United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. ADAMS UNITED STATES DISTRICT JUDGE
TimeKeeping Systems, Inc. (“TimeKeeping”) brings
this suit against Defendant DwellingLIVE, Inc., d/b/a/
PatrolLIVE International (“PatrolLIVE”).
Plaintiff prays for damages and injunctive relief for patent
infringement and copyright infringement. Among other things,
Plaintiff alleges infringement of U.S. Patent No. 7, 027, 955
(the “'955 Patent”). Defendant has answered
and counterclaimed for a declaratory judgment that Defendant
has not infringed the ‘955 Patent, and that the
‘955 Patent is invalid.
this matter comes before the Court subsequent to a claim
construction hearing held pursuant to Markman v. Westview
Instruments, Inc., 517 U.S. 370, 116 S.Ct. 1384, 134
L.Ed.2d 577 (1996). The Court has considered the parties'
arguments at the hearing, the parties' opening and
response briefs on claim construction (Doc. #31, 32, 35, 36,
and 37), and the parties' joint claim construction and
prehearing statement (Doc. #38). The Court now construes the
disputed patent claims.
‘955 Patent is directed to a guard tour system that
uses electronic hardware and software components to insure
that a patrol guard or officer monitors all desired areas of
one or more buildings or property. (Doc. #32-1 p. 426,
‘955 Patent, col. 1, ln. 12-15.) The guard tour system
includes a computer program that enables various electronic
hardware components to function as a guard tour system. The
patent specification describes that, in one embodiment,
“the system may comprise one or more touch button
readers, one or more downloaders for use with the touch
button readers and a plurality of touch memory buttons
located along a guard tour.” (Id., col. 2, ln.
8-12.) In an alternate embodiment, “[t]he electronic
hardware may comprise * * * a positioning system and a data
acquisition system, for acquiring information regarding the
location, time and other information relating to certain
locations or objects along a guard tour.”
(Id., col. 2, ln. 4-8.) The positioning system
allows “time-stamped location information [to] be
selectively acquired relating to particular locations or
objects along a guard tour.” (Id., col. 2, ln.
12-14.) According to the specification, “[t]he system
may comprise an integrated positioning system, such as a GPS
unit or receiver, cell phone locator system, local
positioning system or other suitable system, to allow
collection of various guard and/or vehicle position
information as well as other information.”
(Id., col. 2, ln. 14-19.) Consequently, as a guard
progresses through the tour, the system permits the guard to
acquire or generate time-stamped location information
relating to the position of the guard as well as to
particular sites or objects along the tour path. The guard
tour system further allows this information to be transferred
to a central computer for processing immediately or at the
end of the tour. (Id., col. 1, ln. 66 - col. 2, 1n.
in the patent specification is a flowchart (Figure 7)
illustrating how the computer program and hardware of the
guard tour system can be set up. (Id. p. 417.) This
set up process is used to define locations or objects, or
both, using positioning information, memory buttons, or other
“checkpoint” devices that describe and identify
officers, incidents, and locations. At the beginning of the
setup process, the user has the option of defining patrol
records that may include such information as clients,
facilities, groups and/or locations. The next step in the
setup process is to install the necessary hardware that
acquires or “reads” the desired information.
After the appropriate hardware is installed, the user can add
locations or memory buttons, or both, by assigning a
description such as location name, officer name, description
of an incident, or any other characteristic necessary for a
particular patrol. The user repeats these steps until all
positions, touch memory buttons, or checkpoints are defined.
patent specification also includes a flowchart (Figure 8)
which illustrates making a particular patrol or tour with a
location reader, i.e., a data acquisition device.
(Id. p. 418.) The guard or officer starts the patrol
by going to a first location and acquiring time-stamped
position information and/or reading the checkpoint device
with the reader at the location. These steps are repeated at
each location on the patrol. If another patrol is to be made
by the same officer, the officer returns to the first
location and repeats these steps.
contends that the invention claimed in the ‘955 Patent
differs from certain prior art because the physical location
of the guard is tantamount to the physical location of the
reader device carried by the guard. The claimed guard tour
system prevents a guard from falsifying a report because
information concerning the time and physical location of the
guard while on patrol is combined with the information read
at the checkpoint to ensure that the guard was in fact at the
checkpoint at the indicated time when the checkpoint
information was obtained. (Doc. #50.) Plaintiff further
contends that the invention allows increased flexibility for
guard patrols, because an officer would not be required to
visit desired locations in a pre-determined sequence. (Doc.
#53, Claims Construction Hearing Transcript, p. 13, ln.
Initial Non-Infringement Contentions Pursuant to L.P.R. 3.3,
Defendant's non-infringement position appears to be based
on the contention that the accused devices do not infringe
because “there is no monitoring ‘when on a * * *
patrol, ' but only after a patrol is completed.”
(Doc. #32-5 p. 522.) Defendant also contends that its
“system does not actively monitor during a tour, but
processes data after the tour is complete.”
(Id. p. 523.)
Court notes that neither the validity of the ‘955
Patent in light of prior art, nor alleged infringement by
Defendant are at issue here. Rather, the sole issue before
the Court is construction of the disputed claim terms.
STANDARD OF REVIEW
construction takes into account the intrinsic record of a
patent, which includes the: (1) specification of the patent;
(2) prosecution history; and (3) prior art. Rawplug Co.,
Inc. v. Illinois Tool Works, Inc., 11 F.3d 1036, 1041
(Fed. Cir. 1993). Claim construction always begins with the
claims themselves. Vitronics Corp. v. Conceptronic,
Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). While the
words of a claim are given their ordinary and customary
meaning, the ordinary meaning cannot be read in a vacuum.
Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.
Cir. 2005). The context of the surrounding words of the claim
must be considered in determining the ordinary and customary
meaning of the disputed terms. ACTV, Inc. v. Walt Disney
Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003). The ordinary
and customary meaning must be read in the context of the
written description and the prosecution history.
Phillips, 415 F.3d at 1313. Moreover, “the
ordinary and customary meaning of a claim term is the meaning
that the term would have to a person of ordinary skill in the
art in question at the time of the invention, i.e.,
as of the effective filing date of the patent
application.” Id. In some cases, the ordinary
meaning of claim language as understood by a person of skill
in the art may be readily apparent to lay people.
Id. at 1314.
assessing the meaning of a claim, a court must always review
the specification. See Vitronics Corp., 90 F.3d at
1582. The specification is the part of the patent that
“teaches” the invention so that one skilled in
the art can make and use it. Amgen, Inc. v. Hoechst
Marion Roussel, Inc., 314 F.3d 1313, 1334 (Fed. Cir.
2003). The specification is highly relevant to claim
construction because it may contain special or novel
definitions of claim terms when the patentee has chosen to be
his own lexicographer, see Vitronics, 90 F.3d at
1582, or it may help to resolve ambiguity when the ordinary
and customary meaning of a term is not sufficiently clear,
see Teleflex, Inc. v. Ficosa North Am. Corp., 299
F.3d 1313, 1325 (Fed. Cir. 2002). Thus, the specification is
the “'single best guide to the meaning of a
disputed term, '” Phillips, 415 F.3d at
1315 (quoting Vitronics Corp., 90 F.3d at 1582), and
is usually “dispositive, ” Vitronics
Corp., 90 F.3d at 1582. The specification is,
“thus, the primary basis for construing the
claims.” Phillips, 415 F.3d at 1315 (quoting
Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448,
452 (Fed. Cir. 1985)).
final source of intrinsic evidence plays a role similar to
the specification in the claim construction analysis. The
prosecution history of the patent - the complete record of
the proceedings before the Patent and Trademark Office -
“provides the evidence of how the PTO and the inventor
understood the patent” and should be considered by the
court. Phillips, 415 F.3d at 1317. “[T]he
patent applicant's consistent usage of a term in
prosecuting the patent may enlighten the meaning of that
term.” Metabolite Lab., Inc. v. Laboratory Corp. of
Am. Holdings, 370 F.3d 1354, 1360 (Fed. Cir. 2004). The
prosecution history may contain “express
representations made by the applicant regarding the scope of
the claims.” Vitronics Corp., 90 F.3d at 1582.
But any limitation found in the history must be “clear
and unmistakable.” Anchor Wall Sys., Inc. v.
Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1307
(Fed. Cir. 2003).
claim is amenable to more than one construction, the claim
should, when possible, be construed to preserve its validity.
See Karsten Mfg. Corp. v. Cleveland Golf Co., 242
F.3d 1376, 1384 (Fed. Cir. 2001)). The court is not permitted
to redraft claims, however. Quantum Corp. v. Rodime,
PLC, 65 F.3d 1577, 1584 (Fed. Cir. 1995).
LAW AND ANALYSIS
parties have submitted a joint claim construction chart,
indicating that they disagree regarding the meaning of
certain patent terms. (Doc. #38-1.) The primary construction
dispute arising from the ‘955 Patent involves whether
the information acquired during a patrol must be downloaded
or transferred from the reader device to the central computer
in real time, i.e., immediately after the
information is acquired while the guard is actually
performing the patrol. Plaintiff argues in favor of
constructions of the'955 Patent claims which acknowledge
two different actions that occur with information acquired
during a patrol: (1) generating or acquiring the information
with the data acquisition device, and (2) transferring or
downloading the information to the central computer.
Plaintiff contends that claim construction thus should
reflect that certain actions “[do] not have to be in
real time, ” because the transferring or downloading
information from the data acquisition device to the central
computer need not occur immediately during the patrol, but
rather may take place days or weeks later. Defendant argues
that any construction that includes “does not have to
be in real time” gratuitously adds a limitation to the
patent terms that flies in the face of the terms'
ordinary and customary meanings. The parties also disagree as
to the construction of other claim terms that do not directly
involve a dispute over whether an action must take place in
parties dispute the following terms of the ‘955 Patent:
1. Monitor/Monitoring (claims 1, 15, 18, and 30);
2. Evaluate/Evaluating (claims 1, 15, 18, and 30);
3. Guard (claims 1, 2, 3, 9, 15, 18, 20, 21, 22 and 30);
4. Patrol/Patrolled (claims 1, 2, 3, 9, 15, 18, 20, 21, 22
5. Guard Patrol[s] (claims 1, 2, 3, 9, 15, 18, 20, 21, 22 and
6. Sites (claims 1, 15, 18, and 30); 7. Defining (claim 1);
8. When On A Guard Patrol (claims 1, 2, 3, 9, 15, 18, 20, 22
9. Guard Location Information/Guard Route Information (claim
10. Reader Device (claims 7 and 9);
11. At Any Time (claims 15 and 30);
12. Downloading (claims 15 and 30);
13. Automatically Generating Data (claim 30);
14. Global Positioning Receiver, Cellular Communication
Network and Local Positioning System (claims 16 and 19);
15. Officer Records (claim 21); and 16. Group (claim 21).
‘955 Patent claims containing the terms in dispute
state, in pertinent part:
computerized method of monitoring and evaluating guard
patrols of one or more sites, comprising the steps of:
a) defining at least one checkpoint to identify at least one
location to be patrolled by a guard;
b) defining at least one patrol record to compile
information relating to said at least one location to be
patrolled by the guard;
c) providing a positioning system to generate data relating
to the location of the guard to be included as part of said
d) detecting said information obtained from said positioning
system and said at least one location patrolled by the guard;
e) storing said information within said at least one patrol
record; and using said information to monitor and evaluate
the guard patrol and the location of the guard when on a
method according to claim 1, wherein said step b comprises
programming a computer with information describing records
including said data relating to the location of the guard
when on a guard patrol.
method according to claim 1, wherein the data relating to the
location of the guard when on a guard patrol is stored within
said at least one patrol record and is displayed in a
graphical form to show the route of a guard patrol.
* * *
method according to claim 1, wherein said positioning system
is adapted to be configured within a reader device.
* * *
method according to claim 7, wherein said reader device is
carried by the guard when on a guard patrol and provides
information selected from the group consisting of guard
location information, guard tour information, guard route
information, or combinations thereof.
* * *
data processing system for monitoring and evaluating guard
patrols of one or more sites comprising:
a) a central computing device;
b) a device for gathering information obtained from one or
more checkpoints during a guard patrol by a guard of one or
more sites, said information gathering device comprising a
positing system for generating data relating to the location
of the guard at any time when on a guard patrol; and
c) a system for downloading said information into said
central computing device.
system according to claim 15, wherein said positioning system
is selected from the group consisting of a global positioning
system receiver, a cellular communication network, a local
positioning system, and combinations thereof.
* * *
computer program product for use with a data processing
system for monitoring and evaluating guard patrols of one or