# Appendix — 800 Adept, Inc. v. Murex Securities, Ltd., Murex Licensing Corporation, Targus Information Corporation, and West Corporation, 505 F. Supp.2d 1327 (2008) (No. 08-859) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0017%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2008 ## Text Supreme Court U.S. \ es 2 08-859 wn 5- 2009 OFFICE OF THE CLERK In The Supreme Court of the Anited States 800 ADEPT, INC., Petitioner. V. MUREX SECURITIES, LTD., MUREX LICENSING CORPORATION, TARGUS INFORMATION CORPORATION, and WEST CORPORATION, Respondents. * On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit APPENDIX 'TO PETITION FOR WRIT OF CERTIORARI VOLUME I — « STEPHEN D. MILBRATH Counsel of Record DAVID W. MAGANA ALLEN, DYER, DOPPELT, MILBRATH & GILCHRIST, PA. 255 S. Orange Avenue, Suite 1401 P.O. Pex 3791 Orlando, FL 32801-3791 Telephone: 407-841-2330 Counsel for Petittoner App. l United States Court of Appeals for the Federal Circuit 2007-1272, -1356 800 ADEPT, INC.., Plaintiff-Appellee, Ve MUREX SECURITIES, LTD., MUREX LICENSING CORPORATION, TARGUS INFORMATION CORPORATION, and WEST CORPORATION, Defendants-Appellants. Stephen D. Miulbrath, Allen, Dyer, Doppelt, Milbrath & Gilchrist, PA., of Orlando, Florida, ar- gued for plaintiff-appellee. With him on the brief were Brian R. Gilchrist and Stephen H. Luther. William F. Lee, Wilmer Cutler Pickering Hale and Dorr, LLP, of Boston, Massachusetts, argued for defendants-appellants. With him on the brief were Lisa J. Pirozzolo and Benjamin M. Stern, and Paul R.Q. Wolfson, of Washington, DC. Appealed from: United States District Court for the Middle District of Florida Chief Judge Patricia C. Fawsett App. 2 DECIDED: August 29, 2008 Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge. Opinion for the court filed by Senior Circuit Judge Plager. Circuit Judge Dyk concurs in the result. PLAGER, Senior Circuit Judge. This patent case involves technology for routing “1-800” telephone calls to an appropriate service location, e.g., the service provider closest to the customer who placed the call. Plaintiff 800 Adept, Inc. (“Adept”) and Defendant Targus Information Corpo- ration (“Targus”) sell competing services that are used to route calls made to 800 numbers, and both companies own patents covering systems and meth- ods for call routing. Their customers include owners of 800 numbers, such as Enterprise Rent-A-Car and Pizza Hut, as well as providers of telecommunications ‘platforms” that route 800 calls for such businesses. In 2002, Adept sued Targus, its affiliated compa- nies Murex Securities, Ltd. and Murex Licensing ' A platform is one or more computers linked to a long distance or local telecommunications network and is used to handle telephone calls requiring special services. App. 3 Corporation, and its customer West Corporation’ in the United States District Court for the Middle District of Florida, alleging that services sold by Targus infringed two patents owned by Adept.° Adept further alleged that Targus had tortiously interfered with Adept’s business relationships by asserting Targus’s patents against Adept’s customers. Targus filed counterclaims alleging that Adept’s call routing services infringed various claims in several Targus patents.” After a 24-day jury trial, the jury’s verdict essen- tially found for plaintiff Adept on all issues. The jury found that Targus willfully infringed the asserted claims of Adept’s patents and that Adept did not infringe the asserted claims of Targus’s patents. The jury found that all the asserted claims of Targus’s patents were inves .4d4 and further found that the * The Defendants will be collectively referred to as “Targus” throughout the remainder of this opinion unless otherwise indicated. * The Adept patents at issue in this case are U.S. Patent No. Re. 36,111 (“the ’111 patent”), which is a reissue of U.S. Patent No. 5,588,048, and U.S. Patent No. 5,805,689 (“the ‘689 patent”), collectively referred to as the “Neville patents.” * The Targus patents at issue are U.S. Patent No. 4,757,267 (“the ‘267 patent” or “Riskin patent”) and U.S. Patent Nos. 5,506,897 (“the ’897 patent”), 5,848,131 (“the °131 patent”), 5,901,214 (“the °214 patent”), 5,907,608 (“the ‘608 patent”), 35,910,982 (“the °982 patent”), 5,956,397 (“the “397 patent”), 5,982,868 (“the °868 patent”), 6,058,179 (“the ’179 patent”), and 6,091,810 (“the ‘810 patent”), collectively referred to as the “Moore-Shaffer patents.” App. 4 unasserted claims of Targus’s ’897 patent and °131 patent were invalid as well. The jury also found Targus liable under state law for tortious interference with Adept’s business’ relationships. The jury awarded Adept $18 million for patent infringement and $7 million on the tortious interference claim. The trial court entered judgment on the jury verdict, issued a permanent injunction, and awarded enhanced damages of $24 million on the patent infringement claim, bringing the total damages award to $49 million. The trial court also determined that the case was exceptional and therefore Adept was entitled to attorney fees under 35 U.S.C. § 285. After thorough consideration of all the issues in the case, we conclude that the trial! court erred regarding a critical claim construction issue in the Adept patents, one that permitted the jury to make incorrect findings. Under the correct claim construc- tion, no reasonable jury could find that Targus in- fringes the asserted claims of Adept’s patents; accordingly, we reverse the trial court’s judgment of infringement. For the reasons we shall explain, we also reverse the trial court’s judgment for Adept on its tortious interference claim. In light of these determi- nations, we vacate the trial court’s damages award, the permanent injunction, and the judgment with respect to willfulness, enhanced damages, and attor- ney fees. Regarding the Targus patents, with two excep- tions we affirm the trial court’s judgment upholding App. 5 the jury’s verdict that the asserted claims of Targus’s patents are invalid; for the reasons we explain, we vacate the invalidity judgment on two of the asserted claims of Targus’s patents and remand for a new trial on these claims. Because the validity of the unas- serted claims of Targus’s patents was not at issue during the trial, we vacate the trial court’s invalidity judgment with respect to all of those claims. BACKGROUND The patents at issue in this case relate to tech- nology for routing telephone calls made to 800 num- bers. Typically when a caller dials an 800 number, the long distance carrier (“LDC”) handling the call must identify the 10-digit telephone number, known as a “Plain Old Telephone System” (“POTS”) number, to which to route the call. (A POTS number has the form NPA-NXX-XXXX, where NPA is the area code and NXX is the exchange.) If all calls to a particular 800 number are to be routed to a single location, the process is relatively simple. Some businesses, how- ever, advertise a single 800 number but have multiple service locations. When a caller dials the 800 number of one of these businesses, the LDC must have some way to determine the POTS number of an appropriate service location. For example, if the 800 number is for a chain of pizza restaurants, the correct service location could be the closest restaurant or one that delivers within the geographic area in which the caller is located. App. 6 Plaintiff Adept owns the ‘111 patent and its divisional, the 689 patent, both of which claim prior- ity to an application filed on July 31, 1992. The two patents, referred to as the Neville patents, are enti- tled “Geographically Mapped Telephone Routing Method and System,” and have virtually identical written descriptions.” The Neville patents disclose a method for directly routing an 800 call to the appro- priate service location based on the caller’s 10-digit telephone number (NPA-NXX-XXXX), sometimes referred to as the Automatic Number Identification (“ANI”). The invention involves the construction of a database that assigns a service location POTS num- ber to every potential caller according to geographic criteria provided by the owner of the 800 number. This database can be provided to the LDC, which then routes calls made to the 800 number according to the routing instructions in the database. The process is summarized in the patent’s abstract: A method and system for direct routing of telephone calls made by a caller originating from within specific calling areas to one of a plurality of locations of a second party ac- cording to certain criteria established by the second party. This routing is accomplished based on the assignment of latitude and lon- gitude coordinates to a potential caller’s loca- tion. Once these coordinates are assigned to ’ For convenience, this opinion cites only to the written description of the ‘111 patent App. 7 each of the potential callers, the second party’s criteria is applied to assign the poten- tial caller to a second party. Such criteria could be existence within a _previously- defined geographic area, a custom defined geographic area, or through calculations such as the shortest distance between coor- dinate points. Once all such assignments have been made, a database is assembled to be used by a long distance carrier for direct routing of telephone calls from callers to an assigned second party. "111 patent, abstract (emphasis added). The 111 patent has five independent claims, and the 689 patent has one independent claim, all of which were asserted by Adept against Targus. Claim 1 and claim 17 of the ’111 patent are system claims; claim 9 and claim 29 of the °111 patent are method claims; and claim 41 of the °111 patent and claim 1 of the 689 patent are directed to a method of construct- ing a datahase. Claim 29, a method claim, is illustra- tive of the Adept patent claims: 29. A method for direct rouling a telephone call from a first party who has an originating telephone number at a physical location and who dials a telephone number including dig- its uniquely characteristic to a second party having a plurality of service locations, said method comprising the steps of: la} allocating latitude and longitude coor- dinates to the physical location of all poten- tial first parties; App. 8 [b] defining the boundaries of one or more geographical areas which can be of any size and shape according to predetermined crite- ria, each point along said boundaries being defined by latitude and longitude coordi- nates; [c] assigning to the physical location of said potential first parties a telephone number of a service location of a second party that will re- ceive calls originating from within the boundary of a geographic area in which the latitude and longitude coordinates of the physical location of each of said potential first parties lie; ld| determining the originating telephone number of the first party from which said telephone call is to be routed; and le] directly routing said telephone call to a service location of the second party assigned to said originating telephone number of the first party by said step of assigning. ‘111 patent, col. 15 11.19-45 (emphases and paragraph lettering added). Defendant Targus owns two families of patents referred to as the Moore-Shaffer patents, which, like the Neville patents, disclose various systems and methods for routing 800 calls to an appropriate service location based on the caller’s 10-digit tele- phone number. The first family includes seven pat- ents: the ’897 patent; its continuation-in-part, the ‘131 patent; its continuation-in-part, the 868 patent; App. 9 and its four continuations, the 608 patent, the ’982 patent, the °397 patent, and the °810 patent. The second family includes the '214 patent and its con- tinuation, the 7179 patent. The earliest Moore-Shaffer patent is the °897 patent, which claims priority to an application filed on February 22, 1993. The ’897 patent, which issued in 1996, was also the subject of a reexamination request filed by Adept in 1999. The United States Patent and Trademark Office (“PTO”) granted the request and in 2001 issued a reexamination certifi- cate, confirming the patentability of all claims. The ’897 patent discloses a database containing two tables — a master table and a client table — linked by a spatial key. Each record in the master table contains a caller telephone number and a corresponding spatial key, such as a nine-digit postal code (referred to as “zip+4”). 897 patent, col.8 1.55 to col.9 1.6. Each record in the client table contains a spatial key and the telephone number of a corre- sponding client service location. /d. at col. 9 I1.7-26. The master table is indexed by caller telephone numbers, and the client table is indexed by the spa- tial key, so that when a call is placed the system retrieves from the master table the spatial key corre- sponding to the caller’s telephone number and then retrieves from the client table the telephene number of the client service location corresponding to that spatial key. Jd. at col.10 |l.1-7. The ’897 patent de- scribes two methods for constructing the client table, one involving radius-defined service areas and one App. 10 involving polygon-defined service areas for each service location. /d. at col.15 1.52 to col. 28 1.5. The "131 patent, a continuation of the ’897 patent, is similar to the ’897 patent but additionally includes a third table containing specific service location infor- mation, such as store hours, that may be recited to the caller by a Voice Response Unit. ’131 patent col.31 11.27-53. With the ’868 patent, a continuation-in-part of the °131 patent, Moore and Shaffer introduced several new embodiments. One of these was a “real-time” system, in which spatial calculations are performed during the call to determine the appropriate service location for a caller. ’868 patent col.45 1.35 to col.55 1.50. As in the ’897 patent, the service area for cach client service location can be defined as an area with a radius of any size or a polygon of any size and shape. Jd. at col.47 J!.14-17. Unlike the two-table system first described in the '897 patent, however, the real-time system does not simply retrieve records from tables to obtain a service location for a caller. Instead, after a call is placed, the system creates a window key (e.g., a rectangular area defined by longitude and latitude coordinates) that is associated with the caller’s location. Jd. at col.51 11.26-42. Based on this window key, the system builds a list of poten- tial service locations and then performs more detailed spatial calculations to generate a final list of service locations whose service areas encompass the caller's location, in ascending order of distance between the caller’s location and the service location. /d. at col.51 App. 11 1.42 to col.54 1.45. The claims of the ’868 patent are directed to various aspects of the real-time system and process. The four continuations of the ’868 patent — the 608 patent, 982 patent, 397 patent, and ’810 patent — have the same written description as the ’868 patent. While some claims of these patents are di- rected to the rcal-time system, many are directed to other embodiments, including, for example, a single- table database, referred to as a “telephone number to telephone number” (“TNTTN”) table, which is essen- tially a merger of the master and client tables first disclosed in the 897 patent. The second family of Moore-Shaffer patents includes the ’214 patent and °179 patent. They dis- close spatial key-linked, multi-table databases for providing informatien to callers or service locations. The processes described in the '214 and °179 patents for applications that require connecting a caller to a service location are similar to the process described in the 131 patent. Targus sells services that operate in conjunction with telecommunications platforms to route 800 calls. One service, IntelliRouting Express, uses the real- time process described in Targus’s ‘868 patent to identify the location of a caller and determine an appropriate service location after the call is placed and while the caller remains on the line. The service provides the telephone number of the correct service location to the platform, which then processes the App. 12 call. Another ‘Targus service, Location Express, merely identifies the latitude/longitude location of the caller and provides it to the platform, which then uses that information while the caller is on the line to perform whatever calculations are necessary to determine an appropriate service location. Plaintiff Adept alleged that Targus’s IntelliRout- ing Express and Location Express services literally infringe all six independent claims of the Neville patents and several dependent claims. Two key claim construction issues before the trial court concerned the “directly routing” (paragraph [ec] in illustrative claim 29, above) and “assigning” (paragraph [c]) limitations in the Neville patents. The case was initially assigned to District Judge Antoon, who construed the term “directly routing” in the Neville patents to mean “routing a telephone cal) to another party without a human or computer re-dialing or otherwise placing a second call.” 800 Adept, Inc. v. Murex Secs., Lid., No. 6:02-CV-1354, slip op. at 38 (M.D. Fla. May 27, 2005). Subsequently, the case was transferred to Chief Judge Fawsett three months before trial. On Targus’s motion, she construed the claim language in the “assigning” limitation, language that is present in all of the asserted claims of the Neville patents. First, she construed the term “potential first parties” as “individuals who can place a telephone call but have not yet done so.” 800 Adept, Inc. v. Murex Secs., Ltd., No. 6:02-CV-1354, slip op. at 16 (M.D. Fla. Aug. 3, 2006). She then construed “assigning” as referring to App. 13 “a designation made prior to the telephone call of the first parties” (emphasis added). However, she de- clined to find that there was a disclaimer of calcula- tions made after the call is placed. Jd. at 19-22. She further held that the claims are not limited to a database containing a single look-up table. Jd. at 18- 19. During trial, a critical issue in Adept’s infringe- ment case against Targus was whether Targus’s “real- time” process, which performs spatial calculations during the call to determine an appropriate service location, satisfies the “assigning” limitation in the claims of the Neville patents. Adept’s counsel argued that the court’s construction of the term “assigning” should be modified so the jury would understand it to cover “a stored procedure and algorithm in the data- base that constitutes a, quote, assignment, closed quote, but nevertheless makes that calculation while the caller is on-line.” (Trial Tr. 254:7-10, Oct. 20, 2006). On the nineteenth day of trial, in response to Adept’s argument, and over the objection of Targus’s counsel, Chief Judge Fawsett added a sentence to the claim construction. The final jury instruction regard- ing this limitation read: The term “assigning” as used in the third element of the claims of the ’111 and ‘689 Patents refers to “a designation made prior to the telephone call of the first parties.” However, the °111 and 689 patents do not ex- clude calculations made during the telephone call. App. 14 As we explain more fully below, the addition of the “However ... ” sentence to the assigning limitation changed the dynamic of the trial. The jury ruled in Adept’s favor on all of its patent infringement allegations against Targus, finding that Targus infringed all six independent cleims and the asserted dependent claims of the Neville patents and that those claims were not invalid or unenforceable. The jury also found that Targus’s infringement was willful.” In addition, the jury found that Targus tortiously interfered with the business relationships between Adept and its customers and further found that Targus acted in bad faith. The jury awarded Adept $18 million in patent infringement damages and $2 million in compensatory damages and $5 million in punitive damages on the tortious interfer- ence claim. Adept also prevailed at trial on all issues related to Targus’s patents. The jury found that Adept did not infringe any of the asserted claims of Targus’s pat- ents. Regarding the validity of Targus’s patents, the jury determined that all claims of the ’897 patent and the °131 patent were invalid, even though Targus asserted only claim 69 of the ’897 patent and claims 1 and 50 of the °131 patent. The jury also found that the " The jury found that Targus’s customer West infringed the asserted system and method claims but not the database claims and further found that West's infringement was not willful. App. 15 asserted claims of the other Moore-Shaffer patents were invalid.’ Targus filed a renewed motion for judgment as a matter of law and an alternative motion for a new trial, both of which the trial court denied without discussion. The trial court awarded Adept an addi- tional $24 million in enhanced patent infringement damages in accordance with 35 U.S.C. § 284, bringing the total damages award to $49 million. The court then entered final judgment and a permanent injunc- tion. The trial court also determined that the case was exceptional under 35 U.S.C. § 285 and that Adept was entitled to attorney fees, but the court denied the motion for attorney fees without prejudice to reasser- tion after completion of the appellate process. Targus appeals the judgment with respect to infringement of Adept’s patents, the invalidity of Targus’s patents, tortious interference, and willful- ness. Targus also appeals the jury’s damages award, the trial court’s award of enhanced damages, and the trial court’s determination that Targus was entitled to attorney fees. Finally, Targus challenges the per- manent injunction as vague or overbroad. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). ‘ The asserted claims of the other Moore-Shaffer patents were claim 19 of the '214 patent, claim 25 of the ’179 patent, claim 46 of the 868 patent, claims 1 and 20 of the ’608 patent, claims 4 and 13 of the 982 patent, claim 1 of the °397 patent, and claim 10 of the ’810 patent. App. 16 DISCUSSION I. Adept Patents Targus contends that the trial court erred in failing to enter judgment as a matter of law that the accused Targus services do not infringe the asserted claims of the Neville patents. Targus focuses on the two claim limitations previously noted — “assigning” and “directly routing.” Regarding the assigning limitation, Targus argues that the trial court erred in modifying its claim construction in a way that al- lowed Adept to argue at trial that the assignment could be done during the call. Under the proper construction of “assigning,” Targus maintains, its services do not infringe the claims of the Neville patents. Because we agree with Targus that under the correct. claim construction no reasonable jury could find that Targus’s services perform the “assigning” step, we need not address Targus’s arguments with respect to the “directly routing” limitation. A. Claim Construction — the “Assigning” Limi- tation Targus argues that the claims in the Neville patents require assignment of a _ service location telephone number to the telephone number of each potential caller before any call is placed. Adept does not dispute that the assignment must occur before a call is placed, but argues that the assigning limitation can be satisfied by placing “in or with” a datahase an algorithm or criteria for determining the correct App. 17 service location, even though the calculations neces- sary to implement the algorithm or apply the criteria are performed during the telephone call. Targus responds that any calculations needed to complete the assignment of service location numbers to poten- tial callers must occur before the call. The ultimate question, then, is not when the assigning step must occur, which the parties agree must be prior to any telephone call, but rather what constitutes an as- signment. To that end, Targus argues that the trial court erred when it added to its original claim con- struction the “However ... ” statement that the patents “do not exclude calculations made during the telephone call” because that allowed the jury to apply Adept’s flawed interpretation. Though in claim construction matters we give due weight to a trial court’s claim construction, ultimately claim construction is a matter of law the final responsibility for which lies with us. Cybor Corp. v. FAS Techs., Inc., 188 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). As usual, we start with the language of the claims themselves. Phillips v. AWH Corp., 415 F.3d 1303, 13812 (Fed. Cir. 2005) (en banc). The rele- vant language (see, e.g., claim 29 of the ’111 patent, above) is: “assigning to the physical location of said potential first parties a telephone number of a service location of a second party that will receive calls. ...” * The other independent claims either include identical language or refer to the “originating telephone number” of said (Continued on following page) App. 18 "111 patent col. 15 11.33-35. Use of the word “poten- tial” to describe the callers and use of the future tense (“will receive calls”) for the recipient points directly to the conclusion that the assigning step must occur before a call is placed. The plain language of the claims makes clear that the “assigning” step requires that “a telephone number of a service location” be assigned to each potential caller. Nothing in the claims suggests that storing an algorithm that will be used to determine the telephone number of the cor- rect service location during a telephone call consti- tutes an assignment of a service iocation telephone number to a potential caller before a telephone call ts placed. The patents’ written description confirms this. See Phillips, 415 F.3d at 1315-17. The Neville patents disclose a method for routing 800 calls using routing instructions contained in a database. According to the written description, the database is constructed by assigning the telephone number of an appropriate service location to each potential caller. *111 patent fig. 1, col. 11 11.42-54. The assignments are made by applying customer-provided criteria, such as “exis- tence within a previously-defined geographic area, a custom defined geographic area, or through calcula- tions such as the shortest distance between coordi- nate points.” Jd. abstract. As summarized in the potential first partics G.c., callers) rather than their “physical location.” App. 19 abstract, the patents make clear that assignment of service location telephone numbers to _ potential callers must be completed before a telephone call is ever placed: “Once all such assignments have been made, a datahase is assembled to be used by a long distance carrier for direct routing of telephone calls.” Id. (emphasis added). The assigning step in the Neville patents results in “direct routing instructions” that are submitted to an LDC to be used for routing calls. Adept argues that these routing instructions could include stored procedures such as the distance calculations men- tioned in the abstract. The written description, how- ever, does not support Adept’s position. The “routing instructions” are always described as a database containing potential caller telephone numbers and corresponding service location telephone numbers. Id. col.4 11.10-12, col.12 11.48-51. To the extent that proce- dures like distance calculations are implemented or geographic criteria are applied, it is only to construct a database containing assignments of service loca- tions telephone numbers to potential callers, a step that is completed prior to any call. Nowhere do the patents characterize the routing instructions given to an LDC as a stored procedure, algorithm, or criteria to be used later during a call to determine an appro- priate service location telephone number. Statements made by the applicant during prose- cution reinforce the conclusion that any calculations necessary for assigning service location telephone numbers to callers must be performed before any App. 20 calls are placed. See Phillips, 415 F.3d at 1317 (“{Tlhe prosecution history can often inform the meaning of the claim language by demonstrating how the inven- tor understood the invention.... ”). During prosecu- tion of the original application that led to the Neville patents, the examiner rejected most of the claims as anticipated by a prior art patent to Finucane, et al. (“Finucane”). In response, the applicant distinguished Finucane on several grounds, one of which was that Finucane “requires ... a computer [to] perform ‘point of origin’ to ‘point of termination’ calculations while a caller is on the line.” J.A. 8572. The applicant con- trasted this feature with his system, which “performs all such calculations prior to the call even being made and, in fact, prior to delivery of the data base to the Long Distance Carrier (LDC).” /d. The examiner maintained his rejection during prosecution of a continuation application. In remarks accompanying an amendment in which he canceled all independent claims and added new claims, the applicant once again distinguished his invention from Finucane: The major difference {between the present invention and Finucane] is that with the present invention all point of origin to point of termination calculations have already been performed by determining in which response zone (client-defined polygon) the call origi- nated, and to which corresponding terminat- ing number the call should be routed. The results of these calculations are stored in a database at the service provider’s location. App. 21 Thus, the present invention eliminates the need to perform online-calculations to deter- mine the appropriate terminating number. J A. 8626 (emphasis added). Thus Adept and Neville repeatedly characterized the invention as one in which all calculations necessary for assigning service location telephone numbers to callers are performed before any telephone calls are made. Adept argues that it is improper to rely on these statements from the prosecution history vecause they are too ambiguous to serve as a “clear and unmistak- able” disavowal of claim scope. See Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1325-26 (Fed. Cir. 2003). Adept points out that the issued claims are quite different from those pending at the time the statements were made. Because there is no link between the applicant’s arguments and the specific claim language at issue, Adept asserts, there can be no disclaimer. The doctrine of prosecution disclaimer to which Adept refers is typically invoked to limit the meaning of a claim term that would otherwise be read broadly. See id. at 1324 (“|Wlhere the patentee has unequivo- cally disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer at- taches and narrows the ordinary meaning of the claim congruent with the scope of the surrender.” (emphasis added)); see also Rheox, Inc. v. Entact, Inc., 276 F.3d 1319, 1325 (Fed. Cir. 2002) (construing the broad term “calcium orthophosphate” to exclude monocalcium App. 22 orthophosphate based on_ prosecution disclaimer although excluded compound was within the ordinary and accustomed meaning of the claim term); South- wall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576-77 (Fed. Cir. 1995) (holding that “sputter- deposited dielectric” could not be formed by a two- step process because patentee argued during prosecu- tion that it was formed by a one-step process). In this case, however, we do not consult the prosecution history for that purpose. We simply use it as support for the construction already discerned from the claim language and confirmed by the written description, i.e., that all calculations necessary to assign a service location telephone number to a potential caller are completed before any call is placed. Although the claims pending at the time of the quoted statements did not include the “assigning” limitation, the appli- cant was quite clear throughout prosecution that his invention performed calculations for assigning service location telephone numbers to callers prior to any call being placed. As is true of the written description, nothing in the prosecution history supports Adept’s position that a stored algorithm constitutes an as- signment of a service location to a caller. Adept asserts that a claim construction requiring all calculations to be performed prior to any tele- phone calls cannot be correct because even its pre- ferred embodiment performs some _ calculations during the telephone call. Specifically, Adept claims that when a call arrives, the Neville system must perform “lookup” calculations to retrieve from the App. 23 database the service location assigned to the caller. Adept fails to recognize, however, that these lookup calculations are not part of the assigning step in the Neville patents — service location telephone numbers are assigned to callers when the database is created, i.e., before any calls take place. Under the correct claim construction, only calculations that are neces- sary to complete the assignment must be performed before any calls are made. As long as that require- ment is met, the claims do not preclude any addi- tional calculations during the telephone call. According to Adept, three dependent claims not asserted in the case should compel a different claim construction. In these claims — 28, 40, and 52 of the "111 patent — the originating telephone number is that of a “non-stationary telephone, such as a mobile, cellular or transportable telephone.” Adept contends that these mobile telephone claims require some sort of spatial calculation at the time of the call to deter- mine the correct service location based on the caller’s physical location and therefore would be impossible to practice under a claim construction such as the one we adopt. We are not persuaded. As discussed, the plain language of the independent claims requires each potential caller to be assigned a service location telephone number hefore any call is placed. Since the mobile telephone claims depend from the independent claims, all potential mobile telephone callers must also be assigned a service location before a call is placed. Nothing in the language of the claims App. 24 indicates otherwise. While the claims and the written description appear to contemplate that the assign- ment will be based on the caller’s physical location at the time of the call, the written description does not teach a method for doing so. Significantly, the patents do not disclose the use of stored algorithms that could be used to assign service location telephone numbers duriny a call from either a mobile telephone or a ‘fixed landline, and thus the written description does not support Adept’s proposed construction. Furthermore, it is not clear that the mobile telephone claims would be impossible to practice under the correct claim construction. Prior to any calls, a service location could be assigned to a mobile telephone based on, for example, a physical location associated with its NPA-NXX. Be that as it may, we need not resolve this question. Even if the mobile telephone claims are rendered inoperative by a proper claim construction, preserving the validity of unasserted claims is an insufficient reason to ignore the meaning of the claims actually asserted in the case. See Intamin Ltd. v. Magnetar Techs. Corp., 488 F.3d 1328, 1307 (Fed. Cir. 2007). In sum, based on consideration of the claims, the written description, and the remainder of the intrin- sic evidence, we conclude that the trial court was correct in the first instance when it construed the “assigning” language to refer to “a designation made prior to the telephone call of the first parties.” We must also recognize, however, what the assignment entails — the telephone number of a service location is App. 25 assigned to the physical location or telephone number of each potential caller. As noted, this assignment must be made before any calls are placed. Thus, to the extent any calculations are needed to complete the assignment of service location telephone numbers to potential callers, they must be performed prior to any calls. The trial judge modified the original claim con- struction by adding that the Neville patents “do not exclude calculations made during the telephone call.” That statement is imprecise in the context in which it was presented, i.e., as part of the construction of the term “assigning,” and allowed Adept to argue before the jury that calculations for completing the assign- ing step could be performed while a caller is on-line, an argument that is not consistent with the patented invention. Under the correct claim construction, assignment of service location telephone numbers to potential callers must occur prior to any calis, and thus any calculations necessary for completing that assignment must be performed before any telephone calls are placed. B. Infringement With the trial court’s modified claim construction before them, the ‘.ry found that defendant Targus infringed the Neville patents, and the trial court subsequently denied a motion by ‘Targus to grant, contrary to the jury's verdict, judgment as a matter of law in ‘largus’s favor. The question before us is App. 26 whether the trial judge erred in denying the motion. We review the trial court’s denial of Targus’s motion for judgment as a matter of law under the law of the regional circuit. 24 Techs., Inc. v. Microsoft Corp., 507 F.3d 1340, 1346 (Fed. Cir. 2007). Under Eleventh Circuit law, we review the denial of a motion for judgment as a matter of law without deference, reapplying the same standard applied by the trial court. Christopher v. Florida, 449 F.3d 1360, 1364 (llth Cir. 2006). Judgment as a matter of law is appropriate when there is no legally sufficient evi- dentiary basis for a reasonable jury to find in favor of the nunmoving party. /d. When a patent infringement verdict is based on an incorrect claim construction, we reverse the trial court’s denial of a motion for judgment as a matter of law if no reasonable jury could have found infringement under the proper claim construction. Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1333 (Fed. Cir. 2008). In the Targus system, the telephone numbers and locations of potential callers are maintained in a database. The system also includes a database for each system customer containing the telephone numbers of the customer's service locations along with their corresponding service arcas. Those service areas are configured by the customer before any calls are placed and may be radius-based (a circle around the service location) or defined by polygonal regions around each service location. While the Targus sys lem contains information relating to both potential callers and customer service locations, it does not App. 27 match a customer service location to a particular caller prior to any calls taking place. Instead, as described in the IntelliRouting Express User Guide, callers are assigned to a service location “on the fly” with each telephone call. When a call comes into the platform, the Targus system determines the caller’s approximate latitude and longitude based on the caller’s ANI. The system then computes a rectangular area, referred to as a window key, around that latitude/longitude. Next the system identifies a list of candidate service locations whose service areas overlap the window key. For each candidate, the system performs a detailed spatial calculation, either a distance computation or “point- in-polygon” calculation, to determine whether the caller’s location is within the service area. This results in a list of one or more service locations to which the call may be routed. Thus the accused Targus services do not assign service location telephone numbers to _ potential callers before calls are placed. Because all calcula- tions necessary to complete the assignment are performed in real-time while the caller is on the line, the Targus services do not satisfy the “assigning” limitations in the Neville claims. Under the correct claim construction, no reasonable jury could find that Targus infringes the asserted claims of Adept’s pat- ents. Accordingly, we reverse the trial court’s denial of Targus’s motion for judgment of non-infringement as a matter of law. In light of that result, we vacate the infringement damages award and the permanent App. 28 injunction; we also vacate the trial court’s judgment with respect to willfulness and attorney fees. Il. Targus Patents A. Unasserted Claims The jury found that all claims of the ’897 patent and °131 patent were invalid, and the trial court entered judgment accordingly. Targus argues that the trial court erred because only claim 69 of the ’897 patent and claims 1 and 50 of the °131 patent were asserted and at issue. Adept responds that all claims of the two patents were placed in issue by the de- claratory judgment count in its complaint. If the evidence at trial proved that all the claims were invalid, Adept maintains, the tria! judge properly entered judgment on the jury verdict. We agree with Targus that the unasserted claims were not at issue, and thus the trial court erred. First, the scope of Adept’s complaint is less than clear. Adept requested a declaratory judgment with respect to the invalidity of Targus’s “asserted claims,” an apparent reference to Targus’s assertions of infringc- ment against Adept and its customers prior to the filing of the lawsuit. (First Am. Compl. {{ 57-58.) The complaint does not specify which claims fall into that category. In any event, a reference in the complaint is not sufficient to support a judgment that particular claims are invalid; the specific validity of those claims must have been at issue during the trial and actually App. 29 litigated by the parties. Datascope Corp. v. SMEC, Inc., 776 F.2d 320, 327 (Fed. Cir. 1985). Second, the parties’ Joint Final Pretrial State- ment demonstrates that ovly claim 69 of the °897 patent and claims 1 and 50 of the ’131 patent were at issue during the trial. In that document, the parties stipulated that the asserted claims of the ’897 patent and 7131 patent were claim 69 and claims 1 and 50, respectively. (Joint Final Pretrial Statement 31.) Then, under the heading “Concise Statement of Issues of Fact and Issues of Law Which Remain for Determination by the Trial Court,” the parties in- cluded the following two questions: “Are the asserted claims of the Shaffer-Moore patents valid?” and “Are the asserted Shaffer-Moore patents infringed, liter- ally or under the doctrine of equivalents?” (/d. at 32- 22.) There were no references whatsoever to the unasserted claims of the ’897 patent and 7131 patent. Third, at trial, neither party presented evidence with respect to the unasserted claims. Adept’s expert, Dr. Brody, expressly limited his validity analysis and opinions to claim 69 of the ’897 patent and claims 1 and 50 of the 131 patent. (Trial Tr. 148-49, 184-85, 198-200, 208-10, 213, Oct. 16, 2006.) This is true with respect to both Adept’s anticipation and obviousness contentions and its argument that the claims of the "131 patent were invalid duce to an on-sale bar. Adepi’s argument that 1t was unnecessary for its validity expert to put forth a claim-by-claim analysis of the unasserted claims is simply incorrect. Under the patent statute, the validity of each claim must be App. 30 considered separately. See 35 U.S.C. § 282 (“Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims.... ”); Schumer v. Lab. Computer Sys., Inc., 308 F.3d 1304, 1316 (Fed. Cir. 2002); Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1356 (Fed. Cir. 2001). In this case, it is clear from the parties’ pretrial statement and from the trial proceedings that the unasserted claims were neither litigated nor placed in issue during the trial. We therefore reverse the trial court’s judgment of invalidity with respect to the unasserted claims, i.e., all the claims of the °897 patent except claim 69 and all the claims of the °131 patent except claims 1 and 50.” B. Asserted Claims The jury also found all twelve of the asserted claims in the Moore-Shaffer patents invalid. Targus chose not to appeal the trial court’s denial of its motion for judgment as a matter of law that the asserted claims are not invalid, and thus dves not challenge on appeal the sufficiency of the evidence in support of the jury’s verdict. Instead, Targus appeals only the trial court’s denial of its motion for a new " In light of this conclusion, we need not address Targus’s additional argument that the tnal court lacked jurisdiction to adjudicate the validity of the unasserted claims because there was no case or controversy with respect to those claims App. 31 trial on the validity of these claims. Applying Elev- enth Circuit law, we review the trial court’s denial of a motion for a new trial for abuse of discretion. Hicks v. Talboit Recovery Sys., Inc., 196 F.3d 1226, 1242 (llth Cir. 1999). When a jury verdict is judged to be against the great weight of the evidence, the trial judge has authority to grant a motion for a new trial. Id.; Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2806 (2d ed. 1995). Targus argues on appeal that the jury’s invalidity findings were “tainted” by the erroneous characteri- zation of the Neville patents by Adept’s expert, Dr. Brody. In particular, Targus complains that Dr. Brody repeatedly asserted that the Neville patents teach real-time spatial calculations of the sort used by Targus and claimed in some of the Moore-Shaffer patents. Because Dr. Brody testified that the asserted claims were either anticipated by the Neville patents or rendered obvious by the combination of the Neville patents and other prior art, Targus believes it is entitled to a new trial on the validity of the asserted claims. We agree with Targus, but only in part. Targus requests on appeal a new trial on “whether the as- serted claims of the Moore-Shaffer patents that concern ‘on line calculations’ are invalid.” (Appellant’s Reply Br. 22-23.) in its brief, Targus identifies only two asserted claims that involve on-line or real-time calculations — claim 46 of the 868 patent and claim 10 of the °810 patent. (Appellant’s Br. 49-50.) Our App. 32 review of the record confirms that those are the only asserted claims directed to Targus’s real-time system. Our review further confirms that Dr. Brody’s testi- mony with regard to the alleged real-time aspect of the Neville patents was directed to the validity of only those two claims and not to the other asserted claims. As explained above in the discussion on the Adept patents, Dr. Brody’s characterization of the scope of the Neville patent disclosure was mistaken. Furthermore, the primary if not the entire evidence on which the jury could have relied in finding claim 46 of the ’868 patent and claim 10 of the 810 patent invalid was Dr. Brody’s erroneous testimony. Under these circumstances, the trial judge should have granted the motion for a new trial with regard to these two claims because the great weight of the evidence in the record was against the jury’s verdict. This does not preclude the possibility that othr evidence produced at a retrial would be sufficient to establish invalidity. The failure to have granted Targus’s motion was an abuse of discretion; accordingly, we vacate the trial court’s judgment that claim 46 of the ’868 patent and claim 10 of the ’810 patent are invalid, and remand for a new trial on their validity. We affirm the trial courts judgment that the remaining asserted claims of the Moore-Shaffer patents are invalid. App. 33 WI. Tortious Interference in its suit against Targus, Adept claimed that, because Targus had asserted certain of its patent claims against some of Adept’s customers, Targus had tortiously interfered with Adept’s business relation- ships with those customers. This, according to Adept, entitled Adept to the state-law remedy available for such an unfair trade practic. Targus responded that the state-law remedy is preempted by the federal patent laws. The “preemption” issue can be stated thus: if a patentee attempts to enforce its patents against a competitor’s customers, under what circum- stances, if any, is the patentee protected from the usual standards regarding unfair trade practices, imposed by various state unfair competition laws, on the theory that the rights accorded a patentee to enforce the patent supersede the usual anti- competition rules? See Zenith Elecs. Corp. v. Exzec, Inc., 182 F.3d 1340, 1345-46 (Fed. Cir. 1999). The answer to the question is now well- established. State tort claims against a patent holder, including tortious interference claims, based on enforcing a patent in the marketplace, are “pre- empted” by federal patent laws, unless the claimant can show that the patent holder acted in “bad faith” ir the publication or enforcement of its patent. Jd. at 1355; Hunter Douglas, Inc. v. Harmonic Design, Inc., 153 F.3d 1318, 1336-37 (Fed. Cir. 1998). As the Su- preme Court said long ago, “Patents would be of little value if infringers of them could not be notified of the consequences of infringement, or proceeded against in App. 34 the courts. Such action, considered by itself, cannot be said to be illegal.” Virtue v. Creamery Package Mfg. Co., 227 U.S. 8, 37-38 (1913). The issue in this case is whether Adent presented to the jury sufficient facts, if believed, that a reason- able jury could find for Adept on the issue of Targus’s bad faith. This “bad faith” standard has objective and subjective components. Dominant Semiconductors Sdn. Bhd. v. Osram GmbH, 52% F.3d 1254, 1260 (Fed. Cir. 2008). The objective component requires a show- ing that the infringement allegations are “objectively baseless.” Globetrotter Software, Inc. v. Elan Com- puter Group, Inc., 362 F.3d 13867, 1875 (Fed. Cir. 2004). The subjective component relates to a showing that the patentee in enforcing the patent demon- strated subjective bad faith. See id. Absent a showing that the infringement allegations are objectively baseless, it is unnecessary to reach the question of the patentee’s intent. See id. Infringement allegations are objectively baseless if “no reasonable litigant could realistically expect success on the merits.” Prof’] Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993); see also GP Indus., Inc. v. Eran Indus., Inc., 500 F.3d 1369, 1374 (Fed. Cir. 2007); Globetrotter, 362 F.3d at 1375-76. To prove at trial that Targus’s ac- tions were objectively baseless, Adept was required to offer clear and convincing evidence that Targus had no reasonable basis to believe that its patent claims were valid or that they were infringed by Adept’s customers. See Golan v. Pingel Enter., Inc., 310 F.3d App. 35 1360, 1371 (Fed. Cir. 2002). Because of the value placed on property rights, which issued patents share, see 35 U.S.C. § 261 (“[Platents shall have the attributes of personal property.”); Consol. Fruit-Jar Co. v. Wright, 94 U.S. 92, 96 (1876) (“A patent for an invention is as much property as a patent for iand.”); Kearns v. Gen. Motors Corp., 94 F.3d 1553, 1555 (Fed. Cir. 1996) (“By statutory and common law, each patent establishes an independent and _ distinct property right.”), and in Jight of the underlying jurisprudential basis for the bad faith standard, rooted as it is in Supreme Court cases and Constitu- tional principles, see Globetrotter, 362 F.3d at 1375- 77, a party attempting to prove had faith on the part of a patentee enforcing its patent rights has a heavy burden to carry. The jury verdict was that Adept had proved its case. Targus appeals the trial court’s denial of its motion for judgment as a matter of law, arguing that there was no clear and convincing evidence on which a reasonable jury could conclude its actions were objectively baseless. On the record before us, for the reasons we shall exp!/ain, we believe Targus ts correct that Adept has not successfully carried its burden. We first address the question of whether Targus could have had a reasonable belief that its patents were valid, beginning with the ’897 patent. The main dispute regarding the validity of the ’897 patent was whether Neville discloses a two-table embodiment, which would anticipate the claims of the ’897 patent. While the preferred embodiment in Neville uses a App. 36 single-table TNTTN database, one sentence in the written description states that “the correlational database may be relational or hierarchical,” which implies that the database could have more than one table. ’111 patent col.9 I1.50-51. The issue before us is not the validity vel non of the ’897 patent, but whether the evidence was such that Targus could not have had a reasonable basis for believing that the patent was valid when it asserted the patent against Adept’s customers. Adept alleges that Targus knew the disclosure in the Neville patents anticipated the claims of the ’897 patent, and that Targus misrepresented the scope of Neville to the PTO so that the ’897 patent claims would survive the reexamination requested by Adept in 1999. Adept’s argument sounds more like an alle- gation of subjective bad faith on ‘Targus’s part, a question that is not at issue absent the predicate showing that the claims asserted by Targus were objectively baseless. Furthermore, none of the evi- dence cited in Adept’s brief supports its theory that Targus acted deceptively. The evidence introduced at trial shows that many people, including the examiner who conducted the recxamination and even Adept’s own patent attorney, understood Neville to disclose only a one-table system. Notably, Targus did not file suit against any of Adept’s customers until after reexamination of the 897 patent had been completed. On this record, a reasonable jury could not have found by clear and convincing evidence that Targus App. 37 lacked a reasonable basis to believe that the claims of the 897 patent were not anticipated by Neville. Adept also asserts that Targus knew that Neville anticipated Targus’s one-table claims — claim 1 of the 608 patent and claim 4 of the '982 patent. Targus argues that it reasonably believed Neville did not disclose the automated table-build process required by the Targus claims. This was a reasonable view, as evidenced by the opinion of ‘largus’s expert at trial that Neville does not teach a fully automated system. The contrasting opinion of Adept’s expert does not render Targus’s position unreasonable. As with the ’°897 patent, we conclude that no reasonable jury could have found that Adept met its burden to show that there was no reasonable basis on which Targus could believe in the validity of its one-table claims. Regarding the °131 patent, Adept argues that Targus knew it was subject to an on-sale bar based on work that Targus did for Federal Express, and that Targus actively concealed that information from the PTO. The record indicates, however, that Targus reasonably believed that that work was experimental, even if ultimately the jury in this case may have found otherwise. Furthermore, during prosecution of the application that led to the °131 patent, Targus submitted a declaration to the PTO detailing the development and testing of the FedEx system. Under these circumstances, no reasonable jury could find that Adept proved by clear and convincing evidence that Targus lacked a reasonable basis for believing App. 38 that the claims of the ’131 patent were not subject to the on-sale bar. With respect to Targus’s other patents, Adept alleges that the examiner was led astray so that he failed to consider Neville in combination with Riskin or other references, even though Neville and Riskin and multiple other references were before him. Yet Adept cites no evidence demonstrating that Targus knew its claims were invalid for obviousness or showing that Targus somehow caused the examiner not to combine prior art references. On this record, no reasonable jury could have found that a belief by Targus that its patents were valid had no reasonable basis. We must also consider whether there was a basis for Targus to reasonably believe that Adept’s custom- ers infringed the Targus patents. Adept essentially argues that Targus could not have had a reasonable basis for asserting its patents against Adept’s cus- tomers because ‘Targus did not succeed at trial on its infringement claims against Adept. Courts, however, “must ‘resist the temptation to engage in pest hoc reasoning by concluding’ that an ultimately unsuc- cessful ‘action must have been unreasonable or with- out foundation.’” Prof’] Real Estate, 508 U.S. at 60 n.5 (quoting Christiansburg Garment Co. v. EROC, 434 U.S. 412, 421-22 (1978)): see also Dominant, 524 F.3d at 1261 & n.6 (citing Prof’/ Real Estate, 508 U.S. at 60 n.5). Thus the result of Targus’s infringement claims in this case is not dispositive of whether App. 39 Targus’s claims against Adept’s customers were reasonable. Targus presented evidence that it reasonably believed Adept’s customers were infringing the Tar- gus patents. For instance, Adept admitted that the database it provided to two of its customers was in the same format as the database used in the Targus system. Also, Targus did not assert its claims against another Adept customer until after Targus’s in-house counsel had prepared claim charts explaining Tar- gus’s infringement theories. Adept has not cited any contradictory evidence that was introduced at trial. On this record, no reasonable jury could find by clear and convincing evidence that Targus had no reasonable basis for believing that Adept’s customers were infringing its patents. Adept’s tortious interference claim with respect to its customer Allstate Motor Club (“AMC”) was based on Targus’s infringement claim against its own customer, Vail Systems. In providing routing services to AMC, Vail used data received from AMC, which included a database that Allstate had received from Adept. After learning about this arrangement through discovery in this case, Targus believed that Vail infringed its patents and filed claims against Vail, which subsequently sought indemnification from AMC. While Adept alleges that Targus and Vail colluded to pressure AMC, Adept fails to cite evidence showing that Targus’s belief that Vail infrinyed its patents was unreasonable. As with Targus’s in fringement allegations against Adept’s customers, no App. 40 reasonable jury could find that Adept met its burden to show that Targus lacked a reasonable basis for believing that Vail infringed its patents. In sum, we conclude that there is not clear and convincing evidence on which a reasonable jury could find that Targus acted in bad faith by asserting objectively baseless patent infringement allegations. Thus Adept’s state-law tortious interference claim is preempted by federal patent law. The trial judge erred in denying Targus’s motion for judgment as a matter of law on this claim, and we therefore reverse the trial court’s judgment. CONCLUSION We reverse the trial court’s judgment of in- fringement of the Neville patents. Accordingly, we vacate the infringement damages award and the permanent injunction; we also vacate the trial court’s judgment with respect to willfulness and attorney fees. We reverse the trial court’s judgment of invalid- ity with respect to the unasserted claims of the '897 patent and ‘131 patent. We vacate the trial court’s judgment that claim 46 of the '868 patent and claim 10 of the °810 patent are invalid and remand for a new trial on the validity of those claims. We affirm the invalidity judgment with respect to the remaining patent claims asserted by Targus against Adept. App. 41 We reverse the trial court’s judgment on Adept’s tortious interference claim and vacate the accompa- nying award of compensatory and punitive damages. AFFIRMED-IN-PART, REVERSED-IN-PART, VA- CATED-IN-PART; and REMANDED DYK, Circuit Judge, concurs in the result. App. 42 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION 800 ADEPT, INC., Plaintiff, -VS- MUREX SECURITIES, LTD., MUREX LICENSING CORPO- RATION, TARGUS INFORMA- TION CORPORATION, and WEST CORPORATION, Defendants. MUREX SECURITIES, LTD.., MUREX LICENSING CORPO- RATION, TARGUS INFORMA- TION CORPORATION, Pee and WEST CORPORATION, ee ees 6:02-cv-1354- Counter-Plaintiffs Orl-28DAB -VS- 800 Adept, Inc., Counter-Defendant. MUREX SECURITIES, LTD.., and MUREX LICENSING CORPORATION, Third-Party Plaintiffs, -VS- Adeptel, Inc., Third-Party Defendant. App. 43 ORDER (Filed Aug. 3, 2006) This case comes before the Court on the following: 1. Markman Motion of Targus Information Corporation, Murex Securities, Ltd., Murex Licensing Corporation, and West Corporation (collectively “Defendants”) (Doc. No. 240, filed May 19, 2006); 2. Opposition To Defendant’s Markman Motion of Plaintiff 800 Adept, Inc. (Doc. No. 268, filed June 19, 2006); 3. Combined Motion And Memorandum To Strike 800 Adept’s Markman Opposition As Untimely Or, Alternatively, For Leave To Reply of Defendants (Doc. No. 291, filed July 3, 2006); and 4. Opposition To Combined Motion To Strike Markman Opposition And Motion For Leave To Reply of Plaintiff 800 Adept, Inc. (Doc. No. 303, filed July 17, 2006). In this patent infringement lawsuit, Targus Information Corporation, Murex Securities, Ltd., Murex Licensing Corporation, and West Corporation (collectively “Defendants”) ask the Court to interpret several terms from the claims of U.S. Patent Num- bers RE36,111 (“the ’111 Reissue”) and 5,805,689 (“the 689 Patent”) and one term from the claims of the App. 44 Shaffer-Moore Patents that are identified in the margin. (Doc. No. 240). First, Defendants move the Court to Strike the Opposition of Plaintiff 800 Adept, Inc. (hereinafter, “800 Adept”) because 800 Adept did not file a Mark- man Motion seeking to construe the claims of the ’111 Reissue and ’689 Patent and because 800 Adept raised new arguments in its Opposition regarding the proper construction of Defendant’s disputed claim terms. (Doc. No. 291). Defendant’s Motion to Strike and the issued raised therein are without merit, as an opposition to a motion is expressly allowed by the Court’s Amended Case Management and Scheduling Order. (Doc. No. 182, Part II.E, p. 5). Moreover, a reply is not necessary for the arguments raised by 800 Adept in its Opposition. Secondly, Plaintiff’s argument that this motion is barred by the law of the case doctrine is not well- founded. (See Doc. No. 268, p. 15). The law of the case doctrine applies to only those issues discussed and decided by previous decisions and those issues de- cided in such decisions by necessary implication. Toro The Shaffer-Moore Patents, as identified in the Declara- tion of Michael M. Barry, are U.S. Patent Numbers 5,506,897 (“the ’897 Patent”), 5,848,131 (“the '131 Patent”), 5,901,214 (“the ‘214 Patent”), 5,907,608 (“the 608 Patent”), 5,910,982 (“the 982 Patent”), 5,956,397 (“the °397 Patent”), 5,982,868 (“the °868 Patent”), 6,058,179 (“the "'79 Patent”), and 6,091,810 (“the °810 Patent”). (See Doc. No. 24), Ex. FF; Doc. No. 31, pp. 12-13). The claims of the ‘868 Patent do not recite the disputed claim term. App. 45 Co. v. White Consol. Indus., Inc., 383 F.3d 1326, 1335 (Fed. Cir. 2004). Defendants now seek a _ judicial determination of the meaning of a claim term, “as- signing,” which is a separate and distinct claim term from the one that was previously construed, “directly routing.” The Court must “must give each claim term the respect that it is due,” Pause Tech., LLC v. TiVo, Inc., 419 F.3d 1326, 1334 (Fed. Cir. 2005), or, in other words, the Court should endeavor to give meaning to al] the terms of a claim. Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364, 1872 (Fed. Cir. 2005). Moreover, the issues raised in Defendants’ mo- tion were not necessarily decided by implication in the District Court’s previous Markman Order. In that Order, the Court addressed whether the claim term “direct routing” prohibited caller input. (Doc. No. 178, p. 38). Further, the Court’s determination that the preambles of claim 41 of the ’111 Reissue and claim 1 of the 689 Patent did not contain a “direct routing” limitation did not decide, either expressly or impli- edly, whether those claims assigned callers prior to the placement of a telephone call. In addition, the Magistrate Judge and previous District Court Judge declined to address the litigants’ arguments concerning the “assigning” limitation and instead considered the merits of the “direct routing” limitation. (See Doc. No. 252, p. 19; Doc. No. 178, p. 34). Where previous decisions decline to consider an issue, the law of the case doctrine does not operate to bar the future consideration of such issue. Laitram Corp. v. NEC Corp., 115 F.3d 947, 952-53 (Fed. Cir. App. 46 1997) (applying the precedent of the Court of Appeals for the Eleventh Circuit). ‘The Court now turns to the task of construing the claims. Claim Construction Patent claims are construed by the Court as a matter of law. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-56 (Fed. Cir. 1998) (en banc). “(T]he words of a claim ‘are generally given their ordinary and customary meaning.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). Such ordinary meaning “is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Jd. at 1313. To determine the ordinary meaning of a term, the court should review “the same resources as would” the person of ordinary skill in the art. Multiform Dessicants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998). Those resources include “the words of the claims themselves, the remainder of the speci- fication, the prosecution history, and extrinsic evi- dence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Innova/Pure Water, Inc. v. Safart Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004). App. 47 “(TJhe claims themselves provide substantial guidance as to the meaning of particular claim terms.” Phillips, 415 F.3d at 1314. Both “the context in which a term is used in the asserted claim” and the “folther claims of the patent in question” are useful for understanding the ordinary meaning. /d. “(T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is disposi- tive; it is the single best guide to the meaning of a disputed term.” Jd. at 1315 (quoting Vitronics, 90 F.3d at 1582). In short, the claims “must be read in view of the specification, of which they are a part.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc). Thus, “[t]he construc- tion that stays true to the claim language and most naturally aligns with the patent’s description of the invention will be, in the end, the correct construc- tion.” Renishaw PLC v. Marposs Socteta’ per Aziont, 158 F.3d 1243, 1250 (Fed. Cir. 1998): see also On Demand Mach. Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1344 (Fed. Cir. 2006) (“[E]ach term must be construed to implement the invention described in the specification”). Occasionally, “the specification may reveal a special definition given to a claim term ... that differs from the meaning it would otherwise possess. In such cases, the inventor’s lexicography governs.” Phillips, 415 F.3d at 1316 (citing CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)). The specification may also “reveal an inten- tional disclaimer, or disavowal, of claim scope by the App. 48 inventor ...[{, which] is regarded as dispositive.” /d. (citing SciMed Life Sys., Inc. v. Advanced Cardiovas- cular Sys., Inc., 242 F.3d 1337, 1343-44 (Fed. Cir. 2001)). In addition to consulting the specification, courts “should also consider the patent’s prosecution history, if it is in evidence.” /d. at 1317 (internal quotation marks and citation omitted). Because the prosecution history represents negotiation between the United States Patent and Trademark Office (the “Patent Office”) and the applicant, “it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” /d. Nevertheless, the prosecu- tion history can be helpful “by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prose- cution.” Id. The court may also rely on extrinsic evidence, which is “all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises.” Markman, 52 F.3d at 980. Although extrinsic evi- dence can be useful, it is “less significant than the intrinsic record in determining ‘the legally operative meanin s of claim language.”’ Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). Technical diction- aries and treatises can inform the Court’s under- standing of the underlying technology and _ the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises App. 49 may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony can aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert’s conclusory, unsup- ported assertions as to a term’s definition is not unhelpful. /d. Generally, extrinsic evidence is “less reliable than the patent and its prosecution history in determining how to read claim terms.” /d. During claim construction, “[t]lhe sequence of steps used by the judge in consulting various sources is not important; what matters is for the court to attach the appropriate weight to be assigned to those sources in light of the statutes and policies that inform patent law.” PAillips, 415 F.3d at 1324. In addition, the ’111 Reissue and the ’689 Patent contain means-plus-function limitations that require construction. Such limitations are subject to Title 35 U.S.C. § 112, 7 6. Braun Med., Inc. v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, Section 112, 4 6 mandates that “such a claim limita- tion ‘be construed to cover the corresponding struc- ture ... described in the specification and equivalents thereof.” Jd. Accordingly, when faced with means- plus-function limitations, courts “must turn to the written description of the patent to find the structure that corresponds to the means recited in the [limita- tions].” Id. App. 50 Construing a means-plus-function limitation involves multiple steps. “The first step in construing [a means-plus-function] limitation is a determination of the function of the means-plus-function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). Once the Court has determined the limitation’s function, “the next step is to determine the corresponding structure disclosed in the specification and _ equivalents thereof.” Jd. A “structure disclosed in the specification is ‘corresponding’ structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim.” /d. Moreover, the focus of the “corresponding structure” inquiry is not merely whether a structure is capable of performing the recited function, but rather whether the corresponding structure is “clearly linked or associated with the |recited]| function.” /d. The ’111 Reissue and ’689 Patent Claims Defendants contend that each of theses patents contains claims having the following limitation: assigning to... said potential first parties a telephone number of a service location of a second party. ioc. No. 240, p. 1). Defendants aver that this limita- tion of the ’111 Reissue and the ’689 Patent “re- quire[s}] that all potential first parties be assigned to a telephone number of a service location of a second party by defining the boundaries of various service App. 51 location trade areas.” (Jd. at 4, quotations and modifi- cations omitted). Consequently, Defendants conclude that the claims require that each and every potential caller be assigned to a service location before any call is made, and therefore any system that uses calcula- tions to select a service location after a call is made is excluded from the claimed invention. (Jd. at 5). 800 Adept argues in response that Defendants improperly construe the claims without reference to the specific claim language. (Doc. No. 268, p. 2). The Court first identifies the language of each claim the parties wish to construe. The ‘111 Reissue contains five independent claims that contain similar assigning claim limitations or method steps. Claims 1, 9, 17, 29 and 41, as amended by the reissue patent, are set forth below. 1. A system for direct routing a telephone call from a first party who has an originating telephone number at a specific location de- fined by latitude and longitude coordinates who dials a telephone number including dig- its uniquely characteristic to a second party having a plurality of service locations, said system comprising: means for allocating individual latitude and longitude coordinates to each originating telephone number of all potential first parties; means for defining the boundaries of one or more geographical areas which can be of any size and shape according to App. 52 predetermined criteria, each point along said boundaries being defined by latitude and longitude coordi- nates; means for assigning to each originating telephone number of said potential first parties a telephone number of a service location of a second party that will receive calls originating from within the boundary of a geo- graphic area defined by said means for defining in which the individual latitude and longttude coordinates of the specific location of each of said potential first parties lie; means for determining the originating telephone number of the first party from which said telephone call is to be routed; and direct routing means for direct routing said telephone call to a service loca- tion of the second party assigned to said originating telephone number of the first party by said means for assigning. 9. A method for direct routing a telephone call from a first party who has an originating telephone number at a specific location de- fined by latitude and longitude coordinates who dials a telephone number including dig- its uniquely characteristic to a second party having a plurality of service locations, said method comprising the steps of: App. 53 allocating individual latitude and longi- tude coordinates to each originating telephone number of all potential first parties; defining the boundaries of one or more geographical areas which can be of any size and shape according to pre- determined criteria, each point along said boundaries being defined by latitude and longitude coordi- nates; assigning to each originating telephone number of said potential first parties [a telephone number] of a service | / location of a second party that [will’] receive calls originating from within the boundary of a geographic area defined in said step of defining in which the individual latitude and longitude coordinates of the specific Claim 9 of the 7111 Reissue contains three printing errors. The claim recites the word “parties” in between “service loca- tion” and omits the terms “a telephone number” and “will.” The published claim differs from the claim language recited in the claims allowed by the Patent Office and submitted by the applicant. (See Doc. No. 240, Ex. C, p. 235). The record does not contain any evidence that a certificate of correction has issued for this patent. The Court finds that these are clear clerical errors due to oversight that are not subject to reasonable debate and construes the claim as if it were properly published. Noro Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003) (quoting 1.7:S. Rubber Co. v. Essex Rubber Co., 272 U.S. 429 (1926)). The claim language in this Order incorporates the changes of the Reissue. ys App. 54 location of each of said potential first parties lie; determining the originating telephone number of the first party from which said telephone call is to be routed; and directly routing said telephone call to a service location of the second party assigned to said originating tele- phone number of the first party by said step of assigning. A system for direct routing a telephone call from a first party who has an originating telephone number at a physical location and who dials a telephone number including dig its uniquely characteristic to a second party having a plurality of service locations, said system comprising: means for allocating latitude and longi- tude coordinates to the physical lo- cation of all potential first parties; means for defining the boundaries of one or more geographical areas which can be of any size and shape accord- ing to predetermined criteria, each point along said boundaries heing defined by latitude and longitude coordinates; means for assigning to the physical loca- tion of said potential first parties a telephone number of a service loca- tion of a_ second party that will App. 55 receive calls originating from within the boundary of a geographic area in which the latitude and longitude co- ordinates of the physical location of each of said potential first parties lie; means for determining the originating telephone number of the first party from which said telephone call is to be routed; and direct routing means for directly routing said telephone call to a service loca- tion of the second party assigned to said originating telephone number of the first party by said means for assigning. 29. Amethod for direct routing a telephone call from a first party who has an originating telephone number at a physical location and who dials a telephone number including dig- its uniquely characteristic to a second party having a plurality of service locations, said method comprising the steps of: allocating latitude and longitude coordi- nates to the physical location of all potential first parties; defining the boundaries of one or more geographical areas which can be of any size and shape according to predetermined criteria, each point along said boundaries being defined App. 56 by latitude and longitude coordi- nates; assigning to the physical location of said potential first parties a_ telephone number of a service location of a sec- ond party that will receive calls originating from within the bound- ary of a geographic area in which the latitude and longitude coordti- nates of the physical location of each of said potential first parties lie; determining the originating telephone number of the first party from which said telephone call is to be routed; and directly routing said telephone call to a service location of the second party assigned to said originating tele- phone number of the first party by said step of assigning. 41. A method of constructing a database wherein said database is used by a telephone service provider for direct routing a tele- phone call from a first party who has an originating telephone number at a physical location and who dials one of an 800-type, 900-type or other special access code tele- ohone number assigned to a second party, who has determined specific locations to re- ceive calls originating from within pre- determined geographic areas, thereby allow- ing the first party to reach one of a plurality of locations of the second party hased on App. 57 geographic location from which the telephone call originate from within one of a plurality of geographic areas, said method comprising the steps of: (a) assigning individual latitude and longitude coordinates to the physical location of all potential first parties; defining the boundaries of one or more geographic areas which can be of any size and shape according to predetermined criteria each point along said boundaries being defined by latitude and longitude coordi- nates; and assigning to the physical location of said potential first parties a tele- phone number of a service location of a second party that will receive calls originating from within the bound- ary of a_ geographic territory in which the latitude and longitude co- ordinates of the physical location of each of said potential first parties lies. (111 Reissue, col. 13, ll. 2-30; col 13. 1. 51 to col. 14, 1. 11; col. 14., Il. 32-57; col. 15, ll. 19-44; col. 16, Il. 7-34, emphasis added). The 689 Patent issued with a single independent claim. Claim 1 recites: 1. In a telephone system, a method of con- structing a database wherein said database is used by a telephone service provider ‘or di- rect routing a telephone call from a first App. 58 party who dials one of an 800-type, 900-type or other special access code telephone num- ber assigned to a second party, who has de- termined specific locations to receive calls originating from within pre-determined geo- graphic areas, thereby allowing the first party to reach one of a plurality of locations of the second party based on geographic loca- tion of the first party from within one of a plurality of geographic areas, said method comprising the steps of: a. assigning individual latitude and longitude coordinates to each tele- phone number of all potential! first parties; b. defining the boundaries of one or more geographic areas which can be of any size and shape according to pre-determined criteria; c. assigning to the telephone number of each potential first party a telephone number of a specific location of the second party that will receive calls originating from within a_e geo- graphic area of each first party; d. determining in which geographic area a potential call might originate for each potentiai first party in the area encompassed by all geographic areas; and e. assigning the specific location of the second party to all potential first App. 59 parties within the boundaries of each geographic area. (689 Patent, col. 12, 1. 64 to col. 13, l. 238, emphasis added). The Court addresses the construction of claims 1 and 17 of the ’111 Reissue separately below because each of these claims recites the assigning limitation in mean-plus-function format. Both parties treat the underlined assigning steps in claims 9, 17, 29, and 41 of the ’111 Reissue and claim 1 of the ’689 Patent as substantially the same; the Court does not. Further, Defendants’ truncation of the assigning step improperly omits claim terms. In each claim, the object of the gerund “assigning” is not “to ... said first parties” but “to each originating telephone number of said potential first parties” or “to the physical location of said potential first parties” or “to the telephone number of each potential first party.” Because the Court must “must give each claim term the respect that it is due,” it would be inappro- priate to ignore the underlined terms. Pause Tech., LLC, 419 F.3d at 1334. Nevertheless, the claims are substantially simi- lar in that they each call for an assignment, and each claim recites “potential first parties” or “potential first party.” This Order addresses the latter claim limitations first. Then, the Court will construe the meaning of the “assigning” limitation. App. 60 “Potential First Parties” Defendants argue that the term “first parties” should be understood as referring to a caller or a person who is making a telephone call. (Doc. No. 240, p. 4). Defendants also assert that the term “poten- tial,” which allegedly modifies the term “first parties” in every claim, means the “first parties” are not actual callers, i.e., a person who has made or is making a call, but rather a person who may make a telephone call. (/d.). 800 Adept contends that “poten- tial first parties” should be construed as “those par- ties who can be assigned latitude and longitude coordinates and can also be assigned to a destination according to the second parties’ criteria.” (Doc. No. 268, p. 9). Each of the independent claims of these two patents provides the context in which to construe “first parties.” The preambles of claims 1, 9, 17, 29 and 41 of the ’111 Reissue all recite “a telephone call from a first party who has an originating telephone number,” and the preamble of claim 1 of the ’689 Patent recites “a telephone call from a first party who dials one of an 800-type, 900-type or other special access code telephone number.” This is not to say that the preambles act as a limitation of the claims, but such language places the claim term in a context that is absent from the rest of the claim. Thus, the claimed “first parties” are colloquially “callers” or “individuals who place telephone calls.” App. 61 It is also clear from the specification that the term “first parties” must refer to callers. The written description describes “a system for automatic direct routing of telephone calls from customers” (111 Reissue, col. 1, ll. 19-20) designed to reduce the amount of computer interaction by “causing the call to be direct-routed” (id. at col. 2, |. 7). It also states that a prior art patent “requires that the caller dial from a ‘touch-tone’ phone.” Ud. at col 2, ll. 19-20). Under the heading “Summary of the Invention,” the patent discloses that the “primary object of the pre- sent invention is to provide a reliable and cost- effective manner of directly connecting callers inter- ested in an advertiser’s product... .” Ud. at col. 3, Il. 10-12). The abstracts and specifications repeatedly and consistently refer to “calls” and “callers” but fail even once to use the term “first parties” except in the claims. (See id. passim). Put simply, the terms call and caller are used throughout both patent specifica- tions, and “first parties” is not. (See id. at face page). Defendants offer two definitions for “potential” from internet dictionaries which do not differ sub- stantively from the definition found in the bound dictionaries available to the Court. (See Doc. No. 240, p. 4 n.6). Defendants’ definitions are “existing in possibility” and “capable of development into actual- ity.” (See id.). Plaintiffs do not offer any dictionary definition for the term. Webster's II] New Riverside University Dictionary defines potential as “1. Capable of being but not yet in existence. 2. Denoting possibil- ity, capability, or power.” WEBSTER’S Il NEW RIVERSIDE App. 62 UNIVERSITY DICTIONARY 920 (1994). The Court of Appeals for the Federal Circuit permits the use of general purpose dictionarics in cases that involve commonly understood words having widely accepted meanings. Phillins, 415 F.3d at 1314. Such is the case here. The ordinary meaning of “potential” is also consistent with the use of the term in the specifica- tion. The term “potential” is found only within the abstract and claims of each patent. The abstracts are identical: A method and system for direct routing of telephone calls made by a caller originating from within specific calling areas to one of a plurality of locations of a second party ac- cording to certain criteria established by the second party. This routing is accomplished based on the assignment of latitude and lon- gituide coordinates to a potential caller’s loca- tion. Once these coordinates are assigned to each of the potential callers, the second party's criteria is applied to assign the poten- tial caller to a second party. Such criteria could be existence within a _ previously- defined geographic area, a custom defined geographic area, or through calculations such as the shortest distance between coor- dinate points. Once all such assignments have been made, a database is assembled to be used by a long distance carrier for direct routing of telephone calls from callers to an assigned second party. App. 63 (Id. at face page, emphasis added). Such disclosure does not add much of substance other than indicating the term is used as one would expect, and that the written description of the patents does not “reveal a special definition ... that differs from the meaning [that the term] would otherwise possess.” Phillips, 415 F.3d at 1316. Here, the adjective, “potential,” modifies the meaning of the noun “parties” which has already been modified by the adjective “first.” That is, the meaning of “potential first parties” is a specialized meaning of the broader term “first parties.” As discussed above, the term “first parties” refers to a universe of callers or individuals who place telephone calls, and the adjective “potential” narrows that universe of indi- viduals to those having the capability of placing a telephone call but who have not done so. Conse- quently, the Court construes the term “potential first parties” to mean “individuals who can place a tele- phone call but have not yet done so.” “Assigning” Defendants contend that the term “assigning” means to specify, select, or designate or to “fix in correspondence or relationship.” (Doc. No. 240, p. 4 n.8). Defendants argue that the patent abstracts and figures demonstrate further that such assignment must be accomplished before a caller places a tele- phone call and that such assignment must be stored in a single look-up table. (/d. at 5-8). Defendants also App. 64 identify portions of the prosecution history that allegedly show a disclaimer of spacial calculations made after a caller has placed a call and a disclaimer of database structures other than a single look-up table. Ud. at 8-15). In addition, Defendants contend that the Examiner’s statements concerning the scope of the disclosure of the ’111 Reissue in an unrelated reexamination proceeding supports the conclusion that the claims of the ’111 Reissue are limited to single look-up tables. (/d. at 16). The state of the art at the time of the filing of the patent applications, argue Defendants, also supports the limitation of “assigning” to that of a single look-up table. (/d. at 16- 18). Lastly, Defendants assert that because Plaintiff omitted any reference to spacial calculations made during a call in an interrogatory response, such omission is evidence of a disclaimer of such calcula- tions. (Ud. at 18-19). 800 Adept contends that the abstract, figures and other parts of the patents’ specifications do not limit the claimed inventions to a single look-up table. (Doc. No. 268, pp. 3-5, 6-8). On the contrary, argues Plain- tiff, the specifications specifically recite multiple embodiments, including relational or hierarchical database structures. (/d. at 4). 800 Adept also criti- cizes Defendants’ reliance on statements made in an unreiated reexamination proceeding by the Examiner concerning the scope of the disclosure of the ‘111 Reissue. Ud. at 5-6). App. 65 Returning to the languages of the claims, Plain- tiff asserts that the plain meaning of the term “as- sign” is not limited to any one methodology. (/d. at 8). 800 Adept avers that every database query is the equivalent of a mathematic calculation, and therefore the database embodiments disclosed in the specifica- tions do require “calculations” to be made after a telephone call is placed by a caller. dd. at 10-11). Moreover, Plaintiff argues that there is no way in which to perform the “assign” limitation to a caller using a mobile telephone prior to the actual telephone call. Ud. at 11-13). Lastly, Plaintiff argues that the passages from the prosecution history identified by Defendants do not address the “assigning” limitation of the claims and, in any event, do not disclaim calculations made during a telephone call. (/d. at 14).” Based on the above, it is apparent that there are two general disagreements over the construction of this claim term. First, the parties debate whether the claims of the ’111 Reissue and ’689 Patent are limited to a single look-up table, or in other words whether the applicants disclaimed all embodiments except for a database containing a single table. Secondly, the Plaintiff also presents an argument which relies on a portion of the Magistrate’s Markman Order which was not adopted by the Court. (See Doc. No. 178, p. 39). Such reliance is misplaced. In addition, Plaintiff improperly attempts to incorpo- rate by reference arguments presented in other documents. (See Doc. No. 268, p. 16). This practice is prohibited by Local Rule 3.01(b) which limits a response to a document to not more than twenty (20) pages. App. 66 parties dispute whether the assigning limitation disclaims calculations made during the telephone call. As to the first issue, the Plaintiff plainly has the better argument. The claims, specification and prose- cution history of the ‘111 Reissue and ‘689 Patent do not limit the term “assigning” to a single, static look- up table. The claims do not recite the term table; they recite the term database. The specification teaches that the database contains fields which can be used as natural keys and that the database structure may be relational or hierarchal. (111 Reissue, col. 9, ll. 48- 51). Thus, the specification plainly teaches database structures as alternatives to a single table database. Moreover, it is well settled that “the scope of the claims is not limited to particular embodiments depicted in the figures.” Lighting World, Inc. v. Birch- wood Lighting, Inc., 382 F.3d 1354, 1365 (Fed. Cir. 2004). Therefore, without more, Defendants’ argu- ments concerning Figure 1 from the patents is with- out merit. Moreover, the passages selected from the patents’ prosecution history do not clearly and unambiguously disclaim alternative database structures. See Soren- sen v. Int'l Trade Comm’n, 427 F.3d 1375, 1378-79 (Fed. Cir. 2005) (“Disclaimers based on disavowing actions or statements during prosecution ... must be both clear and unmistakable.”). In each passage quoted from the prosecution history, applicants speak of a “database,” not a table or a single look-up table. (See Doc. No. 240, pp. LO-11, 13). App. 67 Lastly, the Court finds no reason to limit the claims to a single look-up table from the statements of the Patent Office Examiner. First, “it is the appli- cant, not the examiner, who must give up or disclaim subject matter that would otherwise fall within the scope of the claims.” Sorensen, 427 F.3d at 1379 (quoting Jnnova/Pure Water, Inc., 381 F.3d at 1124). Secondly, the Examiner’s statements in the ‘111 Reissue do not refer to a look-up table but rather to the database of the claimed invention. It is of no moment that the Examiner refers to the embodiment depicted in Figure 1. That argument has no more force in this context than when the Court construes the claims. See Lighting World, Inc., 382 F.3d at 1365 (“[TJhe scope of the claims is not limited to particular embodiments depicted in the figures.”). Further, although the Examiner characterizes the ’111 Reissue in an unrelated reexamination proceeding as imple- menting “a telephone number to telephone number lookup in a single table, or database,” it is clear from the context of the statement that the Examiner was discussing the patent’s disclosure, i.e., what the ‘111 Reissue teaches and not the scope of the claimed invention. (See Doc. No. 240, p. 16 n.33 & 7.34). “Specifications teach. Claims claim.” SRI/ Intl v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 n.14 (Fed. Cir. 1985). The parties also dispute whether the assigning limitation disclaims calculations made during the telephone call, and both parties delve into the prose cution history and state of the art to support their App. 68 positions. The Court addresses this dispute in two parts. First, the Court must determine when the “assigning” step occurs. Then, the Court determines whether there is a disclaimer of the scope of the claims. The answer to the first question starts with the language of the claims. The claims of the ’111 Reissue recite “assigning to leach originating telephone number‘ or the physical location’) of said potential first parties a telephone number of a service location of a second party that will receive calls originating from within the boundary of a geographic area.” Similarly, claim 1 of the 689 Patent recites “assigning to the telephone number of each potential first party a telephone number of a specific location of the sec- ond party that will receive calls originating from within a geographic area of each first party.” “Assigning” is a commonly used and widely understood word. See Phillips, 415 F.3d at 1314. It means “to set aside for a particular purpose” or “designate.” WEBSTER’S Il NEW RIVERSIDE UNIVERSITY DICTIONARY 131 (1994). It is clear upon review of the specification that the patent uses the term in a man: ner consistent with its ordinary meaning without ' This is the languave used in claim | and claim 9 of the 111 Reissue This language is used in claim 17, claim 29, and claim 4] of the ‘111 Reissue App. 69 providing a more specialized meaning. See Philips, 415 F.3d at 1366. As discussed above, the term “potential first parties” refers to individuals who can place a tele- phone call but have not done so. The use of the term “potential first parties” strongly suggests that the assignment occurs prior to the caller placing a tele- phone call. In addition, each and every one of the claims uses the future tense, i.e., “the second party that will receive calls.” The use of the future tense in the claims also suggests that the event described by the verb, 1.e., the call, has not happencd yet. A review of the specification also supports the conclusion that the assignment occurs prior to the placement of the telephone call. The °111 Reissue teaches that once a telephone call has been placed by an individual, a local exchange carrier contacts a long distance carrier (“LDC”) for routing instructions. (7111 Reissue, col. 4, 1. 60 to col. 5, 1. 20). The LDC retrieves the routing instructions from its own network control point (“NCP”) and passes those instructions back to the local exchange carrier. (/Jd.). The specification teaches that the NCP contains “all of the direct routing instructions for the WATS number.” (/d.; see also id., col. 5, ll. 24-51: id., col. 5, ll. 45-53; rd., col. 8, ll. 14-22; id., col. 8, ll. 39-48; id., col. 8, 1. 64 to col. 9, 1. 6; id., col. 9, ll. 23-32). The specification also teaches the steps required to prepare the NPC for its role in this system. The written description discloses that “/a/fter defining the App. 70 trade areas, assigning the corresponding NPA-NXX (or NPA-NXX-XXXX) combinations and submitting the appropriate direct routing information to the chosen LDC, the system (network) is activated.” (/d., col. 12, ll. 38-41, emphasis added). In other words, the LDC does not receive the routing instructions that are stored in the NCP until after the assignment step is complete. The abstract also supports this claim construc- tion. It discloses: Once these coordinates are assigned to each of the potential callers, the second party’s cri- teria is applied to assign the potential caller to a second party.... Once all such assign- ments have been made, a database is assem- bled to be used by a long distance carrier for direct routing of telephone calls from callers to an assigned second party. Ud. at face page, emphasis added). Consequently, the language of the claims when read in light of the specification refers to “a designa- tion made prior to the telephone call of the first parties.” The Court also considers whether the applicant disclaimed calculations made after the telephone call. Nothing in the above analysis indicates that the appli- cant must have disclaimed further calculations. Indeed, the specification contemplates further processing App. 71 where the call is placed from a mobile telephone.” (/d., col. 6, 1. 59 to col. 7, 1. 2). Additionally, the prosecution history does not expressly and unambiguously disclaim all calcula- tions made after a telephone call is placed. In distin- guishing a prior art reference, the applicant stated: A second major distinction between Finu- cane, et al. patent and Applicant’s system is that Finucane, et al. requires that a com- puter verform “point of origin” to “point of termination” calculations while the caller is on the line. ... On the other hand, Applicant’s Direct Rout- ing Telephone System performs all such cal- culations prior to the call even being made and, in fact, prior to the delivery of the data base [sic] to the Long Distance Carrier (LDC). (Doc. No. 240, Ex. C, pp. 123). Similar statements are quoted by Defendants on pages 9 to 13 of docket number 240. These statements are, at best, ambigu- ous. They might refer to the timing of the “assigning” step or they might refer to the disclaimer of post telephone call calculations. The Court finds the former is the better view in light of the disclosure of the specification as a whole. In any event, such ' Plaintiff’s argument concerning the “cell phone embodi- ments” supports only the proposition that further calculations were contemplated once the technology was available. ambiguity prevents the applicant’s statements in the prosecution history from serving as a disclaimer of claim scope. Means-Plus-Function Limitations Neither party offers the Court an argument concerning the means-plus-function limitations recited in claim 1 and claim 17 of the ’111 Reissue. In order to construe these claims, the Court must iden- tify the function of the limitation and then determine the corresponding structure disclosed in the specifica- tion. Medtronic, Inc., 248 F.3d at 1311. In addition, the Court must identify whether the corresponding structure is clearly linked or associated with the recited function. /d. The Court grants leave to each party to submit one five (5) page memorandum on this issue. The memorandum shall (1) identify the function, (2) identify the corresponding structure disclosed in the specification, and (3) identify whether the correspond- ing structure is clearly linked or associated with the recited function. The Shaffer-Moore Patents The parties also dispute the meaning of the term “spatial key” which appears in the claims of nearly all of the Shaffer-Moore Patents. Defendants’ proposed definition is “a single number that identifies a small, specific geographically defined area, line, or point App. 73 that is defined by a set or sets of coordinates.” (Doc. No. 240, pp. 19-20). In support of this definition, Defendants point to the use of the term in the specifi- cation of the patents and to the construction given to this term by the United States District Court for the Eastern District of Virginia. (/d. ). 800 Adept argues that “spacial key” should be construed as that term was defined in the Shaffer- Moore Patents. (Doc. No. 268, pp. 17-20). Plaintiff contends that it would be inappropriate to insert “small” in the definition of this term because (1) the specification does not limit spacial keys to “small” geographic areas but merely calls these “preferred” or “unique,” (2) “small” adds nothing to the definition because it is a relative term, and (3) the ruling of the District Court of the Eastern District of Virginia is not binding on this Court. (/d.). Although the Court recognizes that a uniform treatment of claim construction is desirable, the claim construction of another district court in no way binds this Court under the instant circumstances. The parties provide only a single Order of the Court, without its reasoning, discussion of the arguments of the parties, or reference to the underlying facts. The claim construction of the Virginia District Court was not appealed to the Federal Circuit. Defendants do not provide any authority that would afford that Order preclusive effect. Defendants do not argue that issue preclusion, collateral estoppel, or judicial estop- pel are applicable. Simply put, this Court “will render its own independent claim construction.” See Maurice App. 74 Mitchell Innovations, L.P. v. Intel Corp., 2006 WL 1751779, *4 (E.D. Tex. 2006). The Court construes “spacial key” as that term is taught in the specification of the ‘897 Patent. It is defined there as: The spacial key is a single number that iden- tifies a specific geographically defined area, line, or point that is defined by a set of coor- dinates. (‘897 Patent, col. 9, ll. 39-42). The specification dis- closes that the spacial key can be “a coded version of the coordinate description of” “simple geographies like points and rectangles.” (/d., col. 9, Il. 43-45). Further, the specification teaches: The postal zip+4 code is the preferred spacial key used to link the master table to the cli- ent table, but there are other small geo- eraphic areas capable of having unique spacial keys, such as zip+6 code areas, cen- sus blocks, or very small latitude/longitude grids, tiles, windows, or quad-trees. (Id., col. 9, \l. 46-50). Except ior this single reference, the figures, tables, and disclosure of the specification only disclose the use of a zip+4 code as a spacial key. (See id., col. 11, 1. 45 to col. 12, 1. 12; id., col. 12, ll. 40- 50; id., col. 13, ll. 8-30; id., col. 17, ll. 29-33; id., col. 21, ll. 38-40; id., col. 24, ll. 13-16; td., col. 24, ll. 30- 34). The specification also characterizes the operation of prior routing systems and their problems. Prior art systems, the applicants note, “are very coarse in their level of precision and cannot handle small service areas with legally defined franchise territories like pizza delivery.” Ud., col. 3, ll. 35-37). Another problem with prior art routing systems “is that they divide the United States into many large arbitrarily defined areas and there is no ability to route a call to the closest service location if the closest location is not located in the same artificially created area as the caller.” Ud., col. 3, ll. 48-52). Moreover, the specifica- tion teaches that the desired system should “not use artificially created areas such as telephone wire centers, teiephone prefixes, or 5-digit zip codes where calls can only be routed within their area.” (/d., col. 3, ll. 56-59). The specification also characterizes U.S. Postal Service zip+4 codes as “small geographic areas” and the first six digits of the Automatic Num- ber Identification system as designating a “fairly large” area. (Ud., col. 4, ll. 53-56; id., col. 4, Il. 64-67). Accordingly, two strands wind through the disclo- sure of the Shaffer-Moore Patents. On the one hand, the Shaffer-Moore Patents teach that a spacial key is a single number that identifies a specific geographic area. The size of the geographic area is omitted; it is the specificity or “uniqueness” of the area that is important. On the other hand, the specification also systematically discloses the advantages of choosing “small” geographic areas to use a spacial keys. In particular, the use of telephone exchange numbers and five-digit zip codes is disparaged while the use of zip+4 and similarly-sized or smaller geographic areas App. 76 1s touted. Nevertheless, there is no explicit or mani- fest disclaimer in the specification requiring that spacial keys must be small, specific geographically- defined areas. The Federal Circuit instructs courts that “the claims of the patent will not be read restrictively unless the patentee has demonstrated a clear inten- tion to limit the claim scope using words or expres- sions of manifest exclusion or restriction.” Liebel- Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 907-08 (Fed. Cir. 2004) (quotation omitted). Last year, the Federal Circuit followed this maxim in Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1374 (Fed. Cir. 2005). In that case, the patent-in-suit claimed a wet- shave safety razor with multiple blades. /d. at 1369. ‘safety razor com- Specifically, the patent claimed a prising ...a group of first, second, and third blades,” but the defendant manufactured a four-blade safety razor. Jd. After reviewing the patent specification, the District Court limited the scope of the claim to a razor having solely three-blades. Jd. On appeal, the Federal Circuit reversed this claim construction. /d. at 1374. After discussing the use of open language in,the claim, the Court focused on the patent’s wzcitten description. Jd. at 1373. The specification, noted the Court, first characterized the scope of the invention broadly when it taught that the invention relates to safety razors having blade units with a plurality of blades. Jd. The Court then emphasized that although App. 77 the specification makes numerous references to a preferred embodiment with three blades, such “nar- rower embodiment does not impose a limit on the broader claim language as elucidated by the reference to ‘the invention’ as embracing a ‘plurality of blades.’” Id. at 1374. Additionally, despite the numerous cites to three-bladed razors plucked from the written description, the Court noted that “no statement in the ? patent surrenders or excludes a four-bladed razor.’ Id. The written description of the Shaffer-Moore Patents is similar to the written description at issue in Gillette. In each case, the written description broadly defines a claim term but nonetheless provides a disclosure of examples of limited scope. As in Gil- lette, this Court will construe the term broadly be- cause there is no explicit or manifest disclaimer of claim scope in the Shaffer-Moore Patents. Accordingly, the Court construes “spacial key” to mean “a single number that identifies a specific geographically defined area, line, or point that is defined by a set of coordinates.” Conclusion Based on the foregoing, the Court GRANTS Defendants’ Markman Motion (Doc. No. 240) and rules as follows: App. 78 As recited in the ’111 Reissue and the ’689 Patent, the term “potential first parties” re- fers to “individuals who can place a tele- phone call but have not yet done so”; As recited in the ’111 Reissue and the 689 Patent, the term “assigning” refers to “a des- ignation made prior to the telephone call of the first parties”; > As recited in the Shaffer-Moore Patents, the term “spacial key” refers to “a single number that identifies a specific geographically de- fined area, linc, or point that is defined by a set of coordinates”; and The parties shall within five (5) days of the date of this Order file with the Court a memorandum addressing the means-plus- function claims of the “lll Reissue. The memorandum of each party shall be no more than five (5) pages in length and _ shall (1) identify the function, (2) identify the corresponding structure disclosed in the specification, and (3) identify whether the corresponding structure is clearly linked or associated with the recited function. The op- posing party may then file a memorandum in opposition within ten (10) days of the date of this Order. A memorandum in opposition shall also be no more than five (5) pages in length. App. 719 DONE and ORDERED in Chambers in Orlando, Florida on August 3, 2006. /s/ Patricia C, Fawsett PATRICIA C. FAWSETT, CHIEF JUDGE UNITED STATES DISTRICT COURT Copies furnished to: Counsel of Record App. 80 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION 800 ADEPT, INC., and ADEPTEL, INC., Plaintiffs/Counter- Defendants, “a Case No. MUREX SECURITIES, LTD., 6:02-cv-1354- MUREX LICENSING CORPO. Orl-28DAB RATION, TARGUS INFORMA- TION CORPORATION, and WEST CORPORATION, Defendants/Counter- Plaintiffs. ORDER (Filed Apr. 12, 2007) This case comes before the Court for ruling on the following: 1. Motion (And Memorandum) For Entry of Final Judgment, An Award Of Prejudgment Interest And A Permanent Injunction (Doc. No. 430, filed November 8, 2006); Motion And Memorandum To Award Plaintiff’s Attorneys’ Fees (Doc. No. 431, filed November 9, 2006); Defendants’ Combined Response To Plaintiff's Motions For Entry Of Final Judgment, An Award App. 81 Of Prejudgment Interest, A Permanent Injunc- tion, And Attorneys’ Fees (Doc. No. 442, filed No- vember 29, 2006); Plaintiff’s Motion And Memorandum ‘To Strike Improper Submissions Contained in Docket No. 442 (Doc. No. 448, filed December 12, 2006); and Defendants’ Opposition To Plaintiff's Motion And Memorandum To Strike Improper Submissions Contained In Docket No. 442 (Filed At Docket 448) (Doc. No. 452, filed December 26, 2006). I. Background of the Case After a twenty-four day trial, a jury found that Defendants, Murex Securities, Ltd., Murex Licensing Corporation, and ‘TARGUS Information Corporation (“the Murex-Targus Parties”), willfully infringed claims from twe United States patents owned by Plaintiff 800 Adept, Inc. (“800 Adept”). More specifi- cally, the jury found that the Murex-Targus Parties willfully infringed claims 1-19, 22-27, 29, 31, 34-39, 41, 43, and 46-51 of U.S. Patent No. RE36,111 (“the 111 Reissue”) and claims 1 and 3-5 of U.S. Patent No. 5,805,689 (“the ’689 Patent”). (Doc. No. 425, pp. 1-4). The jury found that such claims of the °111 Reissue and the ’689 Patent were not invalid, and the Court determined later that the subject patents were not unenforceable. (Jd. at 2-3; Doc. No. 470, filed April 2, 2007). For such infringement, the jury determined that the Murex-Targus Parties’ should pay $18,000,000.00 in damages to 800 Adept. (/d. at 3). The jury also found that Defendant West Corporation App. 82 (“West”) infringed claims 1-19, 22-27, 29, 31, 34-39, 41. 43, and 46-51 of the ’111 Reissue.’ (/d. at 2). The jury found that West did not willfully infringe such claims and that it should pay 800 Adept $48,000.00 in damages. (See Doc. No. 425, pp. 3-4). 800 Adept now asks this Court to (1) award prejudgment interest on its claims, (2) enjoin the Murex-Targus Parties’ from engaging in further acts of infringement, (3) award enhanced damages against the Murex-Targus Parties, and (4) an award of attor- neys’ fees under Title 35 U.S.C. § 285. (Doc. Nos. 430, 431). In addition to the above remedies, 800 Adept also requests that the Court enter final judgment in this case. II. Prejudgment Interest 800 Adept’s request for prejudgment interest actually concerns two separate issues and two sepa- rate bodies of law, although neither 800 Adept nor the Targus-Murex Parties and West bring this to the Court’s attention. The Court considers first 800 Adept’s request for prejudgment interest on its suc- cessful state law tort claims and then whether to award prejudgment interest for 800 Adept’s patent infringement claims. The jury was charged with instructions detailing both direct and indirect infringement 800 Adept docs not seck to cnjoin the actions of West App. 83 A. Prejudgment Interest For Florida Tort Claims Florida courts consider prejudgment interest an element of pecuniary damages under the “loss the- ory.” Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985); see also Gilchrist Timber Co. v. ITT Rayonier, Inc., 472 F.3d 1329, 1331 (11th Cir. 2006). There are two prerequisites to the award of prejudgment interest as damages: (1) an out-of-pocket pecuniary loss and (2) a fixed date of loss. Underhill Fancy Veal, Inc. v. Padot, 677 So. 2d 1378, 1380 (Fla. Dist. Ct. App. 1996). Prejudgment interest is gener- ally not awarded, however, for tort damages because such damages are generally too speculative to liqui- date before final judgment. Lumbermens Mut. Casu- alty Co. v. Percefull, 653 So. 2d 389 (Fla. 1995); see also Nat'l R.R. Passenger Corp. v. Roundtree Trasp. & Rigging, Inc., 286 F.3d 1233, 1259 (11th Cir. 2002). This rule is not absolute, however, and prejudgment interest may be awarded for tort damages where there has been an ascertainable, out-of-pocket loss occurring at a specific time prior to the entry of the judgment. See Underhill Fancy Veal, Inc., 677 So. 2d at 1380: see also Alvarado v. Rice, 614 So. 2d 498 (Fla. 1993). Prejudgment interest also can be awarded in tort cases where there is a loss of vested property right, such as claims involving the negligent destruc tion of a building, the wrongful withholding of sales commissions, or a subcontractor’s mechanic’s lien. See Alvarado, 614 So, 2d at 499. App. 84 In the instant case, 800 Adept has not shown that it has suffered an ascertainable, out-of-pocket loss related to its state tort claims at a time prior to the entry of judgment or that it suffered the loss of a vested property right. 800 Adept’s theory of liability on its state law claims revolved around Defendants’ actions toward five different third parties whom, at one time, had business relationships with 800 Adept. Ms. Denise Dauphin, the financial expert for 800 Adept on the subject of damages, opined at trial that 800 Adept had lost over $3.4 million in revenues from the Murex-Targus Parties’ tortious interference with these five customers. (October 20, 2006 Testimony of Denise Dauphin, hereinafter “Dauphin Test.”). Of this amount, Ms. Dauphin testified that lost profits repre- sented approximately $2,239,973.00 or, when dis- counted, $1,863,999.00. (7d. ). The jury, however, determined that 800 Adept should be awarded $2,000,000.00 for the Murex- Targus Parties’ tortious interference, an amount that is greater than Ms. Dauphin’s discounted lost value calculations but Jess than her lost revenue and her non-discounted lost profits calculation. It is unclear from the verdict whether the jury did not adopt the rate at which Ms. Dauphin discounted 800 Adept’s lost profits; whether the jury did not adopt the rate at which Ms. Dauphin calculated lost profits from 800 Adept’s lost revenue; or whether the jury based its finding of tortious interference on less than all of the business relationships asserted by 800 Adept. Criti- cally, because the Court cannot determine from the App. 85 general verdict which relationship(s) was the basis for the jury’s finding of damages, it also cannot ascer- tain a date upon which 800 Adept’s liability may spring. See, e.g., Perdue Farms Inc. v. Hook, 777 So. 2d 1047, 1054-55 (Fla. Dist. Ct. App. 2001) (finding that it was impossible to determine any date upon which the plaintiff was injured in a claim for unjust enrichment where the jury could have chosen one of a number of dates but did not). The Court, therefore, determines that 800 Adept is not entitled to prejudg- ment interest on its state law claim of tortious inter- ference. B. Prejudgment Interest For Patent In- fringement Claims Title 35 U.S.C. § 284 provides that, upon finding a claim of patent infringement, courts “shall award the claimant damages adequate to compensate for the infringement, ... together with interest and costs as fixed by the court.” This provision, according to the U.S. Supreme Court, compels courts to ordinarily award prejudgment interest so that the patent holder would be in as good a position as it would have been had the infringer entered into a reasonable royalty agreement. See Gen. Motors Corp. v. Devex Corp., 461 U.S. 648 (1983). Thus, the Co [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0017%3A2. Public record. Not legal advice.