Vederi, LLC v. Google, Inc.

United States Court of Appeals

Federal Circuit

______________________

VEDERI, LLC,

Plaintiff-Appellant,

v.

GOOGLE, INC.,

Defendant-Appellee.

______________________

2013-1057, -1296

______________________

Appeals from the United States District Court for the

Central District of California in No. 10-CV-7747, Chief

Judge Alex Kozinski of the United States Court of Ap-

peals for the Ninth Circuit, sitting by designation.

______________________

Decided: March 14, 2014

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DAVID A. DILLARD, Christie, Parker & Hale, LLP, of

Glendale, California, argued for plaintiff-appellant. With

him on the brief was STEVEN ERICK LAURIDSEN.

DARYL L. JOSEFFER, King & Spalding, LLP, of Wash-

ington, DC, argued for defendant-appellee. With him on

the brief was ADAM CONRAD of Charlotte, North Carolina.

Of counsel on the brief were SASHA G. RAO and BRANDON

H. STROY, Ropes & Gray, LLP, of East Palo Alto, Califor-

nia, and TODD MATTHEW SIMPSON and CHRISTOPHER J.

HARNETT, of New York, New York.

2 VEDERI, LLC v. GOOGLE, INC.

______________________

Before RADER, Chief Judge, DYK and TARANTO, Circuit

Judges.

RADER, Chief Judge.

The United States District Court for the Central Dis-

trict of California entered summary judgment of non-

infringement in favor of Google, Inc. (Google) and against

Vederi, LLC (Vederi) on October 5, 2012. Because the

district court erred in its claim construction, this court

vacates the judgment of non-infringement and remands

for further proceedings.

I.

Vederi sued Google for patent infringement on Octo-

ber 15, 2010, alleging that Google’s “Street View” in-

fringed various claims of four related patents: U.S. Patent

Nos. 7,239,760 (’760 patent); 7,577,316; 7,805,025; and

7,813,596 (collectively the Asserted Patents). The As-

serted Patents share a common specification 1 and claim

priority to a common provisional patent application.

Generally speaking, the Asserted Patents relate to

methods for creating synthesized images of a geographic

area through which a user may then visually navigate via

a computer. ’760 patent abst. In acquiring the images, a

recording device is mounted on top of a car that is driven

throughout the geographic area. Id. at col. 4 ll. 52–65. In

one embodiment, a single camera points generally hori-

zontally and perpendicularly to the axis of the street to

capture front views of the objects lining the streets (and

sometimes side views of buildings, stores, homes, and

1 As the Asserted Patents share a common specifi-

cation, all citations to the specification are to the ’760

patent.

VEDERI, LLC v. GOOGLE, INC. 3

other objects). Id. at col. 5 ll. 55–64. The Asserted Pa-

tents disclose that multiple cameras may also be used to

capture views in different directions. Id. at col. 5 ll. 3–10.

The camera captures and records images as it passes

by objects (e.g., stores, buildings, cars). Id. at col. 5 ll. 20–

21. By combining these images of the geographic area,

the Asserted Patents disclose generating a composite

image that provides a field of view that is wider than that

provided by any single image. Id. at col. 5 ll. 55–64.

Figure 2 illustrates certain aspects of the invention of the

Asserted Patents.

VEDERI, LLC v. GOOGLE, INC. 5

Future embodiments of the invention could pre-

sent video/image data in different formats. For

example, rather than using a camera facing di-

rectly to the street side, a slightly forward (or

backward)-looking camera could be used to pro-

vide a panoramic look up (or down) the street. Al-

so, if sufficient cameras to cover all viewing

directions are used (so as to provide 360 degrees of

view) images (and synthetic panoramas) where

the direction of view is user-controllable can be

provided.

J.A. 217.

Claim 1 of the ’760 patent is representative of the as-

serted claims. It recites:

1. In a system including an image source and a

user terminal having a screen and an input de-

vice, a method for enabling visual navigation of a

geographic area from the user terminal, the meth-

od comprising:

receiving a first user input specifying a first loca-

tion in the geographic area;

retrieving from the image source a first image as-

sociated with the first location, the image source

providing a plurality of images depicting views of

objects in the geographic area, the views being sub-

stantially elevations of the objects in the geograph-

ic area, wherein the images are associated with

image frames acquired by an image recording de-

vice moving along a trajectory;

receiving a second user input specifying a naviga-

tion direction relative to the first location in the

geographic area;

determining a second location based on the user

specified navigation direction; and

6 VEDERI, LLC v. GOOGLE, INC.

retrieving from the image source a second image

associated with the second location.

’760 patent col. 15 l. 57–col. 16 l. 9 (emphasis added). The

dispute on appeal concerns the “substantially elevations”

limitation, which appears in all of the asserted claims.

The district court concluded that Google did not infringe

any asserted claims after construing the term “images

depicting views of objects in a geographic area, the views

being substantially elevations of the objects in the geo-

graphic area” as “vertical flat (as opposed to curved or

spherical) depictions of front or side views.” Thus, under

the trial court’s reading of the claims, spherical or curved

images fell outside the scope of Vederi’s patent claims.

The accused product—Google’s Street View—provides

context for the parties’ disagreement. According to

Google, Street View combines images of a wide range of

views recorded by multiple cameras having wide-angle

lenses mounted on a moving vehicle. J.A. 2567–68.

Those photographs are overlapping pictures taken from a

single location at approximately the same time. Id.

These images are stitched together into a virtual spheri-

cal composite image. Id. at 2569. The resulting image is

a two-dimensional representation of a spherical

shape. Id.

VEDERI, LLC v. GOOGLE, INC. 7

The spherical projections are then cut into square tiles to

reduce bandwidth when a user is viewing only a portion of

the spherical image. Id. at 2570. As shown in the figure

below, the spherical panorama gives the user the option to

scroll around and view objects as if the user were stand-

ing in the center of the sphere. Id. at 2571–73.

Id. at 3169. According to Google, it does not infringe the

Asserted Patents because its product produces images

and views that are curved or spherical, and never flat. Id.

at 2570–73.

III.

The district court conducted a Markman hearing on

November 22, 2011. The parties agreed that the “sub-

stantially elevations” limitation referred to front and side

views of objects. However, the parties disagreed as to the

meaning of the limitation, “depicting views of ob-

jects . . . the views being substantially elevations of the

objects in the geographic area.” Vederi stated that the

limitation “depicting views of objects . . . the views being

substantially elevations of objects” means “front or side

views of objects.” Google contended that the limitation

means “vertical flat (as opposed to curved or spherical)

depictions of front or side views.” The district court

adopted Google’s construction because it concluded that

8 VEDERI, LLC v. GOOGLE, INC.

the Asserted Patents did not “disclose[] anything about

spherical views.” Id. at 193–94.

Google and Vederi filed competing motions for sum-

mary judgment on the issue of infringement. In its opin-

ion on summary judgment, the district court stated that it

“adopted Google’s construction of ‘substantially elevations’

because Vederi’s method of taking, processing, and dis-

playing images creates only vertical flat views, not spher-

ical ones.” Id. at 4. The district court elaborated by

noting that the “photographs are captured by cameras

moving along a horizontal plane. . . . The result is one

long, flat composite picture of a street . . . . Nothing about

that method or result suggests that the patents cover

curved or spherical images.” Id. at 5.

The district court further observed that the reference

to 360 degree panning in the provisional patent applica-

tion refers to the creation of a 360 degree panorama, akin

to “panning 360 degrees along a horizontal plane, not

within a sphere.” Id. at 5. The district court noted that it

would be similar to taking pictures with a camera “as it

spun around on a Lazy Susan.” Id. According to the

district court, it would not be possible to pan up and down

as in Street View. Id.

Based on its claim construction, the district court en-

tered summary judgment of non-infringement in favor of

Google. The district court noted that “[t]he court’s con-

struction of the ‘substantially elevations’ limitation means

that if Street View presents only curved/spherical images,

it doesn’t infringe Vederi’s patents because all of Vederi’s

patents contain the ‘substantially elevations’ limitations.”

Id. at 6. After considering the parties’ competing argu-

ments, the court explained that Street View’s images

“may appear to be flat to the naked eye, [but] they are

actually curved” because of Google’s methods for captur-

ing, processing, and displaying them. Id. at 9. The dis-

trict court concluded, “[b]ecause Street View displays only

VEDERI, LLC v. GOOGLE, INC. 9

curved views, it doesn’t contain the ‘substantially eleva-

tions’ limitation, and so doesn’t literally infringe Vederi’s

patents.” Id. It also found no infringement under the

doctrine of equivalents. Id. at 10.

Vederi appeals. This court has jurisdiction under 28

U.S.C. § 1295(a)(1).

IV.

Claim construction is an issue of law reviewed de no-

vo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456

(Fed. Cir. 1998). In construing claims, this court relies

primarily on the claim language, the specification, and

the prosecution history. Phillips v. AWH Corp., 415 F.3d

1303, 1314–17 (Fed. Cir. 2005) (en banc). “Apart from the

claim language itself, the specification is the single best

guide to the meaning of a claim term.” AIA Eng’g Ltd. v.

Magotteaux Int’l S/A, 657 F.3d 1264, 1272 (Fed. Cir.

2011) (internal quotations and citation omitted). And

while the prosecution history often lacks the clarity of the

specification, it is another established source of intrinsic

evidence. Id. After considering these three sources of

intrinsic evidence, a court may also seek guidance from

extrinsic evidence. Phillips, 415 F.3d at 1317–18. How-

ever, extrinsic evidence may be less reliable than the

intrinsic evidence. AIA Eng’g, 657 F.3d at 1273.

In the present case, the district court construed “im-

ages depicting views of objects in a geographic area, the

views being substantially elevations of the objects in the

geographic area” as “vertical flat (as opposed to curved or

spherical) depictions of front or side views.” J.A. 4. A

careful review of the record shows that the district court

erred by excluding all curved or spherical views and

images.

The district court based its construction of “substan-

tially elevations” largely on extrinsic evidence regarding

the technical meaning of “elevation” as an architectural

10 VEDERI, LLC v. GOOGLE, INC.

term of art. Id. at 24. Various technical dictionaries

define elevation generally as a projection of a building

surface onto a vertical plane or on a plane vertical (at a

right angle) to the horizon. See id. at 1744, 1748. Indeed,

according to Google, elevations are “non-perspective, two-

dimensional view[s] depicted as if the viewer were simul-

taneously positioned at 90 degrees (along the horizontal

plane) from every point of the object.” Appellee’s Br. 25.

American Architecture: An Illustrated Encyclopedia

provides a useful illustration of an elevation, depicted on

the plane to the left:

Cyril Harris, American Architecture: An Illustrated

Encyclopedia 114 (1998).

However, the district court erred in construing “sub-

stantially elevations” without sufficiently considering the

intrinsic evidence in this case. In this case, the claim

language is a critical part of the record that shows the

error in the trial court’s reading of the claims. The opera-

tive language in this case is “substantially elevations.”

The district court’s construction requiring elevation, and

“elevation” alone in the strict sense, gives no effect to the

“substantially” modifier contained in the claims. “A claim

construction that gives meaning to all the terms of the

claim is preferred over one that does not do so.” Merck &

Co., Inc. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372

(Fed. Cir. 2005). By effectively reading “substantially”

out the claims, the district court erred. The term “sub-

VEDERI, LLC v. GOOGLE, INC. 11

stantially” takes on important meaning in light of the rest

of the intrinsic evidence in this record.

For example, the Asserted Patents relate to taking

photographs or videos of objects to create images and

depict views of a geographic area, ’760 patent col. 3 ll. 44–

65, not architectural drawings of buildings. Figure 16 is

illustrative, depicting a view of buildings showing depth

and perspective, not to mention both the front and side of

one of the buildings. ’760 patent fig. 16; cf. Appellee’s Br.

23 (“A frontal view of a building that includes part of its

side is not an elevation.”). Additionally, the specification

of the Asserted Patents discloses the use of a fish-eye

lens, ’760 patent col. 5 ll. 1–3, and “fish-eye views,” id. at

col. 6 l. 23. A photographic image through a fish-eye lens

provides a curved, as opposed to vertical, projection, and

almost certainly reflects curvature and perspective. In

other words, the photographic image is not flat and not an

elevation.

Google argues that the meaning of “substantially”

merely reflects the fact that, as a practical matter, photo-

graphic images, such as those disclosed in the Asserted

Patents, could not depict true elevations as that would

require a camera lens as large as the object being photo-

graphed (here, buildings, cars, and the like). Indeed,

Google concedes that using a camera to record an image of

a true elevation is a “physical impossibility absent an

absurdly large camera,” Appellee’s Br. 36. But under this

interpretation, “substantially” has no independent opera-

tive effect other than to account for the specification’s

disclosure of cameras as a means for capturing images.

This interpretation would not allow the claims to cover

the fish-eye lens embodiment. Thus, the district court’s

confining claim construction does not account for im-

portant parts of the intrinsic record.

This court also disagrees with the district court’s con-

clusion that its construction is warranted “because

12 VEDERI, LLC v. GOOGLE, INC.

Vederi’s method of taking, processing and displaying

images creates only vertical flat views, not spherical

ones.” J.A. 4. For starters, the provisional application

incorporated by reference into the Asserted Patents notes

that 360 degree synthetic panoramas may be created if a

sufficient number of cameras are used. J.A. 217. And

while Google argues that the specification only discloses a

method of creating the composite images by combining

vertical flat columns that would result in vertical flat

images, the specification simply states that “preferably”

the composite images are created on a column-by-column

basis. ’760 patent col. 6 ll. 4–9. Even assuming this

method results in vertical flat views, the specification

does not state that this is the only way to create compo-

site images, and this court perceives no reason to limit the

disputed claim language based on that particular embod-

iment. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d

898, 905–06 (Fed. Cir. 2004).

Nor does the specification demonstrate any disavowal

of curved or spherical images supporting the district

court’s construction. Google places a great deal of weight

on the following statement from the Asserted Patents:

The prior art further teaches the dense sampling

of images of an object/scene to provide different

views of the object/scene. The sampling is general-

ly done in two dimensions either within a plane,

or on the surface of an imaginary sphere sur-

rounding the object/scene. Such a sampling, how-

ever, is computationally intensive and hence

cumbersome and inefficient in terms of time and

cost.

Accordingly, there is a need for a system and

method for creating a visual database of a com-

prehensive geographic area in a more time and

cost efficient manner. Such a system should not

require the reconstruction of 3D scene geometry

VEDERI, LLC v. GOOGLE, INC. 13

nor the dense sampling of the locale in multiple

dimensions.

’760 patent col. 1 l. 63–col. 2 l. 7. This statement does not

give rise to a clear and unmistakable disavowal. See

Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1322 (Fed. Cir.

2013). In context, these statements in the specification

refer to the dense sampling of an object using cameras

placed in a sphere surrounding the object looking in-

wards. Thus, the 3D scene geometry being discussed is

using the photographs surrounding an object to recon-

struct its 3D shape. In other words, this reference is

fundamentally different from using a cluster of cameras

to take images from a particular point looking out in all

directions. Notably, the Asserted Patents actually dis-

close doing just that: “a duodecahedron of cameras may be

used to record the objects from all viewing direc-

tions.” ’760 patent col. 5 ll. 6–7. Thus, the record, viewed

in its entirety and with reference to the proper context,

does not contain any disclaimer, let alone a clear and

unmistakable disavowal.

Additionally, the prosecution history does not support

the district court’s construction. Google contends that the

inventors of the Asserted Patents disclaimed the con-

struction sought by Vederi in responding to a rejection

over a prior art reference. Specifically, the application

leading to the ’760 patent initially contained claims

reciting “images providing a non-aerial view of the ob-

jects.” J.A. 404. The Patent Office rejected those claims

in view of U.S. Patent No. 6,140,943 (Levine). The appli-

cant responded by amending the claims to remove “non-

aerial view” and add “substantially elevations.” Id. at

494. The applicant also correctly noted that Levine was

directed to “map images, which may include names of

streets, roads, as well as places of interest” that a traveler

could use to navigate through a geographic area. Id. at

503–04. Therefore, Levine did not disclose images “de-

pict[ing] views that are ‘substantially elevations of the

14 VEDERI, LLC v. GOOGLE, INC.

objects in a geographic area’” or “acquired by an image

recording device moving along a trajectory.” Id. at 504.

Despite Google’s protestations to the contrary, this court

discerns no clear and unambiguous disavowal of spherical

or curved images that would support the district court’s

construction. Invitrogen Corp. v. Biocrest Mfg., L.P., 327

F.3d 1364, 1369 (Fed. Cir. 2003).

Having analyzed the claims, the specification and the

prosecution history, this court concludes that the district

court erred in construing “images depicting views of

objects in a geographic area, the views being substantially

elevations of the objects in the geographic area” as “verti-

cal flat (as opposed to curved or spherical) depictions of

front or side views.” To the contrary, the record shows

that “views being substantially elevations of the objects”

refers to “front and side views of the objects.” Thus, as

properly construed, the claims do not exclude curved or

spherical images depicting views that are substantially

front or side views of the objects in the geographic area.

VI.

This court has considered Google’s remaining argu-

ments in favor of the district court’s claim construction,

but finds them unpersuasive. This court also declines

Vederi’s request to consider its infringement arguments

on appeal without the benefit of the district court’s fact-

finding under a proper construction of the claims. Accord-

ingly, in view of the foregoing, this court reverses the

district court’s claim construction, vacates its judgment of

non-infringement and remands for further proceedings

consistent with this opinion.

VACATED AND REMANDED