In
OraGoogle-137.pdf (253 KB, PDF), CLAIM CONSTRUCTION ORDER. Signed by Judge
Alsup on May 9, 2011, Judge Alsup seems to make a convincing argument for
dynamic:
The ’104 patent teaches two different types of data
references: numeric references and symbolic references. The claimed invention
includes an interpreter with two different sub-routines: “a static field
reference routine for handling numeric references and a dynamic field reference
routine for handling symbolic references” (col. 2:42–44). Computers stored
data in memory locations defined by numeric addresses. A numeric data reference
was one that identified data directly by its memory-location address. For
example, the command “load the data stored in memory slot 2” contains a numeric
reference to the data stored in slot 2 (col.1:26–41). The claimed invention
would use a static subroutine to interpret this numeric data reference — all it
would have to do is go get whatever data is stored in slot 2. The data stored in
slot 2 might turn out to be, for example, “17” (col. 5:24–31).
A symbolic
data reference, on the other hand, did not identify data directly by its
memory-location address. Instead, a symbolic reference identified data by a
“symbolic name” (col. 1:64–67). For example, the command “load the data called
y” contains a symbolic reference
to the data called y. The claimed invention
would use a dynamic subroutine to interpret this
symbolic reference — it would
have to figure out that “y” means “17” or that “y” means “the data
stored in
memory slot 2,” and then get the data called y (col. 5:13–19). Figure 8
depicts the step
of rewriting a symbolic reference as a numeric reference,
which is included in some embodiments of the invention.
This contrast
between symbolic references and numeric references pervades the asserted
claims. Claim twelve, which is reproduced above, discloses “resolving a
symbolic reference” to include the substeps of “determining a numerical
reference corresponding to said symbolic reference, and storing said numerical
reference in a memory” (col. 7:33–37). Many of the other claims contain similar
language.
The numeric and symbolic references discussed in the ’104 patent
are references to data.
The patent discloses these two types of data references
in opposition to one another, and the
specification refers to symbolic data
references as references made by a “symbolic name.” These
observations from the
intrinsic record shall guide construction of the disputed term. The patent’s
distinction that symbolic references are resolved in a dynamic manner, whereas
numeric
references are resolved in a static manner, provides a further gloss
that would be useful to a jury.
On the other hand, delving into extrinsic
dictionaries to construe the term “symbolic reference” is
unnecessary. Google’s
proposed modifier “string- or character-based” does not correspond to any
terms
or concepts appearing in the intrinsic record and will not be read in from the
proffered
extrinsic sources.
In its critique of the tentative
claim-construction order, Oracle counsels against adopting a
gloss that refers
to dynamic resolution. First, Oracle cites intrinsic evidence it
interprets as
showing that symbolic references “need not be resolved
dynamically” (Dkt. No. 132 at 1–2).
This evidence concerns only the prior
art. Although the abstract concept of a symbolic reference
may not require
dynamic resolution, the concrete invention claimed by the ’104 patent
resolves
symbolic references dynamically. Thus, for purposes of any
infringement or invalidity analysis in
this action, the dynamic-resolution
gloss is apt. Second, Oracle voices concern that the word
“dynamic”
has “many nuanced meanings that depend on its use in context” (id. at 2).
Because
this word comes directly from the ’104 patent, its use therein will
further inform the construction
of “symbolic reference.” The word “dynamic” is
not being imported from a vacuum. Third,
Oracle points out that
“Google’s programmers wrote that Android ‘converts symbolic references
into
pointers,’ using the same language that the patent does.” Oracle warns that
construing the
term “symbolic reference” to require dynamic resolution might
help Google “slip the noose of its
own creation” by arguing that its symbolic
references do not infringe the symbolic references
disclosed in the patent
(ibid.). This is not a compelling reason to adopt or forego an accurate
claim
construction. The term “symbolic reference” shall be construed as “a
reference that
identifies data by a name other than the numeric memory location
of the data, and that is resolved
dynamically rather than
statically.”
Bold emphasis added. I'd think about betting
money this claim construction would not be reversed. The claim limitation Judge
Alsup quotes is found in the patent abstract as well as the written description
in Col 2:42-44), that the symbolic references are handled by an interpreter,
that is to say dynamically while a program is running.
Looking at the
example for Hello World in Oracle's patent phase opening slides, (PDF 5.5 MB, sheet 7) you would note that
the conversion to a numeric reference occurs when running the dx tool, which
doesn't appear to be present in Android on a handset and doesn't occur when
running a virtual machine, Java or otherwise.
Column 2 of RE38,104 can
conveniently be found on page 109 of OraGoogle-01.pdf (4 MB, PDF),
the original Complaint For Patent and Copyright Infringement.
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