CLAIM CONSTRUCTION MEMORANDUM AND ORDER

MARCIA CRONE, Judge.

On May 30, 2012, the Court held a hearing to determine the proper construction of the disputed claim terms in U.S. Patent Nos. 6,384,850 and 6,871,325. After considering the arguments made by the parties at the hearing and in the parties' claim construction briefing (Dkt. Nos. 155, 157, 158 and 160), the Court issues this Claim Construction Memorandum and Order.

APPLICABLE LAW

"It is a `bedrock principle' of patent law that `the claims of a patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by considering the intrinsic evidence. See id. at 1313. C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Communications Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).

The claims themselves provide substantial guidance in determining the meaning of particular claim terms. Phillips, 415 F.3d at 1314. First, a term's context in the asserted claim can be very instructive. Id. Other asserted or unasserted claims can aid in determining the claim's meaning because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.

"[C]laims `must be read in view of the specification, of which they are a part.'" Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). "[T]he specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term a different meaning than the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor's lexicography governs. Id. The specification may also resolve the meaning of ambiguous claim terms "where the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words alone." Teleflex, Inc., 299 F.3d at 1325. But, "`[a]lthough the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims.'" Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. The prosecution history is another tool to supply the proper context for claim construction because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) ("As in the case of the specification, a patent applicant may define a term in prosecuting a patent.").

Although extrinsic evidence can be useful, it is "`less significant than the intrinsic record in determining the legally operative meaning of claim language.'" Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert's conclusory, unsupported assertions as to a term's definition is entirely unhelpful to a court. Id. Generally, extrinsic evidence is "less reliable than the patent and its prosecution history in determining how to read claim terms." Id.

DISCUSSION

Claim Term 1: "an information management and synchronous communications system for use with wireless handheld computing devices and the internet"

The parties agree that this language, which is the preamble to claims 12-15 of the `850 patent, and claims 11-13 and 15 of the `325, is a limitation, but do not agree on its proper construction. There are two areas of disagreement. First, PAR contends that changes made to the applications and data must be made in real time. Second, Ameranth contends that elements from the body of the claim should not be imported into the preamble (such as "a central database, at least one wireless handheld device, at least one Web server, and at least one Web page").

A preamble is properly considered a limitation of a claim "if it recites essential structure or steps, or if it is `necessary to give life, meaning, and vitality' to the claim." Catalina Mktg. Int'l, Inc. v. Coolsavings.com, Inc., 239 F.3d 801, 808 (Fed. Cir. 2001). Having considered the parties' arguments and the evidence, the Court declines to adopt the parties' agreement that the preamble is limiting and finds that no construction is necessary. Neither party has identified a single aspect of the preamble that is necessary to define the scope of the claims, or is not already captured as a limitation in the body of the claims. The parties' dispute over whether changes must be made in "real time" merits the Court's consideration but is more properly presented in consideration of the term "synchronized" in the body of the claims.

Claim Terms 3 and 4: "hospitality applications" and "hospitality applications and data"

The terms "hospitality applications" and "hospitality applications and data" both appear in claim 12 of the `850 patent, which is representative of their usage in the asserted claims:

Ameranth argues that the term should be construed to explicitly require a user interface. Dkt. No. 155 at 15-19. The Court disagrees. The patentee explicitly claimed aspects of the user interface in some claims (such as claim 1 of the `850 patent), but not in others. Ameranth's arguments stressing the importance and novelty of the user interface disclosed by the specification are not persuasive. If the user interface really was central to Ameranth's invention, Ameranth would have expressly included the user interface in its claims.

Next, Ameranth and PAR each propose listing examples of business tasks in the construction of the term "hospitality applications," but disagree as to what tasks should be listed. Ameranth contends that "payment processing" and "frequency" (e.g., "frequent customer ticketing") should be included in this list, and that PAR improperly limits "ordering" to "restaurant ordering." Dkt. No. 155 at 13-14. PAR responds that it created its task list based upon the specification, and that its list "was not meant to be limiting in scope, but was meant to be appropriate." Dkt. No. 157 at 16.

A review of the intrinsic evidence shows that the tasks listed in the specification are meant to be exemplary, and not an exhaustive listing:

`850 Pat., 1:19-23 and 4:5-8. The asserted patents use the term "hospitality" to refer to the hospitality industry, which has a well-known, plain and ordinary meaning. Neither party points to any evidence that suggests a person having ordinary skill in the art would assign a different meaning to that term, or that the inventors intended a different meaning. Because it is not possible to create a complete listing of all the tasks that are properly within the scope of the claims, the Court will not attempt to list tasks in the construction and will instead refer to these tasks as "hospitality-related tasks" in its construction. Moreover, the Court notes that "payment processing" and "frequent customer" are examples of tasks intended to be covered by the term "hospitality-related tasks."

Finally, the parties dispute whether the term "hospitality applications" requires "one or more application software programs" or "two or more software programs." PAR argues that because the word "applications" is plural, the term must mean that there are "two or more software programs." Dkt. No. 157 at 15-16. Ameranth argues that in context of the specification and the claims, the use of the plural "hospitality applications" does not mean that there must be multiple, separate pieces of software, and that the drafters used the term "hospitality applications" to refer to types of functions implemented by the software. Dkt. No. 155 at 19-21. Ameranth notes that PAR's construction would exclude disclosed embodiments where there is a single application program running on a device. Tr. 48:5-19.

As discussed above, the specification uses the term "hospitality applications" to refer to common tasks that occur in the hospitality industry. That usage suggests that the term "applications," by itself, is not an attempt to define a relationship between software components as residing within a single application program. Rather, when referring to software components and structure, the specification does so expressly. For example, the specification uses the phrases "application software" or "application software components" in that sense.2 In the context of the claims and specification, the claim term "hospitality applications" uses the word "applications" to reference hospitality-related tasks. The specification reinforces this conclusion with several parallel uses of the word: " . . . and is thus unacceptable for the time criticality of ordering, reservation and wait-list management and other similar applications" (`850 Pat., 1:53-55) and " . . . also provides a single point of entry for all hospitality applications, e.g., reservations, frequent customers [sic] ticketing, wait lists, etc. . . . ." (id. at 4:5-7). Therefore, the Court finds that "hospitality applications" means "software adapted to perform or assist with two or more hospitality-related tasks." In light of this construction, the Court finds that no further construction of the term "hospitality applications and data" is necessary.

Claim Term 5: "web page"

The substantive difference between the parties' proposed constructions is whether a web page is limited to "a document" alone or also includes "associated files for graphics, scripts, and other resources." The intrinsic evidence does not shed light on the dispute, and both parties rely on extrinsic evidence. PAR relies on the 2008 edition of the Oxford Dictionary of Computing, which defines a web page as "a hypertext document on the World Wide Web." Dkt. No. 157 at 18. Ameranth relies on the World Wide Web Consortium's 1999 definition of a web page as "[a] collection of information, consisting of one or more Web resources, intended to be rendered simultaneously, and identified by a single URI." Dkt. No. 155 at 22. The same source provides an example of a web page using the definition: "[a]n image file, an applet, and an HTML file identified and accessed through a single URI, and rendered simultaneously by a Web client." Id.

The Court accords greater weight to Ameranth's dictionary evidence because it was published in the same year as the earliest effective filing date of the asserted patents. Moreover, the World Wide Web Consortium is a well-known standards body in the field of Internet technologies. The dictionary PAR relies upon was not published until nearly a decade after the earliest filing date. Moreover, PAR suggests a very narrow construction of the claim term, which is not convincingly supported by the definition they cite — the Oxford definition refers to a "hypertext document," which is not simply "a document," as PAR suggests. Therefore, the Court adopts Ameranth's construction and construes the term "web page" to mean "a document, with associated files for graphics, scripts, and other resources, accessible over the internet and viewable in a web browser."

Claim Terms 7 and 10: "an application program interface" and "the application program interface enables integration of outside applications with the hospitality applications"

PAR argues that the specification does not provide a definition for an application program interface, but instead merely describes its functionality. Dkt. No. 157 at 21. PAR relies on dictionary definitions of application program interfaces, and argues that Ameranth has not identified any intrinsic or extrinsic evidence "to refute the inclusion of [the term] `operating system'" in its construction. Id. at 20.

Ameranth claims that PAR relies on overly generic definitions of an application program interface, and injects unnecessary terms into the construction such as "operating system" and "network services." Tr. 70:21-71:14. Ameranth contends that its proposal better captures the specification's description of an application program interface that operates at the application-level, and not the "operating system or network services" level. Dkt. No. 155 at 24-25. Ameranth argues that the following discussion of the application program interface in the specification supports its position: "[the invention's features include] a well-defined API that enables third parties such as POS companies, affinity program companies and internet content providers to fully integrate with computerized hospitality applications . . . ." `850 Pat., 3:63-67.

The Court agrees that intrinsic evidence refers to application program interfaces that operate at the application-level. Ultimately, PAR does not appear to dispute this point, but instead argues that application-level interfaces are covered by the "network services" portion of its proposed construction. Whether or not "network services" applies as PAR contends, PAR provides no justification for augmenting the construction with the phrase "specific operating system or network services," which is not used by the asserted patents. The Court finds that the term "an application program interface" means "a set of functions and procedures that enables a program to gain access to other software programs."

At argument, PAR indicated that it was indifferent to the construction of this term (as well as term 7, "an application program interface"), but offered that Ameranth's proposed construction was needlessly verbose. Tr. 73:5-74:4. Ameranth agreed that the construction of claim term 7 would largely resolve the dispute over claim term 10. Tr. 71:15-22. However, Ameranth believes that its construction of term 10 provides greater clarity because it gives particular examples from the specification of "outside applications." Tr. 72:12-18. Ameranth does not know what the phrase "fully integrate" means in PAR's proposed construction, or why it is necessary. Tr. 72:19-24.

The Court is persuaded that construction is necessary to clarify the meaning of "outside application," which appears in this term (i.e. term 10). The Court finds that Ameranth has not justified importing the exemplars of "outside applications" from the specification into the claim language itself. Accordingly, the Court construes the term "the application program interface enables integration of outside applications with the hospitality applications" to mean "the application program interface enables third-party software programs to integrate with the hospitality applications."

Claim Terms 8 and 11: "a communications control module" and "an interface between the hospitality applications and any other communications protocol"

PAR does not identify any material differences between the parties' proposed constructions, but believes that its constructions do a better job of defining the functionality of the communications control module, and would be more easily understood by a jury. Tr. 74:6-19. Ameranth argues that there are a number of problems with PAR's construction for term 8. First, PAR allegedly imports other claim elements into these terms without a basis for doing so, such as "a central database, at least one wireless handheld device, at least one Web server, and at least one Web page." Second, PAR's constructions improperly define where communications are stored. Finally, PAR's constructions introduce the phrase "transfer of communications," for which there is no support. See Tr. 74:23-76:8; Dkt. No. 155 at 26-27. Ameranth contends that no construction of term 11 is necessary. Dkt No. 155 at 26; Tr. 74:20-75:5.

The parties identify three portions of the specification that are relevant to defining the communications control module:

`850 Pat., 4:5-13, 9:21-27 and 11:24-32 (emphasis added).

In this instance, the Court finds that the specification itself provides the best construction for the term at issue. "[A] communication control module" means "a software layer that sits on top of a communication protocol and acts as an interface between hospitality applications and the communications protocol." Given its inherent clarity, the Court is persuaded that no construction is necessary for claim term 11 ("an interface between the hospitality applications and any other communications protocol").

Claim Term 9: "synchronized"

The parties primarily dispute whether the term "synchronized" requires that changes be made in "real time." PAR is the primary proponent of requiring "synchronized" to mean "real time," and advances several arguments in support of its position.

First, PAR argues that Ameranth distinguished claims over prior art U.S. Patent No. 5,991,739 ("Cupps") during prosecution by arguing that the claims require real time synchronization. Dkt. No. 157 at 4-5 and 11. In essence, PAR argues that Ameranth disclaimed non-real time synchronization during prosecution. PAR submits that the applicants for the `850 patent amended relevant claims (1, 12 and 31) to include the phrase, "wherein data comprising the modified menu is synchronized between the data storage device and at least one other computing device." PAR further points out that in making the quoted amendment, the applicants argued:

Dkt. No. 157 at 5. PAR concludes from the quoted argument that the applicants equated the claim term "synchronize" with the concept of "real time." Dkt. No. 157 at 11. At the core of this argument lies the applicants' statement that, "[a]s matter of fact Cupps describes data transmission via phone or fax (e.g., col. 10 lines 26-42) precisely because Cupps did not appreciate what Applicants describe and claim, i.e., real-time synchronization of data on different computers or databases." Dkt. No. 157, Ex. 3 at 15.

The Court finds that there was no disclaimer of non-real time synchronization during prosecution. First, PAR's argument rests on a sentence that is merely illustrative in the context of the overall argument. Immediately prior to that sentence, the applications make clear that the distinction between the applicants' then pending claims and the Cupps reference was that "Cupps does not describe the synchronization of generated menus between different databases or computing devices." Id. This distinction was sufficient because Cupps did not disclose synchronization. The Cupps reference discloses an online ordering system where the client devices interact directly with dynamically generated web pages. Thus, there is no suggestion or disclosure that applications or data must be synchronized between the devices and the server, whether real time or not, because the data was maintained on the server.

Second, the statements made during prosecution that are quoted by PAR do not refer to claims that are sufficiently similar to the claims under consideration here. For example, those claims (1, 12 and 31 of the application) relate to menus and not to the "hospitality applications" that are the subject of the claims being construed. Even if the applicants' argument equated "synchronization" with "real time" in those then-pending claims, this Court cannot clearly attribute the same connection to the words in the asserted claims at issue here.

Finally, PAR's reliance on the quoted phrase ("what Applicants describe and claim, i.e., real-time synchronization") relies on an overly narrow reading of the word "and." In other words, PAR reads the phrase to add the word "both": "what Applicants [both] describe and claim, i.e., real-time synchronization." There is no dispute that the `850 patent's specification describes "real time" synchronization and that the disputed claims call for synchronizing. Thus, even if PAR's contention were without other error, there would be serious ambiguity in deriving the meaning PAR suggests. Based on this record, the Court is not persuaded that Ameranth clearly and unambiguously disavowed non-real time synchronization.

In addition, both parties argue that the specification supports their respective positions. PAR identifies the portion of the specification that it says supports finding that synchronization must be real time. Dkt. No. 157 at 23-24. Ameranth contends that the specification only requires that synchronization result in consistency between the data on the server and the clients. Dkt. No. 155 at 8-10. The following portions of the specification are referenced by the parties in their arguments:

`850 Pat., 2:7-19 and 4:14-23. PAR also relies on dictionary definitions for the word "synchronize" and "synchronous" to support its contention that synchronization must be real time. Dkt. No. 157 at 25.

After considering the evidence, the Court finds that the term "synchronized" means "made to be the same." While it is true that the specification describes synchronization as being "fast and automatic" or even "instantaneous[]" in places, it also describes using periodic batch processing to synchronize data. Therefore, the specification does not support requiring synchronization to occur in "real time." However, both the specification and the ordinary meaning do suggest that the meaning of synchronization is to ensure that data on the devices is made to be the same.

Claim Term 12: "a single point of entry"

"[A] single point of entry" appears in only one of the asserted claims:

`850 Pat., claim 13. Ameranth suggests that the term describes a functional limitation of the communications control module, and yet Ameranth offers a construction that recites structure. Tr. 91:25-92:12. Similarly, PAR's construction deems the single point of entry to be a communications protocol, and suggests that the specification supports its position:

`850 Pat., 11:24-36.

The Court agrees with Ameranth that the term "a single point of entry" describes functionality of the communications control module. However, the Court is not satisfied by either party's construction and instead finds that the term "a single point of entry" simply means "a center of communication." With respect to Ameranth's proposed construction, the Court finds it is unnecessary to recite the various structures that communicate using the communications control module because those structures are identified by the rest of the disputed claim. The portion of Ameranth's construction discussing consistency is also unnecessary because the Court separately construed what it means for data to be synchronized. PAR's construction is rejected because there is not adequate evidence that a single communications protocol is necessary to implement "a single point of entry." PAR admits that the protocol aspect of its proposed construction is not supported by the intrinsic evidence. See Tr. 90:19-22.

Claim Terms 13 and 14: "information entered on at least one Web page and transmitted over the internet is automatically communicated to the central database and at least one wireless handheld computing device" and "information entered on at least one wireless handheld computing device is automatically communicated to the central database and at least one Web page"

PAR argues that these terms should be construed to require that the automatic communications occur in "real time." Dkt. No. 157 at 27-28. PAR contends that the specification supports this position:

`850 Pat., 4:18-23.

The Court finds that it is not necessary for automatic communications to be made in real time. In construing the term "synchronized," it was already explained that the specification does not require that any communications or changes be made in real time even though real time communications or changes are described in some portions of the specification. For example, the specification discloses using periodic batch processing to synchronize data among devices. Such a process is an example of an automatic communication that is not made in real time. The Court finds that no construction is necessary for claims 13 and 14.

Claim Term 15: "the data is sent to a wireless paging device"

Ameranth argues that the Court should adopt its construction because it is taken directly from the specification. Dkt. No. 155 at 32-33. PAR objects to Ameranth's construction because it changes the scope of the claim from covering one-way wireless communication to covering two-way wireless communication. Dkt. No. 157 at 28-29. The parties cite the following passages from the specification that are relevant to this term:

`850 Pat., 1:6-16 and 11:59-67.

After reviewing the evidence and the parties' arguments, the Court finds that no construction is necessary for this term. Neither party has articulated a reason for why the plain and ordinary meaning of the term should not apply. PAR's proposed construction merely seeks to make explicit that "data" is "synchronized data." The word "data" refers to the data described elsewhere in the claim, and the requirement for the data to be synchronized is best left to the rest of the claim.

With respect to Ameranth's construction, the Court disagrees that it is supported by the specification. The cited portion of the specification explains that there are two uses for a wireless link — not two uses for a wireless pager. The first use of a wireless link is to allow "paging of beeper equipped customers directly from the operator interface on the wireless handheld devices." Paging suggests one-way wireless communication, and is clearly covered by the plain and ordinary meaning of the claim term. The second use of a wireless link is to allow "communication to and from various input/output transmitters and receivers to update the status of the order, reservation or other information and thus further reduce the workload on the operator and enable operations to proceed much faster." This second use does suggest using two-way wireless communication, but does not suggest using two-way wireless communication with a beeper or a "wireless paging device." Therefore, the specification does not support changing the scope of the claim term from covering sending data to a wireless paging device to also covering two-way wireless communication.

CONCLUSION

The Court adopts the above constructions. The parties are ordered that they may not refer, directly or indirectly, to each other's claim construction positions in the presence of the jury. Likewise, the parties are ordered to refrain from mentioning any portion of this opinion, other than the actual definitions adopted by the court, in the presence of the jury. Any reference to claim construction proceedings is limited to informing the jury of the constructions adopted by the Court.