Ralph J. Lamson v. United States

In the United States Court of Federal Claims

No. 11-377C

(Filed: March 15, 2013)

)

RALPH J. LAMSON, )

) Claim construction; “virtual reality

Plaintiff, ) immersion therapy” method patent

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

)

Bruce E. Burdick, Alton, IL, for plaintiff.

Gary L. Hausken, United States Department of Justice, Washington, DC, with

whom were Stuart F. Delery, Principal Deputy Assistant Attorney General, and John

Fargo, Director, for defendant.

OPINION

FIRESTONE, Judge.

This is a patent infringement case brought under 28 U.S.C. § 1498 1 (2006).

Plaintiff Ralph J. Lamson (“plaintiff”) alleges that defendant the United States (“the

government”) has infringed United States Patent Number 6,425,764 (“’764 patent”),

which was filed by plaintiff in 1997 and entitled “Virtual Reality Immersion Therapy for

1

28 U.S.C. § 1498(a) reads in relevant part: “Whenever an invention described in and covered

by a patent of the United States is used or manufactured by or for the United States without

license of the owner thereof or lawful right to use or manufacture the same, the owner’s remedy

shall be by action against the United States in the United States Court of Federal Claims for the

recovery of his reasonable and entire compensation for such use and manufacture.”

1

Treating Psychological, Psychiatric, Medical, Educational and Self-Help Problems.” 2

Now before the court are the parties’ briefs regarding the construction of seven claim

terms used in the ’764 patent.

I. BACKGROUND

The ’764 patent lays claim to certain virtual reality immersion therapy (“VRIT”)

methods for treating psychological, psychiatric, and medical conditions. Plaintiff alleges

that at least as early as 2004, the United States Department of Defense, Department of

Veterans Affairs, and Department of Health and Human Services have used, directly and

through procurement and grant contracts, the VRIT methods described in the ’764 patent

without authorization by plaintiff, most prominently for treating post-traumatic stress

disorder.

A. The ’764 patent.

In general terms, the ’764 patent describes a method for treating psychological,

psychiatric or medical conditions by exposing patients to an interactive virtual reality

environment and providing sensors that monitor and evaluate a patient’s responses the

virtual reality environment. The Abstract of the ’764 patent describes the VRIT methods

as follows:

A method of treating a psychological, psychiatric, or medical condition by

choosing a psychological strategy for treating the condition, encoding

electronic instructions for a virtual reality environment in such a way that

the interactive virtual reality environment implements the psychological

2

Plaintiff’s original complaint also alleged that the government “took” the ’764 patent in

violation of the Fifth Amendment. The court dismissed this claim for lack of subject matter

jurisdiction on October 27, 2011. Lamson v. United States, 101 Fed. Cl. 280 (2011).

2

strategy, loading electronic instructions into a virtual reality technology unit

equipped with a display for displaying the virtual reality environment and

with a patient input device for receiving responses to the environment from

the patient, and instructing the human patient how and when to use the

virtual reality technology unit to interact with the environment. The

interactive environment contains instructions for a scoring procedure for

quantitatively analyzing the medical condition of the patient, and/or

counseling instructions or self-help instructions. The environment can be

used in conjunction with a physical parameter measuring device connected

to the virtual reality technology unit. The process is comprehensive and

takes place during immersion in fully interactive three-dimensional virtual

reality environments utilizing computer generated graphics, images

imported from photographs, and video for sensory stimulation. Immersion

is achieved with goggles, a head-mounted-display, or other form of visual

stimulation, such as surround projection screens or monitors or devices that

permit the user to have a virtual experience. It includes the use of voice,

music, and sound and other forms of physiological stimulation and

feedback. Body sensors and devices such as a hand-held grip permit the

user to interact with objects and navigate within the virtual environment.

’764 patent at 1 (reference numbers to figures omitted).

The ’764 patent is comprised of four independent claims (Claims 1, 19, 23, and

26) and twenty-seven dependent claims that define the scope of the invented methods. 3

Plaintiff alleges that the government has made unauthorized use of the invention

described in Claims 1, 2-4, 7, 9-13, 18-21, 23, and 25-31, inclusive, of the ’764 patent.

See Revised Joint Claim Construction Statement, ECF No. 32.

The four independent claims of the ’764 patent—Claims 1, 19, 23, and 26—

describe several methods of treating or evaluating a “psychological, psychiatric, or

medical condition in a human patient” using virtual reality immersion therapy.

3

Patents are comprised of two types of claims: independent and dependent. Independent claims

stand on their own as described in a single claim; dependent claims refer to and add further

limitations to an independent claim or claims. See 35 U.S.C. § 112 (2006).

3

Independent Claim 1 includes all but one of the disputed claim terms (disputed claim

terms are underlined the first time they appear):

1. A method for treating a psychological, psychiatric, or medical condition

in a human patient, comprising:

(a) choosing a psychological strategy for treating said psychological,

psychiatric, or medical condition;

(b) providing an interactive virtual reality environment;

(1) said interactive virtual reality environment comprising a

technology unit arranged to display to said human patient

a plurality of virtual reality environments;

(2) said technology unit having an input for receiving

feedback responses to said interactive virtual reality

environment from said human patient;

(3) said technology unit arranged to change said virtual reality

environment in response to said feedback responses from

said human patient;

(c) selecting said virtual reality environment to correspond to said

psychological strategy;

(d) encoding electronic instructions for said interactive virtual reality

environment;

(e) loading said electronic [instructions] into said virtual reality

technology unit; and

(f) instructing said human patient how and when to use said virtual

reality technology unit so as to experience said interactive virtual

reality environment and how and when to provide feedback

responses to said technology unit for changing said virtual reality

environment so as to treat said psychological, psychiatric, or

medical condition.

Independent Claim 19 describes a similar treatment method, and contains the remaining

disputed claim term (underlined):

19. A method of treating a psychological, psychiatric, or medical condition in a

human patient comprising:

(a) providing a plurality of sets of instructions or steps for treating

said psychological, psychiatric, or medical condition;

(b) choosing one of said sets of instructions or steps which is

appropriate for treating said psychological, psychiatric, or

medical condition of said human patient;

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(c) providing a virtual reality technology unit arranged to provide an

interactive virtual reality environment;

(1) said virtual reality [] technology unit being equipped with

a display means;

(2) said virtual reality technology unit also being equipped

with an input means for receiving responses to said

interactive virtual reality environment from said human

patient;

(d) providing a set of encoded electronic instructions for said virtual

reality environment;

(e) embedding said one set of instructions or steps in said encoded

set of electronic instructions for said interactive virtual reality

environment;

(f) loading said set of electronic instructions into said virtual reality

technology unit for displaying said interactive virtual reality

environment; and

(g) instructing said human patient how and when to use said virtual

reality technology unit to display said interactive virtual reality

environment and how to provide responses to said virtual reality

environment.

Independent Claim 23 is nearly identical to Claim 19, replacing the phrase “instructions

or steps” with “counseling directions.” Finally, independent Claim 26 teaches a method

“of evaluating a psychological, psychiatric, or medical condition in a human patient”

using a virtual reality technology unit along with a quantitative scoring system to analyze

a patient’s condition and success:

26. A method of evaluating a psychological, psychiatric, or medical

condition in a human patient, comprising:

(a) providing a virtual reality technology unit;

(b) said virtual reality technology unit being equipped with the

following:

(1) a display means for displaying a virtual reality

environment;

(2) an input means for receiving responses to said virtual

reality environment from said human patient; and

(3) a scoring means for quantitatively analyzing said

psychological, psychiatric, or medical condition of said

patient;

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(c) providing a set of encoded electronic instructions for causing said

virtual reality environment to provide, on said display means,

graphical representations of an environment which affects said

psychological, psychiatric, or medical condition of said human

patient;

(d) delivering said electronic instructions to said virtual reality

environment; and

(e) instructing said human patient how and when to use said virtual

reality technology unit to interact with said virtual reality

environment by providing responses to said graphical

representations.

The remaining asserted claims are dependent claims. Some of the asserted

dependent claims describe the types of disorders that the VRIT methods can treat, such as

“acrophobia” or “an anxiety disorder.” See ’764 patent, Claims 3, 13. Other dependent

claims add description to the independent claims’ virtual therapy methods. For example,

Claim 10 provides that the virtual reality therapy method described in Claim 1 stimulates

patients using graphical representations in order to treat a disorder. See id., Claim 10

(“The method of claim 1 wherein said virtual reality environment comprises a graphical

representation of a situation which stimulates said psychological, psychiatric, or medical

condition of said patient, and said changing said virtual reality environment is determined

by responses of said human patient to said graphical representation of said situation.”).

Other dependent claims describe how treatment instructions are communicated to a

patient using plaintiff’s methods, or describe the scoring system used to measure the

condition or success of the patient using VRIT. See, e.g., id., Claim 20 (“The method of

claim 19 wherein said set of instructions or steps is communicated to said patient in said

interactive virtual reality environment by a graphical representation on said display

means for treating said psychological, psychiatric, or medical condition, and further

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including evaluating said responses of said human patient to said graphical representation

on said display means to define the success of said human patient to said virtual reality

environment.”); id., Claim 27 (“The method of claim 26 wherein said scoring procedure

comprises means for recording said responses of said human patient, assigning values to

said responses, and performing a computation on said assigned values to obtain a final

score, and further comprising using said final score as a quantitative measure of said

medical condition.”). The disputed claim terms are found mainly in the independent

claims of the ’764 patent. 4

The patent’s specification begins with a brief history of mental health care, and

claims several improvements over prior art involving mental health, self-help treatment

options, and virtual reality technology. In particular, the specification describes

improvements over prior art that involve treatment methods that use visual or auditory

stimulation, but that do not involve patient interaction with an immersive virtual reality

environment. See, e.g., id. col.2 ll.25-65. The specification also describes improvements

over prior art that involve virtual reality technology, but that do not use three-

dimensional, immersive virtual environments for the treatment of psychological or

psychiatric conditions, or fail to offer a rigorous method for doing so. See id. col.5 l.11-

col.6 l.28.

4

In their revised joint claim construction statement, the parties cite to only certain independent

claims when identifying where the disputed claim terms are located in the patent-in-suit. The

table that lists the parties’ respective claim construction positions in Part I.B, infra, also lists all

of the asserted claims that use the disputed terms.

7

The specification includes a preferred embodiment of a virtual reality therapy

technology unit and a detailed description of how to use plaintiff’s VRIT methods to treat

different types of disorders. The preferred embodiment of the technology unit includes a

computer unit equipped with peripheral technology supporting the production of virtual

reality environments for viewing and interaction by the user. Id. col.14 l.15-col.15 l.26.

The patent also includes a block diagram of the components of this technology unit. Id.

fig. 1. The specification then describes how virtual reality immersion therapy is used to

treat different types of disorders, such as anxiety disorders or substance abuse. Id. col.15

l.58-col.26 l.28. The ’764 patent includes one flowchart illustrating the “psychological

strategies for selecting a virtual environment,” seven flowcharts showing how a virtual

environment is used for treating psychiatric, psychological, or medical conditions, and

one flowchart showing how virtual therapy is used in the self-help context. Id. figs. 2-9.

The portions of the specification relevant to the court’s claim construction analysis are

discussed in greater detail in Part II, below.

B. Disputed claim terms.

The parties provided the court with claim construction briefs and a revised joint

claim construction statement. The parties present seven terms for the court’s

construction. The following chart presents the parties’ positions:

Term Asserted Claim(s) Plaintiff’s Proposed The Government’s

Using Term Construction Proposed

Construction

“interactive virtual 1, 19, 20, 23, 28 A computer A computer

reality environment” generated 3- generated

dimensional environment that

immersive allows movement

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environment that and navigation

allows movement

and navigation

“technology unit” 1, 2, 19, 23, 26 A set of equipment A set of equipment

and personnel comprising a

comprising a computer unit, hand-

computer unit, held grip, and a

movement and display which is

navigation device, either head-mounted

and a display which or a screen

is either head-

mounted or a screen

“plurality of virtual 1 Two or more virtual Two or more virtual

reality environments, environments

environments” which may be

merely modified

forms of a single

general environment

“feedback responses 1, 2, 19, 23, 26 5 The return to the The return to the

from said human technology unit technology unit

patient” (clinician or from an input device

computer) of user caused by the user’s

reaction to all or reaction to the

part of the virtual reality

interactive virtual environment

reality environment

“input” and “input 1, 19, 23, 26 Verbal, physical, or Electronic signals or

means” electronic signals or information

information provided from an

provided from the input device, display

patient concerning or keyboard by the

the patient’s patient concerning

response to the the patient’s

virtual reality response to the

environment virtual reality

environment

“change said virtual 1 The computer either The computer

5

The parties’ revised joint claim construction statement indicates that this term can also be found

in Claim 23. However, Claim 23 does not use the phrase “feedback responses” and instead,

along with independent Claims 19 and 26, refers to an “input means for receiving responses to

said interactive virtual reality environment from said human patient” (emphasis added).

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reality environment” automatically or by generates changes to

clinician operation the existing virtual

modifying the reality environment,

virtual reality which changes can

environment which be viewed on the

is viewed on the screen or display

screen or display

“providing a 19, 23 6 Giving the clinician, Giving the patient

plurality of sets of technology unit multiple lists of

instructions or steps and/or patient instructions or steps

for treating said multiple lists of for the patient to

psychological, instructions or steps execute in order to

psychiatric, or for the technology obtain treatment for

medical condition” unit, clinician, a particular

and/or patient to psychological,

execute in order to psychiatric, or

obtain treatment for medical condition

a particular

psychological,

psychiatric, or

medical condition

Briefing on claim construction was completed on November 19, 2012. The court

held a joint status conference on December 4, 2012, during which the parties indicated

they did not seek a claim construction hearing and that, rather, the court could construe

the disputed claims based on the parties’ briefs. The parties submitted a revised joint

claim construction statement on December 12, 2012.

6

The parties’ revised joint claim construction statement indicates that this term can also be found

in Claim 23. However, Claim 23 uses the slightly different phrase “providing a plurality of sets

of counseling directions for treating said psychological, psychiatric, or medical condition.” The

court’s construction will pertain to both “providing a plurality of sets of instructions or steps,” as

in Claim 19, and “providing a plurality of sets of counseling directions,” in Claim 23, as this

difference does not impact the parties’ main dispute for this term. Instead, the parties’ dispute

involves whether only the patient receives and executes the instructions, steps, or counseling

directions for treatment, or whether the clinician, technology unit, or patient may receive and

execute the instructions, steps, or counseling directions under the methods described in those

claim terms. See infra Part II.G.

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II. DISCUSSION

“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) (quoting Innova/Pure Water, Inc. v. Safari Water

Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). Claim construction is the

first step in any patent infringement case because it is necessary to understand the precise

scope of an invention before the trier of fact can determine whether it has been used by

the alleged infringer without permission. SecurityPoint Holdings, Inc. v. United States,

No. 11-268, 2013 WL 659543, at *2 (Fed. Cl. Feb. 20, 2013). The scope and meaning of

the patent is a question of law to be answered by a trial court. Markman v. Westview

Instruments, Inc., 517 U.S. 370, 388-90 (1996).

The “objective baseline” from which to begin claim construction is to inquire

“how a person of ordinary skill in the art understands a claim term.” Phillips, 415 F.3d at

1313. The court generally assigns meaning to claim terms “according to the customary

understanding of a person of ordinary skill in the art who reads them in the context of the

intrinsic record.” Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366, 1376 (Fed. Cir.

2009) (citing Phillips, 415 F.3d at 1312-13). The intrinsic record includes not only the

particular claim in which the disputed term occurs, but also the words of the patent itself,

the patent’s specification, and the patent’s prosecution history. Phillips, 415 F.3d at

1313-19. The use of intrinsic evidence to interpret claims is preferred over the use of

extrinsic evidence, such as dictionaries, treatises, and expert testimony. Chamberlain

Grp., Inc. v. Lear Corp., 516 F.3d 1331, 1335 (Fed. Cir. 2008). While the court may

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consult extrinsic evidence in its discretion, extrinsic evidence cannot be used to vary the

meaning of terms contrary to the unambiguous meaning expressed in the intrinsic

evidence. Phillips, 415 F.3d at 1317, 1324. For example, the Federal Circuit has

specifically advised that a court may rely on a dictionary definition when construing

claim terms only “so long as the dictionary definition does not contradict any definition

found in or ascertained by a reading of the patent documents.” Phillips, 415 F.3d at

1323-24 (quotation omitted).

Thus, the court will interpret the subject claim terms through the eyes of a person

of ordinary skill in the art, 7 using the language of the claims, the specification, and the

prosecution history. 8 The court begins with the claims themselves. Phillips, 415 F.3d at

1312 (citing Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)

(“First, we look to the words of the claims themselves . . . to define the scope of the

7

The parties initially disagree as to the definition of a person of ordinary skill in the art. Plaintiff

asserts that the person of ordinary skill in the art is a clinical psychologist or psychiatrist. The

government submits that a person of ordinary skill in the art is “a person with a strong

background in treatment of psychological, psychiatric, or medical conditions” with “knowledge

in computer programming and game creation being a preferable, but not required, attribute.”

The parties’ dispute thus centers on the type of medical background and the computer

programming knowledge that the person of ordinary skill in the art must possess.

The determination of the person of ordinary skill in the art is not dispositive of the claim

construction in this case, and the court therefore does not resolve this issue here. Neither party’s

arguments on claim construction are supported by expert opinion or depend otherwise on the

resolution of this issue, nor is there a significant difference between the parties’ definitions of the

person of ordinary skill for the purposes of claim construction. The court’s analysis would not

differ based on either party’s definition. Therefore, the court declines to adopt a definition of a

person of ordinary skill in the art at this time. See, e.g., CoorsTek, Inc. v. Reiber, No. 08-cv-

0113, 2011 WL 1638855, at *3 (D. Colo. May 2, 2011); SecurityPoint Holdings, 2013 WL

659543 at *2.

8

Neither party relies on the patent’s prosecution history in their claim construction briefs.

12

patented invention.”)). The language of the claims, together with the use of a term within

the claim and other claims of the patent in question, as well as the difference between and

among claims, “provide substantial guidance as to the meaning of particular claim

terms.” Id. at 1314. In this regard, the court follows the Federal Circuit’s guidance that

the same claim term should be construed to have the same meaning each time it is used in

the same or related patent. Paragon Solutions, LLC v. Timex Corp., 566 F.3d 1075, 1087

(Fed. Cir. 2009) (quotation and citations omitted); see also Omega Eng’g, Inc., v. Raytek

Corp., 334 F.3d 1314, 1334 (Fed. Cir. 2003) (“[W]e presume, unless otherwise

compelled, that the same claim term in the same patent or related patents carries the same

construed meaning.”).

However, the claims must not be read in a vacuum. Phillips, 415 F.3d at 1315.

Instead, the claims must be read “in the context of the entire patent, including the

specification.” Id. at 1313. A patent’s specification contains “a written description of the

invention, and of the manner and process of making and using it, in such full, clear,

concise, and exact terms as to enable any person skilled in the art to which it pertains . . .

to make and use the same.” 35 U.S.C. § 112(a). The specification also includes

preferred embodiments, which illustrate particular implementations of the invention and

demonstrate what the inventor believes is the best method of making or using the

invention. See, e.g., Bayer AG v. Schein Pharm., Inc., 301 F.3d 1306, 1316 (Fed. Cir.

2002). The purposes of the specification are “to teach and enable those of skill in the art

to make and use the invention and to provide a best mode for doing so.” Phillips, 415

F.3d at 1323. As such, the specification has been found to serve as “the single best guide

13

to the meaning of a disputed term,” id. at 1315 (quotation omitted), and it is appropriate

for the court “to rely heavily” on the specification for guidance as to the meaning of the

claims, id. at 1317.

“Consistent with that general principle,” the Federal Circuit has recognized that

“the specification may reveal a special definition given to a claim term.” Id. at 1316. For

example, a patentee may “act as its own lexicographer” and specifically define a claim

term, but to do so, “must clearly set forth a definition of the disputed claim term” in the

specification. Medtronic Inc. v. Boston Scientific Corp., 695 F.3d 1266, 1275 (Fed. Cir.

2012) (quotations omitted). Similarly, an inventor may intentionally disavow a broad

claim scope in the specification. To do so, the specification must contain “expressions of

manifest exclusion or restriction, representing a clear disavowal of claim scope.” Epistar

Corp. v. Int’l Trade Comm’n, 566 F.3d 1321, 1334 (Fed. Cir. 2009); see also Abbott

Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed. Cir. 2009) (“[S]ometimes the

specification offers practically incontrovertible directions about claim meaning.”).

However, the court must also keep in mind that “[t]here is a fine line between

construing the claims in light of the specification and improperly importing a limitation

from the specification into the claims.” Retractable Techs., Inc. v. Becton, Dickinson,

and Co., 653 F.3d 1296, 1305 (Fed. Cir. 2011), reh’g and reh’g en banc denied, 659 F.3d

1369 (Fed. Cir. 2011), cert. denied, 133 S. Ct. 833 (2013) (Nos. 11-1154, 11-1278)

(citing Phillips, 415 F.3d at 1323). The court must not improperly limit claim terms

based on the specification’s preferred embodiments where the claim language represents

a broader meaning, unless such an intent is clear from the intrinsic evidence. See, e.g.,

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Trading Techs. Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1352 (Fed. Cir. 2010) (“[W]hen

the specification uses a single embodiment to enable the claims, courts should not limit

the broader claim language to that embodiment unless the patentee has demonstrated a

clear intention to limit the claim scope using words or expressions of manifest execution

or restriction.” (internal quotations omitted)); Abbott Labs., 566 F.3d at 1288. At the

same time, the court should not construe claim terms in a way that excludes an

embodiment described in the specification, unless the intent to do so is apparent in the

intrinsic evidence. Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1383

(Fed. Cir. 2008) (“Our case law generally counsels against interpreting a claim term in a

way that excludes the preferred embodiment from the scope of the invention.”). Instead,

in construing the subject claim terms, the court must “strive to capture the scope of the

actual invention, rather than strictly limit the scope of claims to disclosed embodiments

or allow the claim language to become divorced from what the specification conveys is

the invention.” Retractable Techs., 653 F.3d at 1305.

It is against this backdrop that the court now turns to the disputed claim terms.

A. “interactive virtual reality environment”

Both parties agree that the term “interactive virtual reality environment” should be

defined as a computer generated environment that allows for movement and navigation.

The parties’ dispute centers on whether this computer generated environment should be

further construed as “three-dimensional” and “immersive,” as plaintiff contends. The

claim language in the ’764 patent does not further define “interactive virtual reality

environment,” or limit that term to a three-dimensional immersive environment. The

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court must therefore determine whether the ordinary meaning of “interactive virtual

reality environment,” when construed in light of the rest of the patent, includes only

“three dimensional” and “immersive” environments to the exclusion of environments that

are two-dimensional and non-immersive.

The term “interactive virtual reality environment” is first found in the Abstract of

the ’764 patent: “A method of treating a psychological, psychiatric, or medical condition

by choosing a psychological strategy for treating the condition, encoding electronic

instructions for a virtual reality environment in such a way that the interactive virtual

reality environment implements the psychological strategy . . . .” (emphasis added). The

Abstract goes on to state, “The process is comprehensive and takes place during

immersion in fully interactive three-dimensional virtual reality environments utilizing

computer generated graphics, images imported from photographs, and video for sensory

stimulation. Immersion is achieved with goggles, a head-mounted-display, or other form

of visual stimulation, such as surround projection screens or monitors or devices that

permit the user to have a virtual experience” (emphasis added).

The specification uses the terms “virtual reality,” “virtual environments,” and

“virtual therapy” throughout its description of the invention. First, in discussing the prior

art concerning virtual reality technology, the specification generally states:

The term “virtual reality” has been used to describe a computer-generated

environment. When viewed with goggles or head-mounted display, it

provides the user with a three-dimensional, fully interactive experience. . . .

The technology used to produce virtual reality consists of a graphics-

generating computer, a head-mounted-display with a tracking device, a

hand-held grip, and other sensory input devices. Various products may be

used to achieve the experience of virtual reality.

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’764 patent col.4 ll.13-28 (emphasis added). This definition suggests that “virtual

reality” could be defined broadly to include all computer generated virtual reality

environments, with a three-dimensional immersive environment as only an example.

However, the specification goes on to explain that “three-dimensional,” “immersive,” and

“interactive” apparently work together in the invented virtual therapy methods:

Immersive, 3D, fully interactive virtual reality technology was first

introduced as part of a psychotherapeutic method by the applicant

[plaintiff] (1993) in a Department of Psychiatry for the experimental

treatment of acrophobia. The integration of virtual reality technology with

learning principles and psychotherapeutic strategies was given the

trademark Virtual Therapy by applicant in 1993. Virtual Therapy is a

trademark for a method of treating acrophobia and other psychiatric

conditions by immersion in simulated or virtual environments. It is more

than exposure treatment in a virtual environment and more than imaginal

desensitization . . . .

Id. col.4 ll.37-53 (emphasis added). Next, in describing the “Objects and Advantages” of

the invention, the specification states:

Exposure to Virtual Therapy environments is under the control of the user.

During exposure, users encounter situations through visual, auditory, and

tactile sensory stimulation. They may influence or be influenced by that

environment. Virtual Therapy is a rapid, non-invasive form of immersive,

three-dimensional, interactive treatment. Whether used as a therapeutic

method by a licensed therapist, mode of education, self-help, or

entertainment process, it presents a less-costly alternative to other forms of

treatment currently used in psychiatry.

…

Virtual Therapy is a new form of treatment that occurs when the patient

interacts with a 3D computer generated immersive virtual environment

which contains varied objects, images, colors, and sounds.

Id. col.7 ll.55-67, col.10 ll.50-53 (emphasis added).

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Following the discussion of the “Objects and Advantages” of the virtual therapy

methods, the specification explains:

Virtual therapy is primarily a psychotherapeutic, psychiatric, medical,

educational, and self-help invention for prevention and treatment of

psychiatric disorders and for problems not otherwise specified in

psychological assessment and diagnostic literature. The process is

comprehensive and takes place during immersion in fully interactive three-

dimensional virtual reality environments utilizing computer generated

graphics, images imported from photographs, and video for sensory

stimulation.

Id. col.12 ll.39-48 (emphasis added).

The three-dimensional and immersive nature of plaintiff’s invention is also

highlighted in the section of the specification describing the invention’s preferred

embodiment. That section describes a computer system equipped with a “digital storage

medium . . . capable of storing electronic instructions for running fully interactive,

immersive, three-dimensional graphics on [a computer unit.]” Id. col.14 ll.61-66

(emphasis added). When detailing how plaintiff’s method is used to treat different

disorders, the ’764 patent states:

Since virtual therapy provides a finally interactive, three-dimensional,

immersive experience under the control of the patient, it is considered the

best psychological strategy to reduce anxiety. The treatment uses learning,

termed habituation, to instill self-efficacy and create opportunity for

mastery experiences. Rather than relying upon distraction to reduce

emotional distress, the clinician guides the patient through the virtual

environment, providing adaptive thinking and emotional management

strategies when the patient engages in distorted thinking and behavior based

upon failure beliefs.

Id. col.18 ll.35-45 (emphasis added); see also id. col.25 ll.4-8 (“The process is

comprehensive and takes place during immersion in fully interactive three-dimensional

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virtual reality environments utilizing computer generated graphics, images imported from

photographs, and video for sensory stimulation.” (emphasis added)). Finally, in

discussing the “Summary, Ramifications, and Scope” of the invention, the ’764 patent

states:

The reader will thus see that I have presented a particularly simple method

for treating psychological, psychiatric, medical, and self-help conditions in

human patients using virtual reality technology. The method uses three-

dimensional, fully interactive, sensory inputs which makes the assessment,

diagnosis, and treatment procedures easy to initiate and complete. The

method of Virtual Therapy is less costly and less time consuming than other

forms of standard-of-care treatments.

Id. col.26 ll.32-40 (emphasis added). This section of the specification goes on to

distinguish plaintiff’s invention from “other forms” of treatment that involve two-

dimensional scenes:

Compared to traditional talk therapy, computer generated Virtual Therapy

provides patients with rapid relief from painful emotional states and

elimination of avoidance associated with acrophobia, and other psychiatric

and medical conditions. Other forms of treatment require patients to

imagine a desired behavior or view two-dimensional computer generated

scenes while using a keyboard or mouse. These treatments are not truly

interactive. They are weak and require longer periods of treatment when

compared to fully interactive Virtual Therapy interventions using

environments that are under the control of the user.

Id. col.26 ll.44-54 (emphasis added).

The specification contains a few references references to two-dimensional

technologies in connection with immersive environments. When describing the preferred

embodiment of the virtual reality computer system, the ’764 patent states:

The method of the invention is also useful in the following areas: . . .

Assessment, prevention and treatment (including induction states) are

achieved with visual, auditory, and tactile sensory stimulation with

19

assistance of two- and three-dimensional immersion technologies. Such

technologies can include a wireless cellular phone fitted with a visual

display; a remote site accessed by means of a television monitor; Internet

access; wrist, arm, waist, shoulder, neck, and head fitted devices which are

band programmed for random or systematic stimulation at home, in a car,

in public transportation, or in public areas which provide access services;

and a system for projection of images onto walls, ceilings, or floors that

appear to be three-dimensional and real.

Id. col.15 ll.42-55 (emphasis added). Similarly, the patent explains that “[a]s

technological innovations advance . . . , the delivery of this information through visual

sensory input may take varied forms. . . . Virtual therapy may use video in two

dimensions or video in three-dimension immersion using a head-mounted display.” Id.

col.11 ll.51-62.

Both parties argue based on all of the above-quoted language that their respective

constructions are supported. After consideration of the parties’ arguments, the court

adopts plaintiff’s construction of this term. For the reasons stated below, the court

concludes that construing “interactive virtual reality environment” as a “computer

generated three-dimensional immersive environment” most “naturally aligns with the

patent’s description of the invention.” Phillips, 415 F.3d at 1316 (quotation omitted).

As shown above, the specification repeatedly describes plaintiff’s virtual therapy

methods by referring to their three-dimensional and immersive character. For example,

in outlining the objects and advantages of the VRIT method, the specification describes

the invention as “a new form of treatment that occurs when the patient interacts with a 3D

computer generated immersive virtual environment.” ’764 patent col.10 ll.50-54. When

disclosing examples of how virtual therapy can be used to treat different disorders, the

20

’764 patent states, “Since virtual therapy provides a finally interactive, three-dimensional,

immersive experience under the control of the patient, it is considered the best

psychological strategy to reduce anxiety.” Id. col.18 ll.35-38 (emphasis added). In light

of these and other consistent descriptions of “virtual therapy” or “virtual environments”

as “three dimensional” and “immersive,” the court construes “interactive virtual reality

environment” to include only “three dimensional” and “immersive” environments. See

In re Abbott Diabetes Care Inc., 696 F.3d 1142, 1150 (Fed. Cir. 2012) (finding that, even

where a patent did not expressly limit a claim term, the specification’s particular

“repeated[], consistent[], and exclusive[]” description of the invention was enough to

limit the claim term) (quotation omitted).

The court recognizes, as the government argues, that “virtual reality” is described

in the specification as a “computer-generated environment”:

The term “virtual reality” has been used to describe a computer-generated

environment. When viewed with goggles or head-mounted display, it

provides the user with a three-dimensional, fully interactive experience. . . .

The technology used to produce virtual reality consists of a graphics-

generating computer, a head-mounted-display with a tracking device, a

hand-held grip, and other sensory input devices. Various products may be

used to achieve the experience of virtual reality.

’764 patent col.4 ll.13-29. However, here, when read in the context of the rest of the

specification, it is clear that plaintiff did not intend to define “interactive virtual reality

environment” so broadly, and instead focused on a three-dimensional, immersive “virtual

reality.”

Similarly, the court is not persuaded that the language in the specification referring

to “two-[dimensional] . . . immersion technologies” dictates that the virtual reality

21

environment itself encompasses two-dimensional computer generated environments.

’764 patent col.15 ll.42-55. While the specification acknowledges that a virtual reality

environment may be created using two-dimensional technologies, the specification, as

discussed above, repeatedly uses “three-dimensional” and “immersive” when describing

the virtual environments or therapy methods taught by the patent. Moreover, the ’764

patent expressly distinguishes its three-dimensional, immersive virtual reality therapy

methods from other forms of treatment that use two-dimensional environments. In this

case, the specification states:

Compared to traditional talk therapy, computer generated Virtual Therapy

provides patients with rapid relief from painful emotional states and

elimination of avoidance associated with acrophobia, and other psychiatric

and medical conditions. Other forms of treatment require patients to

imagine a desired behavior or view two-dimensional computer generated

scenes while using a keyboard or mouse. These treatments are not truly

interactive. They are weak and require longer periods of treatment when

compared to fully interactive Virtual Therapy interventions using

environments that are under the control of the user.

’764 patent col.26 ll.44-54 (emphasis added). The specification therefore demonstrates

an intent to exclude two-dimensional computer generated scenes from the scope of

plaintiff’s invention. “Where the specification makes clear that the invention does not

include a particular feature, that feature is deemed to be outside the reach of the claims of

the patent, even though the language of the claims, read without reference to the

specification, might be considered broad enough to encompass the feature in question.”

SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed.

Cir. 2001). Contrary to the government’s contentions, the description of the invention in

the specification reveals that a “three dimensional” and “immersive” virtual reality

22

environment is not simply “preferred,” but is instead part of the method invented by

plaintiff. Accordingly, the court adopts the plaintiff’s construction and construes

“interactive virtual reality environment” as: “a computer generated three-dimensional

immersive environment that allows movement and navigation.”

B. “technology unit”

The parties next dispute whether the term “technology unit” means either (1) “a

set of equipment and personnel comprising a computer unit, movement and navigation

device, and a display which is either head-mounted or a screen,” as plaintiff argues, or (2)

“a set of equipment”—and not personnel—“comprising a computer unit, hand-held grip,

and a display which is either head-mounted or a screen,” as the government contends. 9

The primary disagreement here concerns whether a clinician or other “personnel”

is part of the “technology unit” used in the patent’s VRIT methods. This dispute reflects,

9

The parties’ main disagreement concerning “technology unit” focuses on whether a

“technology unit” includes personnel. This primary dispute is resolved above. The parties’

secondary dispute involves whether the “technology unit” is comprised of a “hand held grip” or

more generally, a “movement and navigation device,” as plaintiff contends. This dispute arose

after the parties submitted their briefs on claim construction, and appears for the first time in the

parties’ revised joint claim construction statement.

The court has received no guidance from the parties as to this new dispute. Plaintiff previously

defined “technology unit” in his briefs to include a “hand held grip” rather than a “movement

and navigation device.” However, while the patent’s preferred embodiment of a virtual reality

computer system includes a “hand held grip,” the court sees no reason to limit the term to

specifically include a “hand held grip” rather than a “movement or navigation device.” Nothing

in the claims so limits the scope of “technology unit.” In addition, the specification indicates that

virtual reality immersion is achieved using “[b]ody sensors and devices such as a hand-held grip,

[which] permit the user to interact with objects and navigate within the virtual reality

environment.” ’764 patent col.12 ll.53-55 (emphasis added). To narrow “technology unit” to

specifically include a hand held grip is improper in this case, and the court adopts plaintiff’s

broader definition regarding this aspect of “technology unit.” See, e.g. Trading Techs., 595 F.3d

at 1352 (stating that unless there is a clear intention on the part of a patentee, “courts must not

import limitations into the claims from the specification”).

23

at bottom, the parties’ disagreement over who may “change” the virtual reality

environment while a patient is using the technology. Under the methods taught by the

’764 patent, the “technology unit” changes a virtual reality environment based on the

“patient[’s]” responses to the environment. Plaintiff does not dispute that, using his

methods, the patient may directly change the virtual reality environment through an input

device connected to the “technology unit.” However, plaintiff argues that, under his

methods, the clinician or other “personnel” may also change the virtual reality

environment in response to the patient’s reactions because the clinician is also part of the

“technology unit.” Plaintiff therefore asserts that “technology unit” includes “personnel.”

The government argues that, under the patent, the patient alone is responsible for

changing the virtual reality environment during immersion, and thus the term “personnel”

must be excluded from the construction of “technology unit.” The court must therefore

determine whether the claims or the specification demonstrate that “technology unit”

includes a human being.

The term “technology unit” does not reference a human being in the claims

themselves. The claims describe several different components of the technology unit.

Claim 1 discloses that the technology unit “is arranged to display to [a] human patient a

plurality of virtual reality environments,” has “an input for receiving feedback

responses,” and is loaded with “electronic instructions.” Claims 19 and 23 similarly

describe the technology unit as “equipped with a display means” and “equipped with an

input means,” and that an “encoded set of electronic instructions” is “load[ed] . . . into

said virtual reality technology unit.” Claims 1, 19, and 23 also disclose that, under

24

plaintiff’s method, the patient is instructed “how and when to use said virtual reality

technology unit.” Finally, Claim 26 discloses that the technology unit is “equipped with

the following: (1) a display means for displaying a virtual reality environment; (2) an

input means for receiving responses to said virtual reality environment from said human

patient; and (3) a scoring means for quantitatively analyzing said psychological,

psychiatric, or medical condition of said patient.” Nothing in the claims associates a

clinician or “personnel” with the technology unit.

The only use of the term “technology unit” outside of the claims occurs in the

Abstract:

A method of treating a psychological, psychiatric, or medical condition by . . .

loading electronic instructions into a virtual reality technology unit (10, 22)

equipped with a display (14, 40) for displaying the virtual reality environment and

with a patient input device (14, 22, 32) for receiving responses to the environment

from the patient, and instructing the human patient how and when to use the

virtual reality technology unit to interact with the environment. . . . The

environment can be used in conjunction with a physical parameter measuring

device (36) connected to the virtual reality technology unit (10).

Like the claims, the Abstract does not list the clinician or other personnel as one of the

components of the technology unit.

Instead, reference numbers 10 and 22 in the Abstract correspond to certain types

of equipment in Figure 1 of the patent, which is described alternatively by the

specification as “a block diagram of a virtual reality computer system employed in the

method according to the invention,” ’764 patent col.13 ll.35-36, and “a block diagram of

a preferred embodiment of a computer unit 10 equipped with peripheral technology

supporting the production of virtual reality environments for viewing and interaction by

25

the user.” Id. col.14 ll.15-18 (emphasis added). Reference number 10 in Figure 1 is

labeled “computer,” and reference number 22 is labeled “hand held grip.” Id. fig. 1.

Figure 1 also contains a keyboard, a mouse, fast graphic chips, a digital storage medium,

a monitor, a recording device, a physical parameter measuring device, tracking sensors, a

speaker, a head mounted display, and a tower. Id. Figure 1 does not contain a human

component.

The “Preferred Embodiment” section of the specification describes in detail the

computer system and peripheral technology found in Figure 1. Following this thorough

description, the specification finally mentions the clinician in connection with monitoring

the patient:

The block diagram in FIG. 1 shows a particularly convenient embodiment

for implementing the diagnosis and treatment method. Virtual reality

computer unit 10, head-mounted display 14, hand-held grip 22 are linked

together and produce an output shown on a video display monitor 40. The

clinician performs on-going assessment of the patient by observing

reactions to the virtual environment. The patient’s location within the

virtual environment is continuously shown to the clinician on monitor 40.

This information permits the clinician to make diagnoses and strategic

interventions as needed.

…

A physical parameter measuring device 36, e.g., a heart rate and blood

pressure sleeve connected to a recording device 38, is used to monitor

patient physiological responses during treatment. The choice of the

measuring device and recording device is made by the therapist or

physician, depending on other hardware intended for patient treatment in

virtual reality or virtual therapy environments.

Id. col.15 ll.1-30 (emphasis added). According to the specification, therefore, the

clinician “observes” the patient’s reactions to the virtual environment, “make[s]

diagnoses,” and chooses the appropriate measuring device for treatment.

26

The specification contains several other references to the clinician. In discussing

how the VRIT methods may be used to treat anxiety disorders, the specification states:

The clinician diagnoses the patient with an anxiety disorder . . . . By

following a similar process indicated in FIG. 2, specifically according to

the flow chart in FIG. 4, the clinician recommends graded exposure in a

virtual environment. . . . Rather than relying upon distraction to reduce

emotional distress, the clinician guides the patient through the virtual

environment, providing adaptive thinking and emotional management

strategies when the patient engages in distorted thinking and behavior based

upon failure beliefs.

Id. col.18 ll.24-45 (emphasis added). Similarly, in the portion of the specification

discussing how plaintiff’s methods may be used to treat other medical conditions, the

clinician’s role is described as follows:

The clinician determines, according to the flow chart in FIG. 9, that

exposure targeting a medical condition is the best strategy to modify

neurological processes, mood, physiological conditions related to stress,

healing from surgery and psychiatric hospitalization. . . . For example, users

of a virtual environment fitness step-machine may achieve confidence to

alter the virtual environment with exercise. A sense of climbing can be

enhanced with scenes depicting arrivals at scenic viewpoints. Verbal cues

reminding the user to look at the environment, enjoy the scenes, and

appreciate the moment, are avenues for making positive cognitive shifts.

Id. col.25 ll.29-45 (emphasis added). The specification further describes clinician verbal

cues in the following way:

The events that occur during immersion into a computer-generated

environment stimulate memory. Some pertain to undesirable experiences. A

sense of threat could unfold from memory, exposure, or both. These occur

in the same context that also promotes healing. Exposure to phobic stimuli

is known to provoke situational-bound anxiety or panic. The rapid onset of

distress appears spontaneous. Therapeutic interventions provided at these

critical moments can alter patient dysphoria: “Breathe deeply. Stay there

long enough to realize you are okay. Look around. You did this

successfully a few minutes ago. You can do it again. You are safe. You are

27

capable. You’re doing it.” Patients achieve mastery experiences in this

way, and their confidence grows.

Id. col.9 ll.34-46 (emphasis added). These descriptions suggest that the clinician’s

involvement during patient immersion in a virtual environment is limited to providing

verbal guidance and reassurance.

Based on the above cited language, the court agrees that the clinician plays a role

in the treatment method taught by the ’764 patent. However, after consideration of the

parties’ arguments and a review of the patent’s claims and the specification, the court

concludes for the reasons that follow that “technology unit” as used by the ’764 patent

does not include “personnel.”

First, the claims themselves describe the “technology unit” as containing only

electronic components, functions, or characteristics. The technology unit is “arranged to

display” a virtual reality environment, is loaded with “electronic instructions,” and is

“equipped” with a “display means” and an “input means.” These descriptions suggest

that the term “technology unit” is limited to equipment. Furthermore, the claims’

treatment methods require “instructing said human patient how and when to use said

virtual reality technology unit.” That the fact that the patient is provided with and

instructed how to use the technology unit further suggests that the patient uses the

technology unit without the assistance of “personnel.”

Second, the Abstract, Figure 1, and specification of the patent also support the

government’s construction. The Abstract thoroughly describes the different types of

equipment that comprise the “technology unit,” but does not include or mention the

28

clinician or “personnel.” Indeed, Figure 1 does not include any reference to a human

component of the “technology unit.” Likewise, the specification’s description of the

technology unit does not include the clinician or other personnel. While the specification

does reserve a role for the clinician, this role is limited to assessing the patient, choosing

an appropriate virtual reality environment for the patient, measuring the patient’s

responses, and being on hand to guide the patient through the environment. The

specification does not describe a single situation where the clinician is in control of the

virtual environment. To the contrary, the specification includes many examples of the

patient controlling the virtual reality environment. For example, in the specification,

plaintiff’s treatment method is described as an “interactive, three-dimensional, immersive

experience under the control of the patient.” Id. col.18 ll.35-38 (emphasis added). The

specification further describes patient control as an integral part of plaintiff’s methods:

Virtual Therapy is a new form of treatment that occurs when the patient

interacts with a 3D computer generated immersive virtual environment

which contains varied objects, images, colors, and sounds. A hand-held

grip with buttons allows the patient to move forward with a sensation of

walking of flying. It will also permit vertical upward or downward

movement. The patient can change the environment by moving, adding,

removing, enlarging, subtracting, and multiplying the number of objects

present. For example, the patient may choose to pick up a chair and move

it to another side of the room; turn on a fan; turn the room lights on or off;

open a door; add a lamp to a table; drop an object that sounds as if it is

breaking. and so on. Collectively, these movements provide therapeutic

advantages over other forms of treatment because the patient, then and

there, can rehearse and practice tasks previously consider overwhelming, in

a safe virtual environment.

Id. col.10 ll.50-67.

29

In addition, the specification discloses that “patient control” is superior to active

clinician involvement. Virtual therapy is expressly defined in the specification as “a form

of treatment that provides exposure under the control of the patient. Previous exposure

methods brought the patient into contact with reality in the presence of a clinical

practitioner.” Id. col.9 ll.63-66 (emphasis added). In describing the objects and

advantages of the invention, the patent further states:

Standard forms of psychotherapy utilize face-to-face visits with a clinician

(therapist), group therapy, psycho-educational workshops (classes), and

medications (which is an invasive procedure). Virtual Therapy does

involve a therapist. But the treatment takes place in a virtual environment

where the patient has the opportunity to face challenges and struggles by

visual and auditory immersion. Virtual encounters permit the patient to

rapidly confront and resolve problems resulting in anxiety, panic, phobias,

depression, and chemical dependency.

…

In Virtual Therapy, the patient interacts with the technology and virtual

environment. The patient influences the environment and is influenced by

it. Thus, transference to the therapist is eliminated because the patient's

focus is absorbed by interactions with the virtual environment.

…

The personality of the therapist is less important with this form of treatment

than others because the patient interacts with the technology to receive

corrective experiences. It eliminates arguments about the nature of the cure

because it is less the therapist and more the quality of the virtual

environment interaction that leads to patient health.

Id. col.10 ll.6-25, col.11 ll.10-19. Although the court must be cautious not to improperly

limit claim terms by the embodiments described in the specification, see, e.g., Trading

Techs., 595 F.3d at 1352, here, the consistent references to patient control as superior to

clinician involvement displays a clear intent on the part of the patentee to place the

patient, not the clinician, in control of the virtual environment, and to exclude the

30

clinician or other personnel as part of the technology unit which the patient uses and

controls.

For all of these reasons, the court finds that the term “technology unit” does not

include human “personnel.” The court therefore construes “technology unit” as: “a set

of equipment comprising a computer unit, movement and navigation device, and a

display which is either head-mounted or a screen.”

C. “plurality of virtual reality environments”

The disagreement over the claim term “plurality of virtual reality environments”

specifically involves the word “environments.” Plaintiff urges the court to construe this

term as: “two or more virtual environments, which may be merely modified forms of a

single general environment.” The government urges adoption of a simpler construction:

“two or more virtual environments.” The government argues that a “virtual reality

environment” is a single virtual world that corresponds to a particular treatment strategy,

and that a “plurality of virtual reality environments” means more than one such virtual

world. Plaintiff agrees, but adds that “plurality of virtual reality environments” must also

mean the changing scenes of a single virtual world.

Claim 1 is the only claim that uses this disputed term. As discussed supra, Claim

1 teaches:

1. A method for treating a psychological, psychiatric, or medical condition

in a human patient, comprising:

(a) choosing a psychological strategy for treating said psychological,

psychiatric, or medical condition;

(b) providing an interactive virtual reality environment;

31

(1) said interactive virtual reality environment comprising a

technology unit arranged to display to said human patient

a plurality of virtual reality environments;

(2) said technology unit having an input for receiving

feedback responses to said interactive virtual reality

environment from said human patient;

(3) said technology unit arranged to change said virtual reality

environment in response to said feedback responses from

said human patient;

(c) selecting said virtual reality environment to correspond to said

psychological strategy;

(d) encoding electronic instructions for said interactive virtual reality

environment;

(e) loading said electronic [instructions] into said virtual reality

technology unit; and

(f) instructing said human patient how and when to use said virtual

reality technology unit so as to experience said interactive virtual

reality environment and how and when to provide feedback

responses to said technology unit for changing said virtual reality

environment so as to treat said psychological, psychiatric, or

medical condition.

’764 patent, Claim 1 (both singular and plural of disputed claim term underlined). The

disputed claim term is mentioned in the context of the “technology unit,” which is

arranged to provide “a plurality of virtual reality environments.” Claim 1 uses the

singular “virtual reality environment” to correspond to a virtual world chosen for a

particular treatment strategy, which can be experienced and modified by the patient.

Not surprisingly, the specification contains many references to both the singular

“virtual environment” and the plural “virtual environments.” In describing the preferred

embodiment of the virtual reality therapy unit, the specification states:

A standard monitor 30, keyboard 32, and mouse 34 are used to ready

computer 10 for production and display of virtual reality graphics. When

computer 10 is ready, a menu showing icons for virtual environments used

to treat psychiatric and medical conditions appears on monitor screen 30.

For example, when an icon named “VIRTUAL THERAPY of HEIGHTS”

32

is selected, a virtual environment used to treat the psychiatric condition of

acrophobia appears and can be seen through display 14.

’764 patent col. 15 ll.12-22 (emphasis added). In further describing the use of the

VRIT method for treating acrophobia, the specification states:

The acrophobia virtual environment contains graphical representations of a

café with booths, lighting, textured walls, a bar tap or faucet frequently

associated with the delivery of beer, and a walkway between the booths and

the bar. A doorway opens to a checkered patio overlooking a bay, hills,

and bridge. A plank extends toward but does not connect to the bridge.

The space between the plank and bridge reveal a checkered floor beneath.

Id. col. 17 ll.33-40 (emphasis added). Similarly, when describing how virtual therapy

methods are used to treat different specific disorders, the specification repeatedly uses the

singular “environment,” rather than “environments” to describe the changing virtual

world with which the patient interacts:

Next a virtual environment (“ve”) is created for the patient and virtual

therapy (“vt”) is begun[.]

…

The clinician recommends graded exposure in a virtual environment [for

the treatment of anxiety disorders.]

…

[T]he clinician guides the patient through the virtual environment.

Id. col.16 ll.58-59, col.18 ll.32-35, 41-45.

After consideration of the parties’ arguments, the claims, and the specification, the

court adopts the government’s construction of this term. There is no dispute, in this case,

that “plurality” means “two or more.” Rather, the parties disagree as to whether the

scope of “environments” should, as plaintiff suggests, include modified forms of a single

virtual environment, rather than simply two or more distinct virtual worlds.

33

Turning first to Claim 1, the use of the singular “virtual reality environment” in

that claim indicates that a “virtual reality environment” is a single virtual world, selected

to correspond to a particular treatment strategy or disorder, which a patient then

experiences and changes during the course of treatment. Claim 1, section (c) discloses

the step “selecting said virtual reality environment to correspond to said psychological

strategy.” Claim 1, section (f) involves instructing a patient how to use the technology

unit “to experience said interactive virtual reality environment” and how to provide

feedback to the technology unit to “chang[e] said virtual reality environment.” Tellingly,

under Claim 1, section (f), the patient does not experience or change “a plurality of

virtual reality environments” when immersed in the chosen virtual world. Rather, the

claim teaches that the patient experiences and changes the singular “virtual reality

environment.” The use of the singular “environment” in this step in particular suggests

that the term “plurality of virtual reality environments” does not include the modified

forms of one virtual world.

In addition, nothing in the claims indicates that the term “plurality of virtual reality

environments” should be given a different construction than simply “two or more” of the

singular “virtual reality environment.” Indeed, as noted above, in the absence of any

contrary indication, the term “virtual reality environment” should be construed to have

the same meaning each time it is used in the claims. See Paragon Solutions, 566 F.3d at

1087 (Fed. Cir. 2009) (quotation and citations omitted). To define “environments” as

plaintiff asks confuses the distinction between the plural and singular version of this term

and does not logically follow from the use of singular term in the claim. See August

34

Tech. Corp. v. Camtek, Ltd., 655 F.3d 1278, 1284 (Fed. Cir. 2011) (distinguishing claim

terms “a wafer” and “a plurality of known good quality wafers”).

Moreover, the government’s construction is supported by the specification, which,

as described above, uses the term “environment” to correspond to different treatment

regimens. For example, in describing the café, patio, plank, and bridge scenery used to

treat acrophobia, the specification uses the singular umbrella term “acrophobia virtual

environment.” ’764 patent col.17 l.33. This is consistent with the use of the singular in

the claims to correspond to a type of treatment strategy, and suggests that the singular

term “virtual environment” encompasses the many scenes of that environment that may

be changed by the user.

Further, as noted above, Claim 1 uses the term “plurality of virtual reality

environments” to further describe the technology unit. The preferred embodiment of the

technology unit describes a monitor that displays a menu of treatment icons representing

different “virtual reality environments” that a user may select depending on what disorder

he or she wants to treat. Id. col. 15 ll.12-22. This description readily matches Claim 1’s

characterization of the technology unit, which describes the technology unit as being

arranged to display a “plurality of virtual reality environments.” The preferred

embodiment, in line with the claims, suggests that “plurality of virtual reality

environments” means two or more virtual worlds that a user may select based on an

underlying disorder.

Plaintiff’s construction, in contrast, would use the term “virtual reality

environments” to describe the changing scenes of one virtual environment. However, the

35

specification often uses the word “scenes,” rather than “environments,” when referring to

the different graphical images within one virtual reality environment. For example, in

describing the use of VRIT for anxiety disorders, the specifications states, “User

reactions to virtual scenes vary. A view of heights from the same vantage point elicits

fear from some users and detached interest from others.” Id. col. 18 ll.64-67. When

describing the use of VRIT for medical conditions, the specification states, “A sense of

climbing can be enhanced with scenes depicting arrivals at scenic viewpoints. Verbal

cues reminding the user to look at the environment, enjoy the scenes, and appreciate the

moment, are avenues for making positive cognitive shifts.” Id. col.25 ll.39-45. In

describing an experimental use of virtual reality to treat spider phobia, the specification

explains, “A patient was exposed to virtual spider scenes over 12 weeks with each

session lasting a total of 50 minutes.” Id. col.5 ll.19-21.

The specification does not expressly define “scenes” to mean the modified forms

of a single virtual environment. However, the specification’s use of “scenes” to describe

a changing virtual environment coupled with the specification’s repeated use of the

singular “virtual reality environment” to describe a distinct virtual world supports the

government’s construction of this claim term. As noted above, an intention cannot be

found in either the claims or in the specification to suggest that “plurality of virtual

reality environments” should be construed to mean something different than simply “two

or more” of the singular “virtual reality environment.” 10 For all of these reasons, the

10

Plaintiff also argues that he drafted the ’764 patent by modifying the claim terms found in an

application related to a different patent, U.S. Patent No. 5,678,571 (filed May 23, 1994) (“Brown

36

court adopts the government’s proposed construction and construes “plurality of virtual

reality environments” as: “two or more virtual environments.”

D. “feedback responses from said human patient”

It is undisputed that, as used in the claims of the ’764 patent, the term “feedback

responses from said human patient” describes reactions by the patient to the virtual

environment that are communicated to the technology unit through an input device. For

example, Claim 1, section (b), adding description to the technology unit, discloses: “(2)

said technology unit having an input for receiving feedback responses to said interactive

virtual reality environment from said human patient (3) said technology unit arranged to

change said virtual reality environment in response to said feedback responses from said

human patient.”

The difference in the parties’ construction of the term “feedback responses from

said human patient” is based on the parties’ disagreement over the construction of the

patent”). Pl.’s Reply at 7. The Brown patent uses multiple video games programmed into a

hand-held computer system for treating medical conditions. Because, plaintiff argues, the Brown

patent is a “very different invention,” the court should construe the term “virtual reality

environment” as distinct from the different games claimed in that different invention.

The court rejects this argument. The ’764 patent does not expressly disclaim any definition or

any claim term used in this different patent. While prior art cited by a patentee can guide the

court as to the proper construction of that term, see, e.g., V-Formation, Inc. v. Benetton Grp.

SpA, 401 F.3d 1307, 1311 (Fed. Cir. 2005), here, plaintiff asks to interpret this claim term based

on a different term used in a different patent. The court declines to do so, or to consider this

aspect of plaintiff’s argument. In fact, plaintiff’s patent does not cite to the Brown patent. And,

as noted, the ’764 patent does not indicate that “plurality of virtual reality environments” should

be given a different meaning than “two or more” of the singular “virtual reality environment,”

which the patent describes as one virtual world linked to a disorder or treatment strategy.

37

term “technology unit.” 11 In particular, plaintiff’s construction of this term defines the

technology unit as including both a computer system and a clinician. Plaintiff construes

“feedback responses from said human patient” as “the return to the technology unit

(clinician or computer) of user reaction to all or part of the interactive virtual reality

environment” (emphasis added). Having found that “technology unit” excludes a

clinician or other personnel, the court adopts the government’s construction of this term

and construes “feedback responses from said human patient” as: “the return to the

technology unit from an input device caused by the user’s reaction to the virtual reality

environment.”

E. “input” and “input means”

The parties next dispute whether the terms “input” or “input means” 12 in the ’764

patent include only “electronic signals or information provided from an input device,

display, or keyboard by the patient,” as the government contends, or more broadly

include “verbal, physical, or electronic signals or information provided from the patient,”

as the plaintiff argues. To the extent that the parties’ dispute depends on whether the

clinician is part of the technology unit, this dispute is resolved above. However, the court

11

The parties also disagree as to whether the patient’s reaction must be “to the virtual reality

environment” or “to all or a part of the interactive virtual reality environment.” The parties

provide no arguments in regard to this difference in construction, and the court sees no reason to

depart from the government’s more simple construction of this term.

12

Although “input means” evokes a “means plus function clause,” 35 U.S.C. § 112 ¶ 6 (2006),

neither party contends that “input means” is different in scope than “input.” Accordingly, the

court treats these terms as being identical for purposes of claim construction.

38

finds that the intrinsic evidence also otherwise supports the government’s construction of

this term.

The claims disclose that the technology unit is equipped with an “input means”

that receives responses from the human patient made in reaction to the virtual reality

environment. For example, Claim 19 discloses that the technology unit is “equipped with

an input means for receiving responses to said interactive virtual reality environment

from said human patient.” Similarly, Claim 1 discloses that the technology unit has “an

input for receiving feedback responses to said interactive virtual reality environment from

said human patient.” The claims provide no further limitations or descriptions of “input”

or “input means.”

The specification uses the term “input” in several ways. First, in describing the

virtual therapy method, the specification states:

The term Virtual Therapy was introduced by Lamson (1993) and is used to

define a process that occurs when patients are visually immersed in a

virtual environment. . . . Auditory and tactile sensory inputs may be

included to enhance a user’s sense of reality during immersion. In the case

of phobias, psychological distress is maintained by beliefs, appraisal of

threat, anxiety, and situational avoidance. Healing occurs when users

develop thinking strategies that result in reduction of distress, increased

confidence, and approach behavior.

’764 patent col.7 ll.55-64 (emphasis added); see also id. col.8 ll.10-12 (“Exposure to

visual, auditory, and tactile sensory inputs in the virtual environment are under the

control of the user or patient.”); id. col.26 ll.35-38 (“The method uses three-dimensional,

fully interactive, sensory inputs which makes the assessment, diagnosis, and treatment

procedures easy to initiate and complete.” (emphasis added)). The court agrees with the

39

government that the use of “input” in this manner refers to the stimulation provided by

the virtual reality environment to the user, not the input to the technology unit of the

user’s reactions to the virtual environment. As such, this reference cannot support

plaintiff’s construction of this term. 13

The patent also uses “input” to refer to a part of the technology unit—the “input

device.” The Abstract and specification reference only electronic components—i.e., “a

hand-held grip, joystick, mouse, button, trigger, or the like, or a combination of these

devices,” id. col.14 ll.45-47—when discussing “input device.” These descriptions

confirm that that the term “input” or “input means” is limited to only electronic signals

concerning the patient’s response to the virtual reality environment. As discussed in

length above, this conclusion is consistent with the court’s construction of “technology

unit” as excluding a human, such as a clinician. For these reasons, the court adopts the

government’s more limited construction of “input” or “input means” and construes these

terms as: “electronic signals or information provided from an input device, display or

13

Plaintiff also suggests that “input” could include physical signals because the specification

describes a patient, in reaction to a virtual environment, “squatting close to the floor while

extending the arms and hands to prevent falling.” ’764 patent col.18 ll.55-60. Plaintiff argues

that this description logically demonstrates that the clinician would then serve as the “input

device” that could modify the virtual reality environment based on this reaction. However,

because the court holds supra that the “technology unit” does not include the clinician, the court

rejects this argument. In addition, the court notes that such a construction conflates the patient’s

responses with “inputs” into the technology unit. Because the claims use “input” and

“responses” from the human patient distinctly, such a construction is improper. See Z4 Techs.,

Inc. v. Microsoft Corp., 507 F.3d 1340, 1348 (Fed. Cir. 2007) (holding that where “the written

description [in the claims and specification] makes clear that” two claim terms are distinct and

used to describe different things, those claim terms should be given different meanings).

40

keyboard by the patient concerning the patient’s response to the virtual reality

environment.”

F. “change said virtual reality environment”

The disputed term “change said virtual reality environment” is only found in

Claim 1. Claim 1 uses this disputed term to describe the technology unit as follows:

“said technology unit arranged to change said virtual reality environment in response to

said feedback responses from said human patient” (emphasis added). It is undisputed in

the parties’ respective constructions that the “technology unit” is responsible for

changing the virtual reality environment based on the feedback responses from the

patient. In addition, both parties agree that the “computer” portion of the technology unit

may modify the virtual reality environment.

However, the parties disagree as to whether only the computer may change the

virtual reality environment, as the government argues, or whether a clinician, by

operating the computer, may also modify the virtual reality environment, as plaintiff

contends. As the parties indicate in their briefing, this dispute is resolved by the court’s

construction of the term “technology unit” to exclude a clinician. For the reasons

discussed above, therefore, the court adopts the government’s construction of this term

and construes “change said virtual reality environment” as: “the computer generates

changes to the existing virtual reality environment, which changes can be viewed on the

screen or display.”

41

G. “providing a plurality of sets of instructions or steps for treating said

psychological, psychiatric, or medical condition” 14

The parties’ disagreement concerning the final disputed term, “providing a

plurality of sets of instructions or steps for treating said psychological, psychiatric, or

medical condition,” concerns who or what may be “provided” the sets of instructions or

steps under that term. Plaintiff construes the term to mean: “giving the clinician,

technology unit and/or patient multiple lists of instructions or steps for the technology

unit, clinician, and/or patient to execute in order to obtain treatment for a particular

psychological, psychiatric, or medical condition.” The government argues that only the

patient may receive and execute the multiple lists of instructions or steps to obtain

treatment.

This disputed term is found in section (a) of independent Claim 19 of the patent-

in-suit, and encompasses one of the steps in the method taught by that claim:

19. A method of treating a psychological, psychiatric, or medical condition in a

human patient comprising:

(a) providing a plurality of sets of instructions or steps for treating

said psychological, psychiatric, or medical condition;

(b) choosing one of said sets of instructions or steps which is

appropriate for treating said psychological, psychiatric, or

medical condition of said human patient;

(c) providing a virtual reality technology unit arranged to provide an

interactive virtual reality environment;

(1) said virtual reality [] technology unit being equipped with

a display means;

(2) said virtual reality technology unit also being equipped

with an input means for receiving responses to said

14

As noted above, the parties also disagree as to the construction of “providing a plurality of sets

of counseling directions for treating said psychological, psychiatric, or medical condition,”

which is found in Claim 23 of the ’764 patent. The court’s resolution of this claim term will also

resolve the parties’ dispute in that regard. See supra note 6.

42

interactive virtual reality environment from said human

patient;

(d) providing a set of encoded electronic instructions for said virtual

reality environment;

(e) embedding said one set of instructions or steps in said encoded

set of electronic instructions for said interactive virtual reality

environment;

(f) loading said set of electronic instructions into said virtual reality

technology unit for displaying said interactive virtual reality

environment; and

(g) instructing said human patient how and when to use said virtual

reality technology unit to display said interactive virtual reality

environment and how to provide responses to said virtual reality

environment.

Nothing in the claim language expressly limits who is provided the sets of

instructions or steps described in section (a) of Claim 19. However, that claim does

distinguish between “instructions and steps for [treatment]”, which are chosen to

correspond to a particular condition under sections (a) and (b), and “electronic

instructions,” which are loaded into the technology unit under sections (e) and (f).

Specifically, Claim 19 teaches that the “instructions and steps” for a chosen treatment

regimen are “embedd[ed]” into “a set of encoded electronic instructions” that are then

“load[ed]” into the virtual reality technology unit. As such, Claim 19 separately

describes (1) how the “plurality of sets of instructions and steps” are first received—they

are “provid[ed]”—and (2) how the “technology unit” receives the “instructions or

steps”—through “embedding” and “loading.”

The terms “instructions” and “steps” are used in several ways outside of the ’764

patent’s claims. The patent’s Abstract states, “The interactive environment contains

instructions for a scoring procedure for quantitatively analyzing the medical condition of

43

the patient, and/or counseling instructions or self-help instructions.” In describing how to

use the VRIT method, the specification states:

In addition, the psychological treatment strategies can include methods of

counseling and self-help instructions. Compact disks (CD) utilizing non-

immersive interactive exposure to virtual environments may form part of

the overall treatment strategy. The contents of the CD may include written

instructions viewed on a monitor or screen, images and objects to enhance

learning and other forms of sensory input to include sound and touch.

’764 patent col.16 l.60-col.17 l.5 (emphasis added). The specification also refers to

“instructions” to describe the use of the VRIT method in a self-help scenario:

Moreover, the patient participates actively in the treatment by following

instructions embedded in the virtual environment or even generating

positive physiological responses due to stimuli presented in the Virtual

Therapy application.

The method of the invention also provides a treatment to which the patient

can resort as the need arises. The intrinsic fun of a novel, interactive virtual

environment ensures higher treatment compliance for all patients, and in

particular, adolescents. The self-help instructions communicated by this

method can additionally be used induce patients to independently perform

measurements of physical parameters associated with their psychological,

psychiatric, or medical condition.

Id. col.27 ll.14-33 (emphasis added). These passages suggest that some types of

treatment instructions could be provided only to the patient. However, these references

do not expressly indicate whether Claim 19 only corresponds to the self-help treatment

scenario so that Claim 19’s “plurality of sets of instructions or steps” must be provided

only to the patient.

The specification also uses the term “therapeutic steps” several times when

describing how to use plaintiff’s VRIT methods for treating particular disorders. The

specification often refers to the patent’s figures and tables to describe these “therapeutic

44

steps.” See, e.g., id. col.18 ll.34-45 (“The flowchart of FIG. 4 is self-explanatory and

outlines the therapeutic steps described below.”). For example, Figure 4, labeled as a

“flow chart showing how a virtual environment is used for treating other anxiety

disorders according to the invention,” lists steps such as “assess anxiety disorder,”

“graded exposure,” “situation bound or unexpected panic,” “avoidance, “cognitive

behavioral, & physiological interactions,” “self-efficacy,” and “[virtual environment]

mastery experience.” 15 Id. fig. 4. Table 1, labeled “Basic Processes of Virtual Therapy,”

contains steps such as “Collaborate on virtual therapy goals,” “Discuss principles of

learning in immersion,” and “Provide mastery experiences by exposure.” Id. col.16 ll.1-

20. Other tables in the specification provide similar steps depending on the type of

disorder they address. For example, when discussing adolescent substance use

prevention, the specification states: “Effective prevention must raise awareness in the

adolescent by the steps outlined in Table 3.” Id. col.24 ll.26-27. Table 3 describes

“Virtual Therapy Prevention Strategies” for the prevention of substance abuse, such as

“develop relationship,” “obtain history of substance abuse and dependency,” “immerse in

virtual environment,” and “produce opportunities to confront denial and avoidance.” Id.

col.24 ll.29-46. These tables and figures suggest that the clinician may also receive and

execute instructions when using plaintiff’s therapy methods.

15

The other flowcharts in the patent provide similar steps, depending on the type of disorder they

address. For example, Figure 7, described as a flowchart “illustrating adolescent substance-use

prevention strategies in a virtual environment according to the invention,” lists such steps as

“identify population at risk,” “target risk factors,” “modify drug values,” “protective [virtual

environment]”. ’764 patent fig. 7.

45

After consideration of the parties’ arguments, the claims, and the intrinsic

evidence, the court adopts neither party’s construction. 16 Rather, the court concludes that

the “plurality of sets of instructions or steps” may be provided either to the clinician

and/or the patient for the clinician and/or the patient to execute in order to obtain

treatment. The court does not include the technology unit in its construction because, as

discussed above, the court has construed technology unit so as not to include a human.

Moreover, Claim 19 separately describes how the “technology unit” receives and

executes the “instructions or steps” for treatment. In particular, the claims disclose that

the instructions for treatment are “embedd[ed]” into “a set of encoded electronic

instructions,” and then “load[ed]” into the virtual reality technology unit. In contrast, the

“instructions and steps” for treatment are simply “provid[ed]” according to the disputed

claim term. This distinction suggests that the technology unit does not also receive

treatment instructions under the treatment step described by disputed term. The language

of Claim 19 thus guides the court to reject plaintiff’s inclusion of “technology unit” in the

construction this disputed term.

However, nothing in the claims or specification expressly teaches that the patient,

but not the clinician, receives the “plurality of sets of instructions or steps” described by

Claim 19. Some examples in the specification suggest that the clinician may be provided

the instructions, and will then choose, as Claim 19 discloses, one set of instructions or

16

The court is not required to adopt a particular construction of a term, even if the parties have

stipulated to it, and the court may arrive at its own constructions of claim terms that differ from

the constructions proposed by the parties. See, e.g., Boston Scientific Corp. v. Mircus Corp., 556

F.Supp.2d 1045, 1051 (N.D. Cal. 2008) (citing Pfizer, Inc. v. Teva Pharm., USA, Inc., 429 F.3d

1364, 1376 (Fed. Cir. 2005)).

46

steps appropriate for treatment. See, e.g., id. col.16 ll.1-21. For example, the

“therapeutic steps” in Figure 7 include diagnostic steps that the clinician would most

likely perform, such as “identify population at risk,” as well as steps that the patient may

receive and perform, such as navigating a “protective virtual environment.” Id. fig. 7.

On the other hand, the self-help scenario described in the specification also teaches that

plaintiff’s methods could be executed on an entirely self-help basis, which indicates that

the patient may receive and execute the “plurality of sets of instructions or steps” without

any clinician involvement. See, e.g., id. col.27 ll.26-33.

To construe the disputed term as the government asks would limit Claim 19 to

such a self-help scenario, to the exclusion of the specification’s additional descriptions of

plaintiff’s treatment methods. While it is not necessary that each claim encompass every

embodiment of an invention described in the specification, Baran v. Med. Device Techs.,

Inc., 616 F.3d 1309, 1316 (Fed. Cir. 2010), the intrinsic evidence in this case does not

convey a clear intent to limit the step taught by the disputed claim term to apply only to

the self-help embodiment of the VRIT method. Absent such an intent, the court will not

interpret the disputed claim term in a way that excludes the other disclosed embodiments

of plaintiff’s invention, where a broad interpretation of the term is consistent with the

intrinsic record. See Helmsderfer, 527 F.3d at 1383 (“Our case law generally counsels

against interpreting a claim term in a way that excludes the preferred embodiment from

the scope of the invention.”). In this case, the specification describes sets of instructions

47

and steps that either the plaintiff or the clinician may receive and execute. 17 The court

therefore adopts a modified version of the parties’ construction of this term, and

construes “providing a plurality of sets of instructions or steps for treating said

psychological, psychiatric, or medical condition” as: “giving the clinician and/or patient

multiple lists of instructions or steps for the clinician and/or patient to execute in order to

obtain treatment for a particular psychological, psychiatric, or medical condition.” 18

III. CONCLUSION

The following table summarizes the court’s holding for each disputed term.

Term Court’s Construction

“interactive virtual reality A computer generated three-dimensional

environment” immersive environment that allows

movement and navigation

“technology unit” A set of equipment comprising a computer

unit, movement and navigation device, and

a display which is either head-mounted or a

screen

“plurality of virtual reality Two or more virtual environments

environments”

“feedback responses from said The return to the technology unit from an

human patient” input device caused by the user’s reaction

to the virtual reality environment

“input” and “input means” Electronic signals or information provided

from an input device, display or keyboard

by the patient concerning the patient’s

response to the virtual reality environment

17

This conclusion does not alter the court’s holding that the clinician is not part of the

technology unit itself. Rather, as discussed in detail above, under this patent the patient remains

in control of the virtual reality environment during immersion and may, in fact, utilize the

patent’s VRIT methods entirely independent of a clinician.

18

As noted, Claim 23 contains similar language to Claim 19, replacing “instructions or steps”

with “counseling directions.” The court’s construction of this term also applies to the

corresponding disputed term in Claim 23. See supra note 6.

48

“change said virtual reality The computer generates changes to the

environment” existing virtual reality environment, which

changes can be viewed on the screen or

display

“providing a plurality of sets of Giving the clinician and/or patient multiple

instructions or steps for treating said lists of instructions or steps for the clinician

psychological, psychiatric, or and/or patient to execute in order to obtain

medical condition” treatment for a particular psychological,

psychiatric, or medical condition

Discovery in this case has been stayed pending claim construction. The parties

shall file a joint status report by April 1, 2013, setting forth a schedule for discovery and

future proceedings in this case. After receipt of the joint status report, the court will

schedule a joint status conference to set a schedule for further proceedings.

IT IS SO ORDERED.

s/Nancy B. Firestone

NANCY B. FIRESTONE

Judge

49