Full opinion text
MEMORANDUM ORDER BENSON, United States Magistrate Judge. A Report and Recommendation has been filed in this matter addressed to the construction of claim language in the patents-in-suit. A Markman hearing was held in which a single evidentiary ruling remains to be made. Hence, this order. Plaintiff sought to introduce at the hearing as Plaintiffs Exhibit J what it termed “counter-designations” from the deposition testimony of the inventor, Arthur Hair (Docket # 93 at 118). The portions of the transcript were offered in response to an argument made by defendants that the inventor, at the time of the patent application, had no knowledge of packet-switch networks such as the Internet (Id.). Defendants objected, noting that they had introduced portions of the Hair Deposition for the purpose of construing the term “electronic sales,” but that they had not- introduced deposition excerpts for any other purpose (Id., at 119; Defendants’ Exhibit 12). Indeed, the designations offered by defendants are limited to the “electronic sales” issue, and Plaintiffs Exhibit J is not properly a cross-designation thereto. Nonetheless, plaintiffs proposed deposition designations are extrinsic evidence which is responsive to arguments made by defendants. They are, in that respect, relevant to the inquiry before the court. In light of the fact that the undersigned sits in an advisory position, and that the record should tend more towards over-inclusiveness than not, the exhibit will be admitted. The undersigned notes, however, that Plaintiffs Exhibit J was not relied upon in reaching the recommendation regarding claim construction. IT IS HEREBY ORDERED that defendants’ objection to the admission of Plaintiffs Exhibit J is OVERRULED, and that exhibit is ADMITTED into evidence. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION I. RECOMMENDATION It is respectfully recommended that the claims in suit be interpreted as set forth in more detail in the following report. II. REPORT This is a patent infringement action filed by the holder of three patents which, as described by plaintiff, “are directed to commercially-aceeptable systems and methods for selling music and video in digital form over telecommunications lines.” (Docket # 69 at 1). Plaintiff, Sightsound.com, Inc. (“Sightsound”) accuses defendants N2K, Inc. (“N2K”), CDnow, Inc., and CDnow Online, Inc. (collectively referred to as “CDnow” or “defendants”) of infringing multiple claims of U.S.Patent Nos. 5,191,573 (“the ’573 Patent”), 5,675,-734 (“the ’734 Patent”), and 5,966,440 (“the ’440 Patent”) through the practice of downloading digital music over the internet. In view of the numerous claims which have allegedly been infringed, the court encouraged the parties to narrow issues by agreeing, where possible, to interpretations of various claims in the patents. After the parties engaged in this process, however, many disputes remained concerning claim interpretation. Hence, the court scheduled a Markman hearing, and the parties filed claim construction briefs (Docket # s 65, 69 and 75), a joint compilation of exhibits (Docket # s 70-72), and expert reports and declarations filed independently (Docket # s). A hearing was held before the undersigned on April 18, 19, 20 and May 16, 2001, at which expert testimony, demonstrative evidence, exhibits and argument were offered by the parties (Docket # s 93-96). The undersigned has considered all of the briefs, exhibits, testimony and argument submitted. The following conclusions of law are recommended. 1. THE LAW OF CLAIM CONSTRUCTION Construction of patent claims is a matter exclusively within the province of the court, and is a determination made as a matter of law. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996); Interactive Gift Express, Inc. v. Compuserve, Inc., 231 F.3d 859, 865 (Fed.Cir.2000); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995). In making this determination, “the viewing glass through which the claims are construed is that of a person skilled in the art.” Interactive Gift, 231 F.3d at 866. A. INTRINSIC EVIDENCE Intrinsic evidence is the most important source of information in construing the language used in a patent. Vitronics Corporation v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). “Intrinsic” evidence consists of the claim language, the specification and the prosecution history. Id.; Markman, 52 F.3d at 979. “In construing claims, the analytical focus must begin and remain centered on the language of the claims themselves, for it is that language that the patentee chose to use to ‘particularly point[ ] out and distinctly claim[ ] the subject matter which the patentee regards as his invention.’ 35 U.S.C. § 112, ¶ 2.” Interactive Gift, 231 F.3d at 865. The purpose of a patent is to secure to the patentee “all to which he is entitled” while “apprising] the public of what is still open to them.” Markman, 517 U.S. at 373, 116 S.Ct. 1384. In construing the scope and meaning of a claim, terms used in the claim are to be given their ordinary meaning to one skilled in the art unless it appears from the patent and file history that the terms were used differently by the inventor. Id.; Intellicall, supra; Phillips Electronics v. Universal Electronics, Inc., 930 F.Supp. 986, 997 (D.Del.1996). Thus, the court must first look to the language of the patent claim. “If the claim language is clear on its face, then [the court’s] consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from the clear language of the claim is specified.” Interactive Gift, 231 F.3d at 865. A patentee, after all, may “choose to be his own lexicographer and use terms in a manner other than their ordinary meaning.” Vitronics, 90 F.3d at 1582. The court may also find that a deviation from the plain meaning of the terms used in a patent claim is warranted because the patentee, in amending a claim before the PTO or in arguing to distinguish a reference to prior art, has relinquished part of what would normally be included within a claim’s plain meaning. Interactive Gift, 231 F.3d at 865, quoting Elkay Manufacturing Co. v. Ebco Manufacturing Co., 192 F.3d 973, 976 (Fed.Cir.1999). Hence, “[i]f a patentee takes a position before the PTO, such that a ‘competitor would reasonably believe that the applicant had surrendered the relevant subject matter,’ the patentee may be barred from asserting an inconsistent position on claim construction.” Katz v. AT & T Gorp., 63 F.Supp.2d 583, 591 (E.D.Pa.1999). This does not mean, however, that every amendment, or every attempt by an applicant during the application process to distinguish prior art, automatically results in a corresponding limitation during claim construction. “Unless altering claim language to escape an examiner rejection, a patent applicant only limits claims during prosecution by clearly disavowing claim coverage.” York Products, Inc. v. Central Tractor Farm & Family Center, 99 F.3d 1568, 1575 (Fed.Cir.1996). Further, although the specification may be “the single best guide to the meaning of a disputed term.” Vitronics, 90 F.3d at 1582, the court must be careful to use the specification to ascertain the meaning of disputed claim term, and not merely to impose a limit on a claim term. Interactive Gift, 231 F.3d at 865-66; citing Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998) (“fine line” exists between “reading a claim in light of the specification” and impermissible practice of “reading a limitation into the claim from the specification.”). B. EXTRINSIC EVIDENCE “In most situations, an analysis of the intrinsic evidence alone will resolve any ambiguity in a disputed claim term. In such circumstances, it is improper to rely on extrinsic evidence.” Id., 90 F.3d at 1583. In cases where the scope of the invention is described unambiguously by the intrinsic evidence, it is improper to consider extrinsic evidence. Id. The public is entitled to rely upon the “public record” of the invention, i.e., the claims, the specification and the file history. Id., citing Markman, 52 F.3d at 978-79. “Allowing the public record to be altered or changed by extrinsic evidence introduced at trial, such as expert testimony, would make this right meaningless.” Vitronics, 90 F.3d at 1583. This same limitation applies whether it is the alleged infringer or the paten-tee who seeks to alter the scope of the claims. Id. “Only if there were still some genuine ambiguity in the claims, after review of all available intrinsic evidence, should the trial court have resorted to extrinsic evidence, such as expert testimony.... ” Vitronics, 90 F.3d at 1584. Further, even if expert testimony is accepted and properly considered, it should be afforded no weight if it is inconsistent with the specification and file history. Id. Likewise, the inventor’s subjective intent, if not expressed in the patent documents, is not entitled to any weight. Id. In fact, a preferred type of extrinsic evidence, useful to demonstrate how a particular term is used by those skilled in the art, is a prior art reference, whether or not that reference is cited in the specification or file history. Vitronics, 90 F.3d at 1584. Again, however, consideration of such extrinsic evidence is “unnecessary, indeed improper, when the disputed terms can be understood from a careful reading of the public record.” Id. This does not mean that extrinsic evidence ought never to be considered. On the contrary, extrinsic evidence may be appropriate for a purpose other than clarifying ambiguous language in the patent: A judge is not usually a person conversant in the particular technical art involved and is not the hypothetical person skilled in the art to whom a patent is addressed. Extrinsic evidence, therefore, may be necessary to inform the court about the language in which the patent is written. But this evidence is not for the purpose of clarifying ambiguity in claim terminology. It is not ambiguity in the document that creates the need for extrinsic evidence but rather unfamiliarity of the court with the terminology of the art to which the patent is addressed. Markman, 52 F.3d at 986. The court may, then, and in this instance, did, resort to extrinsic evidence for the purpose of determining “what one of ordinary skill in the art at the time of the invention would have understood [a particular] term to mean.” Id.; see also, Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1309 (Fed.Cir.1999). Technical treatises and dictionaries, although extrinsic evidence, may be consulted “at any time in order to better understand the underlying technology....” Vitronics, 90 F.3d at 1584. Dictionary definitions may be used by the court “when construing claim terms, so long as the dictionary definition does not contradict any definition found in or ascertained by a reading of the patent documents.” Id. C. MEANS-PLUS-FUNCTION CLAIMS Also relevant to the construction of the claims at issue in this case is the “means-plus-function” format of stating patent claims: An element in a claim for a combination may be expressed as a means of step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. 35 U.S.C. § 112, ¶ 6 (1994). “This provision of the patent statute permits a paten-tee to write a limitation in a combination claim as a means for performing a function without reciting structure, materials or acts in the limitation.” Katz, 63 F.Supp.2d at 592. When interpreting a claim written in the “means-plus-function” format, the court must construe the functional language of the claim “to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” 35 U.S.C. § 112; Valmont Industries, Inc. v. Reinke Manufacturing Co., Inc., 983 F.2d 1039, 1042 (Fed.Cir.1993). The patentee, however, must describe in the specification some structure which performs the specified function. Id., at 1042. In determining whether to apply the statutory procedures of section 112, ¶ 6, the use of the word “means” triggers a presumption that the inventor used this term advisedly to invoke the statutory mandates for means-plus-function clauses. 35 U.S.C. § 112, ¶ 6 (1994); see Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1584, 39 U.S.P.Q.2d 1783, 1787 (Fed.Cir.1996). Nonetheless, mere incantation of the word “means” in a clause reciting predominantly structure cannot evoke section 112, ¶ 6. [citations omitted]. Conversely, “[t]he recitation of some structure in a means plus function element does not preclude the applicability of section 112(6).” Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1536, 19 U.S.P.Q.2d 1367, 1369 (Fed.Cir.1991). York Products, Inc. v. Central Tractor, 99 F.3d 1568, 1574 (Fed.Cir.1996). Thus, “[t]o invoke this statute, the alleged means-plus-function claim element must not recite a definite structure which performs the described function.” Cole v. Kimberly-Clark Corp., 102 F.3d 524, 531 (Fed.Cir.1996). The court must “decide on an element-by-element basis, based upon the patent and its prosecution history, whether § 112, ¶ 6 applies.” Id. Once having decided that the means-plus-function analysis applies, the court should: (1) determine what function the means performs, and (2) find in the claim language a link between the means and the function. Katz, 63 F.Supp.2d at 593. The specification is next considered, and the court “must determine what structure, material or acts ... correspond to the word ‘means.’ ” Id., citing Chiuminatta Concrete Concepts, Inc. v. Cardinal Industries, Inc., 145 F.3d 1303, 1308 (Fed.Cir.1998). There is no specific level of detail necessary in the description of structure, so long as one skilled in the art would identify the structure from the description. Atmel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1381 (Fed.Cir.1999). 2. SUMMARY OF THE EVIDENCE A. BACKGROUND AND CLAIM LANGUAGE The patents-in-suit stem from a patent application initially filed with the United States Patent and Trademark Office (USP-TO) in June, 1988. In fact, the ’734 and ’440 patents are “continuations” of the ’573 patent, disclosing additional inventions arising from the original invention. Unsurprisingly, therefore, the patent specifications for the ’734 and ’440 patents mirror the patent specification for the ’573 patent. The patents each address a “system and associated method for the electronic sales and distribution of digital audio or digital video signals, and more particularly, to a system and method which a user may purchase and receive digital audio or digital video signals from any location which the user has access to telecommunications lines.” (Docket # 70, Exhibit 51 at 1). In its first claim, the ’573 patent discloses a four-step method of transmitting a digital audio or video signal including steps addressed to: (1) transferring money electronically; (2) connecting two “memories” by telecommunications lines so that a signal can be transmitted from the first to the second; (3) transmitting the signal; and (4) storing the digital signal in the second memory. Claim 2 is a dependent claim, building on the first claim by adding the step of searching for and selecting a desired digital signal from the first memory. Step 3 is, in turn, dependent on claims 1 and 2, and discloses additional steps in transferring money, specifically the steps of telephoning the first party and providing the second party’s credit card number “so the second party is charged money.” The ’734 patent, which has claims 1-8, 10-14, and 26-27 in suit, discloses in claim 1 the same basic invention as was disclosed in the ’573 patent, but with the addition of steps involving the use of a “hard disk” and “sales random access memory” by the selling party, and “electronic coding” of the signal to prevent unauthorized copying thereof. Claim 2 adds the use of a “second party integrated circuit” and a “control panel” to execute commands during the process described in Claim 1. Claim 3 describes an “incoming random access memory chip” in the buyer’s possession which temporarily stores the incoming digital signal until it is transferred to the buyer’s hard disk. Claims 4-8 describe the use of a “control integrated circuit” in this process, and claims 10-14 describe the use of “telephone lines” as a type of “telecommunications lines” in the invention disclosed in Claim 4. Claims 26 and 27 summarize much of the preceding claims, and disclose a “means or mechanism for the first party to charge a fee to the second party remote from the second party location.” The ’440 patent has sixty-three (63) claims, of which 1-15, 22, and 36-41 are at issue. Again, the claims set forth a method for transferring digital audio or digital video signals, but also disclose methods for playing such digital signals on an integrated system used by the second party. The actual language of a claim is the key consideration in any construction of a patent; that language is not reproduced as an attachment to this Report, but is set out at length in the text as appropriate. So too, certain intrinsic evidence, the patent specifications and prosecution histories, are set forth in relevant part during the analysis portion of this report. B. OTHER EVIDENCE Other evidence presented, in the nature of declarations, dictionary definitions, expert testimony, etc., will, likewise be set forth in relevant part as necessary to discuss particular issues. However, the court will summarize the testimony presented at the hearing from the expert witnesses (which is premised upon declarations earlier submitted by the parties). This testimony has been relied upon by the undersigned to understand the technology underlying the patents-in-suit, and to determine the level of education and experience which would define “one skilled in the art” in this case. The court will also indicate during the analysis portion which, if any, of the extrinsic evidence has been considered as relevant to the construction of particular claims. i. Dr. Tygar Justin Douglas Tygar, Ph.D., testified as an expert on behalf of plaintiff (Docket # 95 at 4-41). Dr. Tygar is a professor at the University of California at Berkeley in the department of electrical engineering and computer science (Id., at 4). He works in the area of software engineering, computer security and electronic commerce (Id., at 5). He has also “had occasion” to work with digital audio (Id.). Dr. Tygar is a senior member of the Institute of Electrical and Electronic Engineers (IEEE) (Id.). Dr. Tygar explained the process of recording sound both by analog and digital means. He explained that a “digital converter” takes an analog representation of a sound wave, samples it at many, many points, measures the signal at each sampling point, representing the measurements with binary numbers (Id., at 8-9). The reverse process is used to change the digital sound representations back into an analog sound wave through a process of “interpolating” a sound wave between the digital signals. This, in turn, can be played through a speaker to create audible sound waves (Id., at 9). Digital audio may be stored on a compact disk, and then “read” by a laser. The benefits of this technology are obvious to all, most notably the fact that, unlike vinyl records, CD’s, unless damaged, will retain the digital information unchanged indefinitely. “Compressed” digital audio, whereby the binary representation of a sound wave is made smaller by, for example, eliminating repeated signals, is, in Dr. Tygar’s opinion, still digital audio (Id., at 3). Dr. Tygar also testified that there is a difference between digital sound on one hand, and digital instructions for sound on the other. He compared the MIDI format (for “Music Instrument Digital Interface”), or instructions for sound, with sheet music. The MIDI instructions, which are binary, tell the computer what sounds to make on an internal synthesizer (Id., at 13-14; Docket # 74, Exhibit B at 5-8). He contrasted this with a sound wave represented digitally, which, although also stored in binary, permits a computer program to reproduce a sound wave which has been recorded. One of the differences between MIDI and digital sound is that vocals cannot be faithfully represented in MIDI format, while digital sound has no such limitations (Docket # 95 at 15). MIDI, although versatile, is, in Dr. Tygar’s opinion, simply a series of on/off commands (Id., at 6). Dr. Tygar also testified concerning the advantages inherent in sending digital music from one computer to another (Id., at 17). There is no need for packaging, no stock problems, low overhead, and presents an easier way to find and keep in storage various types of music (Id., at 17-18). Part of Dr. Tygar’s expert report is also addressed to the nature of telecommunications systems (Docket # 74, Exhibit B at 8-14). He testified that about 80% of households have a “direct link” to a telecommunication provider’s “central office” (Docket # 95 at 18). Although the connection between a private home and a central office is now, and was in 1988, likely to be copper wire carrying electric impulses, the telephone network is mostly digital from the central office until the individual communication reaches the other party’s copper lines (Id., at 19). Hence, in 1988, as today, a telephone call could proceed entirely through copper wire as electric impulses, it could be changed into light impulses and travel through fiber optic cable, and it could also travel as radio waves, or a combination of all three types (Id., at 20). Today, most telecommunications links are established through the fiber optic “backbone network” used by all telecommunications companies (Id., at 19). There is in the telephone industry a concept known as “multiplexing” which occurs in telephone links. Time Division Multiplexing, or “TDM,” occurs when calls are digitized and broken up into segments. These segments are sent in order, with segments from other telephone calls placed in between, then reassembled at the other end (Id., at 21). In Dr. Tygar’s view, this does not create a “continuous physical conduction path” between the person sending and the person receiving a telephone call (Id.). The Internet uses the same infrastructure as is used by the telephone system, including telephone lines and the fiber optic “backbone” (Id., at 22). There is “end to end connectivity” in an Internet transaction in that the computers at opposite ends of a transmission must establish communication with one another, i.e., a “session.” (Id.). On cross-examination, Dr. Tygar conceded that a book he uses in instructing his students provides a definition of “connection” which does not include the Internet, but does include the telephone network (Id., at 37). He believes this to be an error in the text (Id., at 40), and noted when he was recalled as a witness that the same text, at a different point, clearly states that a type of connection is made over the Internet (Id., at 161), and that the ultimate delivery to the receiving user in an Internet communication is in the same order as it was sent (Id., at 162). Cell phones use radio waves, and call segments may be “handed off’ between cells in a network while the cell phone user is traveling (Id., at 23). This is comparable to the manner in which the Internet uses different means of routing a message, i.e., the path used for different “packets” of information may change. Dr. Tygar also offered opinions concerning the meaning of various terms in the patent. Briefly, they are that one skilled in the art would not have interpreted the Hair patents (the patents-in-suit, identified by the inventor’s name) as covering instructions to produce sound, or MIDI (Id., at 25). Further, the process of compressing or storing digital audio is not in the nature of “computer instructions” (Id., at 27). Also, the term “telecommunications” as used in the patents-in-suit includes both telephone communications and TCP/IP networks such as the Internet (Id., at 28). Each provides end-to-end connectivity, and uses the same infrastructure (Id., at 29). Further, TDM has many similarities to the packet-switch nature of the Internet (Id.). The term “telephoning” includes both human and machine-initiated calls (Id.). “Providing payment electronically” can constitute any means of payment which is accomplished over telecommunications lines, such as the buyer providing his or her credit card number, or the more advanced means of electronic commerce systems now being used on the Internet (Id., at 30). ii. Professor Larky Arthur I. Larky, Ph.D., is professor emeritus at Lehigh University where he taught as a tenured professor in electrical engineering and computer science from 1960 until his retirement. (Docket # 95 at 44-45; Docket # 68). He holds a Ph.D. in electrical engineering (Docket # 95 at 47), and has extensive experience teaching the use of computers in the telephone system for Bell Telephone Laboratories from 1962 through 1992 (Id., 47-48). He has also helped design telephone switching systems and performed experimental work for telephone companies (Id., at 49). He was called by the defendants. Professor Larky reviewed the Hair patents and concluded that one “skilled in the art” for purposes of those patents would be “someone who had a background in computer engineering or a combination of computer engineering and computer programming background and about two years experience in actually doing some things in the field.” (Id., at 50-51). Doctor Larky testified that an integrated circuit (IC) is a microprocessor or the “brains” of a computer (Id., at 53). Random Access Memory (RAM) is the “basic storage unit for programs and data on a computer.” (Id., at 54). Although the patent lists “incoming” and “playback” RAM separately, such functions are normally performed by the same “set of chips” in a computer (Id.). The “hard disk” of a computer is a metal disk which retains information recorded on it until that information is erased (Id., at 55). Dr. Larky testified that it was common in 1988 to connect two computers directly by means of telephone lines (Id., at 56). One would use the keyboard or the mouse to instruct the computer to make a telephone connection through a modem (Id., at 57-58). Further, there were also, in 1988, services available which would provide computer files for download over telephone lines (Id., at 58). Files which produced audible sounds could also be downloaded in this time frame (Id., at 59). Professor Larky described the connection made between computers via telephone lines in 1988 as establishing a “direct line connection” in that a wire would connect the computer to the telephone company, and the company would “close the necessary switches” so that the signals reach the other end (Id.). There is, in his view, allowing for the use of fiber optics, “a closed electrical path” from one computer to the other (Id., at 60). The telephone system was using both analog and digital formats in 1988 (Id., at 63). Important to his discussion of the nature of the connections made is the concept of “conduction path,” which has two meanings. The first is an electrical conduction path whereby electrons flow through a wire, and the second denotes a path through which a conversation is conducted, but which is not necessarily purely electrical in nature (Id., at 65). Dr. Larky also addressed time division multiplexing, or, TDM, which, he explained, works because the segments are always in a predetermined order. Hence, the receiving multiplexing equipment parcels the information out in the order in which it is received (Id., at 67-68). Further, each piece of information or segment follows the same path as the first. These segments are not individually “addressed” in any way because they are “in step” and are thus sorted out on the receiving end (Id., at 68, 71). There is also no means for verifying the correct delivery of information (Id., at 72). In Dr. Larky’s view, as of 1988, a “solid conduction path” would exist between computers which accessed each other over the telephone system (Id., at 73). As of 1988, two computers could connect via modem over telephone lines and exchange data (Docket # 68 at 7). This is accomplished in “a single, unbroken transmission.” Data exchange via a package-switch network occurred in 1988, as it does today, by the “executing computer dividing up data into packets as described by internet protocols, transmitting each packet individually to the second computer by way of network routers.” The second computer, after receiving all of the packets, reassembles the data into its original form. During the packet-switch transmission, no “continuous point-to-point conduction path” is established between the computers, and the information is not sent in one unbroken transmission (Id.). At the hearing, Dr. Larky explained that the information being exchanged in an Internet transmission is broken down into packets by the sending computer, and that the packets are individually “addressed” so that the particular packet’s proper place in order can be identified at the other end of the transmission (Docket # 95 at 74). The packets are sent over the telephone system to Internet “nodes,” where a computer “looks” at a packet and sends it on to another such node, an so on toward its final destination (Id., at 74). Not all packets from the same transmission necessarily follow the same path (Id., at 75). Also, a particular packet may be detained, with some packets sent later arriving at their destination before packets sent earlier (Id., at 77). A person skilled in the art would have been aware of the existence of the Internet as of 1988 (Id., at 78). In summary, Dr. Larky indicated that the Internet is connectionless and best-effort and, therefore, inherently less reliable than a telephone connection (Id., at 79). The Internet is “connection-oriented,” which means it attempts to do what a connection would do (Id., at 89). He contrasted the used of TDM by the telephone system on the basis that TDM packets are of uniform length, whereas Internet packages are of varying lengths (Id., at 85). A packet used in a switch network has a “checksum” and an “address,” consisting of digital information which tells a receiving computer how large the total communication should be, and the ultimate destination, respectively. “Segment” is a term used to identify a TDM bit of information, as opposed to “packet” (Id., at 88). The Internet operates according to the Transmission Control Protocol and the Internet Protocol (“TCP/IP”), which are part of the Internet Suite of Protocols (Docket # 68 at 4). TCP governs how data is broken down into packets, IP governs the routing of the packets, and TCP governs how the packets are recombined (Id.). On cross-examination, Dr. Larky conceded that connections exist between each router, or on each “leg,” of a packet-switch network (Docket # 95 at 98-100). In fact, Newton’s Telecom Dictionary (Plaintiffs Exhibit A at page 680) states that “TCP first establishes a connection between the two systems that intend to exchange data” (Docket # 95 at 102-03). Dr. Larky was also shown a glossary of telecommunications terms from the Federal Standard, marked as Plaintiffs Exhibit B (Id., at 104). There is no date on this exhibit, although there is reference therein to standards adopted in 1994. In that glossary, “telecommunications” is defined as meaning any transmission by wire, radio, optical or other electromagnetic systems (Id.). Dr. Larky, too, offered an opinion concerning the Hair patents. In his view, one skilled in the art in 1988 would have understood “that the Internet is connectionless” and that “connecting electronically via a telecommunications line” would not apply to Internet communications (Id., at 90). Further, there is no reference to computer networks in the patents or the accompanying papers, and no reference to the Internet or packet-switch networks (Id., at 92). Dr. Larky also filed a rebuttal declaration (Docket # 88) in which he explains that a user of the Internet today normally . has a continuous connection with the Internet Service Provider (“ISP”) over a telephone line, and that the ISP then “affords access” to the Internet (Id., at 8). There is, however, no “similar connection” formed with the server of the ISP and other routers and servers located on the Internet (Id., at 9). iii. James A. Moorer, Ph.D. Also testifying for defendants was James Anderson Moorer, an expert in the field of digital audio signals and digital audio music (Docket # 95 at 110-11; Docket # 86). He has Bachelor’s Degrees in electrical engineering and applied mathematics, and a Ph.D. in computer science (Docket # 95 at 113). He has extensive experience with digital audio, including work with Lucasfilm and later for his own firm, Sonic Solutions (Id., at 114). Dr. Moorer has created software which address sound concerns in the film industry (Id., at 114-115), and has published in the area of digital audio, and has taught courses at Stanford University in that field (Id., at 115-16). He built a number of products used in the digital audio field, and composed digital audio music, including the theme played before the feature film in every theater equipped with a THX sound system (Id., at 116-17). He has received numerous awards, including an Emmy and a technical Oscar (Id., at 117). Dr. Moorer believes one “skilled in the art” for purposes of these patents would possess a degree in engineering or computers, but that some experience or skill in digital audio or digital music would be necessary as well (Id., at 112). In 1988, the Pulse Code Modulation (“PCM”) format, the format described by Dr. Tygar as a digital representation of a sound wave, would not have been practical in 1988 on account of the size of such files, while MIDI and other formats would have been (Id.). This is because commercially available hard drives at that time were between 10 to 40 megabytes in size for a consumer (Id., at 143), while such hard drives were as large as 85 megabytes for professional applications (Id., at 144). The 85 megabyte size would have allowed for the storage of about 8 minutes of music in PCM format (Id.). To do “thousands” of songs, as referenced in the patents, would have required about 30 gigabytes of storage space, a size not commercially viable for consumers at that time (Id., at 145). However, thousands of songs could have been stored at that time in MIDI format (Id., at 146). For example, a performance of Beethoven’s piano sonata “Fur Elise” played for the court in PCM format was 74,000 bytes for 6.7 seconds, while three minutes of the same music in MIDI format was 6,600 bytes (Id., at 148-49). In Dr. Moorer’s opinion, MIDI is digital music (Id., at 149), although “[i]n some ways, MIDI operates like the old player pianos, in that it is capable of recording the exact performance without having to record the sounds.” (Docket # 86 at 10). In fact, he would have chosen MIDI as the commercially viable format in 1988 for the invention disclosed in the patent (Docket # 95 at 150). Further, the CD format in 1988 included both “digitized audio” as well as “music encoded as MIDI data and graphical information as well.” (Docket # 86 at 3). “Therefore, as of 1988, the complete specification for CD-based audio was not merely sound waves in digital form, but also included instructions of various kinds, optionally including MIDI data.” (Id., at 6). All forms of digital music, MIDI or otherwise, go through a digital to analog converter and then to a speaker (Id., at 121). The audio format for a compact disk was first published in the early 1980’s (Id., at 123). One form of representations on a CD is pulse code modulation or PCM (Id.). PCM audio on a compact disk is more than a sound wave converted to binary form (Id., at 124). There are correction codes and instructions which direct the decoding process (Id., at 124-25), as well as instructions which start and stop the individual tracks (Id., at 125). Some CDs in 1988 had MIDI information on them (Id., at 127). There were forms of digital audio in 1988 other than PCM or MIDI (Id., at 128; Docket # 86 at 5). All of these forms contain some kind of instructions or directions, such as commands to the decoding software and hardware concerning interpretation of the data (Docket # 95 at 129). MP3 is another means of digital audio, and it also contains instructions (Id., at 130). MIDI revolutionized music in the mid-80’s, by allowing artists to play complex pieces without doing so all at one time (Id., at 132). MIDI does have limitations, such as the inability to represent voices well (Id., at 136). MIDI, however, does not lack nuance (Id.). All methods of producing sound digitally ultimately involve “numbers that describe how to make a sound pressure wave. In other words, they include instructions to a computer decoding device as to how to create a voltage that can then be sent to a loudspeaker or headphone.” (Docket # 86 at 12). In Dr. Moorer’s opinion, the inventor did not exclude MIDI from the definition of “digital audio music” (Id., at 113). Rather, Mr. Hair was referring to any means of using zeros and ones to encode musical sound (Id., at 138). The witness based his opinion on the fact that the patents do not use words “sound wave” or “sound pressure wave” at any point, and there is no limitation in the patent on the way the music is stored digitally (Id., at 139). Also, the use of the term “laser retrieval” in the specification means any information which can be placed on CD (Id.). MIDI is not excluded by this language (Id., at 141). “Software” as used in the patent means a way of representing digital music as opposed to being a physical device (Id., at 142). Thus, any method of creating music from zeros and ones appears acceptable under the patent (Docket # 86 at 12). 3. CONSTRUCTION OF THE CLAIMS PRESENTED AT THE MARKMAN HEARING The parties dispute the meaning of numerous terms, many of which are used throughout the three patents-in-suit. The court will initially focus upon the four terms which the parties recognize as being at the center of the dispute in this matter. A. “Digital Audio Signal” This term appears in each of the patents, beginning with the ’573 patent in Claim 1, which begins “A method for transmitting a desired digital audio signal stored on a first memory ...” (Docket # 69, Exhibit J at 6) (italics added). Plaintiff maintains that this term should be construed to mean “a sound wave converted to binary form.” (Docket # 69 at 11). Defendants assert that the term’s proper construction should be' thus: A representation of audio in binary form intended to produce an audible sound. It can be recorded sound, a sound effect, or instructions for producing a sound, and need not be a complete song. (Docket # 65 at 15). The essence of the dispute in this instance is whether or not the terra “digital audio signal” includes MIDI instructions or computer software programs as opposed to simply digital representations of audible sounds. MIDI is a means of creating musical sounds by instructing a computer to play a synthesizer to produce a specified tone. By contrast, Pulse Code Modulation, or PCM, is a means of converting a sound wave into binary form so that the same sound wave (or one so close to the original so as to be indistinguishable by the human ear) may be produced when the binary language is interpreted by a computer and sent through a digital/analog converter to a speaker. Sightsound asserts that the phrase “di: gital audio music” does not include MIDI representations. Resort to contemporaneous dictionary definitions for those skilled in the art supports this conclusion. The IEEE Standard Dictionary of Electrical and Electronics Terms in 1988 defined “audio” in the context of data transmission as “pertaining to frequencies corresponding to a normally audible sound wave'— roughly 15Hz-20Hz.” (Docket # 69, Exhibit A). “Digital” is defined as “pertaining to data in the form of digits.” {Id., Exhibit B). “Signal,” again as employed in the context of data transmission, is “(a) a visual, audible or other indication used to convey information; (b) the intelligence, message or effect to be conveyed over a communication system; (c) a signal wave; the physical embodiment of a message.” {Id., Exhibit C). Defendants argue that the phrase “sound wave,” which is part of Sight-sound’s proposed definition of “digital audio signal,” is nowhere to be found in the specification. While this is true, “sound wave” is part of the IEEE definition of “audio,” and is a source to which one skilled in the art would refer in construing the claim terms. Indeed, Sightsound persuasively argues that, relying upon contemporaneous trade definitions, the term “digital audio signal” refers to “a normally audible sound wave” which has been represented as “data in the form of digits” for purposes of sending or conveying it. Resort to the specification for purposes of determining if a different meaning was intended by the patentee does nothing to change the meaning of the phrase. The specification of all three patents provides several clues concerning the meaning of “digital audio signal.” A review of the specification in some detail at this point will serve to provide needed background for this term, as well as for the other terms which remained to be construed. First, in rather graceless language in common to the species, the specification contains a description of the field of the invention: The present invention is related to a method for the electronic sales and distribution of digital audio or video signals, and more particularly, to a method which a user may purchase and receive digital audio or video signal from any location which the user has access to a telecommunication line. (Docket # 70, Tab 51, ’573 Patent at col. 1, lines 9-14). What follows is a description of the then-existing “medium” or “hardware units” of music, which include records, tapes and compact discs {Id., lines 17-68). Throughout this discussion, the disadvantages inherent in the use of “hardware units” for storing, selling and playing back music are discussed. Then, the advent of digitizing sound is discussed: QUALITY: Until the recent invention of Digital Audio Music, as used on Compact Discs, distortion free transfer from the hardware units to the stereo system was virtually impossible. Digital Audio Music is simply music converted into a very basic computer language known as binary. A series of commands known as zeros and ones encode the music for future playback. Use of laser retrieval of the binary commands results in distortion free transfer of the music from the compact disc to the stereo system. ... (Id., lines 50-59). With respect to copyright protection of musical pieces, the specification indicates that, “[i]f music exists on hardware units, it can be copied.” (Id., col. 2 lines 8-9). Thus, the objectives of the invention are listed as providing a new “methodology/system” to: (1) “electronically sell and distribute Digital Electronic Music”; (2) “electronically storing and retrieving Digital Audio Music”; (3) electronically sorting, cuing and selecting Digital Audio Music; and (4) preventing “unauthorized electronic copying” of Digital Audio Music. (Id., lines 10-23). The specification goes on to explain that Digital Audio Music, in the disclosed invention, is stored on only one piece of “hardware,” that being a hard disk (Id., lines 31-34). This eliminates the former types of “hardware” identified in the specification, namely “records, tapes, or compact discs.” (Id., line 34). The reader is further informed that, “[ijnasmuch as Digital Audio Music is software an[d] this invention electronically transfers and stores such music, electronic sales and distribution of the music can take place via telephone lines onto a hard disk.” (Id., lines 63-67). A more concise description of the invention is then provided: The present invention is a method for transmitting a desired digital video or audio signal stored on a first memory of a first party to a second memory of a second party. The method comprises the steps of transferring money via a telecommunications line to the first party from the second party. Additionally, the method comprises the step of then connecting electronically via a telecommunications line the first memory with the second memory such that the desired digital signal can pass there between. Next, there is the step of transmitting desired digital signal from the first memory with a transmitter in control and in possession of the first party to a receiver having the second memory at a location determined by the second party. The receiver is in possession and in control of the second party. There is also the step of then storing the digital signal in the second memory. (Id., col. 3, lines 3-19). This description is repeated after the preferred embodiment is set forth (Id., col. 5 lines 29-45). Again, it is helpful to focus the court’s inquiry on the crux of the dispute between the parties. Defendants assert that any means of directing a computer to make sound through use of binary code is acceptable as a “digital audio signal” for purposes of the invention. This is so, defendants argue, because the specification identifies “digital audio music” as “music converted into a very basic computer language known as binary” and because the specification refers to Digital Audio Music as “software.” (Docket # 65 at 16). MIDI is a form of computer “software” in that it consists of instructions, stored in binary form, which will produce sound when interpreted by the computer. “Instructions” to produce sound are, in defendants’ view, part of the claimed invention. Sightsound responds that software programs, such as MIDI, are not properly within the scope of the term “digital audio signal.” The manner in which the terms “hardware” and “software” are used in the specification are, Sightsound argues, the most important indicia of the meaning of those terms. The specification consistently refers to any physical storage medium for sound, whether in binary form or not, as “hardware.” Such storage units including records, tapes, compact discs and even the hard drive of a computer. The specification explains that the key advantage to storing music as digital signals is that the digital signal is “software,” i.e., it can be transferred to a purchaser without also transferring along with the signal some type of “hardware” unit on which the signal is stored. There are repeated references in the specification to “music” and “songs.” Likewise, the patentee refers to storing music on other media, such as records and tapes, which do not normally contain computer instructions. These references from the specification lead the court to conclude that Sightsound’s definition is the preferred one in this case, and that “digital audio signal” does not include all types of computer software or, more specifically, MIDI. Rather, it includes only digital representations of sound waves. The court understands that, in order to play these digital representations of sound waves, a computer must have instructions for converting the binary into analog form. Hence, as Dr. Moorer pointed out, compact discs include, along with a digital representation of sound waves, instructions concerning how those digital representations are to be interpreted. This, however, does not alter the nature of what is being represented: a recorded sound as opposed to an instruction to a computer to play an instrument which, in turn, will produce a sound. The specification does not, therefore, support the construction proffered by defendants that “digital audio signal” includes “software programs.” The specification does not refer to such programs, and clearly uses “software” in a sense different from what is commonly understood when used to refer to “software programs.” Further, the specification focuses upon the common practice of selling musical recordings, and does not mention storing or transferring instructions for playing music. B. “First Party/Second Party” Again, these are terms utilized throughout the patents-in-suit referring to the two entities which interact during the transfer of the digital signal, e.g., a “method for transmitting a desired digital audio signal stored on a first memory of a first party to a second memory of a second party....” (Docket # 69, Exhibit J at 6). Plaintiff asserts that the term “party” should be construed as meaning “an entity and/or its agent.” Defendants respond that the meaning, each time that the terms are used, should be “a single financially distinct entity at locations separate and distinct from each other.” Sightsound does not contest that, in the context of the claims at issue in this case, the “first party” and “second party” are financially distinct from one another, or that various claims require that the transaction occur when certain items or entities are at distinct locations (Docket # 96 at 8). However, Sightsound takes the position that “financially distinct” and “at separate locations” are limitations imposed, where appropriate, in particular claims, and that there is no need to impose them on the definition of the terms “first party/second party” each and every time that those terms are used. In claim 1 of the ’573 patent, the reader is informed that during the transferring money step the “first party” is “at a location remote from the second memory,” and that the “second party” is “financially distinct from the first party.” (Docket # 70, Tab 51). This claim also contains the limitation that the second party is in the position of “controlling use and in possession of the second memory” (Id.). Later in this report, the “control and possession” question is addressed. It is enough to say, however, that the combination of the first party being at a location remote from the second memory, and the second party being in possession and control of the second memory, all but ensures that the first and second party will be at distinct locations. The remaining two claims in suit from the ’573 patent, claims 2 and 3, are dependent claims which also have these limitations. The ’734 patent includes in each of the asserted claims the requirement that the memory of the first party and that of the second party be “remote” from one another (Docket # 71, Tab 35, ’734 Patent Claims 1, 4, 11, 26). Hence, the issue of whether the parties are at separate locations is not specifically addressed, although the use of memories at distinct locations would generally describe situations where the parties are with their respective memories. Further, as Sightsound suggests, the claims also include at least one step which requires that money or a fee be charged (Claims 1, 26), or that the digital audio signal is “sold” to the second party (Claim 4), or that there must be a means for “transferring money” between the first and second memories (Claim 11). None of these transactions makes sense unless they occur between parties which are “financially distinct.” Finally, the ’440 patent also contains language indicating distinct locations for the first and second party memories (Docket # 69, Exhibit K, Claims 2, 12, 22, 36, 41), as well as “charging a fee” or other indicia that the parties are, necessarily, financially distinct (Id., Claims 1, 12, 22, 36, 41). Therefore, in virtually all of the claims asserted in this case, the “first party” and the second memory, or the first memory and second memory, must be remote from one another. The context of those claims further requires that the parties be financially distinct in order for their actions to read on the patent. This distinction, however, is not a matter of construction of the terms “first party/second party,” but of the language of each particular claim in which those terms are used. In other words, the location and financial distinctions arise, if at all, from other language in the claims, and not from the use of the terms “first party” or “second party.” The terms will not be construed to include any location or financial distinctions apart from those imparted in the language of particular claims. There is a further dispute, however, concerning the term “party,” and it has to do with Sightsound’s insistence that the term includes an entity or an entities’ agent. Defendants assert that there is no indication in the patents or the specifications that an “agent” may act on behalf of either the first party or the second party. Defendants also argue that permitting the use of the term “agent” would create a situation where infringement may occur in one state, but not in another, because of differences in the laws of agency from state to state. Sightsound responds that the term “agent,” offered as part of the definition of “party,” simply means “someone who stands in the shoes of the first party,” and that there is no intent to imply any particular legal relationship (Docket # 96 at 9). In the court’s view, the use of the term “party” is -clearly meant to include any legally distinct entity which performs the activities described. For example, a corporation could clearly be either the “first party” or the “second party” for purposes of the claims in suit. A corporation acts only through its employees or “agents”. Likewise, a person may also act on behalf of another. The court agrees with plaintiff that there is no language in the claims which suggests that “first party” and “second party” must act for themselves in performing the tasks set forth in the claims. Likewise, nothing in the specification indicates that the patentee was restricting himself in such fashion. On the other hand, defendants are correct that the term “agent” may add ambiguity to a term which is not ambiguous. There is no need to add such a term to make the meaning of the claims plain. Reading the claims-in-suit, the court has no difficulty construing the term “party.” A party is an entity, whether a corporation or real person, possessing and/or controlling the stated structure, or performing the necessary steps for the claims. One skilled in the art would understand that a party can act through another. Thus, although the term “agent” will not be added to the term party, the term will not be construed so as to require that a party act on its own behalf for purposes of the claims in suit, i.e., a party may, as in all other matters, act through others it authorizes to do so for purposes of the claims in suit. C. “Control” and “Possession” and related phrases. “Control,” in plaintiffs view, is “the authority to guide or manage.” “Possession” is “to have and to hold as property.” Plaintiff maintains that these terms should be accorded these meanings wherever used, including when they are used in combination or separately. Defendants, on the other hand, seek to have each of the following phrases construed as meaning the same thing: “controlling use and possession,” “in control and possession,” “in possession and control,” “controlling,” and “controlling use.” These must each be construed, in defendants’ view, to mean “in physical control and ownership.” Therefore, there are two disputes here which are interwoven. The court must determine what the terms mean and whether they are being used interchangeably. Initially, it must be noted that both Sightsound and CDnow offer definitions for each term. “Control” in defendants’ view is “physical control” while “possession” is “ownership.” These terms may be measured against Sightsound’s proposed definitions, and then the question whether they are being used interchangeably in the patent may be addressed. A useful starting point for construing these terms is Claim 1 of the ’573 patent: 1. A method of transmitting a desired digital audio signal stored on a first memory of a first party to a second memory of a second party comprising the steps of: transferring money electronically via a telecommunications lien [sic] to the first party at a location remote from the second memory and controlling use of the first memory from the second party financially distinct from the first party, said second party controlling use and in possession of the second memory; connecting electronically via a telecommunications line in the first memory with the second memory such that the desired digital audio signal can pass there between; transmitting the desired digital audio signal from the first memory with a transmitter in control and possession of the first party to a receiver having the second memory at a location determined by the second party, said receiver in possession and control of the second party; and storing the digital audio signal in the second memory. (Docket # 69, Tab J, Claim 1) (emphasis added). The dictionary defines “control” as meaning “exercise authority or influence over: direct” (Docket # 69, Exhibit E, The 1995 Webster’s II New College Dictionary). “Possess” is defined as “to hold as property or occupy in person; have as something that belongs to one; own” (Webster’s New World Dictionary, Third College Edition, 1988). “Possession” is defined as “a possessing or being possessed, as by ownership or occupancy; hold” (Id.). That these dictionary definitions offer slight but important variations of the meaning for the term “possess,” only comports, in the court’s view, with the common understanding of this prosaic term. One can “possess” one’s house as a renter, with a possessory interest assertable against the whole world except, under some circumstances, against the owner, who also enjoys a possessory interest. “Possession” thus does not mean “ownership”; it means “holding as property.” The dispute with respect to “control,” however, is whether or not the patents require that physical control be exercised over a particular object, or if the authority to direct the use of the object is sufficient. A review of the claims in suit does not reveal any support for defendants’ assertion that physical control over any particular object is required as opposed to the authority to direct the use of that object. Therefore, physical control is not a requirement where the term “control,” or any derivation thereof, is used in the claims-in-suit. The issue of the interchangeability of the terms is largely disposed of by recognition that the terms do have generally accepted meanings which are distinct. Thus, in Claim 1 of ’573 patent, the first party has “controlling use” of the first memory, while the terms possession and control are used together with respect to the first party vis-a-vis a transmitter, and the second party vis-a-vis both the second memory and a receiver. The claim clearly makes a distinction, with respect to possession, between the first party’s memory and the first party’s transmitter. Indeed, being in control of a thing, however, is not the same as being in possession of that same thing. The language of the ’573 patent does not indicate to the court, nor would it to one skilled in the art, that the party is “in physical control and ownership” when the party is merely “controlling use” of the first memory. In the court’s view, the fact that the terms control and possession have common meanings which are not identical, and that they are not used jointly in all of the relevant patent claims, is strong evidence that each term is intended to convey its own meaning. Also, the dispute is limited in this case to several instances where the first party is asserted to be either “con