Woke up and started thinking about the Defenses’ interpretation of the top two important claim construction terms. Here they are again.

A. “flash memory” (Claims 1, 2 and 19 of the ‘774 Patent and Claim 5 of the ‘737 Patent)

e.Digital’s Proposed Construction:block erasable non-volatile memory

Defendants’ Proposed Construction:block erasable non-volatile memory that is the main memory of the system

B. “a flash memory module which operates as sole memory of the received processed sound electrical signals and is capable of retaining recorded digital information for storage in nonvolatile form”

e.Digital’s Proposed Construction: “a removable, interchangeable flash memory storage device that (1) is the only removable memory storage device that receives for storage the processed sound electrical signals, and (2) is capable of retaining for storage digital information without the need for ongoing power support”

Defendants’ Proposed Constructions: (1) flash memory module: “a removable, interchangeable flash memory recording medium” and (2) sole memory of the received processed sound electrical signals: “the only memory of the received processed sound electrical signals, without another memory system such as RAM.”

I was confused because it appears the Defense argues there is and isn’t RAM included in the 774 patent. It appears that in claim term A. above, the Defense says there is RAM but in claim term B., there isn’t. Regarding claim term A., Dr. Mihran states in his report that he believes the term “main memory” (which is only found in some prosecution history that wasn’t admitted as evidence during the Markman) means RAM. But in claim term B., defense clearly states “…without another memory system such as RAM.” I may have found the answer to my confusion in Doc 296.

Though Dr. Mihran stated he believes the reference to main memory in some prosecution history means RAM, he goes on to say that Norris’ use of the phrase main memory implies flash memory is a replacement for RAM. Say what Dr??? Don't you have some homework to grade or something? LOL. Mr. Norris testified several times during the Markman that RAM was required in his 774 patent and stressed to the court that flash memory was not the same as RAM. It’s also an obvious part of the patent diagrams to a person of ordinary skill in the art. And Dr. Mihran testified (admitted) during the Markman that DRAM was inside the Flashback, which is the embodiment of the 774 patent.

Excerpts from Doc 296, starting on page 21 as follows:

On the other hand, Defendants’ expert contends that the phrase “main memory” is used in the prosecution history to mean “random access memory or RAM.” (Exh. 7 (Mihran Report) at ¶ 7). Based on this contention, Defendants’ expert then contends that the patentee’s use of main memory implies that the flash memory in the claims is used as a replacement for RAM (which he equates with main memory) to process the received audio signal. This circuitous reasoning, which spans 34 paragraphs of Defendants’ expert’s Declaration, involves discussions of the meaning of RAM, primary memory, primary storage, EEPROM, NOR, and NAND, all of which are based on extrinsic evidence. (Id. at ¶¶ 35-42 and 47-72). Notably, none of these terms/phrases can be found in either of the Patents-in-Suit.

And in any case, Defendants’ expert’s construction of main memory is contrary to claims 1 and 19 that describe the flash memory module as being for storage of the received processed sound electrical signals, as opposed to for processing the signals. The claim specifically teaches that the flash memory module is the “sole memory” “capable of retaining . . . for storage” the electrical sound signals that have been both “received” and “processed.” Importantly, the past tense is used for the verbs “receive” and “process.” Thus, the claim language makes clear that the “flash memory” comes into play after the audio data (i.e., electrical sound signals) has been received and processed, not during the receiving and processing as would be required by Defendants’ construction of main memory. Thus, Defendants’ attempt to impose a limitation that “flash memory” is the “main memory of the system” would make the claim language unintelligible. Simply put, Defendants’ proposed construction is contrary to the fundamental principles of claim construction and would only serve to confuse one of ordinary skill in the art.

Back to bed. Zzzzzzzzzz.