Id. at 10: 17-28.
In other words, the invention calls for an increased number of planar surfaces with phased
array antenna elements to be mounted onto the geodesic sphere. This increase in planar surfaces
permits communication signals to be sent and received from multiple locations simultaneously
along the sphere's surface. '134 Patent 4: 15-26; Haupt Deel. 'll 34. In addition, the greater number
of planar surfaces divides the hemispheric communication space into smaller "cellular
communication spaces," thus limiting the area that a subarray of antenna elements must scan to
transmit and receive signals to "less than 10° off broadside within a conical scanning space." '134
Patent 10:27-28. As a result, a given communication signal from the invention described in the
'134 Patent would be stronger and more precise than an antenna that must scan at wider angles to
transmit and receive communication signals.
The lower cost of the antenna comes from using modular planar surfaces to construct the
geodesic sphere. If damaged, these flat surfaces are easier to replace because each surface is
identical, as compared to replacing curved antennas on a normal sphere that would need to be
tailored to fit a specific area on a curved surface. '134 Patent 3:22-26, 56-63.
Prosecution History of the '134 Patent
The' 134 Patent prosecution history is brief. The' 134 Patent was issued with no Examiner
rejections and only cited two prior art references from 1995 - - U.S. Patent Nos. 5,386,953 and
5,457,465. The prosecution history also shows that the Examiner only spent approximately 10
minutes searching for relevant prior art references. In support of the Notice of Allowance of the
'134 Patent, the Examiner stated in full:
The closest prior art, Stuart and Collier et al., do(es) not teach or make obvious the
following limitations(s):
of space and satellite communications. Tr. 181. Dr. Stuart has also authored two textbooks on
satellite communications and published over 200 professional technical papers on satellites, space
systems and satellite technologies. Stuart Deel. 'll'll 14-15, 17.
6
In regard to claim 1, a subatTay of planar antenna element units mounted on
each of said plurality of substantially equilateral t1iangular geodesic planar
surfaces.
In regard to claim 14, a plurality of said geodesic planar surfaces each
having mounted thereon a subarray of planar antenna element units.
In regard to claim 19, each said geodesic planar surface having mounted
thereon a subarray of planar antenna element units.
In regard to claim 25, each having mounted thereon a subarray of planar
antenna element units.
Def.'s Br. App., at GA136-37.
Discussion
Jurisdiction
This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1498(a),
which provides in relevant part:
Whenever an invention described in and covered by a patent of the United States is
used or manufactured by or for the United States without license of the owner
thereof or lawful right to use or manufacture the same, the owner's remedy shall be
by action against the United States in the United States Court of Federal Claims for
the recovery of his reasonable and entire compensation for such use and
manufacture.
28 U.S.C. § 1498(a) (2012). Because Plaintiff is the inventor and owner of the '134 Patent, and
accuses the Air Force of making and using a geodesic sphere phased array antenna as claimed in
the' 134 Patent without lawful rights, this Court has jurisdiction.
Legal Standards for Claim Construction
The "bedrock principle" of patent law is that "'the claims of a patent define the invention
to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp.,
415 F.3d 1303,
1312 (Fed. Cir. 2005) (en bane) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys.
Inc., 381F.3d1111, 1115 (Fed. Cir. 2004)). The meaning of claim language is often apparent on
its face, but can be complicated by the human failings of the written word and the inclusion of
highly technical terminology.
Id. The Supreme Court clarified that claim construction involves a
mixed question of law and fact, with a court, as a matter of law, construing claims in light of the
intrinsic record of the patent - - the claims, specification and patent prosecution history - - and
making factual findings with respect to the extrinsic record - - such as expert testimony, analogous
case law, and dictionaries. Teva Pharms. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831, 840-41 (2015)
(vacating Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp.,
744 F.3d 1272 (Fed. Cir.
2014) (en bane)).
7
Claim terms should be given their ordinary and customary meaning as used in the field of
invention.
Phillips, 415 F.3d at 1312-13; Vitronics Corp. v. Conceptronic, Inc.,
90 F.3d 1576,
1582 (Fed. Cir. 1996). The ordinary and customary meaning is the meaning a claim term would
have to a skilled artisan at the time of the invention - - the effective filing date of the patent
application.
Phillips, 415 F.3d at 1313 (citing
Innova, 381 F.3d at 1116). A person of ordinary
skill in the art is "deemed to read the claim term not only in the context of the particular claim in
which the disputed term appears, but in the context of the entire patent, including the
specification."
Id. "In some cases, the ordinary meaning of claim language ... may be readily
apparent even to lay judges, and claim construction in such cases involves little more than the
application of widely accepted meaning of commonly understood words."
Id. at 1314. A claim
can depart from its ordinary meaning only if the inventor has explicitly assigned it a separate
meaning.
Id. at 1316.
To construe claims, a court objectively looks at public sources, such as the patent itself, its
prosecution history, or technical dictionaries available at the time, that show what a skilled artisan
would have understood the disputed claim language to mean.
Innova, 318 F.3d at 1116. In
Phillips, the Federal Circuit clarified that courts should first review the "intrinsic" record of the
patent. 415 F.3d at 1314-17. Intrinsic evidence consists of the patent claims, specification, and
the patent's prosecution history.
Id. at 1314; IMS Tech., Inc. v. Haas Automation Inc.,
206 F.3d
1422, 1433 (Fed. Cir. 2000).
As the claims define the invention, the claim language is the most important source for a
Court to consider in construing the claim terms.
Phillips, 415 F.3d at 1312. The second most
critical source of intrinsic evidence is the patent specification, which "contain[s] a written
description of the invention and of the manner and process of making and using it. ... " 35 U.S.C.
§ 112 '![ 1 (2006). The "specification 'is always highly relevant to the claim construction analysis.
Usually it is dispositive; it is the single best guide to the meaning of a disputed term."'
Phillips,
413 F.3d at 1315 (quoting
Vitronics, 90 F.3d at 1582)). The third source of intrinsic evidence is
the prosecution history, which consists of "the complete record of the proceedings before the
Patent Office and includes the prior art cited during examination of the patent."
Id. at 1317. The
prosecution history is less useful in claim construction, however, because it can itself be
ambiguous as it represents ongoing negotiations between the patent applicant and the Patent
Office. Id.; see Inverness Med. Switz. GmbH v. Warner Lambert Co.,
309 F.3d 1373, 1380-82
(Fed. Cir. 2002).
After consideration of the intrinsic evidence, if a court still finds the claim term to be
ambiguous, it can look to extrinsic evidence which "consists of all evidence external to the patent
and prosecution history, including expert and inventor testimony, dictionaries, and learned
treatises." Markman v. Westview Instruments, Inc.,
52 F.3d 967, 980 (Fed. Cir. 1995) (en bane),
aff'd,
517 U.S. 370 (1996). However, such external evidence is "less significant than the intrinsic
record in determining the 'legally operative meaning of claim language."' C.R. Bard, Inc. v. U.S.
Surgical Coro.,
388 F.3d 858, 862 (Fed. Cir. 2004) (quoting Vanderlande Indus. Nederland BV v.
Int'! Trade Comm'n,
366 F.3d 1311, 1318 (Fed. Cir. 2004)).
Level of Skill in the Art
The relevant field of art for the '134 Patent is phased array antennas. Haupt Deel. '!['![ 24-
25; Stuart Deel.'!['][ 30-33. Defendant defined a person of ordinary skill in the art to be a person
8
with a master's degree in electrical engineering, physics, or the equivalent, with at least eight years
of relevant work experience with phased atrny antennas, noting that additional relevant work
experience may substitute for formal education. Def.'s Br. 17. Plaintiff asserted that any
"competent antenna engineer" would be capable of understanding the term "sphere" in the '134
Patent. Pl.'s Br. 1 (ECF No. 137). The Court adopts the parties' substantially similar definitions
of a person of ordinary skill in the art to be a person with a master's degree in electrical
engineering, physics, or the equivalent, with at least eight years of relevant work experience with
antennas. The Court recognizes that additional relevant work experience in phased array antennas,
including satellite communications, may substitute for formal education.
Effective Filing Date
The filing date on the face of the '134 Patent is Februat·y 25, 2000, with a priority date
claimed to the '134 Patent's provisional application No. 60/121,874 filed Februat·y 26, 1999. For
the purposes of claim construction only, the Court accepts Defendant's unrebutted position that
the effective filing date of the' 134 Patent is February 26, 1999, the date most favorable to Plaintiff.
Claim Construction of the Term "Sphere"
The patties dispute the meaning of the term "sphere" as it appeat·s in all 30 claims of the
'134 Patent:
Plaintiff's Proposed Construction Defendant's Proposed
. . Construction
"spherical" "greater than a hemisphere so as to
provide the phased array antenna
Pl.'s Br. 1 (ECF No. 137) with hemispherical or wider
coverage"
Def.'s Br. 1
The crux of the parties' dispute is what portion of the surface at·ea of a sphere is sufficient
to qualify as a "geodesic sphere phased at-ray antenna system" as claimed in the '134 Patent.
Plaintiff argues that it could be "ten (I 0% ), fifty percent (50%) or more up to even [one] hundred
percent (100%)" depending "on the specific applications ... for which the spherical phased array
antenna is built and utilized." Pl.'s Br. 2 (ECF No. 137). Defendant counters that the intrinsic and
extrinsic evidence regarding the '134 Patent limits the term "sphere" to structures that at·e "greater
than a hemisphere so as provide the phased atTay antenna with hemispherical or greater
communication coverage." Def.' s Br. 20.
The Preambles to Claims 1, 14, 19, and 25 are Limiting
Defendant argues that the preambles in independent Claims 1, 14, 19, and 25 which
describe the geodesic structure as a "sphere" limit all claims to "sphere" shaped structures. Def.' s
Br. 20-22. In arguing that the preamble is limiting, Defendant seeks to limit the structure of the
'134 Patent to a geodesic sphere and no other shape. The preambles for each of the four
independent Claims l, 14, 19, and 25, are identical and provide:
9
A geodesic sphere phased array antenna system for multi-satellite communications
and tracking, said antenna system comprising ...
'134 Patent 12:65-67, 14:32-34, 15:20-22, 16:14-16 (emphasis added).
Generally, the preamble of a claim does not limit the scope of a patent claim if it "merely
states the purpose or intended use of an invention .... " Pacing Techs., LLC v. Garmin Int'!, Inc.,
778 F.3d 1021, 1023-24 (Fed. Cir. 2015) (internal citation and quotation marks omitted).
However, a preamble may limit the scope of a patent claim if it acts as a necessary component of
the claimed invention by providing an antecedent basis from which limitations in the body of the
claim are derived.
Id. at 1024. The preamble is also limiting if it "recites essential structure that
is important to the invention or necessary to give meaning to the claim." Bicon, Inc. v. Straumann
Co.,
441 F.3d 945, 952 (Fed. Cir. 2006) (internal quotation marks omitted) (citing NTP, Inc. v.
Research in Motion, Ltd.,
418 F.3d 1282, 1305-06 (Fed. Cir. 2002)). There is no "litmus test"
governing when the preamble should be deemed limiting. Catalina Mktg. Int'!, Inc. v.
Coolsavings,com, Inc.,
289 F.3d 801, 808 (Fed. Cir. 2002). Rather, whether the preamble is
limiting depends "on the facts of each case in light of the claim as a whole and the invention
described in the patent." Storage Tech. Corn. v. Cisco Sys .. Inc.,
329 F.3d 823, 831 (Fed. Cir.
2003);
Bicon, 441 F.3d at 952.
Here, the preambles of the independent claims are limiting because they define the
structure of the phased array antenna system claimed to be a geodesic sphere. For example, the
first subpart of independent Claim 19 reads:
a geodesic structure derived from a regular polyhedron having a plurality of planar
faces to form a geodesic three dimensional structure with a plurality of said
geodesic planar surfaces each said geodesic planar surface having mounted thereon
a subarray of planar antenna element units;
'134 Patent 15:24-29 (emphasis added). The general claiming of the invention's structure as a
"regular polyhedron" and a "three dimensional structure" would give no indication to a person of
ordinary skill in the art what the overall shape or structure of the antenna system is. Indeed, the
term "regular polyhedron" discloses nothing more than a multi-faced solid. An illnst:ration of this
general term could be a radically different shape than a geodesic sphere - - for example, the prior
art's truncated pyramid in Figure 3a:
10
'134 Patent Figure 3a, 6:60-64 ("Multi-planar phased array antenna structures of the prior art are
shown in Figure 3a .... Three planar phased arrays 31 are mounted on the tluee sides of a pyramid
30 for scanning the entire hemispherical communication space are shown in Figure 3a .... "). As
such, the preambles that describe the phased array antenna system as a geodesic sphere are a
"necessary component of the claimed invention" because they provide the antecedent basis to
understand the shape or structure of the geodesic three-dimensional structures described in the
subparts of the independent claims. See Pacing Techs., 778 F.3d at 1024.
The term "geodesic sphere phased array antenna structure" is recited and reiterated with
identical language in the sixth subparts of each independent claim, providing:
each said cellular communication space for electronic scanning being defined by a
plurality of discrete chosen directions, corresponding to the said geodesic sphere
phased array structure and each said cellular communication space adapted to be
electronically scanned by a plurality of active said contiguous phased subarrays
corresponding to the said cellular communication space.
'134 Patent 13:30-37, 14:60-67, 15:48-55, 16:40-47 (emphasis added). The "said" "geodesic
sphere phased array structure" explicitly refers back to the preamble language that defines the
independent claims to be "geodesic sphere phased array antenna system[s]." '134 Patent 12:65-
67, 14:32-34, 15:20-22, 16:14-16. This repetition of"geodesic sphere" in the sixth subpart would
signal to a person of ordinary skill in the art that the shape of the "phased army antenna system"
must be a geodesic sphere as stated in the preamble. Proveris Sci. Corp. v. Innovasystems, Inc.,
739 F.3d 1367, 1373 (Fed. Cir. 2014);
Bicon, 441 F.3d at 952.
Finally, each of the 26 dependent claims of the '134 Patent refer to their corresponding
independent claims as "geodesic sphere phased array antenna" structures. This indicates that the
preamble limits the claims to "geodesic sphere" structures rather than any other shaped structure.
For example, dependent Claim 21 recognizes independent Claim 19 to be a geodesic sphere and
adds limitations only pertinent to a sphere structure:
21. The geodesic sphere phased mrny antenna as set forth in claim 19 where each
of the said regular planar smfaces of the polyhedron is further subdivided into
11
planar triangular surfaces forming pyramidal structures with their common vertices
projected radially outwards onto the circumscribing sphere and each of said
triangular planar surfaces is fitted with subarrays of antenna elements.
'134Patent15:61-67 (emphasis added).
The title of the '134 Patent and the specification further support finding that the only phased
array antenna structure claimed is in the shape of a geodesic sphere. The title of the '134 Patent
is "Geodesic Sphere Phased Array Antenna System," and the Detailed Description of the Invention
portion of the '134 Specification refers to the "present invention" as being a "geodesic sphere
phased array antenna." '134 Patent 6:24-25; Deere & Co. v. Bush Hog, LLC,
703 F.3d 1349, 1358
(Fed. Cir. 2012).
In sum, three factors persuade the Court that the preambles recited in independent Claims
1, 14, 19, and 25 limit all claims to sphere shaped structures. First, the body of the independent
Claims 1, 14, 19, and 25 each derive meaning from the term "sphere" in their preambles. Second,
every dependent claim refers to its corresponding independent claims as "geodesic sphere phased
array antenna." Third, the '134 Specification defines the "present invention" as a "geodesic sphere
phased array antenna."
The Claims
As stated above, the "bedrock principle" of patent law is that "'the claims of a patent define
the invention to which the patentee is entitled the right to exclude."'
Phillips, 415 F.3d at 1312
(quoting
Innova, 381 F.3d at 1115). As such, the Court first looks to the claim language itself
when construing claim terms before considering other intrinsic evidence.
Id. ("[T]he claims are
'of primary importance, in the effort to ascertain precisely what is patented.'" (quoting MetTill v.
Yeomans,
94 U.S. 568, 570 (1876)).
Plaintiff asserts that "sphere" means "spherical" because "[ w]hat portion of the spherical
surface is actually involved depends on the specific applications (in terms of radar or
communications applications) for which the spherical phased array antenna is built and utilized."
Pl.'s Br. 2 (ECF 137). Plaintiff contends that "spherical" can encompass as little as 10% of a
sphere's surface.
Id. Plaintiff, however, does not point to any claim language to support his
assertions.
The ordinary and customary meaning of the term "sphere" readily connotes the shape of a
round ball.
Phillips, 415 F.3d at 1314 ("In some cases, the ordinary meaning of claim language .
. . may be readily apparent even to lay judges, and claim construction in such cases involves little
more than the application of the widely accepted meaning of commonly understood words.");
Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323 (Fed. Cir. 2003) ("We indulge a heavy
presumption that claim terms carry their full ordinary and customary meaning, unless the patentee
unequivocally imparted a novel meaning to those terms or expressly relinquished claim scope
during prosecution." (internal citations and quotation marks omitted)). Based on the claims, a
person of ordinary skill in the art would understand that the geodesic sphere phased array antenna
is less than a full sphere if ground-based and would take the form of a complete sphere if deployed
for use in outer space. See,~. '134 Patent 14:28-32. Here, the ordinary and customary meaning
12
of "sphere" supports Defendant's constrnction that the geodesic sphere phased array antenna
system should be at least "greater than a hemisphere" for the phased array antenna strncture to
reflect the commonly understood shape of a sphere, while accounting for ground-based
applications. Phillips, 415 F.3d at 1314.
Moreover, accepting Plaintiff's construction of "sphere" as "spherical" would result in
converting a noun - - "sphere" - - into the adjective "spherical." Such a construction would fail to
give meaning to the term "sphere" as a noun that defines the overall structure of the claimed phased
array antenna. In re Hyatt,
708 F.2d 712, 714 (Fed. Cir. 1983) ("A claim must be read in
accordance with the precepts of English grammar.").
As such, the ordinary and customary meaning of the term "sphere" as it appears in all
claims of the '134 Patent supports Defendant's constrnction that the term "sphere" should be
construed as "greater than a hemisphere so as to provide the phased array antenna hemispherical
or wider coverage." Def.'s Br. 1.
The Specification
The specification repeatedly states that the "present invention" of the '134 Patent is a
geodesic sphere phased array antenna that must be greater than a hemisphere so as to provide
"hemispherical or wider coverage":
• ''This invention relates, in general, to phased mrny antennas which pmvide
hemispherical or wider coverage for multi-satellite communications and more
particularly to a phased mrny antenna mounted on a geodesic sphere and
adapted for multi-band communications with satellites in earth orbits including
low earth orbits, medium earth orbits, and geo-stationary orbits." '134 Patent
1:8-14 (emphasis added).
• "It is the main objective of the present invention to create a low cost phased
array antenna architecture that will provide communication coverage over the
entire hemisphere." Id. at 3:49-52.
• "The geodesic sphere phased mrny antenna to be constructed for hemispherical
coverage will be lm·ger than the hemisphere but less than a full sphere.
Depending on the array antenna gain required for specific applications, the
geodesic sphere an·ay strncture may extend in elevation space from -45° through
+90° (zenith) which is %th sphere."
Id. at 8:29-34.
The most probative portion of the '134 Specification precisely defining the amount of a
sphere's surface area claimed in the '134 Patent is the following:
The geodesic sphere phased mrny antenna structure is designed to provide greater
than hemispherical coverage and in the present invention, the elevation angle of the
strncture extends from +90° through -8° where 8° could be 45° to 30°.
'134 Patent 6:36-40.
13
A person of ordinary skill in the art would understand this passage to mean the '134 Patent
defines a "sphere" to be a structure that is greater than a hemisphere but less than a sphere because
the 90° point of elevation angle 8 describes the top, or zenith, of the sphere, and elevation angle 8
dips below the horizon to between -30° and -45° degrees. Defendant's expert, Dr. Randy Haupt,4
depicted this description in two drawings:
90'
zenith 90'
0
0
horizon --l-----.,-,.....__,.,,..._----;-- O'
I
, ''
,,." ,
I <
I ......
I / '
I O' /
,
,,
I
-90' '
''
Haupt Deel. '][ 41. The first drawing is a tlu·ee-dimensional hemisphere. The angle 8 is shown as
dipping below the horizon, the 0° line, to approximately -30°. The second drawing is a vertical
slice through the center of the sphere. It shows a strncture greater than a hemisphere in which 8 is
defined from approximately 90° to -30° on one side of the sphere and from 90° to 210° on the other
side, i.e. at a 30-degree angle below the horizon line in all directions. By requiring the geodesic
sphere to be between 30° and 45° below the horizon, the '134 Specification unequivocally
describes a structure that is greater than a hemisphere but less than a sphere.
Further, the specification only discloses embodiments of the geodesic sphere that are
greater than a hemisphere in size. See, M, '134 Patent Fig. 1; see Rectractable Techs., Inc. v.
Becton Dickinson & Co.,
653 F.3d 1296, 1305 (Fed. Cir. 2011) (finding that claims directed to
retractable syringe must have a one-piece body and not a multi-piece body because the
embodiments in the specification did not "disclose a body that consists of multiple pieces or
indicate that the body is anything other than a one-piece body"). Here, the specification includes
eight figures disclosing embodiments of geodesic spheres that are greater than a hemisphere. See
'134 Patent Figs. 1, 2(a), 5(b), 6(b), 12(b), and 13(a), (b), and (c). For example, Figure 2(a) depicts
the following:
4
Dr. Randy Haupt is a Professor of Electrical Engineering and Computer Science at the
Colorado School of Mines, with 38 years of experience in phased array antennas. He has a Ph.D.
in Electrical Engineering from the University of Michigan. In 1993, he was named the Federal
Engineer of the Year - - the top engineer employed by the United States Government. He is
currently the chair of the Institute of Electrical and Electronics Engineers ("IEEE") Antennas and
Propagation Society Fellow Committee, and from 1999 to 2014, was a member of the IEEE
Antennas Definitions Working Group that defines government and industry terms for antenna
specifications. Haupt Deel. ']['][ 4-11.
14
TRANSMIT/
RECEIVE
UNIT
POWER DIVIDER I COMBINER AND
SWITCHING NETWORK .
FIG. 2A
The '134 Specification states that Figure 2(a) "is a schematic perspective view of one embodiment
of the invention showing an array antenna system mounted on a ... geodesic structure larger than
a hemisphere and with electrical feed structure and signal processing means coupled to the antenna
system." '134 Patent 4:53-57.
In addition, the '134 Specification provides Table 1 called a "Quantitative description of
the geodesic sphere" that only discloses a description of a "full geodesic sphere" and a "3/4
geodesic sphere," stating:
TABLE 1
Quantitative description of the geodesic sphere
(for 3/4th
(for the full geodesic sQhere'} geodesic sphere)
frequency nun1ber nu1nber nu1nber iuunber
v of vertices of edges of fuces of faces
1 12 30 20 15
(icosahedron)
2 42 120 80 60
3 92 270 180 135
4 162 480 320 240
5 252 750 500 375
6 362 1080 720 540
7 492 1470 980 735
8 642 1920 1280 960
9 8:12 2430 1620 1215
10 1002 3000 2000 1500
15
'134 Patent 8: 1-20.
Conclusion
Based on the ample intrinsic evidence, the Court construes the term "sphere" as present in
all claims of the ' 134 Patent to be "greater than a hemisphere so as to provide the phased array
antenna hemispherical or wider coverage."
The Court will conduct a telephonic status conference to discuss further proceedings on
February 8, 2017, at 2:00 p.m. E.S.T. The Court will initiate the call.
~G,,'15``~
LEN COSTER WILLIAMS
Judge
16