Note: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

IMPULSE TECHNOLOGY LTD.,

Plaintiff-Appellant

v.

MICROSOFT CORPORATION, ELECTRONIC ARTS 

INC., UBISOFT, INC.,

Defendants-Appellees

THQ, INC., KONAMI DIGITAL ENTERTAINMENT, 

INC.,

Defendants

______________________ 

2016-1015

______________________ 

Appeal from the United States District Court for the 

District of Delaware in No. 1:11-cv-00586-RGA-CJB, 

Judge Richard G. Andrews.

______________________ 

Decided: December 7, 2016

______________________ 

BRIAN ROSENTHAL, Mayer Brown LLP, Washington, 

DC, argued for plaintiff-appellant. Also represented by

ALAN M. GRIMALDI, MICHAEL LOUIS LINDINGER. 
2 IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION

SONAL NARESH MEHTA, Durie Tangri LLP, San Francisco, CA, representing defendants-appellees Microsoft 

Corporation, Electronic Arts Inc., argued for all defendants-appellees. 

ERIC ALLAN BURESH, Erise IP, P.A., Overland Park, 

KS, for defendant-appellee Ubisoft, Inc. Also represented 

by MICHELLE LYONS MARRIOTT. 

______________________ 

Before NEWMAN and LOURIE, Circuit Judges.1

LOURIE, Circuit Judge. 

Impulse Technology Ltd. (“Impulse”) appeals from the 

decision of the United States District Court for the District of Delaware, granting Microsoft Corporation’s (“Microsoft”) motion for summary judgment of 

noninfringement of fourteen of the fifteen asserted claims 

across U.S. Patents 6,308,565 (“the ’565 patent”), 

6,430,997 (“the ’997 patent”), 6,765,726 (“the ’726 patent”), 6,876,496 (“the ’496 patent”), 7,359,121 (“the ’121 

patent”), and 7,791,808 (“the ’808 patent”) (collectively, 

the “asserted patents”). See Impulse Tech. Ltd. v. Microsoft Corp., No. 11-586-RGA, 2015 WL 5568618, at *1 

(D. Del. Sept. 22, 2015). For the reasons that follow, we 

affirm. 

BACKGROUND

Impulse owns the asserted patents, which share a 

written description and are directed to the use of threedimensional motion tracking for interactive fitness and 

gaming applications. See, e.g., ’565 patent Abstract. 

1 This appeal is decided by a panel of two judges, 

unanimously, upon recusal of the third member of the 

panel prior to oral argument of the appeal.

 
IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION 3

Claim 1 of the ’565 patent is generally representative 

of the asserted claims2 and reads as follows: 

A testing and training system comprising: 

a tracking system for continuously tracking an 

overall physical location of a player in a defined 

physical space; and 

a computer operatively coupled to the tracking 

system 

for updating in real time a player virtual 

location in a virtual space corresponding 

to the physical location of the player in the 

physical space, 

for updating a view of the virtual space, 

and 

for providing at least one indicium of performance of the player moving in the 

physical space, 

wherein the at least one indicium is or is derived 

from a measure of a movement parameter of the 

player. 

’565 patent col. 38 l. 62–col. 39 l. 7 (emphasis added). 

Microsoft makes and sells the Xbox 360 video 

game console and the Kinect sensor, which, when used 

with video games (collectively, the “accused products”)

made and sold by Microsoft and the other defendants

(Electronic Arts, Inc., and Ubisoft, Inc., collectively, “the 

2 The asserted claims are claims 1, 5, 9, 30, 36, and 

57 of the ’565 patent; claim 1 of the ’979 patent; claim 16 

of the ’726 patent; claims 1, 3, and 5 of the ’496 patent; 

claim 22 of the ’121 patent; and claims 12, 15, and 17 of 

the ’808 patent.

 
4 IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION

other Defendants”), translate a user’s natural movement 

into gameplay, using physical gestures or audible speech, 

rather than relying on handheld game controllers. The 

accused products employ proprietary algorithms to output 

the location of 20 points that correspond to various joints 

in a user’s body, using a coordinate system centered at the 

Kinect sensor. The Kinect system employs an infrared 

sensor that can track motion within a cone-shaped area in 

front of it, extending from the camera in the front of the 

Kinect sensor outward to create a vertical field of view of 

about 57 degrees, a horizontal field of view of about 43 

degrees, and a practical viewing depth of approximately 

0.8 to 4.0 meters. The Xbox 360 coordinates with the 

Kinect to display the game’s virtual environment, typically on a television screen. For example, depending on the

game, the virtual environment could be a raft moving 

down a river or a car driving on a race track.

 On June 1, 2011, Impulse sued Microsoft and the 

other Defendants in the United States District Court for 

the District of Delaware, alleging infringement of fifteen 

claims of the asserted patents. On March 27, 2012, the 

district court referred the case to a magistrate judge to 

hear and resolve all pretrial matters, up to and including 

the resolution of case-dispositive motions. 

The magistrate judge held a Markman hearing on 

November 20, 2012, and issued a report and recommendation on May 13, 2013. See Impulse Tech. Ltd. v. Microsoft 

Corp., No. 11-586-RGA-CJB, 2013 WL 2020055, at *2 (D. 

Del. May 13, 2013) (“Claim Construction Report and 

Recommendation”). The magistrate judge recommended, 

inter alia, a construction for “defined physical space” of 

“indoor or outdoor space having known size and/or boundaries,” wherein the physical space is “known prior to 

adaptation of the testing and training system” and is 

defined independently of the sensor viewing area. Id. at 

*9–10. On September 19, 2013, the district court issued 

an order adopting the magistrate judge’s proposed claim 
IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION 5

construction. See Impulse Tech. Ltd. v. Microsoft Corp., 

NO. 11-586-RGA-CJB, ECF No. 314 (D. Del. Sept. 19, 

2013).

On January 17, 2014, Microsoft filed a motion for partial summary judgment of noninfringement and on March 

27, 2015, the magistrate judge issued another report and 

recommendation, recommending that the motion be 

granted as to fourteen of the fifteen asserted claims. See 

Impulse Tech. Ltd. v. Microsoft Corp., NO. 11-586-RGACJB, 2015 WL 5675569, at *1 (D. Del. Mar. 27, 2015)

(“Summary Judgment Report and Recommendation”). 

The magistrate judge based his recommendations on the 

conclusion that the accused products’ “hardcoded values” 

were “abstract,” “mathematical construct[s]” which could 

not infringe the claimed “defined physical space,” literally 

or under the doctrine of equivalents. Id. at *5. On September 22, 2015, the district court adopted the magistrate 

judge’s recommendations, granting Microsoft’s motion for 

summary judgment as to fourteen of the fifteen asserted 

claims. See Impulse Tech. Ltd. v. Microsoft Corp., NO. 11-

586-RGA-CJB, 2015 WL 5568616, at *3 (D. Del. Sept. 22, 

2015) (“Decision”).

Impulse timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

DISCUSSION

On appeal, Impulse argues that: (1) the district court

erred in its construction of the claim term “defined physical space”; and (2), even under the court’s construction, 

the court erred in granting Microsoft’s summary judgment motion. We discuss each issue in turn.

I 

We first consider whether the district court erred in 

its construction of “defined physical space.” “The proper 

construction of a patent’s claims is an issue of Federal 

Circuit law.” Absolute Software, Inc. v. Stealth Signal, 
6 IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION

Inc., 659 F.3d 1121, 1129 (Fed. Cir. 2011). We review a 

district court’s ultimate claim constructions de novo and 

any underlying factual determinations involving extrinsic 

evidence for clear error. Teva Pharm. U.S.A., Inc. v. 

Sandoz, Inc., 135 S. Ct. 831, 841–42 (2015). Here, because the district court relied only on the intrinsic record 

to construe “defined physical space,” we review the district court’s construction de novo. See Shire Dev., LLC v. 

Watson Pharm., Inc., 787 F.3d 1359, 1364, 1368 (Fed. Cir. 

2015) (citing Teva, 135 S. Ct. at 840–42). 

The words of a claim “are generally given their ordinary and customary meaning” as understood by a person 

of ordinary skill in the art at the time of the invention. 

Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 

2005) (en banc). Because that meaning is “often not 

immediately apparent, and because patentees frequently 

use terms idiosyncratically,” the court looks to the intrinsic record, including “the words of the claims themselves, 

the remainder of the specification, [and] the prosecution 

history,” as well as to extrinsic evidence when appropriate, to construe a disputed claim term. Id. at 1314, 

1319.

Impulse argues that the district court erred in construing “defined physical space” as an “indoor or outdoor 

space having size and/or boundaries known prior to the

adaptation of the testing and training system.” Decision, 

2015 WL 5568616, at *1 (emphasis added). Impulse 

maintains that in so construing that claim limitation, the

district court improperly imported a “temporal limitation”

from what the court perceived to be a feature of a preferred embodiment. Appellant’s Br. 25. Impulse asserts 

that the claims are silent as to when the physical space

must be defined and that nothing in the written description suggests that the size or boundaries of the physical 

space must be known before the system is adapted for 

use. Impulse interprets the district court’s construction of 

“prior to the adaptation of the testing and training sys-
IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION 7

tem” to mean prior to the system being turned on, rather 

than prior to game play. Thus, Impulse argues, the 

district court erred because the written description is 

broad enough to encompass a system that, after the 

sensor is placed and turned on, can adapt to a physical 

space per the user’s preferences. Furthermore, Impulse 

argues that the district court incorrectly concluded that 

the physical space cannot be defined in relationship to the 

sensor itself, but rather must be known independently of 

the sensor viewing area. Impulse maintains that the 

intrinsic evidence does not compel such a narrow construction. 

Microsoft responds that, as an initial matter, Impulse 

has waived its right to appeal the district court’s claim 

construction because it never objected to the magistrate 

judge’s claim construction report and recommendation. 

Appellee’s Br. 30 (citing 28 U.S.C. § 636(b)(1)(A)). Even if 

Impulse did not waive its argument, Microsoft argues, the 

district court correctly concluded that the physical space

must be known prior to adaptation of the system and 

defined independently of the sensor. 

First, Microsoft points to passages of the written description, which teach that the training system may be 

portable and thus “adaptable to” the physical space. ’565 

patent col. 9 ll. 16–17, 19–24 (“It will be appreciated that 

the system . . . may be adaptable to physical spaces of 

various sizes. In as much as the system is portable, the 

system may be transported to multiple sites for specific 

purposes.” (emphasis added)). Microsoft interprets the

district court’s construction of “prior to the adaptation of 

the testing and training system” as meaning prior to

game play, rather than turning the system on. Under this 

interpretation, Microsoft maintains that the written 

description supports the district court’s construction 

because it makes clear that the physical space is known 

before game play starts; otherwise, the system could not

be portable and “adaptable to” various physical spaces. 
8 IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION

Second, Microsoft asserts that the written description 

refers to the viewing range of the sensor using different 

language from that of the “defined physical space.” See, 

e.g., ’565 patent col. 10 ll. 29–34 (referring to the “tracking 

volume” and, separately, to the “defined physical space”). 

For those reasons, argues Microsoft, the “defined physical 

space” must be defined prior to, and independently of, the 

tracking system. 

First, we agree with Microsoft that the district court’s 

construction of “prior to the adaptation of the testing and 

training system” means prior to game play. Decision, 

2015 WL 5568616, at *1. The district court’s discussion, 

as well as the magistrate judge’s report and recommendation, make clear that the relevant time point is when the 

sensor begins to track movement of the user, i.e., during 

game play. See, e.g., id. at *1 ([T]he patent claims 

. . . systems that are set up in relation to a particular 

physical space (for example, in a gym or on a field) so that 

the system can ‘assess[] and quantify[] distance and time 

measurements relative to the player’s conditioning, sport 

and ability.’” (emphasis added)) (citing ’565 patent col. 9 

ll. 9–12); Claim Construction Report and Recommendation, 2013 WL 2020055, at *9 (noting that, in order to 

adapt the system to a particular physical space, the 

sensors must be positioned so as to “track movement [of 

the user] in the desired physical space” (emphasis added)) 

(internal quotations omitted) (citing ’565 patent col. 9 ll. 

29–34). 

Second, we agree with Microsoft that the district court 

correctly concluded that the “defined physical space” must 

be (1) known prior to adaptation of the system, and 

(2) defined independently of the sensor viewing area. The 

written description explains that the physical space “may 

be any available area, indoors or outdoors [o]f sufficient 

size to allow the player to undertake the movements” and 

that “the system . . . may be adaptable to physical spaces 

of various sizes.” ’565 patent col. 9 ll. 8–17. Furthermore, 
IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION 9

the written description explains that, in adapting the 

system to a particular physical space, the sensors must be 

“centered laterally with respect to the defined physical 

space . . . at a distance sufficiently outside the front 

boundary . . . to allow the sensors . . . to track movement 

in the desired physical space.” ’565 patent col. 9 ll. 29–34. 

The foregoing passages suggest that the “defined physical 

space” is known and defined prior to game play, so that 

(1) the physical space is of sufficient size to allow game 

play and (2) the system can be portable and adaptable to 

various physical spaces. We agree with the district court 

that the written description supports the construction 

that “the space itself must be known prior to the adaptation of the system to that (now, already known) space.” 

Summary Judgment Report and Recommendation, 2015 

WL 5675569, at *5. 

We also agree with the district court that the “defined 

physical space” must be defined independently of the 

sensor viewing area. The written description describes 

the sensor viewing area (i.e., “tracking volume”) and the 

“defined physical space” using different terms, thus 

suggesting that they are two separate concepts. See, e.g., 

’565 patent col. 10 ll. 29–34 (“[T]he position-sensing 

hardware tracks the player . . . in the defined physical 

space . . . over a tracking volume of approximately 432 

cubic feet.” (emphases added)). 

We therefore conclude that the district court correctly 

construed the limitation “defined physical space.” Thus, 

we need not address Microsoft’s waiver argument. 

II.

We next consider whether the district court erred in 

granting summary judgment of noninfringement. We 

review the district court’s grant of summary judgment 

under the law of the regional circuit, here, the Third 

Circuit. Classen Immunotherapies, Inc. v. Elan Pharm., 

Inc., 786 F.3d 892, 896 (Fed. Cir. 2015). Applying the law 
10 IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION

of the Third Circuit, we review the grant of summary 

judgment de novo. Nicini v. Morra, 212 F.3d 798, 805 (3d

Cir. 2000) (en banc). Infringement, whether literal or 

under the doctrine of equivalents, is a question of fact. 

Absolute Software, Inc. v. Stealth Signal, Inc., 659 F.3d 

1121, 1129–30 (Fed. Cir. 2011). As such, a grant of summary judgment of noninfringement is proper when no 

reasonable factfinder could find that the accused product 

contains every claim limitation or its equivalent. PC 

Connector Sols., LLC v. SmartDisk Corp., 406 F.3d 1359, 

1364 (Fed. Cir. 2005); see Warner-Jenkinson Co. v. Hilton 

Davis Chem. Co., 520 U.S. 17, 29, 39 n.8 (1997). 

Although infringement under the doctrine of equivalents is a question of fact, summary judgment is proper 

“[w]here the evidence is such that no reasonable jury 

could determine two elements to be equivalent.” WarnerJenkinson, 520 U.S. at 39 n.8. A patentee must establish 

“equivalency on a limitation-by-limitation basis” by “particularized testimony and linking argument” as to the 

insubstantiality of the differences between the claimed 

invention and the accused device or process. Texas Instruments Inc. v. Cypress Semiconductor Corp., 90 F.3d 

1558, 1566 (Fed. Cir. 1996). The function-way-result test 

“often suffice[s] to show the substantiality of the differences.” Id. 

 Impulse argues that, even under the district court’s 

construction of “defined physical space,” the court erred in 

granting summary judgment of noninfringement because 

material questions of fact remain as to infringement. 

Impulse maintains that a reasonable jury could conclude 

that the software “hardcoded values” of the accused 

products infringe, literally or under the doctrine of equivalents, the claim limitation “defined physical space.” 

Each of the accused products has software code that 

specifies the size of a physical space within which the user 

can play the game. Impulse argues that, because these 

hardcoded values are fixed, i.e., burned onto a disc at the 
IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION 11

factory, the physical space for which they code is predetermined and thus known prior to adaptation of the 

system. Impulse focuses on the “and/or” in the district 

court’s construction, see Decision, 2015 WL 5568616, at *1 

(construing the term as “indoor or outdoor space having 

size and/or boundaries known prior to the adaptation of 

the testing and training system” (emphasis added)), and 

thus argues that, because the size of the physical space is 

known prior to adaptation, the accused products may 

meet that claim limitation, even though the location is not 

known in advance. 

Microsoft responds that the district court’s grant of 

summary judgment of noninfringement was proper. 

First, Microsoft argues, the district court correctly concluded that the accused hardcoded values are “just numbers, . . . not an actual physical space at all” and, thus, 

they could not literally meet the claim element “defined 

physical space.” Summary Judgment Report and Recommendation, 2015 WL 5675569, at *4. Microsoft maintains 

that the district court correctly concluded that, because 

the hardcoded values are “purely abstract,” merely “a 

mathematical construct,” they “cannot be characterized as 

any particular physical space that exists indoors or outdoors.” Id. at 5 (emphasis added). Finally, Microsoft 

asserts that, to the extent that the hardcoded values could 

be characterized as a “defined physical space,” that space 

is not defined prior to adaptation of the system to a particular space because the location, which is defined in 

relation to the Kinect sensor, is not known in advance of 

adaptation. Microsoft maintains that in its decision, the 

district court explained that the “and/or” phrase in its 

construction was adopted solely to account for the “defined physical space” lacking a vertical boundary, as some 

of the examples of physical spaces disclosed in the specification were outdoor spaces. See Decision, 2015 WL 

5568616, at *2. 
12 IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION

We agree with Microsoft that the district court correctly granted summary judgment of noninfringement. 

First, we reject Impulse’s interpretation of the district 

court’s construction that a physical space with either a 

known size or a known set of boundaries would constitute 

a “defined physical space.” As the district court explained, the “and/or” phrase in its construction was 

adopted to “account for the possibility that an outdoor 

physical space would have no vertical boundary.” Id. We 

agree with the district court’s construction, as discussed 

above, and therefore conclude that both the size and the 

location of any boundaries that exist must be known prior 

to adaptation of the system in order to constitute a “defined physical space.” 

Second, we agree with the district court that no reasonable jury could have found that the hardcoded values

of the accused products literally meet the “defined physical space” claim limitation. The district court correctly 

concluded that, properly construed, the claims require a 

space that “exists in the physical world (either indoors or 

outdoors),” not a space defined in the “abstract.” Id. As 

the district court stated, the hardcoded values define a 

space in relation to the sensor, which “might constitute a 

defined relational space, but it is not a defined physical

space.” Id. at *1. 

Finally, we agree with the district court that Impulse 

failed to establish a genuine issue of material fact as to 

whether the hardcoded values operate in substantially 

the same way as the claimed “defined physical space” so 

as to infringe under the doctrine of equivalents. Impulse 

failed to provide evidence from which a reasonable jury 

could conclude that the hardcoded values of the accused 

products operate in substantially the same way as the 

claimed “defined physical space.” Rather, as the district 

court correctly concluded, the accused hardcoded values 

operate in “essentially the opposite fashion” of the claimed 

“defined physical space.” Id. at *3. The accused hardcod-
IMPULSE TECHNOLOGY LTD. v. MICROSOFT CORPORATION 13

ed values, which are abstract, mathematical constructs 

coding for a physical space that is known only after adaptation of the system, and the claimed “defined physical

space,” known prior to adaptation of the system, are 

essentially the antithesis of one another. Thus, no reasonable jury could conclude that they are equivalents. 

See, e.g., Brilliant Instruments, Inc. v. GuideTech, LLC, 

707 F.3d 1342, 1347 (Fed. Cir. 2013) (“The vitiation 

concept has its clearest application ‘where the accused 

device contain[s] the antithesis of the claimed structure.’”) 

(quoting Planet Bingo, LLC v. GameTech Int’l, Inc., 472 

F.3d 1338, 1345 (Fed. Cir. 2006)). 

We therefore uphold the district court’s grant of 

summary judgment. 

CONCLUSION

We have considered Impulse’s remaining arguments 

but find them to be unpersuasive. For the foregoing 

reasons, we affirm the judgment of the district court.

AFFIRMED

COSTS

No costs.