United States Court of Appeals for the Federal Circuit 

2008-1516 

PARAGON SOLUTIONS, LLC, 

Plaintiff-Appellant, 

v. 

TIMEX CORPORATION, 

Defendant-Appellee. 

James D. Liles, Porter, Wright, Morris & Arthur LLP, of Cincinnati, Ohio, argued 

for plaintiff-appellant. With him on the brief was Bryan R. Faller, of Columbus, Ohio. 

John R. Horvack, Jr., Carmody & Torrance LLP, of New Haven, Connecticut, 

argued for defendant-appellee. With him on the brief was Fatima Lahnin. 

Appealed from: United States District Court for the Southern District of Ohio 

Judge Michael R. Barrett
United States Court of Appeals for the Federal Circuit 

2008-1516 

PARAGON SOLUTIONS, LLC, 

Plaintiff-Appellant, 

v. 

TIMEX CORPORATION, 

Defendant-Appellee. 

Appeal from the United States District Court for the Southern District of Ohio in case no. 

1:06-CV-677, Judge Michael R. Barrett. 

__________________________ 

DECIDED: May 22, 2009 

__________________________ 

Before BRYSON, LINN, and MOORE, Circuit Judges. 

LINN, Circuit Judge. 

Paragon Solutions, LLC (“Paragon”) appeals from a final judgment of 

noninfringement in favor of Timex Corporation (“Timex”) in a suit alleging that certain 

Timex products, including Timex’s Bodylink watches, infringed Paragon’s U.S. Patent 

No. 6,736,759 (the “’759 patent”). Following claim construction, the parties stipulated 

that the accused products did not infringe, and the district court entered the final 

judgment of noninfringement on the stipulation. Paragon Solutions, LLC v. Timex Corp., 

No. 1:06-CV-677 (S.D. Ohio July 10, 2008) (“Final Judgment”); Paragon Solutions, LLC 

v. Timex Corp., No. 1:06-CV-677 (S.D. Ohio Apr. 23, 2008) (“Claim Construction Op.”). 

Because we conclude that the district court’s constructions of the claim terms “data 
acquisition unit” and “display unit” were incorrect, and because we reject Timex’s 

asserted alternative basis for affirmance based on the claim term “displaying real-time 

data,” we vacate and remand. 

I. BACKGROUND 

The ’759 patent discloses an exercise monitoring system. ’759 patent col.2 ll.66-

67. The claimed monitoring system includes a “data acquisition unit,” which itself 

includes both an “electronic positioning device” and a “physiological monitor.” Id. col.27 

ll.66-67. When the user wears the system during exercise, the electronic positioning 

device—one embodiment of which is a GPS device—tracks “at least one of” the user’s 

“location, altitude, velocity, pace, [or] distance traveled.” Id. col.3 ll.8-10. The 

physiological monitor retrieves “physiological data” from a user during exercise, namely, 

blood oxygen level or heart rate. Id. col.3 ll.11-13, 40, 50-51. Data from both the 

electronic positioning system and the physiological monitor are provided to a “display 

unit,” which displays data to the user in “real-time.” Id. col.28 ll.3-5, 13-14. Figures 1 

and 3 are exemplary illustrations of the disclosed exercise monitoring system: 

2008-1516 2
The ’759 patent has two independent claims, reproduced as follows, with 

disputed portions emphasized: 

1. An exercise monitoring system, comprising: 

(a) a data acquisition unit comprising an electronic positioning device

and a physiological monitor, said data acquisition unit configured to 

be worn by a subject performing a physical activity; and 

2008-1516 3
(b) a display unit configured for displaying real-time data provided by 

said electronic positioning device and said physiological monitor, 

said display unit separate from said data acquisition unit; 

wherein said display unit is configured to be worn by the subject, worn 

by someone other than the subject, or attached to an apparatus 

associated with the physical activity being performed by the subject 

so as to be visible to the subject while performing the physical 

activity, and 

further wherein said system is configured such that said display unit 

displays real-time data comprising at least one of a subject’s 

location, altitude, velocity, pace, and distance traveled. 

29. An exercise monitoring system, comprising: 

(a) an electronic positioning device configured to receive 

electromagnetic signals from three or more sources so that said 

monitoring system can determine at least one of a subject’s velocity 

or pace, wherein said electronic positioning device is provided as 

part of a data acquisition unit; 

(b) a physiological monitor; 

(c) a display unit configured to be worn by a user and for 

simultaneously displaying real-time data provided by said electronic 

positioning device and said physiological monitor, wherein said 

display unit is separate from said electronic positioning device; and 

(d) an alarm, wherein said alarm is activated when a subject’s velocity 

or pace does not meet a predetermined target. 

Id. col.27 l.66-col.28 l.16, col.30 ll.11-27 (emphases added). 

Of particular relevance to this case are the structural relationships among the 

electronic positioning device, the physiological monitor, and the display unit. As recited 

in claim 1, the electronic positioning device and the physiological monitor are both part 

of a data acquisition “unit.” Id. col.27 ll.66-67. The ’759 patent refers to the data 

acquisition unit interchangeably as a “data acquisition component.” See id. col.3 ll.15-

16 (describing “data acquisition unit (or component)”). Likewise, the display unit is 

referred to interchangeably as a “unit” and a “component.” Id. col.3 l.3 (describing “a 

2008-1516 4
display unit (or component)”). Concerning the structure of the data acquisition unit, the 

specification states that “the data acquisition component of a monitoring system 

according to the present invention may even comprise multiple structures which are 

physically separate from each other.” Id. col.8 ll.36-39. The claims and specification 

also indicate that the data acquisition unit—including its component parts—and the 

display unit are physically separate from each other. See, e.g., id. col.28 ll.5-6 (claiming 

“said display unit separate from said data acquisition unit”) (emphasis added); id. col.3 

ll.14-17 (“The electronic positioning device and the physiological monitor may be 

provided as part of a user-wearable data acquisition unit (or component) which is 

separate from the display unit.”) (emphasis added). 

The structural relationships among the electronic positioning device, the 

physiological monitor, and the display unit were also addressed during the prosecution 

of the ’759 patent. Prior to its second amendment, claim 1 did not include the claim 

term “data acquisition unit.” Instead, it recited: 

1. (amended) An exercise monitoring system, comprising: 

(a) an electronic positioning device; 

(b) a physiological monitor, and 

(c) a display unit configured for displaying data provided by said 

electronic positioning device and said physiological monitor; 

wherein said system is configured such that said display unit displays 

at least one of a subject’s location, altitude, velocity, pace, and 

distance traveled. 

Defendant Timex Corporation’s Opening Claim Construction Statement, Doc. No. 21 

Ex. 2 (“Doc. 21”), Part M, Paragon Solutions, LLC v. Timex Corp., No. 1:06-CV-677 

(S.D. Ohio July 23, 2007) (J.A. 289). The examiner rejected claim 1 (amended) as 

2008-1516 5
anticipated by U.S. Patent No. 6,013,007 (“Root”), which the examiner concluded 

“disclose[d] an electronic positioning device, a physiological monitor, [and] a display 

unit.” Doc. 21, Ex. 2-N (J.A. 295) (citations omitted). 

In response, the applicants further amended claim 1 to recite: 

1. (twice amended) An exercise monitoring system comprising: 

(a) a data acquisition unit comprising an electronic positioning 

device and [; (b)] a physiological monitor, said data acquisition 

unit configured to be worn by a subject performing a physical 

activity; and 

(b[c]) a display unit configured for displaying real-time data provided 

by said electronic positioning device and said physiological 

monitor, said display unit separate from said data acquisition 

unit; 

wherein said display unit is configured to be worn by the subject, worn 

by someone other than the subject, or attached to an apparatus 

associated with the physical activity being performed by the 

subject so as to be visible to the subject while performing the 

physical activity, and

further wherein said system is configured such that said display unit 

displays real-time data comprising at least one of a subject’s 

location, altitude, velocity, pace, and distance traveled. 

Doc. 21, Ex. 2-P (J.A. 310). The applicants also made similar amendments to 

application claim 18—which ultimately issued as claim 29. Id. (J.A. 311). 

Explaining the addition of the claim term “data acquisition unit” to claim 1, the 

applicants remarked: 

[C]laim 1 has been amended to require that the electronic positioning 

device and physiological monitor are provided as a data acquisition unit 

which is configured to be worn by a subject performing a physical activity. 

Claim 1 has also been amended to require that the display unit is separate 

from the data acquisition unit and is configured to display real-time 

data. . . . 

2008-1516 6
Similarly, independent claim 18 has been amended to specify that the 

electronic positioning device is provided as part of a data acquisition unit 

which is separate from the display unit. . . . 

The Root patent describes a monitor for providing an athlete with 

performance data. In contrast to the structure required by independent 

claims 1 and 18, as amended herein, the monitor described in Root is a 

unitary structure in which the data acquisition unit and the display screen 

are provided as a single unit. 

Id. (J.A. 307-08). The claims were allowed as amended. Doc. 21, Ex. 2-Q (J.A. 316).1

Paragon alleged that various Timex products,2 including Timex’s Bodylink 

watches, infringed at least claims 1 and 29 of the ’759 patent. The parties stipulated 

that “[t]he accused Timex products include at least three components: (1) a watch with a 

display, (2) a GPS transceiver, and (3) a heart rate monitor.” Stipulation and Order of 

Non-Infringement, Doc. No. 42 (“Stipulation”), ¶ 6, Paragon Solutions, LLC v. Timex 

Corp., No. 1:06-CV-677 (S.D. Ohio July 10, 2008) (J.A. 525). The parties also 

stipulated that, “[f]or all of the accused Timex products, the electronic positioning device 

(GPS transceiver) and the physiological monitor (heart rate monitor) are located in 

separate physical structures” and “data is separately provided by the physiological 

monitor and the electronic positioning device to the display.” Stipulation ¶¶ 8, 9 (J.A. 

526). 

Additionally, as relevant to the limitation requiring that the “display unit displays 

real-time data,” the parties stipulated that the accused Timex products operate as 

follows: 

The heart rate monitor measures the time between successive heart beats 

to calculate an instant heart rate. The monitor averages the last four valid 

 1

 After allowance but prior to issuance, the applicants further amended 

Claim 29, but that amendment is not relevant to this appeal. 

2

 Paragon identified seven accused Timex products as exemplary: T59551, 

T5C391, T5E671, T5F011, T5G311, T5J985, T59561, and T56311. 

2008-1516 7
rates (valid defined as a rate between 30 and 240 and linearly related). 

The average heart rate is wirelessly transmitted to the watch every two 

seconds. The wireless transmission takes 0.06 [seconds] (sixty 

milliseconds) to complete. Once the information is received by the watch, 

there is an additional delay of approximately .1 - 1 second before the 

watch will display the individual’s heart rate depending on the other 

functions that the watch must complete first (e.g. updating the time or 

date). 

. . . 

The GPS transceiver wirelessly transmits the speed of the unit and the 

distance the unit has traveled since it was powered on every 3.57 

seconds. The wireless transmission takes .25 seconds to complete. The 

watch uses the information from the GPS transceiver to calculate speed 

(based on an algorithmic smoothing of the GPS speed reported), average 

speed (calculated based on the distance traveled reported by the GPS 

and the time measured by the watch), pace (calculated based on distance 

traveled over 17.85 seconds and then inverted), average pace (calculated 

based on average speed and then inverted), and distance traveled 

(calculated based on the difference between the GPS report of distance 

traveled and whatever watch event has been selected—e.g. a split or start 

of workout). Once the information is received by the watch, there is an 

additional delay of approximately .1 to 1 second before the watch will 

display the requested information depending on the other functions that 

the watch must complete first (e.g. updating the time or date). 

Id. ¶¶ 13-16 (J.A. 526-27). 

Following briefing and a Markman hearing, the district court construed disputed 

claim terms including “data acquisition unit,” “display unit,” and “displaying real-time 

data.” Claim Construction Op. at 2-9. Relying on the doctrine of prosecution disclaimer, 

the district court construed “data acquisition unit” as “one structure that includes the 

electronic positioning device and the physiological monitor.” Id. at 5. The district court 

construed “display unit” as “a unit for displaying real-time data provided by the data 

acquisition unit.” Id. at 7. Finally, the district court construed “displaying real-time data” 

as “displaying data substantially immediately without contextually meaningful delay so 

that the information is displayed in a time frame experienced by people.” Id. at 9. The 

2008-1516 8
parties stipulated to noninfringement, subject to Paragon’s right to appeal the district 

court’s claim constructions. Stipulation ¶ 18 (J.A. 527-28); Final Judgment at 1. 

The district court entered final judgment of noninfringement, and Paragon timely 

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

II. DISCUSSION 

A. Claim Construction 

Claim construction is an issue of law, Markman v. Westview Instruments, Inc., 52 

F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), that we review de novo, Cybor Corp. v. 

FAS Techs., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). We determine the 

ordinary and customary meaning of undefined claim terms as understood by a person of 

ordinary skill in the art at the time of the invention, using the methodology in Phillips v. 

AWH Corp., 415 F.3d 1303, 1312-19 (Fed. Cir. 2005) (en banc). “[T]he court looks to 

those sources available to the public that show what a person of skill in the art would 

have understood disputed claim language to mean. Those sources include the words of 

the claims themselves, the remainder of the specification, the prosecution history, and 

extrinsic evidence concerning relevant scientific principles, the meaning of technical 

terms, and the state of the art.” Id. at 1314 (internal quotation marks and citations 

omitted). 

1. “data acquisition unit” 

The district court construed “data acquisition unit” to mean “one structure that 

includes the electronic positioning device and the physiological monitor.” Claim 

Construction Op. at 5. Paragon disagrees, having argued to the district court that “data 

acquisition unit” meant “an assemblage of inter-related components that unify the 

function of acquiring data from an electronic positioning device and a physiological 

2008-1516 9
monitor.” Id. at 2. On appeal, Paragon offers a slightly modified proposed construction: 

“an assemblage of inter-related components that perform the function of acquiring data 

from an electronic positioning device and a physiological monitor.” Reply Br. of PlaintiffAppellant Paragon Solutions, LLC at 29. Timex argues that the district court’s 

construction was correct. The dispute between the parties thus reduces to the question 

of whether the data acquisition unit must be a single structure, or whether it can be 

made up of physically separate structures. 

a. Claim Language 

Each party argues that the claim language supports its construction. Timex 

argues that the claims “are written in structural terms,” specifying a data acquisition unit

that is “separate from” the display unit. Br. of Appellee Timex Corp. at 31. Paragon 

argues that claim 7, which depends from claim 6 and, in turn, claim 1, shows that the 

data acquisition unit may be made up of separate structures. Claim 6 recites “[t]he 

system of claim 1, wherein said electronic positioning device comprises a GPS device, 

and further wherein said data acquisition unit further comprises a support member, and 

said GPS device and said physiological monitor are provided on said support member.” 

’759 patent col.28 ll.30-34. Thus, in claim 6, the “data acquisition unit” comprises a 

support member for both a GPS device (the electronic positioning device) and a 

physiological monitor. Claim 7 recites “[t]he system of claim 6, wherein said GPS 

device and said physiological monitor are removably secured to said support member.” 

Id. col.28 ll.35-37 (emphasis added). Because the GPS device and the physiological 

monitor are each “removably secured” to the support member, it stands to reason that 

they may be separate structures that are separately removable from the support 

member. Thus, claim 7’s recitation of a “removably secured” electronic positioning 

2008-1516 10
device and the physiological monitor suggests that the data acquisition unit may be 

made up of separate physical structures. 

Timex next argues that the recitation in claim 29 that “said electronic positioning 

device is provided as part of a data acquisition unit” suggests that the data acquisition 

unit must be a single structure that encompasses the electronic positioning device. ’759 

patent col.30 ll.15-17 (emphasis added). Paragon counters by pointing out that, 

although claim 29 recites that the electronic positioning system is part of the data 

acquisition unit, by reciting “a physiological monitor” in a separate limitation, with no 

mention of the “data acquisition unit,” it is apparent that the data acquisition unit may be 

separate from and need not include the physiological monitor. Contrary to Timex’s 

argument, it is our view that the recitation of a “data acquisition unit” in claim 29 casts 

doubt on—rather than supports—the district court’s construction of data acquisition unit 

as “one structure that includes the electronic positioning device and the physiological 

monitor.” Claim Construction Op. at 5 (emphasis added). 

From the foregoing, it can be appreciated that while the claim term “unit” might 

suggest that the data acquisition unit is a single structure, the separate recitation of a 

physiological monitor in claim 29 and the recitation of “removably secured” elements in 

claim 7 can be read to suggest persuasively that the data acquisition unit may be 

multiple structures. We turn next to the specification. See Phillips, 415 F.3d at 1315 

(“The claims, of course, do not stand alone. Rather, they are part of a fully integrated 

written instrument, consisting principally of a specification that concludes with the 

claims. For that reason, claims must be read in view of the specification, of which they 

are a part.”) (citations and internal quotation marks omitted). 

2008-1516 11
b. Specification 

In the specification, Paragon’s proposed construction finds strong support in one 

key sentence: 

Of course, the data acquisition component of a monitoring system 

according to the present invention may even comprise multiple structures 

which are physically separate from each other. 

’759 patent col.8 ll.36-39. As discussed above, the ’759 patent refers interchangeably 

to the “data acquisition component” and the “data acquisition unit.” See id. col.3 ll.15-

16. 

The drawings of the ’759 patent—in particular figure 1 and its associated text—

are also instructive. Figure 1, reproduced supra, depicts one embodiment of the 

exercise monitoring system. Id. col.7 ll.30-32. In that figure, only three structures are 

shown and described: an electronic positioning device, a physiological monitor, and a 

display unit. Id. fig.1. Each structure is shown separate from each of the other 

structures. Id. Figure 1 is consistent with and supports the conclusion that the 

electronic positioning device and the physiological monitor may be separate structures. 

Timex seeks to avoid the implications of figure 1 by arguing that the specification 

discloses two separate embodiments, only one of which is claimed. Specifically, Timex 

concedes that, in the configuration depicted in figures 1 and 2, “the electronic 

positioning device is separate from the physiological monitor.” Br. of Appellee Timex 

Corp. at 32. However, according to Timex, figures 3, 4, and 5 introduce a singlestructure data acquisition unit, and it is only this second embodiment—with a data 

acquisition unit—that is claimed. Id. But in the section that appears between the 

discussion of figures 2 and 3, the specification makes clear that the invention is not so 

limited. See ’759 patent col.8 ll.6-8 (“An exercise monitoring system according to the 

2008-1516 12
present invention may comprise a single structure, or may be subdivided into one or 

more component structures.”); id. col.8 ll.36-40 (“[T]he data acquisition component of a 

monitoring system according to the present invention may even comprise multiple 

structures which are physically separate from each other.”). In light of this language, we 

disagree with Timex that the structural configuration depicted in figure 1 is nothing more 

than an unclaimed embodiment. 

c. Prosecution History 

The district court did not suggest that either the claim language or the 

specification compelled a construction of “data acquisition unit” that was limited to a 

single structure. Rather, the district court reasoned that the applicants’ statements 

during prosecution in response to the Patent Office’s “notification of problems due to the 

preexisting Root patent” resulted in a clear and unmistakable disavowal of “the concept 

of an assemblage of inter-related parts and embrace[d] a single structure unit concept.” 

Claim Construction Op. at 5. Specifically, the district court relied on the applicants’ 

amendment of claim 1 “to require that the electronic positioning device and 

physiological monitor are provided as a ‘data acquisition unit,’” and on the applicants’ 

argument that the amendment overcame Root “by separating the data acquisition unit 

from the display unit which in Root are apparently provided in a single unit.” Id. at 4. 

We cannot agree with the district court’s interpretation of the prosecution history. 

The examiner rejected claim 1 as anticipated by Root because Root disclosed an 

electronic positioning device, a physiological monitor, and a display unit. Doc. 21, Ex. 

2-N (J.A. 295). Root disclosed all three elements in a single structure. See, e.g., Root 

fig.6. To overcome Root, the applicants amended the claims to separate out the display 

unit from the remaining structure. The way that the applicants chose to express this 

2008-1516 13
separation was to characterize the electronic positioning device and the physiological 

monitor collectively as a “data acquisition unit,” then to add the limitation requiring that 

the display unit be separate from the data acquisition unit. See ’759 patent col.27 ll.66-

67, col.28 ll.5-6; Doc. 21, Ex. 2-P (J.A. 308) (“[C]laim 1 has been amended to require 

that the electronic positioning device and physiological monitor are provided as a data 

acquisition unit . . . . Claim 1 has also been amended to require that the display unit is 

separate from the data acquisition unit . . . .”). The applicants argued that this 

amendment overcame Root, because “the monitor described in Root is a unitary 

structure in which the data acquisition unit and the display screen are provided as a 

single unit.” Doc. 21, Ex. 2-P (J.A. 308). 

“[A] patentee may limit the meaning of a claim term by making a clear and 

unmistakable disavowal of scope during prosecution.” Cohesive Techs., Inc. v. Waters 

Corp., 543 F.3d 1351, 1361 (Fed. Cir. 2008) (quoting Computer Docking Station Corp. 

v. Dell, Inc., 519 F.3d 1366, 1374 (Fed. Cir. 2008)). By amending the claims to require 

a separate data acquisition unit and display unit, and by remarking that this 

distinguished the “unitary structure” of Root, the applicants clearly and unmistakably 

disavowed a single structure that encompassed an electronic positioning device, a 

physiological monitor, and a display unit. The claimed exercise monitoring system must 

be at least two structures. However, there is nothing in the amendment or the 

applicants’ comments that clearly and unmistakably disavows a monitoring system with 

more than two structures. Thus, there was no clear and unmistakable disavowal of a 

“data acquisition unit” made up of physically separate structures. 

2008-1516 14
We conclude that, read in light of the specification, the claim term “data 

acquisition unit” is not limited to a single structure but may comprise multiple physically 

separate structures, and that the applicants did not make a clear and unmistakable 

disavowal of multiple physically separate structures during prosecution. We therefore 

construe “data acquisition unit” as used in the ’759 patent as “a structure or set of 

structures that includes at least the electronic positioning device and the physiological 

monitor.” 

2. “display unit” 

The district court construed “display unit” to mean “a unit for displaying real-time 

data provided by the data acquisition unit.” Claim Construction Op. at 7. Paragon 

disagrees. Paragon argued to the district court that “a display unit” should be construed 

as “an assemblage of inter-related components that unify the function of displaying data 

from the electronic positioning device and the physiological monitor.” Id. at 5. On 

appeal, Paragon argues that the district court’s construction was wrong in three 

respects, each of which we address in turn. 

First, Paragon argues that the district court was wrong to construe “display unit” 

as displaying data “provided by the data acquisition unit.” Rather, Paragon argues, the 

claim language permits the data to be provided by the individual components of the data 

acquisition unit—namely, the electronic positioning device and the physiological 

monitor. We agree with Paragon. Claim 1 recites “a display unit configured for 

displaying real-time data provided by said electronic positioning device and said 

physiological monitor.” ’759 patent col.28 ll.3-5 (emphasis added). The claim 

unambiguously states that the data provided to the display unit comes from both the 

electronic positioning device and the physiological monitor. Likewise, the specification 

2008-1516 15
makes clear that the electronic positioning device and the physiological monitor may be 

independently in communication with the display unit, to provide data used in the 

display. See, e.g., id. col.3 ll.3-5 (disclosing “a display unit (or component) configured 

for displaying data provided by the electronic positioning device and the physiological 

monitor”); id. col.7 ll.32-34 (“The system of FIG. 1 generally comprises an electronic 

positioning device 5 and a physiological monitor 6, both of which are in electrical 

communication with a display unit 7.”); id. figs.1 & 2. Nothing identified by the parties in 

the prosecution history undermines the conclusion that the display unit displays data 

provided either independently or over a common transmission path from both the 

electronic positioning device and the physiological monitor. 

The district court’s construction combined the sources of data by incorrectly 

substituting “data acquisition unit” for “said electronic positioning device and said 

physiological monitor.” Because we have determined that the data acquisition unit may 

be made up of multiple structures, it is important to make clear that the data displayed 

by the display unit may be obtained from the claimed electronic positioning device and 

the claimed physiological monitor either separately or over a common transmission 

path. 

Second, Paragon argues that “display unit” should not be limited to a single 

structure, just as “data acquisition unit” should not be limited to a single structure. 

Preliminarily, we note that there is nothing in the district court’s construction that would 

appear to limit “display unit” to a single structure. The district court merely concluded 

that the display unit must be a “unit”—which is the exact claim term. Moreover, there is 

no reason why the word “unit” in the term “display unit” would be limited to a single 

2008-1516 16
structure, when the patentee used the word “unit” in “data acquisition unit” to refer to 

one or more structures. “We apply a ‘presumption that the same terms appearing in 

different portions of the claims should be given the same meaning unless it is clear from 

the specification and prosecution history that the terms have different meanings at 

different portions of the claims.’” PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1366 

(Fed. Cir. 2007) (quoting Fin Control Sys. Pty., Ltd. v. OAM, Inc., 265 F.3d 1311, 1318 

(Fed. Cir. 2001)); see also, e.g., Phillips, 415 F.3d at 1314 (“Because claim terms are 

normally used consistently throughout the patent, the usage of a term in one claim can 

often illuminate the meaning of the same term in other claims.”). The parties have 

identified nothing in the claims, the specification, or the prosecution history that would 

suggest that “unit” in “display unit” means anything different from “unit” in “data 

acquisition unit.” The claimed “display unit” may therefore be multiple structures. 

Finally, Paragon argues that “display unit” should not have been construed to 

require “displaying real-time data,” because the claim recites merely that the display unit 

is “configured for displaying real-time data.” ’759 patent col.28 l.3 (emphasis added). 

Contrary to Paragon’s argument, the district court did not construe “display unit” to 

require “displaying real-time data.” Rather, it construed “display unit” as “a unit for

displaying real-time data.” Claim Construction Op. at 7 (emphasis added). The district 

court explained further that “‘for’ denotes a function for which the display unit is 

configured.” Id. Paragon was therefore wrong to characterize the district court’s 

construction as requiring the display unit to actually “display[] real-time data,” rather 

than merely be configured to do so. 

2008-1516 17
In sum, we modify the district court’s construction of “display unit” and construe 

“display unit” as used in the ’759 patent as “a structure or set of structures, separate 

from the data acquisition unit, for displaying real-time data provided by both the 

electronic positioning device and the physiological monitor independently or over a 

common transmission path.” 

3. “displaying real-time data” 

The district court construed “displaying real-time data” to mean “displaying data 

substantially immediately without contextually meaningful delay so that the information 

is displayed in a time frame experienced by people.” Claim Construction Op. at 9. As 

an alternative basis for affirmance, Timex argues that this construction was incorrect 

and that its products cannot infringe under the correct construction. Both before the 

district court and on appeal, Timex argues that “displaying real-time data” means 

“displaying the measured parameter at the given moment in time that the measurement 

of the parameter occurs.” Id. at 8. Paragon argues that the district court’s construction 

was correct and that Timex’s proposed construction would require instantaneous 

display, which is not possible in practice. 

a. Claim Language 

Although not addressed by the district court or the parties, we find important 

aspects of the claim language itself to provide at least some insight into the meaning of 

“real-time.” Specifically, claim 1 recites that the “display unit configured for displaying 

real-time data” is “separate from [the] data acquisition unit” that includes the electronic 

positioning device and the physiological monitor that provide the data. ’759 patent 

col.28 ll.3-6. Thus, when the claimed system is in operation, the displayed data must 

first be acquired by the electronic positioning device and the physiological monitor and 

2008-1516 18
then transmitted to the display unit for display. Even assuming that this transmission 

happens at the speed of light, it still takes a non-zero amount of time. Thus, what the 

claims describe as “displaying real-time data” cannot possibly mean displaying data 

literally instantaneously, because the claims themselves require a transmission that 

necessarily takes some time, however minute that might be. 

Second, claim 1 identifies five types of “real-time data,” at least one of which 

must be displayed: “location, altitude, velocity, pace, and distance traveled.” Three of 

these types of real-time data—location, altitude, and distance traveled—require the 

electronic positioning device to receive three or more signals that enable the device to 

calculate a position. See, e.g., ’759 patent col.3 ll.6-10 (“The electronic positioning 

device is configured to receive electromagnetic signals from three or more sources so 

that the monitoring system can determine at least one of a subject’s location, altitude, 

velocity, pace, and distance traveled.”); id. col.6 ll.46-52 (“The electronic positioning 

device uses electromagnetic signals from three or more sources in order to provide data 

indicative of one or more of the subject’s location, altitude, velocity, pace and/or 

distance traveled. By way of example, the electronic positioning component may 

comprise a GPS device which utilizes signals from satellites of the Global Positioning 

System . . . .”). Receiving and processing these signals necessarily takes a non-zero 

amount of time. See, e.g., id. col.9 ll.27-28 (describing “processing of GPS signals in 

order to determine the subject’s location”). 

Moreover, the other two of the claimed types of real-time data—velocity and 

pace—are calculations of the rate of movement. Because a rate of movement is simply 

distance moved over time (or time over distance moved), calculation of a rate of 

2008-1516 19
movement necessarily requires the passage of a non-zero amount of time. More 

particularly, calculation of a rate of movement requires sufficient time to have elapsed to 

allow for a meaningful measurement. Similarly, in dependent claim 14, the 

“physiological monitor comprises a heart rate monitor.” Id. col.28, ll.51-52. The 

measurement of a heart rate necessarily requires the passage of time between at least 

two heartbeats. 

Thus, from the claim language alone, it is clear that in this case “real-time” 

cannot mean instantaneous, and must permit at least some amount of time to pass to 

allow for both the processing limitations of the system and the time required to 

accurately measure the data that is to be displayed. 

b. Specification 

Each of the parties relies heavily on the specification for its construction of “real 

time.” Timex first points out that the specification is critical of prior art that does not 

provide “instantaneous” feedback, because “[h]uman nature requires instantaneous 

feedback for motivation and encouragement.” ’759 patent col.1 ll.29-30; see also id.

col.23 ll.50-52 (criticizing prior art because runner cannot determine “instantaneous 

velocity”). Timex is correct that the specification criticizes the prior art as failing to 

provide “instantaneous” feedback. However, taken in context, the specification’s 

criticisms are targeted at systems that do not provide any feedback during the course of 

the physical activity itself, so that the person engaged in the activity would have the 

opportunity to modify his activity in response. Specifically, immediately following the 

sentence concerning “instantaneous feedback for motivation and encouragement,” the 

specification states: 

2008-1516 20
[M]any athletes also do not know how to train effectively for maximal 

improvement. For example, competitive runners may have difficulty 

determining whether their pace on a particular day of training is too fast or 

too slow. 

Id. col.1 ll.31-36. The specification also includes a section entitled “Analytical and 

Training Methods,” in which it describes in detail the use of the electronic monitoring 

system—including various alarms—to allow the user to modify his or her activity in 

response to data collected and displayed during the activity. See id. col.23 l.28-col.27 

l.63. Thus, the specification’s criticism of prior art as not providing “instantaneous” 

feedback cannot be read as suggesting that the patented invention displays data 

literally instantaneously. Rather, the criticism of prior art is more appropriately read to 

distinguish the invention’s “real-time” display from prior art methods that stored data for 

review only after the activity was complete, so that the user could not make 

modifications during the course of the activity. Thus, the specification supports a 

construction of “real-time” in this case that precludes intentionally delaying the display of 

data by storing it for later review. The specification’s references to “instantaneous” 

feedback do not preclude some delay to allow for the processing limitations of the 

system and the time required to accurately measure the data that is to be displayed. 

Timex also relies on the specification’s references to providing data “at any given 

moment.” See ’759 patent col.13 ll.4-8 (disclosing that “an individual can use the GPS 

device of the monitoring system . . . in order to determine their velocity at any given 

moment (e.g., in miles per hour), their pace at any given moment (e.g., in terms of 

minutes per mile)”); id. col.13 ll.16-29 (disclosing that “a heart rate monitor device 

incorporated into a monitoring system according to the present invention may display a 

subject’s heart rate at any given moment”). The problem with Timex’s reliance on the 

2008-1516 21
language “at any given moment” is that this language is no more or less clear than “realtime.” The term “at any given moment” might mean literally instantaneously, or it might 

allow for the passage of some amount of time. As the district court recognized, Timex’s 

“given moment” language is therefore unhelpful in ascertaining the meaning of “real 

time.” 

In addition to the portions of the specification identified by the parties and the 

district court, we note two additional aspects of the specification relevant to the 

construction of “displaying real-time data.” First, the specification expressly states that 

the invention can be practiced using commercially available technology. See ’759 

patent col.12 ll.1-4 (“In order to provide the above-described functionality, the GPS 

device utilized in embodiments of the present invention may employ conventional, 

commercially-available components.”); id. col.14 ll.52-55 (“The oximeter device utilized 

in embodiments of the present invention may employ commercially-available 

components in order to provide the functionality described above.”). Plainly, the 

commercial GPS technology available at the time of filing—November 9, 1999—was not 

able to display data literally instantaneously. Thus, the fact that the specification 

describes embodiments using commercially available products confirms that “displaying 

real-time data” does not require instantaneous display. 

Second, like the claims, the specification expressly describes measuring rate 

data, which necessarily requires the passage of time. See, e.g., ’759 patent col.3 ll.6-10 

(“The electronic positioning device is configured to receive electromagnetic signals from 

three or more sources so that the monitoring system can determine at least one of a 

subject’s location, altitude, velocity, pace, and distance traveled.”) (emphases added); 

2008-1516 22
id. col.3 ll.11-13 (“The physiological monitor may be chosen from the group consisting 

of: an oximeter and a heart rate monitor.”) (emphasis added); id. col.22 ll.16-23 

(describing a display unit with regions displaying “the subject’s heart rate (in beats per 

minute)” and “the subject’s velocity (in miles per hour or kilometers per hour) or the 

subject’s pace (e.g., in minutes per mile)”). In this respect, the specification again 

confirms that that “displaying real-time data” must permit the passage of time required 

to accurately measure the data that is to be displayed. 

Paragon defends the district court’s construction by referring to a separate 

portion of the specification—the only part of the specification in which the term “realtime data” actually appears. That portion of the specification states that “[t]he systems 

and methods of the present invention, for example, provide real-time data and feedback 

useful to individuals performing a physical activity (such as athletes).” ’759 patent col.6 

ll.39-41. According to Paragon, this sentence supports the district court’s construction 

of real-time as “substantially immediately without contextually meaningful delay.” Claim 

Construction Op. at 9. In essence, in the views of both Paragon and the district court, 

the amount of delay that the system can impose and still be “displaying real-time data” 

depends on the use to which the system is being put. Under the district court’s 

construction, if the system is being used in a “context” in which the delay is 

“meaningful,” then the “displaying real-time data” limitation is not met; if, however, the 

system is being used in a “context” in which the delay is not “meaningful,” the display is 

in “real-time” and the limitation is met. Thus, the district court offers as an example that, 

“for a runner, [data must be displayed] presumably within the stride” to meet the 

“displaying real-time data” limitation. Id. at 8. 

2008-1516 23
The problem with construing “displaying real-time data” as used in the claims of 

the ’759 patent to preclude “contextually meaningful delay” is that such a construction 

injects a use limitation into a claim written in structural terms. “[A]pparatus claims cover 

what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb, 

Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). If the district court’s construction were 

correct, then the same apparatus might infringe when used in one activity, but not 

infringe when used in another. For example, consider a device that had a delay of thirty 

seconds between the time at which it calculated a user’s velocity and the time that it 

displayed it. A thirty-second delay might be insignificant in some contexts—including 

“walking,” “climbing,” and “snowshoeing,” all of which are listed in the specification as 

activities for which the patented invention is suitable. ’759 patent col.4 ll.52, 54. By 

contrast, a thirty-second delay in determining velocity would be highly significant in 

other contexts—for example, short- and middle-distance running or skiing. See id. col.4 

l.53. Moreover, the wide variety of contexts disclosed as suitable uses for the claimed 

exercise monitoring system would render it nearly impossible to determine in advance 

whether the delay in a particular system would be sufficient to avoid infringement. See, 

e.g., id. col.4 l.53 (listing “flying” as suitable physical activity); id. col.4 l.53 (listing 

“singing” as suitable physical activity); id. col.5 ll.38-39 (describing use of invention to 

monitor activity of “horses and camels”); id. col.7 ll.27-28 (describing use of invention for 

“rehabilitating an injured animal”). See also, e.g., Pitney Bowes, Inc. v. Hewlett-Packard 

Co., 182 F.3d 1298, 1311 (Fed. Cir. 1999). (discussing importance of public notice 

function in claim construction). Absent an express limitation to the contrary, any use of 

a device that meets all of the limitations of an apparatus claim written in structural terms 

2008-1516 24
infringes that apparatus claim. See, e.g., Catalina Mktg. Int’l, Inc. v. Coolsavings.com, 

Inc., 289 F.3d 801, 809 (Fed. Cir. 2002) (holding that “a patent grants the right to 

exclude others from making, using, selling, offering to sale, or importing the claimed 

apparatus or composition for any use of that apparatus or composition” (emphasis 

added)); see also Roberts v. Ryer, 91 U.S. 150, 157 (1875) (“The inventor of a machine 

is entitled to the benefit of all the uses to which it can be put, no matter whether he had 

conceived the idea of the use or not.”). Construing a non-functional term in an 

apparatus claim in a way that makes direct infringement turn on the use to which an 

accused apparatus is later put confuses rather than clarifies, frustrates the ability of both 

the patentee and potential infringers to ascertain the propriety of particular activities, 

and is inconsistent with the notice function central to the patent system. See, e.g. PSC 

Computer Prods., Inc. v. Foxconn Int’l, Inc., 355 F.3d 1353, 1361 (Fed. Cir. 2004) 

(emphasizing “the important public notice function of patents—the mechanism whereby 

the public learns which innovations are the subjects of the claimed invention, and which 

are in the public domain”); see also Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 

1244, 1255 (Fed. Cir. 2008) (emphasizing that claim language should “provide a clearcut indication of the scope of subject matter embraced by the claim” and noting “that the 

patent drafter is in the best position to resolve the ambiguity in the patent claims”). 

c. Prosecution History 

Timex argues that the prosecution history supports its construction requiring 

instantaneous display of data. Specifically, Timex argues that “the applicants stressed 

the ‘real-time data’ limitation in their Remarks to overcome the Examiner’s rejections” 

and “argued that the ‘real-time data’ limitation was supported by the specification,” 

which “disparages non-instantaneous systems.” Br. of Appellee Timex Corp. at 58. 

2008-1516 25
To the contrary, we conclude that the prosecution history offers further evidence 

that “real-time,” as used in this case, does not mean instantaneous. After claims 1 and 

18 were rejected as anticipated by Root, the applicants amended the claims to add the 

“displaying real-time data” limitation. Doc. 21, Ex. 2-P (J.A. 310); id., Ex. 2-Q (J.A. 

318). In their remarks, the applicants stated, “Furthermore, the personal computer 

depicted in Fig. 7 of Root cannot be used to display real-time data, as required by claim 

1. Rather, the personal computer in Fig. 7 of Root will merely display performance data 

after the athlete has completed their activity.” Doc. 21, Ex. 2-P (J.A. 308). The 

applicants similarly remarked that “Claim 18 also requires that the display unit display 

real-time data acquired by the electronic positioning device.” Id. (J.A. 309). The 

applicants’ remarks distinguishing Root therefore echo the criticism of the prior art in the 

specification. In the applicants’ view, the invention is preferable because it does not 

intentionally delay the display of data by storing it for later review after the athlete has 

completed his or her activity (as in Root). Rather, in this invention, the data is displayed 

without any intentional delay—i.e., in “real time.” 

d. Extrinsic Evidence 

The district court relied heavily on extrinsic evidence—namely, a dictionary 

definition—in construing “displaying real-time data.” Specifically, the district court relied 

on a Microsoft Computer Dictionary, which defined “real time” as “[o]f or relating to a 

time frame imposed by external constraints.” Claim Construction Op. at 9 (quoting 

Microsoft Computer Dictionary 375 (4th ed. 1999)). 

We have made clear that “dictionaries and treatises can be useful in claim 

construction,” particularly insofar as they help the court “to better understand the 

underlying technology and the way in which one of skill in the art might use the claim 

2008-1516 26
terms.” Phillips, 415 F.3d at 1318. However, we find the dictionary definition relied on 

by the district court too vague to be of significant help in resolving the dispute in this 

case. The cited definition sheds no light on whether “real-time” means “instantaneous” 

or, if not, how much of a delay is permissible. 

Moreover, we note that definitions of “real-time” in other technical dictionaries 

suggest that a real-time process cannot involve intentional delay or storage for later 

processing. See Rudolf F. Graf, Modern Dictionary of Electronics 627 (7th ed. 1999) 

(including definition of “real time” as “The performance of a computation during the 

actual time that the related physical process transpires in order that results of the 

computations are useful in guiding the physical process”); id. (including definition of 

“real-time operation” as “Data-processing technique in which information is utilized as 

events occur and the information is generated, as opposed to batch processing at a 

time unrelated to the time the information was generated”); IEEE 100: The Authoritative 

Dictionary of IEEE Standards Terms (7th ed. 2000) (including definition of “real time” 

related to “software” as “Pertaining to a system or mode of operation in which 

computation is performed during the actual time that an external process occurs, in 

order that the computation results can be used to control, monitor, or respond in a 

timely manner to the external process. Contrast: batch.”); Steven M. Kaplan, Wiley 

Electrical and Electronics Engineering Dictionary 639 (2004) (including definition of 

“real-time” as “In computers, that which is processed, or otherwise acted upon, without 

any delay.”); Harry Newton, Newton’s Telecom Dictionary 758 (22d ed. 2006) (“In data 

processing or data communications, real time means the data is processed the moment 

2008-1516 27
it enters a computer, as opposed to BATCH processing where the information enters 

the system, is stored and is operated on [at] a later time.”). 

For the foregoing reasons, we modify the district court’s construction of 

“displaying real time data” to reflect that, while the data need not be displayed 

instantaneously, it must be displayed without any intentional delay, taking into account 

the processing limitations of the system and the time required to accurately measure the 

data. We therefore construe “displaying real-time data,” as used in the claims of this 

case, as “displaying data without intentional delay, given the processing limitations of 

the system and the time required to accurately measure the data.” 

B. Infringement 

The district court entered judgment of noninfringement as a result of Paragon’s 

stipulation that the accused Timex products did not infringe based on the district court’s 

construction of disputed claim terms. Final Judgment at 1. Because we have modified 

the constructions of “data acquisition unit” and “display unit,” we vacate the district 

court’s judgment of noninfringement. See, e.g., Howmedica Osteonics Corp. v. Wright 

Med. Tech., Inc., 540 F.3d 1337, 1339 (Fed. Cir. 2008) (“Because we conclude that the 

construction of [a] claim term was incorrect, we cannot sustain the stipulated judgment 

[of noninfringement].”). 

As an alternative basis for affirmance, Timex argues that its accused products 

cannot meet the “displaying real-time data” limitation under “any proper construction.” 

Br. of Appellee Timex Corp. at 58. Specifically, Timex argues that the parties have 

stipulated that, in the accused products, there is at least a 2.16-second delay in the 

display of heart rate data and a 3.92-second delay in the display of speed, pace, or 

distance. See Stipulation ¶ 16 (J.A. 527). Timex argues that this delay demonstrates 

2008-1516 28
that the accused Timex products do not display data in real time, and that it is therefore 

entitled to judgment of noninfringement as a matter of law. 

As we have held, “displaying real-time data” in the claims of this case permits 

some delay, but does not permit an intentional delay, given the processing limitations of 

the system and the time required to accurately measure the data. The stipulation does 

not make clear whether there is any intentional delay in the display of data in the 

accused Timex products. To the contrary, the stipulation indicates that at least some 

portion of the 2.16-second and 3.92-second delays are attributable to processing 

limitations. See id. ¶ 13 (J.A. 526) (“The wireless transmission takes 0.06 (sixty 

milliseconds) to complete.”); id. (“Once the information is received by the watch, there is 

an additional delay of approximately .1 - 1 second before the watch will display the 

individual’s heart rate depending on the other functions that the watch must complete 

first (e.g. updating the time or date).”); id. ¶ 16 (J.A. 527) (“The wireless transmission 

takes .25 seconds to complete.”); id. (“Once the information is received by the watch, 

there is an additional delay of approximately .1 to 1 second before the watch will display 

the requested information depending on the other functions that the watch must 

complete first (e.g. updating the time or date).”) The stipulation also strongly suggests 

that at least some part of the delay is attributable to the time required to accurately 

measure the data—in particular, sampling of various rates. See id. ¶ 13 (J.A. 526) 

(“The monitor averages the last four valid rates (valid defined as a rate between 30 and 

240 and linearly related). The average heart rate is wirelessly transmitted to the watch 

every two seconds.”); id. ¶ 16 (J.A. 527) (discussing calculation of pace as “based on 

distance traveled over 17.85 seconds and then inverted”). 

2008-1516 29
At oral argument, counsel for Timex argued for the first time that the accused 

Timex products incorporate an intentional delay between the time at which data is 

acquired, and the time at which it is displayed. See Oral Arg. at 28:54-29:10, available 

at http://oralarguments.cafc.uscourts.gov/mp3/2008-1516.mp3 (“The Court: Are you 

suggesting you have a built-in delay here? Timex: We do. . . . It’s an issue of battery. 

Battery life. Maintaining battery life.”). Because the parties’ stipulation makes no 

mention of any intentional delay between the time at which data is acquired and the 

time at which it is displayed for the purpose of maintaining battery life, and because the 

factual question of whether the accused products incorporate such an intentional delay 

precludes us from concluding as a matter of law that Timex’s accused products do not 

satisfy the “displaying real-time data” limitation, we reject Timex’s alternative basis for 

affirmance. 

III. CONCLUSION 

For the foregoing reasons, we modify the district court’s claim constructions. As 

used in the ’759 patent, “data acquisition unit” means “a structure or set of structures 

that includes at least the electronic positioning device and the physiological monitor”; 

“display unit” means “a structure or set of structures, separate from the data acquisition 

unit, for displaying real-time data provided by both the electronic positioning device and 

the physiological monitor independently or over a common transmission path”; and 

“displaying real-time data” means “displaying data without intentional delay, given the 

processing limitations of the system and the time required to accurately measure the 

data.” Accordingly, we vacate the judgment of noninfringement and remand for further 

proceedings consistent with this opinion. 

VACATED AND REMANDED

2008-1516 30
2008-1516 31

COSTS 

Each party shall bear its own costs.