning that “the corresponding decoder or decoders ” matching the compre ssion type descriptor used to encode the data are selected to decode the data block. ’747 patent col. 15 ll. 11

– 25 ; ’651 patent col. 17 ll. 10

– 28 (describing the process of extracting the data compression type descriptor to determine the deco ders to use)

. The written description s of the ’651 and ’747 patents do not disclose decompression whereby an anal ysis of the content of an encoded block is used to determine the decoders for purposes of decompression. Further, in both the ’747 and ’651 patents, the term “content depen dent data decompression” only appears in the claims themselves, which contain limited language and no d e-REALTIME DATA , LLC v. MORGAN STANLEY 28

scriptive content and hence fail to show that Realtime invented or had possession of content

- based or content

dependent data decompre ssion . In briefing and oral argument, Realtime has further failed to point to a ny definition of “c ontent dependent data decompression ” in the written description.
Thus, the district court did not err in concluding that claims 1, 7, 8, and 13 of the ’747 patent and claims 1, 4, 6, 7, and 12 of the ’651 patent were invalid for lack of wri tten description under 35 U.S.C. § 112, ¶ 1. As all the asserted claims have been found on review to be either not infringed or invalid for lack of adequate written descri ption, we do not need to review the district court ’ s holding of invalidity for indefiniteness.

V. I nfringement U nder the D octrine of E quivalents
Realtime finally argues that the district court abused its discretion in precluding Realtime from arguing i nfringement under the doctrine of equivalents , applying its local rules in doing so. We affirm the district court in its decision concerning the doctrine of equivalents

. As a general matter, w e “defer[] to the district court when interpreting and enforcin g local rules so as not to fru strate local attempts to manage patent cases according to prescribed guidelines.” Genentech, Inc. v. Amgen, Inc.

, 289 F.3d 761, 774 (Fed. Cir. 2002). Particularly in revie w ing the district court’s exercise of discretion, we determine whether: “(1) the decision was clearly unre asonable, arbitrary, or fanciful; (2) the decision was based on an erroneous conclusion of law; (3) the court’s findings were clearly erroneous; or (4) the record contains no evidence upon which the cour t rationally could have based its decision.” In re Cambridge Biotech Corp. , 186 F.3d 1356, 1369 (Fed. Cir. 1999).
Realtime argues that t he Defendants would not be prejudiced by Realtime’s assertion of infringement under the doctrine of equivalents

. The Defendants respond thatREALTIME DATA , LLC v. MORGAN STANLEY 29

they would suffer prejudice because the assertions of infringement under the doctrine of equivalents were made over two years after the case was originally filed and after fact discovery had closed.
We agree with the Defendants o n this point . The di strict court was well within its discretion to preclude Realtime from asserting infringement under the doctrine of equivalents. In asserting its allegations of infring ement under the doctrine of equivalents two and a half years into t he litigation, Realtime failed to comply with the local rules of both the Eastern District of Texas and the Southern District of New York, which require co mplete infringement assertions within 10 and 14 days

, respectively. Additionally, because Realtime a sserted such contentions after fact discovery had closed, the Defendants were prejudiced from developing adequate discovery and developing theories of noninfringement under the doctrine of equiva lents. The district court thus did not abuse its discretion by precluding Realtime from asserting infringement allegations under the doctrine of equivalents.

C ONCLUSION For the foregoing reasons, the various decision s of the district court concerning noninfringement and invalidity, as well as on the doctrine of eq uivalents, are
AFFIRMED