Trustees of Columbia Univ. v. Symantec Corporation , 811 F.3d 1359 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
THE TRUSTEES OF COLUMBIA UNIVERSITY IN
THE CITY OF NEW YORK,
Plaintiff-Appellant
v.
SYMANTEC CORPORATION,
Defendant-Appellee
______________________
2015-1146
______________________
Appeal from the United States District Court for the
Eastern District of Virginia in No. 3:13-cv-00808-JRS,
Senior Judge James R. Spencer.
______________________
Decided: February 2, 2016
______________________
DAVID ISAAC GINDLER, Irell & Manella LLP, Los
Angeles, CA, argued for plaintiff-appellant. Also repre-
sented by RICHARD BIRNHOLZ, JOSEPH M. LIPNER, JASON
SHEASBY, GAVIN SNYDER; AARON MARTIN PANNER, Law
Office of Aaron M. Panner, PLLC, Washington, DC.
DAVID A. NELSON, Quinn Emanuel Urquhart & Sulli-
van, LLP, Chicago, IL, argued for defendant-appellee.
Also represented by NATHAN HAMSTRA; RICHARD WOLTER
2 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
ERWINE, ALEXANDER RUDIS, New York, NY; ADAM
CONRAD, King & Spalding LLP, Charlotte, NC; DARYL
JOSEFFER, Washington, DC.
______________________
Before PROST, Chief Judge, DYK, and HUGHES, Circuit
Judges.
DYK, Circuit Judge
The Trustees of Columbia University (“Columbia”)
appeal from a claim construction order and subsequent
partial final judgment of non-infringement and invalidity
with respect to claims of six patents that it owns: U.S.
Patent No. 7,487,544 (“the ’544 patent”), U.S. Patent No.
7,979,907 (“the ’907 patent”), U.S. Patent No. 7,448,084(“the ’084 patent”), U.S. Patent No. 7,913,306 (“the ’306
patent”), U.S. Patent No. 8,074,115 (“the ’115 patent”),
and U.S. Patent No. 8,601,322 (“the ’322 patent”).
We find that the district court correctly construed the
term “byte sequence feature” in connection with the ’544
and ’907 patents and the term “probabilistic model of
normal computer system usage” in connection with the
’084 and ’306 patents. Accordingly, we affirm the district
court’s judgment of non-infringement with respect to the
’544 patent, the ’907 patent, the ’084 patent, and the ’306
patent. We also affirm the judgment of the district court
finding claims 1 and 16 of the ’544 patent indefinite.
However, we find that the district court incorrectly
construed the term “anomalous” in the ’115 and ’322
patent claims by requiring the model of normal computer
usage be built only with “typical, attack free data.” Be-
cause we reverse the district court’s claim construction
with respect to the ’115 and ’322 patents, we remand for
further proceedings with respect to the asserted claims of
those patents.
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 3
BACKGROUND
All of the six patents at issue on this appeal involve
applying data analytics techniques to computer security
to detect and block malware. The patents can be grouped
into three families. The ’544 and ’907 patents share the
same specification and relate to detecting malicious email
attachments. The ’084 and ’306 patents share the same
specification, and relate to a method for detecting intru-
sions in the operation of a computer system. The ’115 and
the ’322 patents also share a specification and relate to
detecting anomalous program executions.
In December of 2013, Columbia sued Symantec, alleg-
ing infringement of claims of these six patents by various
Symantec products. In January of 2014, Symantec an-
swered the complaint, asserting, among other things, the
affirmative defenses of non-infringement, invalidity, and
unenforceability of the asserted patents. After briefing
and a hearing, the district court issued a claim construc-
tion order on October 7, 2014, and later issued an order
clarifying certain constructions.
Based on the district court’s claim constructions, the
parties filed a joint motion for entry of final judgment on
all infringement claims. Specifically, the parties agreed
to a judgment of non-infringement on all asserted claims
and a finding of invalidity for indefiniteness of claims 1
and 16 of the ’544 patent. Columbia reserved the right to
appeal the district court’s claim constructions. Pursuant
to the stipulation, the court entered partial final judg-
ment under Rule 54(b) of the Federal Rules of Civil Pro-
cedure, and Columbia now appeals. 1 We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(1).
1 Other claims, including state-law claims, remain
pending in the district court.
4 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
DISCUSSION
Claim construction is ultimately a question of law
that this court reviews de novo. Teva Pharm. USA, Inc. v.
Sandoz, Inc., 135 S. Ct. 831, 839 (2015). The construction
of claim terms based on the claim language, the specifica-
tion, and the prosecution history are legal determinations.
Id. However, claim construction may involve subsidiary
issues of fact based on the extrinsic record, which this
court reviews for clear error. See id. at 837–38.
Claim construction requires a determination as to
how a person of ordinary skill in the art would under-
stand a claim term “in the context of the entire patent,
including the specification.” Phillips v. AWH Corp., 415
F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). We begin a
claim construction analysis by considering the language of
the claims themselves. Id. at 1314. However, “claims must
be read in view of the specification, of which they are a
part.” Id. at 1315 (quoting Markman v. Westview Instru-
ments, Inc., 52 F.3d 967, 978 (1995) (en banc) (quotation
marks omitted). The specification is the “single best guide
to the meaning of a disputed term,” Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996),
and “is, thus, the primary basis for construing the
claims.” Phillips, 415 F.3d at 1315 (citation and quotation
marks omitted). A court should also consider the patent's
prosecution history, Id. at 1317, and may rely on diction-
ary definitions, “so long as the dictionary definition does
not contradict any definition found in or ascertained by a
reading of the patent documents.” Id. at 1321–22 (cita-
tion and internal quotation marks omitted).
Columbia argues that the district court here erred in
departing from the plain meaning of “byte sequence
feature” in the ’544 and the ’907 patents and “probabilistic
model of normal computer system usage” in the ’084 the
’306 patents. It argues that “there is a heavy presump-
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 5
tion that claim terms carry their accustomed meaning in
the relevant community at the relevant time” which can
only be “overcome in only two circumstances: the patentee
has expressly defined a term or has expressly disavowed
the full scope of the claim.” Appellant’s Br. 26 (emphasis
added) (citation and quotation marks omitted). For this
proposition, it cites to several recent cases including
Thorner v. Sony Computer Entertainment America LLC,
669 F.3d 1362 (Fed. Cir. 2012), a case where we stated
that “[i]t is not enough for a patentee to simply disclose a
single embodiment or use a word in the same manner in
all embodiments, the patentee must clearly express an
intent to redefine the term” and that “the standard for
disavowal of claim scope is similarly exacting.” Id. at
1365.
Our case law does not require explicit redefinition or
disavowal. See, e.g., Aventis Pharma S.A. v. Hospira, Inc.,
675 F.3d 1324, 1330 (Fed. Cir. 2012) (“This clear expres-
sion need not be in haec verba but may be inferred from
clear limiting descriptions of the invention in the specifi-
cation or prosecution history.”). Indeed, our en banc
Phillips opinion rejected this very approach. In Phillips,
we rejected a line of cases following Texas Digital Sys-
tems, Inc. v. Telegenix, Inc., where we held that “terms
used in the claims bear a ‘heavy presumption’ that they
. . . have the ordinary meaning that would be attributed to
those words by persons skilled in the relevant art [and,]
unless compelled otherwise, a court will give a claim term
the full range of its ordinary meaning.” 308 F.3d 1193,
1202 (Fed. Cir. 2002). Specifically, Phillips rejected an
approach “in which the specification should be consulted
only after a determination is made, whether based on a
dictionary, treatise, or other source, as to the ordinary
meaning or meanings of the claim term in dispute.” 415
F.3d at 1320. As Phillips carefully explained, such an
approach “improperly restricts the role of the specification
6 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
in claim construction” to determining “whether the pre-
sumption in favor of the dictionary definition of the claim
term has been overcome by an explicit definition of the
term different from its ordinary meaning, or whether the
inventor has disavowed or disclaimed scope of coverage.”
Id. (citations and quotation marks omitted). “[T]he speci-
fication is always highly relevant to the claim construc-
tion analysis” and is, in fact “the single best guide to the
meaning of a disputed term.” Id. (emphasis added)
(citation and quotation marks omitted).
Phillips makes clear that “[t]he claims . . . do not
stand alone. Rather they are part of a fully integrated
written instrument, consisting principally of a specifica-
tion that concludes with the claims.” 415 F.3d at 1315
(internal quotation marks and citations omitted). The
only meaning that matters in claim construction is the
meaning in the context of the patent. See id. at 1316
(citing and quoting Netword, LLC v. Centraal Corp., 242
F.3d 1347, 1352 (Fed. Cir. 2001) (“The claims are directed
to the invention that is described in the specification; they
do not have meaning removed from the context from
which they arose.”)).
Thus, we reject Columbia’s argument that the pre-
sumption of plain and ordinary meaning “can be overcome
in only two circumstances: [when] the patentee has ex-
pressly defined a term or has expressly disavowed the full
scope of the claim in the specification and the prosecution
history.” Appellant’s Br. at 26 (emphasis added). As our
en banc opinion in Phillips made clear, “a claim term may
be clearly redefined without an explicit statement of
redefinition” and “[e]ven when guidance is not provided in
explicit definitional format, the specification may define
claim terms by implication such that the meaning may be
found in or ascertained by a reading of the patent docu-
ments.” 415 F.3d at 1320–21 (citing and quoting Bell Atl.
Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 7
F.3d 1258, 1268 (Fed. Cir. 2001), and Irdeto Access, Inc. v.
Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir.
2004)). 2
We have previously followed this approach, for exam-
ple, holding that the claim term “electrochemical sensor”
excluded cables and wires based on critical language in
the claims and specification, despite there having been no
explicit disclaimer of cables or wires. See In re Abbott
Diabetes Care Inc., 696 F.3d 1142, 1149–50 (Fed. Cir.
2012); see also AIA Eng'g Ltd. v. Magotteaux Int'l S/A,
657 F.3d 1264, 1278 (Fed. Cir. 2011) (where “the specifi-
cation reveals a special meaning for a term that differs
from the meaning it might otherwise possess, that special
meaning governs”); Comput. Docking Station Corp. v.
Dell, Inc., 519 F.3d 1366, 1374 (Fed. Cir. 2008) (“Occa-
sionally specification explanations may lead one of ordi-
nary skill to interpret a claim term more narrowly than
its plain meaning suggests.”); Astrazeneca AB v. Mut.
Pharm. Co., 384 F.3d 1333, 1339 (Fed. Cir. 2004) (The
patentee “seems to suggest that lexicography requires a
statement in the form ‘I define _____ to mean _____,’ but
such rigid formalism is not required.”).
We have also found that a patent applicant need not
expressly state “my invention does not include X” to
2 Absent implied or explicit lexicography or disa-
vowal, we have recognized that the specification plays a
more limited role where claim language has so “plain a
meaning on an issue” that it “leav[es] no genuine uncer-
tainties on interpretive questions relevant to the case.”
Straight Path IP Group, Inc. v. Sipnet EU S.R.O., 806
F.3d 1356, 1361 (Fed. Cir. 2015) (stating that “redefini-
tion or disavowal is required where claim language is
plain, lacking a range of possible ordinary meanings in
context”).
8 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
indicate his exclusion of X from the scope of his patent
because “the patentee’s choice of preferred embodiments
can shed light on the intended scope of the claims.”
Astrazeneca, 384 F.3d at 1340; see also On Demand Mach.
Corp. v. Ingram Indus., Inc., 442 F.3d 1331, 1340 (Fed.
Cir. 2006) (“[W]hen the scope of the invention is clearly
stated in the specification, and is described as the ad-
vantage and distinction of the invention, it is not neces-
sary to disavow explicitly a different scope.”); Edwards
Lifesciences LLC v. Cook Inc., 582 F.3d 1322, 1333 (Fed.
Cir. 2009) (finding disavowal implicitly); Boss Control,
Inc. v. Bombardier Inc., 410 F.3d 1372, 1377 (Fed. Cir.
2005) (same).
I
Columbia challenges the district court’s construction
of “byte sequence feature” as used in claims 1–3, 6, 16–17,
28, 34, and 43 of the ’544 patent and claims 1–4, and 10 of
the ’907 patent. The various claims of both the ’544 and
’907 patents cover systems and methods for detecting
malicious executable attachments at an email processing
application of a computer system using data mining
techniques. As described in the specification, a computer
model is “taught” to distinguish between a malicious file
and a non-malicious file by inputting various known
malicious and benign files and instructing the computer
to examine various aspects, or “byte sequence features,”
common to these files. The model can then be used to
analyze new, unknown programs to see whether they
contain byte sequence features that would indicate a
program is malicious.
Claim 1 of the ’544 patent is representative and reads:
A method for classifying an executable attach-
ment in an email received at an email processing
application of a computer system comprising:
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 9
a) filtering said executable attachment
from said email
b) extracting a byte sequence feature from
said executable attachment; and
c) classifying said executable attachment
by comparing said byte sequence feature of
said executable attachment with a classi-
fication rule set derived from byte se-
quence features of a set of executables
having a predetermined class in a set of
classes to determine the probability
whether said executable attachment is
malicious, wherein extracting said byte se-
quence features from said executable at-
tachment comprises creating a byte string
representative of resources referenced by
said executable attachment.
’544 patent, col. 19 ll. 11–26 (emphasis added). The dis-
trict court construed “byte sequence feature” to mean a
“[f]eature that is a representation of machine code in-
structions of the executable.” J.A. 9.
Columbia takes issue with the district court’s limiting
the construction to only “machine code instructions.”
Machine code instructions are the parts of a program that
instruct a computer’s processor to perform certain actions.
A program, or “executable,” contains machine code in-
structions, but also contains other information such as
“resource information,” which contains data that is used
by the executable but that does not provide specific in-
structions. Columbia argues that the term “byte sequence
feature” is an umbrella term for the properties or attrib-
utes of sequences of bytes that are extracted from any
part of an executable, including not only machine code
instructions but also other information. It contends that
this construction is apparent from a simple examination
10 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
of the plain meaning of the claim language and that
nothing in the specification limits the broad plain mean-
ing of the claim language. A byte sequence, it argues, is a
sequence of bytes according to the plain meaning of these
“familiar words.” Thus, a “byte sequence feature” must be
an attribute of a sequence of any bytes, not just machine
code instructions. The district court, it urges, erred in
relying on the specification to limit the ordinary meaning.
However, as discussed above and as Phillips teaches,
“the specification is always highly relevant” and “is often
the best guide to the meaning of a disputed term.” Phil-
lips, 415 F.3d at 1315 (emphasis added). In this case, the
district court’s construction is well supported by the
specification. Twice in the specification, the patentee
states that the “byte sequence feature” is useful and
informative “because it represents the machine code in an
executable.” ’544 patent, col. 6 ll. 12–14; ’907 patent, col.
6 ll. 18–20; ’544 patent col. 13 ll. 25–26; ’907 patent, col.
13 ll. 32–33. These are not simply descriptions of the
preferred embodiment but are statements defining “byte
sequence feature.” Further, the provisional application
similarly defined byte sequence feature, stating that
“[t]he byte sequence feature is the most informative
because it represents the machine code in an executable
instead of resource information” which is not made of
machine code instructions. J.A. 850 (emphasis added); see
Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d
1272, 1282 (Fed. Cir. 2000) (provisional applications
incorporated by reference are “effectively part of the”
specification as though it was “explicitly contained there-
in.”)
So too if “byte sequence feature” were construed to in-
clude information other than machine code instructions,
the term “byte sequence feature” would have the same
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 11
scope as the general term “feature.” 3 The specification
makes it clear that a “byte sequence feature” is just one
type of “feature” used for developing and later applying
the model. The specification states that “a feature is a
property or attribute of data (such as ‘byte sequence
feature’),” ’544 patent, col. 5 ll. 63–64; ’907 patent, col. 6 ll.
1–2, and also states that “[f]eatures . . . are defined as
properties extracted from each example program in the
data set, e.g., byte sequences.” ’544 patent, col. 5 ll. 58–
60; ’907 patent, col. 5 ll. 63–65. The specification de-
scribes other embodiments as “additional methods of
feature extraction,” ’544 patent, col. 6 l. 23; ’907 patent,
col. 6 l. 29, and not another approach to byte sequence
feature extraction. The provisional application, similarly,
shows that “byte sequence feature” extraction is just one
type of “feature extraction” and not a general term.
Columbia points to language in the specification that
states that, in another embodiment, “extracting the byte
sequence features from the executable attachment may
comprise creating a byte string representative of re-
sources referenced by said executable attachment,” ’544
patent, col. 3 ll. 37–40. Resource information is not made
up of machine code instructions and thus, it argues, “byte
sequence feature” cannot be so limited. This single sen-
tence in the specification cannot overcome the overwhelm-
ing evidence in other parts of the specification and the
provisional application (described above) demonstrating
that the intended definition of this term does not include
information other than machine code instructions. The
patentee cannot rely on its own use of inconsistent and
3 The district court construed “feature” to mean “a
property or attribute of data which may take on a set of
values.” J.A. 9. Columbia does not challenge this con-
struction on appeal.
12 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
confusing language in the specification to support a broad
claim construction which is otherwise foreclosed.
As we have previously found, the “construction 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 construction.” Renishaw PLC v.
Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed.
Cir. 2003). The district court’s construction of “byte
sequence feature” is correct.
The parties stipulated to a judgment of non-
infringement of all claims of these two patents based on
the district court’s claim construction because, as Colum-
bia concedes, none of the accused products analyzes an
attachment’s machine code instructions. Instead, when
Symantec’s programs analyze the contents of a file, they
analyze the attached file’s “header,” which contains
information regarding the organization of the file but does
not contain any executable code. Because we have found
the district court’s construction to be correct, we now
affirm that judgment.
The parties also stipulated to a judgment of indefi-
niteness as to claims 1 and 16 of the ’544 patent. As
previously discussed, executable files contain machine
code instructions and other information, like resource
information. Claims 1 and 16 conflate a “byte sequence
feature,” which is a feature extracted from machine code
instructions, with the extraction of “resource infor-
mation,” which is not a machine code instruction. Specifi-
cally, the claims describe the step of extracting machine
code instructions from something that does not have
machine code instructions. See, e.g., ’544 patent, col. 19 ll.
23–25 (“extracting said byte sequence features from said
executable attachment comprises creating a byte string
representative of resources.”) (emphasis added). The
claims are nonsensical in the way a claim to extracting
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 13
orange juice from apples would be, and are thus indefi-
nite. See Allen Eng’g Corp. v. Bartell Indus., 299 F.3d
1336, 1349 (Fed. Cir. 2002). Columbia conceded at oral
argument that it does not argue that claims 1 and 16 of
the ’544 patent are not indefinite under the district court’s
claim construction. Because we have affirmed the district
court’s claim construction, we also affirm the district
court’s judgment that claims 1 and 16 of the ’544 patent
are indefinite.
II
Columbia next challenges the district court’s con-
struction of “probabilistic model of normal computer
system usage,” as used in claims 1, 9, and 14 the ’084
patent and claims 1 and 7 of the ’306 patent. The Mi-
crosoft Windows operating system contains a registry,
which is a library of common low-level settings for the
operating system and for other applications. When pro-
grams are executed, they may read from or change the
information in this database. The theory underlying the
invention in Columbia’s patents is that malicious pro-
grams access the registry in different ways than normal
programs do. Thus, as for email attachments in the ’544
and ’907 patents, a computer model is “taught” to distin-
guish between accesses to the registry which indicate a
malicious program and normal accesses to the registry.
The model then can be used to detect malicious accesses
to the database and identify malicious programs.
The claims of these two patents cover systems and
methods for detecting intrusions in a computer system by
monitoring operating system registry accesses. Claim 1 of
the ’084 patent is representative and reads:
A method for detecting intrusions in the operation
of a computer system comprising:
14 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
(a) gathering features from records of
normal processes that access the operating
system registry;
(b) generating a probabilistic model of
normal computer system usage based on
the features and determining the likeli-
hood of observing an event that was not
observed during the gathering of features
from the records of normal processes; and
(c) analyzing features from a record of a
process that accesses the operating system
registry to detect deviations from normal
computer system usage to determine
whether the access to the operating sys-
tem registry is an anomaly.
’084 patent, col. 22 ll. 21–34 (emphasis added). The
district court, in its original claim construction order,
construed the term to mean a “model of typical attack-free
computer system usage that employs probability.” J.A.
10. The district court furthered construed the term
“normal computer system usage” to mean “typical attack-
free computer system usage,” relying on the specification.
Id. After Columbia moved for clarification of the district
court’s construction of this term, the district court clari-
fied that the model described in the ’084 and ’306 patents
must be generated with “only attack-free data.” J.A. 12.
Again, contrary to Phillips, Columbia argues that the
district court erred in departing from the plain and ordi-
nary meaning and instead relied on the specification to
erroneously import a negative limitation from the specifi-
cation despite no “clear and unmistakable” disclaimer of
the claim scope.
The district court was correct in finding that, accord-
ing to the patentee’s own words in the specification, the
“probabilistic model of normal computer system usage” is
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 15
built using only attack-free data. According to the specifi-
cation, the model is built by “[g]athering features from the
records of normal processes that access the Windows
registry.” ’084 patent, col. 3 ll. 31–33 (emphasis added);
’306 patent, col. 3 ll. 32–33. The invention then takes
these features (which were gathered from normal pro-
cesses) and builds “a probabilistic model of normal com-
puter system usage based on records of a plurality of
processes that access the Windows registry and that are
indicative of normal computer system usage, e.g., free of
attacks.” ’084 patent, col. 4 ll. 3–6 (emphasis added); ’306
patent, col. 4 ll. 4–8. The specification consistently de-
scribes an implementation where the inventors ran ordi-
nary programs to “generate normal data for building an
accurate and complete training model.” ’084 patent, col.
14 ll. 55–59; ’306 patent, col. 14 ll. 55–59; see also id. col. 8
ll. 12–14 (“statistics of the values of these features over
normal data are used to create the probabilistic model of
normal registry behavior”); id. col. 10 ll. 33–35 (probabil-
ity “estimated over the normal data”); id. col 11 ll. 17–18
(“From the normal data . . .”). Nothing in the specification
describes any embodiment which uses attack data to build
the model. 4 The provisional patent application, incorpo-
rated by reference into the specification, similarly de-
scribes creating the model using only normal data. See
J.A. 925 (“Statistics . . . over normal data are used to
create the model of normal registry behavior.”)
The prosecution history also confirms this conclusion.
To distinguish some prior art, the patentee said that the
4 Columbia’s references to the specification where
attack data is used all relate to testing and setting the
threshold for determining whether something is an attack
rather than creating the model. See ’084 patent, col. 15 ll.
44–51.
16 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
prior art did not suggest “a technique for predicting
events which were not observed during training.” J.A.
5805. In other words, what distinguished the invention
from the prior art is that it could predict whether a regis-
try access was malicious from a model that was built
using only normal data. If the model were built on attack
data and then subsequently used to predict attacks, it
would not be “predicting events which were not observed
during training.”
Columbia points to an academic paper referenced in
the specification and written by one of the inventors
wherein a model for detecting network intrusions was
built using both attack and attack-free data as support for
its construction. However, this reference describes a
different invention and is not relevant for construing the
claims of these patents. In addition, Columbia points to
two patent applications incorporated into the specification
describing databases used to store information to build
models that have passing references to attack data’s being
stored in the database. These fleeting references cannot
overcome the overwhelming evidence in the specification
and the prosecution history, especially given the specifica-
tion did not “even refer with any detailed particularity” to
the passages Columbia now argues support its construc-
tion. See SkinMedica, Inc. v. Histogen Inc., 727 F.3d
1187, 1207 (Fed. Cir. 2013). The district court’s conclu-
sion that the model of the ’084 and ’306 patents must be
built with only attack-free normal data is correct.
Based on the district court’s claim construction, the
parties stipulated to a judgment of non-infringement of
these two patents by the accused Symantec products.
Columbia concedes that none of the Symantec products
builds a model based on clean, attack-free data. Rather,
these products use known good and bad files to classify
new unknown files. We therefore affirm the stipulated
judgment of non-infringement of these two patents.
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 17
III
Lastly, Columbia argues that the district court incor-
rectly construed the term “anomalous” as used in claims
1, 4–5, 11, 14–15, 21–22, 25–26, 32, 35–36, and 42 of the
’115 and claims 1–4, 9–13, 18–21, and 26–27 of the ’322
patent. The claims of these two patents cover media,
systems, and methods for detecting and classifying anom-
alous program executions. As is described in the specifi-
cation, computer programs may anomalously “terminate
due to any number of threats, program errors, software
faults, attacks, or any other suitable software failure.”
’115 patent col. 1 ll. 23–25. Thus, a program crash may be
the result of a malicious attack or it simply may be the
result of a bug in the software. This invention “teaches” a
computer model to tell the difference between the two,
and then uses that model to predict whether anomalous
program executions are the result of a malicious attack.
Claim 1 of the ‘115 patent is representative and reads:
A method for detecting anomalous program execu-
tions, comprising:
executing at least a part of a program in
an emulator;
comparing a function call made in the em-
ulator to a model of function calls for the
at least a part of the program;
identifying the function call as anomalous
based on the comparison; and
upon identifying the anomalous function
call, notifying an application community
that includes a plurality of computers of
the anomalous function call.
’115 patent, col. 20 ll. 37–46 (emphasis added). The dis-
trict court construed “anomalous” to mean
18 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
“[d]eviation/deviating from a model of typical, attack-free
computer system usage.” J.A. 10. After Columbia moved
for clarification, the district court, relying on its construc-
tion of “normal computer usage” in the various claims of
’084 and ’306 patents, as described above, found that the
model in ’115 and ’322 patents also only uses attack-free
data. J.A. 11–12.
At the outset, we note that there is no reason why the
construction of claim terms in the ’115 and ’322 patents
should be the same as the ’084 and ’306 patents, contrary
to the views expressed by the district court and the par-
ties. We have previously held that where multiple pa-
tents “derive from the same parent application and share
many common terms, we must interpret the claims con-
sistently across all asserted patents.” NTP, Inc. v. Re-
search in Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir.
2005); see also Microsoft Corp. v. Multi-Tech Sys., Inc.,
357 F.3d 1340, 1349–50 (Fed. Cir. 2004) (finding that
statements by the patentee in prosecution of sibling
patent were a “representation of its own understanding of
the inventions disclosed” in all sibling patents, despite the
statement being made after the issuance of the patent in
which the term being analyzed was used). But here,
none of those considerations is present. These four pa-
tents comprise two separate families, and these two
families of patents claim two different inventions, list only
one inventor in common, were filed years apart, and do
not result from the same patent application. See Abbot
Labs. V. Dey, L.P., 287 F.3d 1097, 1104–05 (Fed. Cir.
2002).
Further, the language of the two terms being con-
strued—“anomalous” in claims of the ’115 and ’322 pa-
tents and “probabilistic model of normal computer system
usage” in claims of the ’084 and ’306 patents—is not the
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 19
same, or even similar. 5 Thus, even if they were part of
the same family, there would be no reason to construe the
terms similarly. See Ventana Med. Sys., Inc. v. Biogenex
Labs., Inc., 473 F.3d 1173, 1182 (Fed. Cir. 2006) (“[T]he
doctrine of prosecution disclaimer generally does not
apply when the claim term in the descendant patent uses
different language.”); ResQNet.com, Inc. v. Lansa, Inc.,
346 F.3d 1374, 1383 (Fed. Cir. 2003) (“Although a parent
patent's prosecution history may inform the claim con-
struction of its descendant, the [parent] patent's prosecu-
tion history is irrelevant to the meaning of this limitation
because the two patents do not share the same claim
language.”). We see no reason to construe the term
“anomalous” in the ’115 and ’322 patents consistently
with the term “probabilistic model of normal computer
system usage” in the ’084 and ’306 patents.
The claims themselves show that the model can be
built with both attack-free and attack data. Claim 7 of
the ’115 patent, which depends on claim 1, claims “[t]he
method of claim 1, wherein the model reflects normal
activity of the at least a part of the program.” ’115 patent,
col. 20 ll. 61–62. Claim 8 of the ’115 patent claims “[t]he
method of claim 1, wherein the model reflects attacks
against the at least a part of the program.” Id. at ll. 63–
64. Claims 6 and 7 of the ’322 patent, similarly depend on
independent claim 1 and also refer to model building
using normal data and attack data, respectively. See ’322
patent, col. 20 ll. 64–67. As we have previously held,
“each claim in a patent is presumptively different in
scope.” RF Del., Inc. v. Pac. Keystone Techs., Inc., 326
F.3d 1255, 1263 (Fed. Cir. 2003). Thus, in a situation
5 The specifications of the ’084 and ’306 patents use
the word anomalous, but only in describing the detection
phase not the model building phase.
20 TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION
where dependent claims have no meaningful difference
other than an added limitation, the independent claim is
not restricted by the added limitation in the dependent
claim. Phillips, 415 F.3d at 1314-15; Acumed LLC v.
Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007). In such
situations, construing the independent claim to exclude
material covered by the dependent claim would be incon-
sistent. Andersen Corp. v. Fiber Composites, LLC, 474
F.3d 1361, 1369–70 (Fed. Cir. 2007). Thus, because the
dependent claims in the ’115 and ’322 patents are pre-
sumed to be narrower than the independent claims on
which they depend, “anomalous” cannot be read to limit
the type of data used to model to only attack-free data in
the independent claims in the absence of other evidence
rebutting the presumption.
The prosecution histories of the ’115 and ’322 patents
also support Columbia’s assertion that the model here can
be built with attack-free and attack data. The provisional
application describes using “approximately 300,000
records of which approximately 2,000 are labeled attacks”
to build the model. J.A. 3649–50. In addition, it states
that the data used to build a model “can conceivably
include . . . malicious programs” and “harmful data.” J.A.
3752; J.A. 3739. No similar statements appear in the
provisional application or prosecution histories for the
’084 and ’306 patents. Thus we conclude that the district
court erred in limiting the term “anomalous” to mean that
the model here must be built only using attack-free data.
Again based on the district court’s claim construction,
the parties stipulated to non-infringement of these two
patents by the accused Symantec products. Because we
reverse the district court’s construction of “anomalous,”
we vacate the stipulated judgment of non-infringement as
to all claims of the ’115 and the ’322 patents and remand
for further proceedings consistent with this opinion.
TRUSTEES OF COLUMBIA UNIV. v. SYMANTEC CORPORATION 21
CONCLUSION
In summary, we affirm stipulated judgment of non-
infringement of the asserted claims of the ’544 patent, the
’907 patent, the ’084 patent, and the ’306 patent. In
addition, we affirm the district court’s finding of invalidity
of claims 1 and 16 of the ’544 patent. However, we re-
verse the stipulated judgment of non-infringement of the
asserted claims of the ’115 and ’322 patents because it
was based on an incorrect claim construction, and remand
for further proceedings consistent with this opinion.
AFFIRMED-IN-PART, REVERSED-IN-PART,
REMANDED-IN-PART
COSTS
Costs to neither party