Vederi, LLC v. Google, Inc. , 744 F.3d 1376 ( 2014 )

United States Court of Appeals
Federal Circuit
______________________
VEDERI, LLC,
Plaintiff-Appellant,
v.
GOOGLE, INC.,
Defendant-Appellee.
______________________
2013-1057, -1296
______________________
Appeals from the United States District Court for the
Central District of California in No. 10-CV-7747, Chief
Judge Alex Kozinski of the United States Court of Ap-
peals for the Ninth Circuit, sitting by designation.
______________________
Decided: March 14, 2014
______________________
DAVID A. DILLARD, Christie, Parker & Hale, LLP, of
Glendale, California, argued for plaintiff-appellant. With
him on the brief was STEVEN ERICK LAURIDSEN.
DARYL L. JOSEFFER, King & Spalding, LLP, of Wash-
ington, DC, argued for defendant-appellee. With him on
the brief was ADAM CONRAD of Charlotte, North Carolina.
Of counsel on the brief were SASHA G. RAO and BRANDON
H. STROY, Ropes & Gray, LLP, of East Palo Alto, Califor-
nia, and TODD MATTHEW SIMPSON and CHRISTOPHER J.
HARNETT, of New York, New York.
2 VEDERI, LLC v. GOOGLE, INC.
______________________
Before RADER, Chief Judge, DYK and TARANTO, Circuit
Judges.
RADER, Chief Judge.
The United States District Court for the Central Dis-
trict of California entered summary judgment of non-
infringement in favor of Google, Inc. (Google) and against
Vederi, LLC (Vederi) on October 5, 2012. Because the
district court erred in its claim construction, this court
vacates the judgment of non-infringement and remands
for further proceedings.
I.
Vederi sued Google for patent infringement on Octo-
ber 15, 2010, alleging that Google’s “Street View” in-
fringed various claims of four related patents: U.S. Patent
Nos. 7,239,760 (’760 patent); 7,577,316; 7,805,025; and
7,813,596 (collectively the Asserted Patents). The As-
serted Patents share a common specification 1 and claim
priority to a common provisional patent application.
Generally speaking, the Asserted Patents relate to
methods for creating synthesized images of a geographic
area through which a user may then visually navigate via
a computer. ’760 patent abst. In acquiring the images, a
recording device is mounted on top of a car that is driven
throughout the geographic area. Id. at col. 4 ll. 52–65. In
one embodiment, a single camera points generally hori-
zontally and perpendicularly to the axis of the street to
capture front views of the objects lining the streets (and
sometimes side views of buildings, stores, homes, and
1 As the Asserted Patents share a common specifi-
cation, all citations to the specification are to the ’760
patent.
VEDERI, LLC v. GOOGLE, INC. 3
other objects). Id. at col. 5 ll. 55–64. The Asserted Pa-
tents disclose that multiple cameras may also be used to
capture views in different directions. Id. at col. 5 ll. 3–10.
The camera captures and records images as it passes
by objects (e.g., stores, buildings, cars). Id. at col. 5 ll. 20–
21. By combining these images of the geographic area,
the Asserted Patents disclose generating a composite
image that provides a field of view that is wider than that
provided by any single image. Id. at col. 5 ll. 55–64.
Figure 2 illustrates certain aspects of the invention of the
Asserted Patents.
VEDERI, LLC v. GOOGLE, INC. 5
Future embodiments of the invention could pre-
sent video/image data in different formats. For
example, rather than using a camera facing di-
rectly to the street side, a slightly forward (or
backward)-looking camera could be used to pro-
vide a panoramic look up (or down) the street. Al-
so, if sufficient cameras to cover all viewing
directions are used (so as to provide 360 degrees of
view) images (and synthetic panoramas) where
the direction of view is user-controllable can be
provided.
J.A. 217.
Claim 1 of the ’760 patent is representative of the as-
serted claims. It recites:
1. In a system including an image source and a
user terminal having a screen and an input de-
vice, a method for enabling visual navigation of a
geographic area from the user terminal, the meth-
od comprising:
receiving a first user input specifying a first loca-
tion in the geographic area;
retrieving from the image source a first image as-
sociated with the first location, the image source
providing a plurality of images depicting views of
objects in the geographic area, the views being sub-
stantially elevations of the objects in the geograph-
ic area, wherein the images are associated with
image frames acquired by an image recording de-
vice moving along a trajectory;
receiving a second user input specifying a naviga-
tion direction relative to the first location in the
geographic area;
determining a second location based on the user
specified navigation direction; and
6 VEDERI, LLC v. GOOGLE, INC.
retrieving from the image source a second image
associated with the second location.
’760 patent col. 15 l. 57–col. 16 l. 9 (emphasis added). The
dispute on appeal concerns the “substantially elevations”
limitation, which appears in all of the asserted claims.
The district court concluded that Google did not infringe
any asserted claims after construing the term “images
depicting views of objects in a geographic area, the views
being substantially elevations of the objects in the geo-
graphic area” as “vertical flat (as opposed to curved or
spherical) depictions of front or side views.” Thus, under
the trial court’s reading of the claims, spherical or curved
images fell outside the scope of Vederi’s patent claims.
The accused product—Google’s Street View—provides
context for the parties’ disagreement. According to
Google, Street View combines images of a wide range of
views recorded by multiple cameras having wide-angle
lenses mounted on a moving vehicle. J.A. 2567–68.
Those photographs are overlapping pictures taken from a
single location at approximately the same time. Id.
These images are stitched together into a virtual spheri-
cal composite image. Id. at 2569. The resulting image is
a two-dimensional representation of a spherical
shape. Id.
VEDERI, LLC v. GOOGLE, INC. 7
The spherical projections are then cut into square tiles to
reduce bandwidth when a user is viewing only a portion of
the spherical image. Id. at 2570. As shown in the figure
below, the spherical panorama gives the user the option to
scroll around and view objects as if the user were stand-
ing in the center of the sphere. Id. at 2571–73.
Id. at 3169. According to Google, it does not infringe the
Asserted Patents because its product produces images
and views that are curved or spherical, and never flat. Id.
at 2570–73.
III.
The district court conducted a Markman hearing on
November 22, 2011. The parties agreed that the “sub-
stantially elevations” limitation referred to front and side
views of objects. However, the parties disagreed as to the
meaning of the limitation, “depicting views of ob-
jects . . . the views being substantially elevations of the
objects in the geographic area.” Vederi stated that the
limitation “depicting views of objects . . . the views being
substantially elevations of objects” means “front or side
views of objects.” Google contended that the limitation
means “vertical flat (as opposed to curved or spherical)
depictions of front or side views.” The district court
adopted Google’s construction because it concluded that
8 VEDERI, LLC v. GOOGLE, INC.
the Asserted Patents did not “disclose[] anything about
spherical views.” Id. at 193–94.
Google and Vederi filed competing motions for sum-
mary judgment on the issue of infringement. In its opin-
ion on summary judgment, the district court stated that it
“adopted Google’s construction of ‘substantially elevations’
because Vederi’s method of taking, processing, and dis-
playing images creates only vertical flat views, not spher-
ical ones.” Id. at 4. The district court elaborated by
noting that the “photographs are captured by cameras
moving along a horizontal plane. . . . The result is one
long, flat composite picture of a street . . . . Nothing about
that method or result suggests that the patents cover
curved or spherical images.” Id. at 5.
The district court further observed that the reference
to 360 degree panning in the provisional patent applica-
tion refers to the creation of a 360 degree panorama, akin
to “panning 360 degrees along a horizontal plane, not
within a sphere.” Id. at 5. The district court noted that it
would be similar to taking pictures with a camera “as it
spun around on a Lazy Susan.” Id. According to the
district court, it would not be possible to pan up and down
as in Street View. Id.
Based on its claim construction, the district court en-
tered summary judgment of non-infringement in favor of
Google. The district court noted that “[t]he court’s con-
struction of the ‘substantially elevations’ limitation means
that if Street View presents only curved/spherical images,
it doesn’t infringe Vederi’s patents because all of Vederi’s
patents contain the ‘substantially elevations’ limitations.”
Id. at 6. After considering the parties’ competing argu-
ments, the court explained that Street View’s images
“may appear to be flat to the naked eye, [but] they are
actually curved” because of Google’s methods for captur-
ing, processing, and displaying them. Id. at 9. The dis-
trict court concluded, “[b]ecause Street View displays only
VEDERI, LLC v. GOOGLE, INC. 9
curved views, it doesn’t contain the ‘substantially eleva-
tions’ limitation, and so doesn’t literally infringe Vederi’s
patents.” Id. It also found no infringement under the
doctrine of equivalents. Id. at 10.
Vederi appeals. This court has jurisdiction under 28
U.S.C. § 1295(a)(1).
IV.
Claim construction is an issue of law reviewed de no-
vo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456
(Fed. Cir. 1998). In construing claims, this court relies
primarily on the claim language, the specification, and
the prosecution history. Phillips v. AWH Corp., 415 F.3d
1303, 1314–17 (Fed. Cir. 2005) (en banc). “Apart from the
claim language itself, the specification is the single best
guide to the meaning of a claim term.” AIA Eng’g Ltd. v.
Magotteaux Int’l S/A, 657 F.3d 1264, 1272 (Fed. Cir.
2011) (internal quotations and citation omitted). And
while the prosecution history often lacks the clarity of the
specification, it is another established source of intrinsic
evidence. Id. After considering these three sources of
intrinsic evidence, a court may also seek guidance from
extrinsic evidence. Phillips, 415 F.3d at 1317–18. How-
ever, extrinsic evidence may be less reliable than the
intrinsic evidence. AIA Eng’g, 657 F.3d at 1273.
In the present case, the district court construed “im-
ages depicting views of objects in a geographic area, the
views being substantially elevations of the objects in the
geographic area” as “vertical flat (as opposed to curved or
spherical) depictions of front or side views.” J.A. 4. A
careful review of the record shows that the district court
erred by excluding all curved or spherical views and
images.
The district court based its construction of “substan-
tially elevations” largely on extrinsic evidence regarding
the technical meaning of “elevation” as an architectural
10 VEDERI, LLC v. GOOGLE, INC.
term of art. Id. at 24. Various technical dictionaries
define elevation generally as a projection of a building
surface onto a vertical plane or on a plane vertical (at a
right angle) to the horizon. See id. at 1744, 1748. Indeed,
according to Google, elevations are “non-perspective, two-
dimensional view[s] depicted as if the viewer were simul-
taneously positioned at 90 degrees (along the horizontal
plane) from every point of the object.” Appellee’s Br. 25.
American Architecture: An Illustrated Encyclopedia
provides a useful illustration of an elevation, depicted on
the plane to the left:
Cyril Harris, American Architecture: An Illustrated
Encyclopedia 114 (1998).
However, the district court erred in construing “sub-
stantially elevations” without sufficiently considering the
intrinsic evidence in this case. In this case, the claim
language is a critical part of the record that shows the
error in the trial court’s reading of the claims. The opera-
tive language in this case is “substantially elevations.”
The district court’s construction requiring elevation, and
“elevation” alone in the strict sense, gives no effect to the
“substantially” modifier contained in the claims. “A claim
construction that gives meaning to all the terms of the
claim is preferred over one that does not do so.” Merck &
Co., Inc. v. Teva Pharm. USA, Inc., 395 F.3d 1364, 1372
(Fed. Cir. 2005). By effectively reading “substantially”
out the claims, the district court erred. The term “sub-
VEDERI, LLC v. GOOGLE, INC. 11
stantially” takes on important meaning in light of the rest
of the intrinsic evidence in this record.
For example, the Asserted Patents relate to taking
photographs or videos of objects to create images and
depict views of a geographic area, ’760 patent col. 3 ll. 44–
65, not architectural drawings of buildings. Figure 16 is
illustrative, depicting a view of buildings showing depth
and perspective, not to mention both the front and side of
one of the buildings. ’760 patent fig. 16; cf. Appellee’s Br.
23 (“A frontal view of a building that includes part of its
side is not an elevation.”). Additionally, the specification
of the Asserted Patents discloses the use of a fish-eye
lens, ’760 patent col. 5 ll. 1–3, and “fish-eye views,” id. at
col. 6 l. 23. A photographic image through a fish-eye lens
provides a curved, as opposed to vertical, projection, and
almost certainly reflects curvature and perspective. In
other words, the photographic image is not flat and not an
elevation.
Google argues that the meaning of “substantially”
merely reflects the fact that, as a practical matter, photo-
graphic images, such as those disclosed in the Asserted
Patents, could not depict true elevations as that would
require a camera lens as large as the object being photo-
graphed (here, buildings, cars, and the like). Indeed,
Google concedes that using a camera to record an image of
a true elevation is a “physical impossibility absent an
absurdly large camera,” Appellee’s Br. 36. But under this
interpretation, “substantially” has no independent opera-
tive effect other than to account for the specification’s
disclosure of cameras as a means for capturing images.
This interpretation would not allow the claims to cover
the fish-eye lens embodiment. Thus, the district court’s
confining claim construction does not account for im-
portant parts of the intrinsic record.
This court also disagrees with the district court’s con-
clusion that its construction is warranted “because
12 VEDERI, LLC v. GOOGLE, INC.
Vederi’s method of taking, processing and displaying
images creates only vertical flat views, not spherical
ones.” J.A. 4. For starters, the provisional application
incorporated by reference into the Asserted Patents notes
that 360 degree synthetic panoramas may be created if a
sufficient number of cameras are used. J.A. 217. And
while Google argues that the specification only discloses a
method of creating the composite images by combining
vertical flat columns that would result in vertical flat
images, the specification simply states that “preferably”
the composite images are created on a column-by-column
basis. ’760 patent col. 6 ll. 4–9. Even assuming this
method results in vertical flat views, the specification
does not state that this is the only way to create compo-
site images, and this court perceives no reason to limit the
disputed claim language based on that particular embod-
iment. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
898, 905–06 (Fed. Cir. 2004).
Nor does the specification demonstrate any disavowal
of curved or spherical images supporting the district
court’s construction. Google places a great deal of weight
on the following statement from the Asserted Patents:
The prior art further teaches the dense sampling
of images of an object/scene to provide different
views of the object/scene. The sampling is general-
ly done in two dimensions either within a plane,
or on the surface of an imaginary sphere sur-
rounding the object/scene. Such a sampling, how-
ever, is computationally intensive and hence
cumbersome and inefficient in terms of time and
cost.
Accordingly, there is a need for a system and
method for creating a visual database of a com-
prehensive geographic area in a more time and
cost efficient manner. Such a system should not
require the reconstruction of 3D scene geometry
VEDERI, LLC v. GOOGLE, INC. 13
nor the dense sampling of the locale in multiple
dimensions.
’760 patent col. 1 l. 63–col. 2 l. 7. This statement does not
give rise to a clear and unmistakable disavowal. See
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1322 (Fed. Cir.
2013). In context, these statements in the specification
refer to the dense sampling of an object using cameras
placed in a sphere surrounding the object looking in-
wards. Thus, the 3D scene geometry being discussed is
using the photographs surrounding an object to recon-
struct its 3D shape. In other words, this reference is
fundamentally different from using a cluster of cameras
to take images from a particular point looking out in all
directions. Notably, the Asserted Patents actually dis-
close doing just that: “a duodecahedron of cameras may be
used to record the objects from all viewing direc-
tions.” ’760 patent col. 5 ll. 6–7. Thus, the record, viewed
in its entirety and with reference to the proper context,
does not contain any disclaimer, let alone a clear and
unmistakable disavowal.
Additionally, the prosecution history does not support
the district court’s construction. Google contends that the
inventors of the Asserted Patents disclaimed the con-
struction sought by Vederi in responding to a rejection
over a prior art reference. Specifically, the application
leading to the ’760 patent initially contained claims
reciting “images providing a non-aerial view of the ob-
jects.” J.A. 404. The Patent Office rejected those claims
in view of U.S. Patent No. 6,140,943 (Levine). The appli-
cant responded by amending the claims to remove “non-
aerial view” and add “substantially elevations.” Id. at
494. The applicant also correctly noted that Levine was
directed to “map images, which may include names of
streets, roads, as well as places of interest” that a traveler
could use to navigate through a geographic area. Id. at
503–04. Therefore, Levine did not disclose images “de-
pict[ing] views that are ‘substantially elevations of the
14 VEDERI, LLC v. GOOGLE, INC.
objects in a geographic area’” or “acquired by an image
recording device moving along a trajectory.” Id. at 504.
Despite Google’s protestations to the contrary, this court
discerns no clear and unambiguous disavowal of spherical
or curved images that would support the district court’s
construction. Invitrogen Corp. v. Biocrest Mfg., L.P., 327
F.3d 1364, 1369 (Fed. Cir. 2003).
Having analyzed the claims, the specification and the
prosecution history, this court concludes that the district
court erred in construing “images depicting views of
objects in a geographic area, the views being substantially
elevations of the objects in the geographic area” as “verti-
cal flat (as opposed to curved or spherical) depictions of
front or side views.” To the contrary, the record shows
that “views being substantially elevations of the objects”
refers to “front and side views of the objects.” Thus, as
properly construed, the claims do not exclude curved or
spherical images depicting views that are substantially
front or side views of the objects in the geographic area.
VI.
This court has considered Google’s remaining argu-
ments in favor of the district court’s claim construction,
but finds them unpersuasive. This court also declines
Vederi’s request to consider its infringement arguments
on appeal without the benefit of the district court’s fact-
finding under a proper construction of the claims. Accord-
ingly, in view of the foregoing, this court reverses the
district court’s claim construction, vacates its judgment of
non-infringement and remands for further proceedings
consistent with this opinion.
VACATED AND REMANDED