NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

WALKER DIGITAL, LLC,

Plaintiff-Appellant,

v.

MICROSOFT CORPORATION AND GOOGLE, INC.,

Defendants-Appellees.

______________________ 

2013-1584

______________________ 

Appeal from the United States District Court for the 

District of Delaware in No. 11-CV-0311, Judge Richard G. 

Andrews.

______________________ 

Decided: November 6, 2014

______________________ 

MARC A. FENSTER, Russ August & Kabat, of Los Angeles, California, argued for plaintiff-appellant. With him 

on the brief was BENJAMIN T. WANG. 

MICHAEL J. MALECEK, Kaye Scholer LLP, of Palo Alto, 

California, argued for all defendants-appellees. With him 

on the brief for defendant-appellee Google Inc. was

TIMOTHY CHAO. Of counsel was ROBERT MAGEE, Kaye 

Scholer LLP, of Palo Alto, California. Of counsel on the 

brief were DARYL JOSEFFER, King & Spalding LLP, of 
2 WALKER DIGITAL, LLC v. MICROSOFT CORPORATION

Washington, DC; and ADAM CONRAD, of Charlotte, North 

Carolina. On the brief for defendant-appellee Microsoft 

Corporation were FRANK E. SCHERKENBACH, Fish & 

Richardson P.C., of Boston, Massachusetts; JASON W.

WOLFF and RYAN P. O’CONNOR, of San Diego, California; 

and JOHN A. DRAGSETH of Minneapolis, Minnesota. Of 

counsel on the brief was ISABELLA FU, Microsoft Corporation, of Redmond, Washington. 

______________________ 

Before LOURIE, DYK, and WALLACH, Circuit Judges.

LOURIE, Circuit Judge. 

Walker Digital, LLC (“Walker Digital”) appeals from a 

stipulated judgment of noninfringement following a 

decision of the United States District Court for the District of Delaware construing the claim limitation “auction” 

in U.S. Patent 7,801,802 (the “ʼ802 patent”). See Walker 

Digital, LLC v. Google, Inc., No. 11-311-RGA, 2013 WL 

4647313 (D. Del. May 22, 2013) (“Claim Construction 

Order”); id., ECF No. 176 (D. Del. July 25, 2013) (“Final

Judgment”). Because Microsoft Corporation and Google 

Inc. (collectively, “the Defendants”) do not infringe even 

under a modified construction, we affirm the judgment of 

noninfringement. 

BACKGROUND

Walker Digital is the assignee of the ʼ802 patent, 

which relates to a method and system of automated proxy 

bidding in online auctions. In an online auction, a bidder 

may place a bid either manually or via an automated

proxy. If using a proxy, the bidder must specify when to 

place the bid and at what price. The ʼ802 patent describes a “bid generator” as the proxy that places a bid 

according to the bidder’s specifications. ʼ802 patent col. 5 

ll. 7–8. The “auction server” then processes that bid using

“an indication of the auction, the bidder, and the bid 

price.” Id. col. 4 ll. 62–63. To achieve “natural and com-
WALKER DIGITAL, LLC v. MICROSOFT CORPORATION 3

petitive” bidding behavior, the patent teaches that proxies

place their bids “according to an amount of time left in the 

auction,” rather than immediately after another’s bid 

surpasses a certain price threshold. Id. [57] (abstract). 

The Defendants operate online auctions for advertising space, using search keywords to trigger the display of 

advertisements.1 When a user enters a triggering search 

keyword, the Defendants run a “near instantaneous 

auction” that finishes “within a fraction of a second” to 

select the winning advertisement. J.A. 136. In selecting 

the winning advertisement, the Defendants consider the 

participating advertisers’ bids, which reflect the predetermined price each advertiser would pay for a user to 

click on its ad after a search query, and numerous factors, 

such as the relevance of the ad to the keyword and the 

likelihood a user will click on the ad. J.A. 136, 186. The 

Defendants then display the winning advertisement on 

the search results page. E.g., J.A. 191. The Defendants’

auctions for advertising space operate continuously. See, 

e.g., Walker Digital, LLC v. Google Inc., No. 11-311-RGA, 

ECF No. 175, at 2 (D. Del. July 24, 2013) (“Stipulated 

Judgment”). 

Walker Digital sued the Defendants in the District 

Court for the District of Delaware, asserting that the 

Defendants infringed the ʼ802 patent. The Defendants

moved to dismiss the complaint and for Rule 11 sanctions. 

The court denied the motion without prejudice and or1 The described auction specifically depicts 

Google’s accused “AdWords,” “AdSense,” and related

systems. Walker Digital, LLC v. Google Inc., No. 11-311-

RGA, ECF No. 173, at 1 (D. Del. July 19, 2013). Microsoft’s Advertising adCenter system operates in a 

similar fashion. Id., ECF No. 175, at 1–2 (D. Del. July 24, 

2013) 

 
4 WALKER DIGITAL, LLC v. MICROSOFT CORPORATION

dered limited early claim construction briefing on the 

claim limitation “auction.” J.A. 362. 

Claim 1 is representative and reads as follows:

1. A method comprising:

storing a rule for automatically placing a bid by a 

bid generator for an item for a bidder in an auction, the rule associated with the bidder and having a condition specifying that the bid is to be 

placed by the bid generator according to an 

amount of time left in the auction; 

determining that the rule is satisfied; 

determining that the highest bid in the auction is 

not from the bidder; and

placing the bid.

ʼ802 patent col. 15 ll. 26–35 (emphases added). After the 

accelerated Markman hearing, the parties filed additional 

claim construction briefing and the court held a second 

Markman hearing on additional claim terms. Notably, 

the parties agreed to construe “the highest bid in the 

auction is not from the bidder” as “the highest offer received for the item is not from the bidder.” J.A. 764 (emphasis added). 

The district court issued a combined Markman ruling 

and construed “auction” to mean “a public or private sale 

in which goods or services of a seller may be sold to a 

bidder through a bidding process. An auction consists of 

one sale.” Claim Construction Order, 2013 WL 4647313, 

at *1. The court reasoned that if “auction” involved 

multiple sales, the claimed method would not function as 

intended because the proxy, placing a bid “according to an

amount of time left in the auction,” could bid against itself 

or bid on an item already sold. Id. Moreover, the court 

found that the specification’s limited list of things needed 

to process a bid, namely, an indication of the auction, the 
WALKER DIGITAL, LLC v. MICROSOFT CORPORATION 5

bidder, and the bid price, supported a single-sale construction. Id. at *2. If “auction” contemplated multiple 

sales, the court reasoned, then more information would be 

needed to determine which item the bidder desired. Id. 

After the court issued its claim construction order, the 

parties stipulated to a judgment of noninfringement. 

Final Judgment, ECF No. 176. Walker Digital appealed

from that judgment, challenging the court’s claim construction. We have jurisdiction pursuant to 28 U.S.C. § 

1295(a)(1). 

DISCUSSION

Claim construction is a matter of law, which we 

review on appeal without formal deference. Lighting 

Ballast Control LLC v. Philips Elecs. N.A. Corp., 744 F.3d 

1272, 1285–86 (Fed. Cir. 2014) (en banc); Cybor Corp. v. 

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

banc). The words of a claim generally receive “their 

ordinary and customary meaning as understood by one of 

ordinary skill in the art.” Phillips v. AWH Corp., 415 F.3d 

1303, 1312–13 (Fed. Cir. 2005). If, however, the patentee 

has clearly and unmistakably disavowed claim scope or, 

acting as a lexicographer, has expressly defined the 

disputed claim term in the specification or prosecution 

history, then we will deviate from the claim term’s ordinary and customary meaning. Edwards Lifesciences LLC 

v. Cook Inc., 582 F.3d 1322, 1329 (Fed. Cir. 2009) (quoting 

CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 

1366–67 (Fed. Cir. 2002)). Because a patent is a fully 

integrated written instrument, the claims “must be read

in view of the specification, of which they are a part.” 

Phillips, 415 F.3d at 1315 (quoting Markman v. Westview 

Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en 

banc), aff’d, 517 U.S. 370 (1996)). 

Walker Digital argues that the district court erred by 

limiting “auction” to only one sale. According to Walker 

Digital, the broad definition provided in the specification
6 WALKER DIGITAL, LLC v. MICROSOFT CORPORATION

controls; none of the claims, the remainder of the specification, or the file history manifestly limit “auction” to only

one sale. Rather, Walker Digital suggests, the specification “repeatedly refers to auctions in which multiple goods 

or services are auctioned,” and the term “auction” assumed its understood meaning from the art as “not limited to one sale.” Appellant’s Br. 18, 21. Walker Digital 

further argues that the court incorrectly limited the plain 

meaning of “auction” because of an unjustified belief that 

the claimed method would not function properly if “auction” included a multi-sale event. Id. at 16–18. 

The Defendants respond that, while “auction” may 

generally include a multi-sale event, the claim language 

and specification necessarily limit “auction” to only one 

sale. The Defendants contend that the agreed-upon 

construction of “the highest bid in the auction” as “the 

highest offer received for the item” effectively equated 

“auction” and item, and thus limited the term “auction” to 

the single sale of one item. Appellees’ Br. 13–14, 22–24. 

Moreover, the Defendants argue that the “amount of time 

left in the auction” limitation only functions properly if 

“auction” means a single sale. Id. at 18–21. 

We agree with Walker Digital that the district court 

incorrectly limited “auction” to only one sale. The district 

court should have instead given the term its ordinary and 

customary meaning. Here, the ordinary and customary 

meaning of “auction” includes a multi-sale event. Indeed, 

both parties and the district court agree that the plain 

meaning of “auction” involves any number of sales. See

Claim Construction Order, 2013 WL 4647313, at *2 n.2 

(“In common English usage . . . , auction can mean either 

a ‘sale’ or the event at which multiple sales take place.”); 

see also J.A. 1118; Appellant’s Br. 23–24; Appellees’ Br. 

15. We find no reason in the intrinsic record to depart 

from that meaning. See Vitronics Corp. v. Conceptronic, 

Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (explaining that 
WALKER DIGITAL, LLC v. MICROSOFT CORPORATION 7

a claim term should assume its ordinary and customary 

meaning unless the intrinsic record compels otherwise). 

Beginning with the claim language itself, there is no 

evidence to limit “auction” to only one sale. The claims 

contain several other limitations referring to an auction, 

e.g., “according to an amount of time left in the auction” 

and “the highest bid in the auction is not from the bidder,”

yet remain indifferent to the number of sales involved in 

the “auction.” See, e.g., ’802 patent col. 15 ll. 27–31. 

Indeed, the claims generally contemplate a multi-sale 

auction involving a proxy that places a bid “for an item for 

a bidder in an auction.” Id. col. 15 l. 28 (emphases added). Thus, the claim language does not imply that “auction” is limited to a single sale. 

The specification and file history also do not purport 

to limit “auction” to only one sale. Walker Digital did not

clearly and unmistakably disavow an “auction” involving 

multiple sales during prosecution. See, e.g., J.A. 213 

(highlighting Walker Digital’s decision to overcome the 

prior art by adding a time limitation, not by limiting 

“auction” to a single sale). Nor did Walker Digital limit 

“auction” to only one sale in the specification by stating 

that is “the invention.” 

First, the specification defines “auction” as “a public 

or private sale in which goods or services of a seller may 

be sold to a bidder through a bidding process.” ’802 

patent col. 4 ll. 46–48. That definition embraces an 

understanding of “auction” that involves multiple sales. 

Walker Digital highlights the definition’s plural “goods or 

services” to argue that “auction” can involve multiple 

sales. Appellant’s Br. 18–19. While we agree with the 

district court that a single sale can include multiple 

“goods and services,” Claim Construction Order, 2013 WL 

4647313, at *2, we nevertheless agree with Walker Digital that “auction” is not limited to a single sale. Compare

’802 patent, col. 4 ll. 46–48, with id. col. 4 ll. 53–55. The 
8 WALKER DIGITAL, LLC v. MICROSOFT CORPORATION

specification defines auction as the sale of “goods and 

services.” Id. col. 4 ll. 46–48. The specification then 

defines “bid,” however, in a singular tense, as “includ[ing] 

an offered price for the good or service being auctioned.” 

Id. col. 4 ll. 53–55. A “bid” thus corresponds to the single 

sale of a particular “good or service,” whereas “auction”

may correspond to multiple sales of numerous “goods and 

services.” 

Next, and contrary to the Defendants’ contentions, 

“auction” and item are not equivalent terms. The agreed 

upon construction of “the highest bid in the auction” 

merely underscores that the claimed method works on an 

item-by-item basis; it does not limit the claimed method to 

auctions involving only one sale. As the specification 

states, “[a]n auction behavior may be specified by determining the auction behavior according to information 

about the auction, which may include information about 

an item, information about a seller and/or information 

about bidders.” Id. col. 3 ll. 2–6. An “auction” can thus be 

identified for purposes of the claimed invention by referencing any item for sale during the auction. That understanding permeates the specification. For example, the 

auction database, which stores information about present 

and past auctions, “may include an item identifier.” Id.

col. 8 ll. 64–67; see also id. col. 8 ll. 55–59 (indicating that 

Figure 7 contains a table with a record that “includes a 

bidder identifier 704 and an item identifier 706 or other 

identifier of the auction”). And a proxy bidder relies on “a 

maximum bid” and “an indication of the item or auction” 

to know when and how to place its bid. See id. col. 10 ll. 

63–66 (referencing Figure 13’s flowchart, which describes 

how a proxy bidder works). Item and “auction” are therefore not interchangeable; rather, both are used to inform 

the proxy bidder about the larger auction infrastructure. 

Finally, Figure 18 similarly contemplates an “auction” 

involving multiple sales of multiple items. Figure 18 

contains a block diagram depicting the “initialization of 
WALKER DIGITAL, LLC v. MICROSOFT CORPORATION 9

the auction.” Id. fig. 18; id. col. 13 ll. 12–15. “As indicated at 1800, initialization of the auction uses the seller 

database 1802, item database 1804 and auction database 

1806.” Id. col. 13 ll. 14–16. The item database for the

“auction,” as further depicted in Figure 5, stores “one or 

more records for each item being auctioned, with one 

record for each item being auctioned.” Id. fig. 5; id. col. 8 

ll. 26–31. The “auction” thus sells multiple items and 

begins only after the item database records and monitors 

each item for sale. As Figure 15 then depicts, once the 

“auction” finishes, the item database updates, storing the 

selling price for each item sold. Id. fig. 15; id. col. 11 ll. 

56–57. While the “auction” may sell just one item in a 

single sale, a construction that forecloses the more clearly 

contemplated multi-sale “auction” improperly restricts the 

scope of the claimed invention. 

Contrary to the district court’s findings, the patented 

method still functions as claimed even if “auction” involves multiple sales. As the district court properly 

found, the parties, having agreed to construe “highest bid 

in the auction,” “therefore, agree that, in the context of 

the highest bid, the bid must be for the particular item 

being sold in that auction. Claims must be interpreted 

consistently so the term ‘time left in the auction’ must 

likewise be interpreted as the time remaining to place 

bids for the item.” Claim Construction Order, 2013 WL 

4647313, at *1. The time limitation thus applies on an 

item-by-item basis. Indeed, Figure 8 depicts as much, as 

the item identifier indicates a start time and an end time 

for the sale of a particular item. ʼ802 patent fig. 8. Thus, 

the bid need only be placed according to an amount of 

time left for the sale of a particular item, and not according to the time left for the larger multi-sale auction, for 

the method to function properly. The district court’s 

concerns about a proxy bidding either against itself or for 

an item already sold are thus not compelling. 
10 WALKER DIGITAL, LLC v. MICROSOFT CORPORATION

Moreover, the district court’s emphasis on the specification’s limited list of items is unnecessarily narrow. Put 

in context, the court’s referenced passage states: 

The bids may be received by the auction manager 

100 in any number of ways, including, but not limited to, any data discernable by the auction manager as a bid, such as a message in any format of 

any communication protocol. To process a bid, the 

auction server uses an indication of an auction, 

the bidder, and the bid price. A bid from a bidder 

may itself include any one or more of these pieces 

of information. Any information that the auction 

server can infer or derive need not be included in 

the bid itself. 

Id. col. 4 ll. 62–66. When a bidder registers with the 

auction server, the bidder “registers for an auction for an 

item.” Id. col. 8 ll. 14–16. Information about the bidder 

thus includes information about the item of interest. 

Moreover, a bidder may submit a bid in a variety of 

formats with a variety of indicators, and the auction 

server is more than capable of deriving or inferring which 

item the bid is for in a particular auction. Even so, “an 

indication of the auction” simply suggests which auction 

the item is being sold in, for a bidder may participate in 

multiple auctions at the same time. That language does 

not require “auction” to be only a single sale. 

Accordingly, the district court incorrectly limited 

“auction” to only one sale. Because the intrinsic record 

does not limit “auction” in that way, we modify the district court’s claim construction and instead construe 

“auction” to mean “a public or private sale in which goods 

or services of a seller may be sold to a bidder through a 

bidding process.” 

Nonetheless, in the circumstances of this case, we 

consider the district court’s claim construction to be 

harmless error. As discussed above, the Defendants’ 
WALKER DIGITAL, LLC v. MICROSOFT CORPORATION 11

products still do not infringe, even under the modified 

claim construction. As the district court noted, the 

claimed method functions on an item-by-item basis, with 

each proxy placing a bid according to an amount of time 

“remaining to place bids for the item.” Claim Construction Order, 2013 WL 4647313, at *1. The Defendants’

auctions, however, are “instantaneous,” with the larger 

auction system operating continuously; they do not function according to any “time remaining” limitation as to an 

individual item. J.A. 191; see also Stipulated Judgment, 

ECF No. 175, at 3 (stipulating to a judgment of noninfringement because the “accused advertising services do 

not meet the ‘according to the amount of time left in the 

auction limitation,’” which applies on an item-by-item 

basis irrespective of whether “auction” is only a single 

sale). We thus affirm the judgment of noninfringement. 

CONCLUSION

For the foregoing reasons, we modify the district 

court’s claim construction and affirm the judgment of 

noninfringement. 

AFFIRMED