In the Order, ALJ Luckern set the procedural schedule for the investigation and included provisions for the early exchange of claim construction terms and proposed constructions.  ALJ Luckern did not include a separate Markman hearing in the procedural schedule but indicated that he remains open to considering motions for such a hearing.

In stating his view on whether a Markman hearing should be held, ALJ Luckern quoted extensively from the transcript of the July 12, 2010 preliminary conference in the investigation.  At that conference, ALJ Luckern had explained how he was doubtful as to the value of Markman hearings due to the fact that the Commission has the ability to overturn an ALJ’s claim construction findings at any time during the proceeding.

In particular, ALJ Luckern pointed to his recent initial determination on claim construction in Inv. No. 337-TA-703 (see our July 21, 2010 post for more details) and explained how the Commission’s delay in reviewing that determination could potentially cause some difficulty.  “I think that it would be helpful to know, but I have no idea what the Commission is going to do…And until I know what they are doing, and there has only been one Markman decision that I have issued so far, but the Commission may have good reasons not to do anything about it…And if that is the case, then I really don’t see much value in Markman hearings here, because I can’t see bringing parties here for a hearing, and turning away claims undetermined, and not know what the Commission is going to do.”

The ALJ further explained that “as you all know, this is an administrative procedure type of hearing, and the Commission can make new findings of fact based on the record, and send it back to me, and we could start all over again…And you can imagine what the expenses would be for the parties if we have to have a second evidentiary hearing based on the fact that the Commission would not agree with me.”

Accordingly, ALJ Luckern stated at the preliminary conference that “I am not going to do anything with respect to a Markman hearing.  If the Commission decides something to what I have filed [in the 703 investigation], then I may do it.”  Thus, while the procedural schedule does not currently include a date for a Markman hearing, it appears that ALJ Luckern has not completely foreclosed the possibility of conducting one, particularly if the Commission moves quickly in reviewing his Markman determination in the 703 investigation.

Lastly, according to the Order, the evidentiary hearing in the 720 investigation will commence on March 7, 2011.

By way of background, the Complainant in this investigation is Eastman Kodak Company (“Kodak”) and Respondents are Research In Motion, Ltd. and Research In Motion Corporation (collectively, “RIM”) and Apple Inc. (“Apple”).

The Commission instituted an investigation of this matter on February 17, 2010.  See our February 18, 2010 post for more details.  On April 26, 2010, ALJ Luckern issued an order granting Respondents motion requesting a Markman hearing.  See our April 28, 2010 post for more details.  Accordingly, a Markman hearing was conducted on May 24–25, 2010.

According to the ID, ALJ Luckern construed the following terms of the ‘218 patent:

“Motion Processor” and “Still Processor”

At dispute with regard to these terms was (1) whether “motion processor” and “still processor” required any particular circuitry, (2) whether the invention required simpler “motion processing” and more complex “still processing” and (3) whether the invention required digital processing.

In reaching his conclusion, ALJ Luckern took into consideration both intrinsic and extrinsic evidence including the claims of the ‘218 patent, the specification and drawings of the ‘218 patent, the prosecution history of the ‘218 patent, expert testimony from the Markman hearing, and similar terms in prior art patents.

With regard to the first issue, ALJ Luckern agreed with Respondents that the two terms required different and distinct circuitry.

In connection with the second issue, Apple argued that the words “simpler” and “more complex” were frequently used in the specification to describe features of the preferred embodiment.  However, ALJ Luckern cited language in the ‘218 patent and examiner statements in the ‘218 patent prosecution history indicating that the claims were not required to be restricted to a simpler “motion processor” and a more complex “still processor.”  Thus, ALJ Luckern determined that one of ordinary skill in the art would not be reasonably apprised of the scope of the invention by using such terms.

Finally, with respect to the third issue, ALJ Luckern determined that the image processing in both the motion processor and still processor was digital.

Ultimately, ALJ Luckern construed the claim term “motion processor” as “a processor that processes a series of motion images using digital image processing that is different and distinct in circuitry from the digital image processing of the still processor.”  The ALJ construed the claim term “still processor” as “a processor that processes a captured still image using digital image processing that is different and distinct in circuitry from the digital image processing of the motion processor.”

“At Least Three Different Colors”

With regard to this term, in the ID, ALJ Luckern first construed the word “color.”  The ALJ noted that the parties proposed no specific definition for color, nor was one given in the specification, thus ALJ Luckern determined that one skilled in the art would look to extrinsic evidence such as a dictionary.  In doing so, the ALJ construed “color” as “a phenomenon of light (as red, brown, pink, or gray) or visual perception that enables one to differentiate otherwise identical objects.”  ALJ Luckern found that this definition was supported by the testimony of experts, by the claims of the ‘218 patent, by the specification of the ‘218 patent, and by the prosecution history of the ‘218 patent.  Using a similar analysis, ALJ Luckern construed “different” by looking to a dictionary definition.  The ALJ determined that one skilled in the art would conclude “different” meant “not the same, distinct.”

Thus, ALJ Luckern construed the claim term “at least three different colors” as referring to “three or more distinct colors, for example red, blue and green, where each color is a phenomenon of light or visual perception that enables one to differentiate otherwise identical objects.”  The ALJ determined that this definition did not include YCC data having as its three components: luminance, Chroma-B, and Chroma-Y.

“Capture Button”

According to the ID, the parties disagreed as to whether the term “capture button” required only a “user control” or whether it was limited to a “mechanical element.”  ALJ Luckern determined that the language of the ‘218 patent’s claims and specification described only the button’s purpose and not the manner of it’s operation.  Thus, the ALJ determined a “capture button” need not be a “mechanical element.”

In response to allegations of amendment-based prosecution disclaimer, the ALJ looked to the purpose of the amendment and determined that one skilled in the art would not infer a “mechanical element” limitation based on the prosecution history.

Consequently, ALJ Luckern construed the claim term “capture button” as “a user control physically located on the camera, though it need not be a mechanical element.”

“Initiating Capture of a Still Image While Previewing the Motion Images”

Looking to the claims and the specification of the ‘218 patent, the ALJ determined that the term “initiating capture of a still image while previewing the motion images” meant “sending a signal from the capture button to the timing and controls section, said signal starting the still image capture process and being sent during the display of motion images.”  In doing so, ALJ Luckern again rejected Respondents’ argument of prosecution disclaimer.

“Each Captured Image Having a First Number of Color Pixel Value Provided in a First Color Pattern”

To interpret this phrase, ALJ Luckern construed three separate terms: “captured image,” “first number of color pixel values,” and “first color pattern.”  In construing these terms, the ALJ looked to the claims of the ‘218 patent, the specification of the ‘218 patent and expert testimony from the Markman hearing.

The ALJ construed “captured image” to be “an image of a scene received by the image sensor.”  ALJ Luckern next construed “first number of color pixel values” as “the number of color pixel values generated by the image sensor, where a color pixel value is a measure of the intensity of one color.” Finally, the ALJ construed “first color pattern” as “the arrangement of the color pixel values generated by the image sensor.”

Thus, ultimately, ALJ Luckern construed the phrase “each captured image having a first number of color pixel values provided in a first color pattern” as “each image of a scene received by the image sensor having a first number of color pixel values generated by the image sensor, provided in an arrangement of the color pixel values generated by the image sensor, where a color pixel value is a measurement of the intensity of one color of light.”

* * * * * *

While certifying the ID to the Commission, ALJ Luckern stated that an evidentiary hearing on violation is set to commence on September 1, 2010.   He therefore determined that “a final determination on claim construction on all claim language, or at least certain of the claim language, treated in said determination, before the commencement of the evidentiary hearing on violation on September 1, would lead to efficiencies at the violation hearing.”  ALJ Luckern accordingly requested an early decision by the Commission on this ID.

For background on the procedural history leading to the Markman hearing in this investigation, please see our April 28, 2010 post.

According to the portions of the ID released through the notice, ALJ Luckern construed the following terms of the sole patent at issue, U.S. Patent No. 6,292,218:

The claimed term “motion processor” was construed as a processor that processes a series of motion images using digital image processing that is different and distinct in circuitry from the digital image processing of the still processor and the claimed term “still processor” was construed as a processor that processes a captured still image using digital image processing that is different and distinct in circuitry from the digital image processing of the motion processor.

The claimed term “at least three different colors” was construed as referring to three or more distinct colors, for example red, blue and green, where each color is a phenomenon of light or visual perception that enables one to differentiate otherwise identical objects.

The claimed term “capture button” was construed as a user control physically located on the camera, though it need not be a mechanical element.

The claimed term “initiating capture of a still image while previewing the motion images” was construed as sending a signal from the capture button to the timing and controls section, said signal starting the still image capture process and being sent during the display of motion images.

The claimed phrase “each captured image having a first number of color pixel values provided in a first color pattern” was construed as each image of a scene received by the image sensor having a first number of color pixel values generated by the image sensor, provided in an arrangement of the color pixel values generated by the image sensor, where a color pixel value is a measurement of the intensity of one color of light.

The claimed phrase “captured image” was construed as an image of a scene received by the image sensor.

The claimed phrase “first number of color pixel values” was construed as the number of color pixel values generated by the image sensor, where a color pixel value is a measure of the intensity of one color.

The claimed phrase “first color pattern” was construed as the arrangement of the color pixel values generated by the image sensor.

While certifying the ID to the Commission, ALJ Luckern stated that pursuant to Order No. 5, which issued on March 31, 2010, an evidentiary hearing on violation is set to commence on September 1, 2010.   He therefore determined that “a final determination on claim construction on all claim language, or at least certain of the claim language, treated in said determination, before the commencement of the evidentiary hearing on violation on September 1, would lead to efficiencies at the violation hearing.”  ALJ Luckern accordingly requested an early decision by the Commission on this ID.

By way of background, Complainants Nokia Corporation and Nokia Inc. asserted over fifty claims of seven patents against Respondent Apple Inc. in this Investigation.  ALJ Gildea decided that an early Markman hearing would assist in streamlining the issues for the evidentiary hearing and final initial determination in this Investigation.  See our April 27, 2010 post for more details.

In the Markman hearing procedures set forth in Attachment A to Order No. 15, ALJ Gildea requires that the parties file pre-hearings statements on or before August 4, 2010 that provide the names of all known speakers or witnesses that will be present at the Markman hearing, a list of all exhibits that the parties intend to introduce at the Markman hearing, a list of any stipulations to which the parties have agreed, and a proposed schedule and allocation of time for the Markman hearing.  Attachment A also includes various requirements relating to the formatting and filing of exhibits, and requires that the parties exchange exhibits by August 4, 2010.  Finally, the Attachment provides that the total time allocated for the Markman hearing is 6.5 hours, and that the parties have the discretion to determine the order of presentation and allocation of time at the hearing.

In Order No. 14, ALJ Gildea ordered that the private parties meet and confer and prepare a technology stipulation in consultation with OUII, to be submitted on July 28, 2010.  According to the Order, “[a]t a minimum, said stipulation should provide sufficient background information to understand the disputed claim constructions of each of the asserted claims in issue and should not include any facts upon which the parties are not in agreement.” (Emphasis in original).  The Order further states that the stipulation should have one section for each patent or family of patents and, if applicable, a general technology section that discusses the technology common to all of the asserted patents.  Additionally, the stipulation “should have substance and not be a list of quotations from the patents at issue.” (Emphasis in original).

In the Order, ALJ Gildea determined that “[t]here will be no Markman hearing in this Investigation in advance of the main hearing.”  ALJ Gildea further determined, however, that “technology tutorials will be useful in setting the stage for the hearing.”  ALJ Gildea permitted the private parties 30 minutes per side and indicated that “[l]egal argument during said presentations will not be permitted.”

Additionally, ALJ Gildea determined that, following the technology tutorials, the parties would be permitted to “present Markman tutorials providing an overview of claim construction issues with respect to the patents at issue in this Investigation.”  (Emphasis in original).  ALJ Gildea further ordered that the private parties and the Commission Investigative Staff “will be permitted 30 minutes per side to summarize their legal arguments with respect to claim construction.”

According to the Order, the tutorials will occur on January 24, 2011.

By way of background, the Complainant in this investigation is Motorola, Inc. (“Motorola”) and the Respondents are Research in Motion, Ltd. and Research in Motion Corp.  The investigation was instituted on February 19, 2010 based on Motorola’s complaint of January 22, 2010.  See our February 22, 2010 post for more details.  ALJ Gildea’s procedural schedule calls for a Markman hearing on June 24, 2010 and gives August 6, 2010 as the estimated date for a Markman ruling.  See our April 7, 2010 post for more details.

In the Markman hearing procedures set forth in Attachment A to Order No. 8, ALJ Gildea requires that the parties file pre-hearings statements on or before June 22, 2010 that provide the names of all known speakers or witnesses that will be present at the Markman hearing, a list of all exhibits that the parties intend to introduce at the Markman hearing, a list of any stipulations to which the parties have agreed, and a proposed schedule and allocation of time for the Markman hearing.  Attachment A also includes various requirements relating to the formatting and filing of exhibits, and requires that the parties exchange exhibits by June 18, 2010.  Finally, the Attachment provides that the total time allocated for the Markman hearing is 6.5 hours, and that the parties have the discretion to determine the order of presentation and allocation of time at the hearing.

In Order No. 9, ALJ Gildea ordered that the private parties meet and confer and prepare a technology stipulation in consultation with OUII, to be submitted on June 22, 2010.  According to the Order, “[a]t a minimum, said stipulation should provide sufficient background information to understand the disputed claim constructions of each of the asserted claims in issue and should not include any facts upon which the parties are not in agreement.” (Emphasis in original).  The Order further states that the stipulation should have one section for each patent or family of patents and, if applicable, a general technology section that discusses the technology common to all of the asserted patents.  Additionally, the stipulation “should have substance and not be a list of quotations from the patents at issue.” (Emphasis in original).

By way of background, the Complainant in this investigation is Elan Microelectronics Corporation (“Elan”) and the Respondent is Apple Inc. (“Apple”).  The investigation was instituted on April 26, 2010 based on Elan’s complaint of March 29, 2010.  See our April 26 post for more details.  On May 27, 2010, the parties made written submissions and a preliminary conference was held concerning whether or not ALJ Luckern should conduct a Markman hearing in the investigation.

According to the Order, in the May 27 submissions, Elan did not request a Markman hearing, Apple stated that it believed a Markman hearing should be held, and the Commission Investigative Staff (“OUII”) indicated that it was not opposed to a Markman hearing but that if a Markman hearing is ordered, the due dates for the private parties and OUII should be staggered “such that the private parties’ claim construction summary determination motions (with supporting declarations) are due before [OUII] is required to propose its claim construction and file its summary determination motion.”

In the Order, ALJ Luckern noted that there is only one patent involved in this investigation, U.S. Patent No. 5,825,352 (the ‘352 patent).  Further, Elan has asserted the ‘352 patent against Apple in the U.S. District Court for the Northern District of California, and claim construction briefs have already been exchanged in that related litigation.  ALJ Luckern thus determined that “in addition to this investigation being limited to one patent, for some time all the private parties in this investigation have had a familiarity with the ‘352 patent and there has been discovery going involving said patent and [the] accused products.”  He further stated that “[w]hile [OUII] has not been involved in the district court litigation, [OUII] has the opportunity to be brought up to speed.”  Finally, ALJ Luckern noted that Elan had proposed at the preliminary conference that the investigation be completed in eight months, meaning that Elan was prepared to proceed with an evidentiary hearing on all issues within five months.

In view of the above, ALJ Luckern ordered that a Markman hearing take place.  The ALJ further ordered that, no later than June 4, 2010, the parties submit “a proposed first procedural schedule limited to dates for the [Markman] hearing and which would specify in detail how the proceeding will take place,” and that they additionally submit “a proposed second procedural schedule for the evidentiary hearing on all issues.”  Finally, ALJ Luckern stated that he “expects that discovery on all issues will continue pursuant to said second procedural schedule provided no final ruling by the Commission is made on any ruling of the administrative law judge pursuant to the [Markman] hearing.”

The Order addressed a motion filed on April 12, 2010, by Respondents Apple Inc., Research In Motion, Ltd., and Research In Motion Corp. (collectively, “Respondents”) requesting a Markman hearing “based on the filing, under Commission rule 210.18, of simultaneous motions for summary determination on proposed claim constructions.”  Respondents’ motions were filed pursuant to Order No. 5, which determined that any request for a Markman hearing be made by motion.  See our April 5, 2010 post for more details.

Complainant Eastman Kodak Company (“Kodak”), argued that the “proper and most efficient way to determine claim construction in this Investigation is on a full record developed at the evidentiary hearing” but that if the ALJ determined that a separate Markman proceeding is warranted, “he should issue claim construction in the form of an order that issues in the ordinary course, and not as a summary determination; and that summary determinations do not permit live testimony or evidentiary presentations.”  According to the Order, Kodak further argued that under Commission Rule 210.18(a), a Markman decision cannot issue as an initial determination since “a determination as to the meaning of one or more claim terms is not an ‘issue or part of an issue’ because such a ruling does not dispose of an element of a Section 337 offense.”

According the Order, the Commission Investigative Staff (“OUII”) argued that “on balance the potential benefits that could be gained from a Markman hearing outweigh any undue prejudice that a party may suffer as a result of said hearing at this early stage of the investigation.”  OUII  further noted that Commission Rule 210.18, does “not appear to provide for the taking of oral testimony,” and “rather than the filing of motions for summary determination and the issuance of an initial determination on claim construction, issuance of an order on claim construction would be the more appropriate procedure.”

ALJ Luckern determined that this Investigation was “particularly suited for a separate Markman hearing,” because all Respondents have moved for such a hearing, and Kodak has familiarity with Markman hearings on the patent at issue (U.S. Patent No. 6,292,218 (the ‘218 patent)), through a Markman hearing in a related Texas District Court action on March 23, 2010 against RIM, and the fact that Kodak, “will rely on the claim construction [of the ‘218 patent] made in an ID in the 663 investigation.”

Contrary to Kodak’s arguments that live testimony cannot be considered by an ALJ in connection with summary determination motions, ALJ Luckern held that when “Commission rule 210.18 was originally written, said Fed. R. Civ. P. 56 did allow for oral testimony,” and that Rule 56 “exists in conjunction with Fed. R. Civ. P. 43(c) (formally rule 43(e)), which authorizes the use of oral testimony on motions,” including summary judgment motions.  ALJ Luckern further determined that although “granting a summary determination would be inappropriate if there is any disputed issue of material fact,” claim construction “is a question of law for the administrative law judge to decide.”

ALJ Luckern further determined that issuing a claim construction order, rather than an initial determination, may mean that an investigation will eventually be remanded by the Commission thus possibly increasing the costs of a Section 337 proceeding and causing an extension of the target date.

With respect to Kodak’s allegation that “claim construction is not an ‘issue or part of an issue’ because it does not dispose of an element of a Section 337 offense, and therefore is not appropriate for summary determination under Commission rule 210.18,” ALJ Luckern found that “[c]laim construction is a critical element of, inter alia, domestic industry, infringement, and validity and thus is at least a ‘part of’ any number of issues that must be decided to find a violation of section 337.”

Accordingly, ALJ Luckern ordered a Markman briefing and hearing schedule, including a May 24, 2010 date for the Markman hearing.  ALJ Luckern also determined that he “has no objection to use of witness statements for direct testimony for the forthcoming Markman hearing, if the parties, despite their agreement to a one day Markman hearing, believe that time is of the essence.”

In the Order, ALJ Luckern set the procedural schedule for the investigation, including a September 1, 2010 start date for the evidentiary hearing.

ALJ Luckern also summarized issues addressed at the preliminary conference held March 30, 2010.  According to the Order, during this conference, the complainant Eastman Kodak Company, and both respondents, Research In Motion Ltd. and Research In Motion Corporation, and Apple Inc. addressed the impact of ALJ Carl C. Charneski’s March 10, 2010 Initial Determination (ID) in Inv. No. 337-TA-663 (the 663 investigation).  See our March 12, 2010 post for more details.  The 663 investigation involves the same U.S. Patent No. 6,292,218 (the ‘218 patent) asserted in the 703 investigation.  ALJ Luckern stated “there is no collateral estoppel and as far as said ID relates to this investigation, it is a ‘new ballgame.’”  On the other hand, ALJ Luckern also made clear that he “expects the parties to address in substance the basis of any relevant findings made in the ID and made by any other tribunal as for example the current proceedings in the Northern District of Texas and before the U.S. Patent Office.”

ALJ Luckern then explained his practice regarding Markman hearings.  ALJ Luckern noted that “I’m not against Markman hearings, but I have yet to be convinced that I ought to go that way…”  ALJ Luckern indicated that, “based on the considerable experience of this administrative law judge in past investigations, he has found it helpful to hear extrinsic evidence in resolving claim interpretation, especially in view of the technologies that were at issue.”  He further noted:  “In this investigation…even knowledge of accused devices may be helpful in any Markman hearing.”  ALJ Luckern nonetheless noted that he “is troubled by having a Markman hearing.”  According the Order, his concern relates to the effect of a post-Markman order on discovery and briefing, and “one or more parties petitioning for review of this administrative law judge’s claim construction only after having had an expensive evidentiary hearing based only on his claim interpretation and issuance of a final ID on violation.”  If the Commission disagreed with the ALJ’s claim construction, then “the entire investigation would need to be redone from scratch.”  ALJ Luckern proposed alternatives to mitigate such circumstances, for example, where “the private parties and the staff agree that they would not petition for review on any claim construction following any such Markman decision.” Alternatively, “all the parties could agree that any post-Markman ruling could be made by an Initial Determination through Summary Determination, in which the administrative law judge would urge the Commission to come to an early decision as to any review.”  While the determination is pending before the Commission, “discovery and briefing would not be governed by this administrative law judge’s claim construction while said Initial Determination is pending before the Commission, and would continue under any theory of claim construction argued before the administrative law judge.”  Despite ALJ Luckern’s above concerns, he concluded that “an early Markman hearing” in this case “may be desirable, in view of the knowledge of all parties involving the asserted claims, the need to keep litigation expenses at a minimum, and the tutorial given to the administrative law judge on March 30.”

By way of background, the Complainants in this investigation are:  Spansion, Inc. and Spansion LLC (collectively, “Spansion”).  The Respondents in this investigation are:  Samsung Electronics Co., Ltd.; Samsung Electronics America, Inc.; Samsung International, Inc.; Samsung Semiconductor, Inc.; Samsung Telecommunications America, LLC; Apple Inc.; AsusTek Computer, Inc.; Asus Computer International, Inc.; Hon Hai Precision Industry Co., Ltd.; Kingston Technology Co., Inc.; Kingston Technology (Shanghai) Co., Ltd.; Kingston Technology Far East Co.; Kingston Technology Far East (Malaysia) Sdn. Bdh.; Lenovo Group Ltd.; Lenovo (US), Inc.; Lenovo (Beijing) Ltd.; International Information Products (Shenzhen) Co., Ltd.; Lenovo Information Products (Shenzhen) Co., Ltd.; Lenovo (Huiyang) Electronic Industrial Co., Ltd.; Shanghai Lenovo Electronic Co., Ltd.; PNY Technologies, Inc.; Research in Motion, Ltd.; Research in Motion Corporation; Sony Corporation; Sony Corporation of America; Sony Ericsson Mobile Communications AB; Sony Ericsson Mobile Communications (USA) Inc.; Beijing SE Putian Mobile Communications Co., Ltd.; Transcend Information, Inc.; Transcend Information, Inc. (USA); Transcend Information Inc. (Shanghai Factory); Verbatim Americas LLC; and Verbatim Corporation (collectively, “Respondents”).

The Commission instituted an investigation of this matter on December 12, 2008.  A Markman hearing was held on November 10, 2009.  Prior to the Markman hearing, Spansion, Respondents, and the Commission Investigative Staff (“Staff”) met and conferred in an effort to reduce the number of disputed claim terms.  The parties also filed initial and reply claim construction briefs.  After the hearing, the parties submitted an updated Joint Claim Construction Chart.

In the Order, ALJ Bullock construed several agreed-upon and disputed claim terms.  According to the Order, ALJ Bullock construed all agreed-upon terms consistently with the parties’ proposed constructions.  The disputed claim terms were construed as set forth below.

U.S. Patent No. 6,080,639

ALJ Bullock construed the following disputed terms in the ‘639 patent: “filling,” “doped/doping/dopant,” “single, essentially uniformly doped, high density plasma (HDP) oxide,” and “single phosphorous doped HDP oxide layer having an essentially uniform dopant concentration.”

With regard to “filling,” ALJ Bullock construed the term to mean “to make full, put as much as can be held into.”  Further, ALJ Bullock construed “doped” to mean “having a gettering agent,” “doping” to mean “addition of a gettering agent,” and “dopant” to mean “a gettering agent.”

ALJ Bullock construed the term “single, essentially uniformly doped, high density plasma (HDP) oxide” to mean “one HDP oxide layer having essentially the same concentration of a gettering agent throughout the layer.”  Similarly, “single phosphorous doped HDP oxide layer having an essentially uniform dopant concentration” was construed to mean “one HDP oxide layer having essentially the same concentration of phosphorous throughout the layer.”

U.S. Patent No. 6,380,029

ALJ Bullock construed two disputed terms in the ‘029 patent: “forming” and “over.”

Regarding “forming,” ALJ Bullock interpreted the term to mean “creating, i.e., depositing or growing excluding additional processing steps, such as patterning, annealing and etching.”

With regard to the term “over,” the ALJ found no actual dispute existed and construed “over” to mean “above.”

U.S. Patent No. 6,376,877

ALJ Bullock construed the following disputed terms contained in the ‘877 patent: “selected surface area profile,” “concave curve,” “convex curve,” and “upward concave curve.”

ALJ Bullock construed the term “selected surface area profile” to mean “the outline of one side of the STI trench oxide.”

ALJ Bullock interpreted “concave curve” to mean “a curve bent inward toward the STI,” the term “convex curve” to mean “a curve bent outward away from the STI,” and the term “upward concave curve” to mean “a curve bent inward toward the first poly layer.”

U.S. Patent No. 5,715,194

The ‘194 patent contained the following disputed terms construed by the Order: “a method of programming in a Flash memory,” “a Flash memory system,” “a first device to be programmed,” “threshold voltage of a fourth device,” “threshold voltage of a fifth device,” “adjacent to,” “ensuring that a fifth device is on,” and “ensuring that a fourth device is off.”

The terms “a method of programming in a Flash memory” and “a Flash memory system” were contained in the preambles of their respective claims.  ALJ Bullock agreed with Spansion and the Staff that these terms provided neither structure nor antecedent basis for the body of the claim, should not be limiting, and should be given their ordinary meanings.  The ALJ found that the specification did not support Respondents’ contention that the preambles’ plain and ordinary meaning be limited to “randomly programmable” flash memory.

The ALJ again rejected Respondents “random programming” limitation in the construction of “a first device to be programmed.”  Alternatively, ALJ Bullock agreed with Spansion and the Staff that “a first device to be programmed” should be construed according to its plain and ordinary meaning.