Full opinion text
ORDER RULING ON THE INDIVIDUAL SUMMARY JUDGMENT MOTIONS RELATED TO THE CHARTER DEFENDANTS R. GARY KLAUSNER, District Judge. TABLE OF CONTENTS I. INTRODUCTION........................................................1085 II. JUDICIAL STANDARD ..................................................1085 III. CHARTER’S DEFENSES.................................................1086 A. Invalidity............................................................1086 1. Legal Standard ...................................................1086 2. Indefiniteness......................................................1086 a. Legal Standard-Indefiniteness Generally.........................1087 b. 35 U.S.C. § 112 ¶ 6 ............................................1087 c. Individually Cueing Means......................................1087 3. Written Description................................................1089 B. Infringement/Non-Infringement........................................1089 1. Legal Standard — Non-Infringement.................................1089 2. Charter’s Motion for Non-Infringement — Claims 10 and 11 of the '150 Patent.....................................................1090 a. Multiple Formats..............................................1090 b. Selecting and Testing..........................................1092 i. Meaning of “Call Data Signals”..............................1092 ii. Sequence of Steps..........................................1092 c. Multiple Port, Multiple Format..................................1093 d. Fetching Control Data with “Call Data” ..........................1093 3. Katz’s Motion for Infringement — Claims 10 and 11 of the '150 Patent.... 1094 a. Multiple Formats..............................................1094 b. Multiple Port, Multiple Formats.................................1094 c. Selecting a Format Under Control of Call Data Signals.............1094 d. Fetching Control Data with “Call Data” ..........................1094 e. Evidence That Calls Were Processed.............................1095 4. Claim 5 of the '223 Patent..........................................1095 a. “Means for Providing Identification Signals” ......................1095 b. Signals vs. Data...............................................1096 c. Synthesized Voice Signals.......................................1096 d. Selectively Receiving Calls......................................1097 e. “Common Processing Operations” ...............................1097 5. Claim 1 of the '285 Patent..........................................1097 a. Multiple Port, Multiple Format..................................1098 b. Interconnect Switch Means.....................................1098 c. Selections Means..............................................1098 d. Multiple Formats..............................................1099 6. Claim 2 of the '415 Patent..........................................1099 a. “Associated Telephone Number Signals”..........................1100 b. “Testing ... to Determine the Acceptability of Said Calls”..........1101 7. Claim 129 of the '707 Patent........................................1101 a. Voice Generator...............................................1101 b. Negative File Data ............................................1102 c. “Means for Processing ...”.....................................1102 d. “Means for Providing ... and for Receiving”......................1103 8. Claims 30, 45 and 67 of the '762 Patent...............................1103 a. “Acknowledgement Number”....................................1104 b. “Credit Verification Structure”..................................1106 c. “Synthesized Voice”............................................1106 d. Central Processing Station......................................1106 e. “Means to Provide Answer Data Signals”.........................1106 9. Evidence That CSS Actually Performed the Methods ..................1107 10. Means Plus Function Limitations Involving a Processor................1107 C. Laches ..............................................................1107 D. Damages.............................................................1108 1. After 2005........................................................1108 2. Non-Accused Systems.............................................1108 IV. KATZ’S MOTION FOR SUMMARY JUDGMENT............................1108 A. Equitable Estoppel....................................................1109 B. Laches ..............................................................1109 1. Legal Standard — Laches...........................................1109 2. Unreasonable Delay...............................................1110 3. Prejudice.........................................................1111 a. Evidentiary Prejudice..........................................1111 b. Economic Prejudice............................................1111 C. Prosecution History Laches............................................1112 1. Legal Standand — Prosecution Laches................................1112 2. Unreasonable Delay...............................................1113 3. Intervening Adverse Rights.........................................1113 V. SUMMARY..............................................................1113 I. INTRODUCTION In approximately fifty different lawsuits, plaintiff Ronald A. Katz Technology Licensing, L.P. (“Katz”) has alleged that various defendants infringe claims from its family of related interactive call processing patents. The Judicial Panel on Multidistrict Litigation consolidated these cases for pretrial proceedings and transferred the consolidated case to this Court (07-MDL1816). This Court grouped the different cases based roughly on the date they were transferred. The current case is part of the group B cases. In managing the group B cases, this Court ordered Katz to eventually limit the number of claims it was asserting against each defendant group to sixteen. This Court has already ruled on various joint summary judgment motions filed by the group B defendants and found that a number of the asserted claims were invalid as obvious under 35 U.S.C. § 103 or invalid for lack of written description and/or indefinite under 35 U.S.C. § 112. Plaintiff Katz has nine remaining claims against defendants Charter Communications, Inc., Charter Communications Holding Company, LLC, Charter Communications Operating, LLC, and Charter Communications Entertainment I, LLC (collectively, “Charter”). They are: claim 5 of U.S. Patent No. 6,434,223 (“the '223 patent”), claim 1 of U.S. Patent No. 5,351,285 (“the '285 patent”), claim 129 of U.S. Patent No. 5,561,707 (“the '707 patent”), claim 2 of U.S. Patent No. 6,512,415 (“the '415 patent”), claims 30, 45 and 67 of U.S. Patent No. 5,898,762 (“the '762 patent”), and claims 10 and 11 of U.S. Patent No. 4,930,150 (“the '150 patent”). On March 27, 2009, Charter filed a Notice of Commencement of Bankruptcy Proceedings and Automatic Stay. Accordingly, pursuant to 11 U.S.C. § 362, this Court stayed Katz’s action with respect to Charter only. As a result, this Court did not rule on any motions directly related to Charter and this ruling has no preclusive effect on Charter. Charter has now emerged from bankruptcy and this Court has reopened the action against Charter on February 4, 2010. Charter moves for summary judgment on three sets of issues. First, Charter argues that seven claims are invalid under 35 U.S.C. § 112: claim 5 of the '223 patent, claim 1 of the '285 patent, claim 129 of the '707 patent, claim 2 of the '415 patent, and claims 30, 45 and 67 of the '762 patent. Second, Charter’s motion for summary judgment argues that it does not infringe any of the nine remaining claims. Finally, Charter argues that the doctrine of laches bars plaintiffs claim in its entirety. Katz also moves for summary judgment on the issues of infringement, and Charter’s affirmative defenses of estoppel, laches, and prosecution laches. II. JUDICIAL STANDARD Summary judgment should be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Karlin Tech., Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 970 (Fed.Cir.1999). A dispute about a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A party opposing a properly supported motion for summary judgment “ ‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). “If the evidence [opposing summary judgment] is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-250, 106 S.Ct. 2505 (citations omitted). Even where the movant does not seek judgment as to the whole action, “the court should, to the extent practicable, determine what material facts are not genuinely at issue.” Fed.R.Civ.P. 56(d)(1). “It should then issue an order specifying what facts- — -including items of damages or other relief — are not genuinely at issue.” Id. Thus, “judgment may be rendered on liability alone.... ” Fed.R.Civ.P. 56(d)(2). III. CHARTER’S DEFENSES A. INVALIDITY 1. Legal Standard-Indefiniteness Generally An indefiniteness defense is based on 35 U.S.C. § 112 ¶ 2, which states: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. The statute is satisfied if a person skilled in the art would reasonably understand the claim when read in the context of the specification. Marley Mouldings Ltd. v. Mikron Industries, Inc., 417 F.3d 1356, 1359 (Fed.Cir.2005). A claim is presumed valid. Therefore, it is only indefinite if it is “insolubly ambiguous, and no narrowing construction can be adopted.” Microprocessor Enhancement Corp. v. Tex. Instruments, Inc., 520 F.3d 1367, 1374 (Fed.Cir.2008) (citations omitted). The issue of indefiniteness is a matter of law for the court to decide. Personalized Media Commc’ns, LLC v. Int’l Trade Com’n, 161 F.3d 696, 705 (Fed.Cir.1998). 2. Indefiniteness Charter relies on three different theories to argue that seven of the claims asserted against it are invalid as indefinite under 35 U.S.C. § 112. First, Charter argues that claim 5 of the '223 patent, claims 40, 45 and 67 of the '762 patent, and claim 1 of the '285 patent are indefinite because the specifications fail to disclose an algorithm as required by WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed.Cir.1999). Second, Charter argues that claim 5 of the '223 patent, claim 129 of the '707 and claims 30, 45 and 67 of the '762 patent are indefinite because they improperly mix limitations from apparatus and method claims. See IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377, 1383-84 (Fed.Cir.2005). Finally, Charter argues the term “qualification unit” in claim 129 of the '707 patent was insolubly ambiguous thus rendering the claim indefinite. On August 27, 2008, this Court granted plaintiffs application to strike portions of Charter’s motion on the grounds that Charter failed to disclose these arguments during discovery. On September 22, 2008, this Court GRANTED IN PART Charter’s motion to reconsider. Based on those rulings, the only remaining issue is whether claim 5 of the '223 claim is indefinite in view of WMS Gaming. This Court addressed this very issue when ruling on AOL’s motion for summary judgment. (August 13, 2009 Order Ruling on the Parties Summary Judgment Motions at pp. 6-10.) For the sake of completeness, this substance of that decision is repeated here, a.Legal Standard-Indefiniteness Generally An indefiniteness defense is based on 35 U.S.C. § 112 ¶ 2, which states: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. The statute is satisfied if a person skilled in the art would reasonably understand the claim when read in the context of the specification. Marley Mouldings Ltd. v. Mikron Industries Inc., 417 F.3d 1356, 1359 (Fed.Cir.2005). A claim is presumed valid. Therefore, it is only indefinite if it is “insolubly ambiguous, and no narrowing construction can be adopted.” Microprocessor Enhancement Corp. v. Tex. Instruments, Inc., 520 F.3d 1367, 1374 (Fed.Cir.2008) (citations omitted). The issue of indefiniteness is a matter law for the court to decide. Personalized Media Commc’ns, LLC v. Int’l Trade Com’n, 161 F.3d 696, 705 (Fed.Cir.1998). b.35 U.S.C. § 112 ¶ 6 The parties agree that the “means for individually cueing” limitation is a means plus function limitation governed by 35 U.S.C. § 112, ¶ 6. A means plus function limitation is interpreted to encompass: 1) the recited function, and 2) the structures disclosed in the specification that correspond to that function and their equivalents. Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1332 (Fed.Cir.2006). When a means plus function limitation discloses a computer or microprocessor programmed to carry out an algorithm as the corresponding structure, “the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithm.” WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed.Cir.1999). Only disclosing a general purpose computer as the structure for performing a claimed function amounts to pure functional claiming and does not satisfy 35 U.S.C. § 112 ¶ 6, thereby rendering the claim indefinite under 35 U.S.C. § 112 ¶ 2. Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed.Cir.2008); see Net MoneyIN, Inc. v. VeriSign, Inc. 545 F.3d 1359, 1367 (Fed.Cir.2008) (“a means-plus-function claim element for which the only disclosed structure is a general purpose computer is invalid if the specification fails to disclose an algorithm for performing the claimed function.”) c.Individually Cueing Means The recited function of the limitation at issue is “individually cueing said callers of said select subset to prompt digital signals.” With respect to Charter’s indefiniteness argument there are two primary disputes. First, although both parties agree that the interface processor 26 performs the recited function, Charter characterizes the structure as a general purpose processor while Katz says that it is a special purpose processor. Second, the parties disagree on whether the '223 patent specification discloses algorithms to perform the recited function. Charter relies on this Court’s February 21, 2008 Claim Construction Order to argue that interface processor 26 is a general purpose processor. At that time, the issue before the Court was whether the “means for processing” found in claim 4 of U.S. Patent No. 5,128,984 and claim 6 of U.S. Patent No. 5,251,252 was subject to WMS Gaming. The structure that performed the recited functions in those patents is the same interface processor 26 at issue here. During the claim construction briefing, Katz did not argue that interface processor 26 was a special purpose processor. Rather Katz contended that “in order for the algorithm to be a required element of the claim construction, the algorithm must be both disclosed and the point of novelty of the claimed invention.” (Pl.’s Opening Claim Construction Brief at p. 5, (emphasis in original)). The Claim Construction Order rejected Katz’s argument and applied WMS Gaming. (Claim Construction Order at pp. 22-24) Charter concludes that this Court necessarily found that the interface processor was a general purpose computer. If Charter is correct, WMS Gaming applies and the specification must disclose an algorithm that is responsible for “individually cueing said callers of said select subset to prompt digital signals.” Katz disagrees and argues that the interface processor 26 is a special purpose processor. Specifically, Katz’s expert, Dr. Brody characterizes the interface processor as a “special purpose device dedicated to providing an interface between the system and the telephone facility.” (Brody Decl. re Katz Opp’n to Defs.’ Summ. Js. at ¶ 20) In support of this position, Dr. Brody relies on a passage in the '223 patent that describes the operation of the interface processor 26. With the receipt of a call at the interface processor 26, a voice generator may be actuated to specifically inform a caller, depending upon the specific format employed. Essentially, digital signals are provided to actuate a voice generator within the processor 26. Accordingly, an audio message is provided through the coupler 24, the associated audio response unit, and the communication facility CO to the connected remote terminal. Thus, the caller may be further informed or cued. '223 patent at 9:34-43. According to Dr. Brody, a person of ordinary skill in the art would “recognize that the interface processor is a complete or a substantial part of a VRU, a well known special purpose device and not a general purpose computer.” (Brody Decl. re Katz Opp’n to Defs.’ Summ. Js. at ¶ 20.) This Court finds that the interface processor 26 is a general purpose processor. Charter correctly points out that the parties’ earlier claim construction briefs assumed that the interface processor 26 was a general purpose processor. Now it appears that Katz is attempting to characterize the interface processor as a special purpose processor because the Court rejected its “point of novelty argument.” However, it is too late for Katz to ask the Court to review the February 21, 2008 Claim Construction Order. Moreover, even if the Court did so, the evidence does not suggest that the interface processor is a special purpose processor. The cited passage merely describes the function the interface processor performs; it does not suggest that the interface processor is some form of special purpose processor. Finally, Dr. Brody concludes that a VRU (Voice Response Unit) is a well known special purpose device. (Brody Decl. re Katz Opp’n to Defs.’ Summ. Js. at ¶ 20.) That statement is not helpful because the issue is how to characterize the interface processor within a VRU, not the VRU itself. As a result, this Court finds that the rule in WMS Gaming does apply to the individually cueing means. Thus, to satisfy WMS Gaming, the '223 patent must disclose the algorithms that perform the function of “individually cueing said callers of said select subset to prompt digital signals.” Katz argues that the recited function is shown by step 72 of Figure 2 (partial view shown to the right). Specifically, Dr. Brody says that in box 72 the caller is cued and the answer of the caller is registered. (Brody Decl. re Katz Opp’n to Defs.’ Summ. Js. at ¶ 23.) However, a simple box with the term “register answer” is not an algorithm. Dr. Brody also cites to two other passages in the patent. See '223 patent at 10:7-17 and 5:53-55. These passages do not describe any algorithm for “individually cueing said callers of said select subset to prompt digital signals.” Rather they simply indicate that the interface processor poses questions to the callers. Based on the foregoing, this Court GRANTS Charter’s motion for summary judgment and finds claim 5 of the '223 patent invalid as indefinite. 3. Written Description Charter also argues that claim 1 of the '415 patent is also invalid under 35 U.S.C. §112 for lack of a written description. Again, this Court’s August 27, 2008 order struck this argument for failing to disclose it during discovery. As a result, this Court does not reach the merits of this issue. B. INFRINGEMENT/NON-INFRINGEMENT Charter argues that its accused Customer Service System (“CSS”) does not infringe claims 10 and 11 of the '150 patent, claims 30, 45 and 67 of the '762 patent and claim 129 of the '707 patent. At the same time, Katz’s motion for summary judgment asks for a ruling of infringement with respect to claim 10 and 11 of the '150 patent. This decision addresses that portion of Katz’s motion here. 1. Legal Standard — Non-Infringement Under the Patent Act, 35 U.S.C. § 271, liability for patent infringement may be imposed on any person who, without permission of the patentee, “makes, uses, offers to sell, or sells any patented invention [ ] within the United States or imports into the United States any patented invention during the term of the patent therefore.” The rights granted to the patentee are defined by the patent’s claims. Markman v. Westview Instruments, Inc., 517 U.S. 370, 373, 116 S.Ct. 1384, 134 L.Ed.2d 577, (1996). In determining whether an allegedly infringing device falls within the scope of the claims, a two-step process is used: first, the court must determine as a matter of law the meaning of the particular claim or claims at issue; and second, it must consider whether the accused product infringes one or more of the properly construed claims. Id. at 384, 116 S.Ct. 1384; Allen Eng’g Corp. v. Barbell Indus., Inc., 299 F.3d 1336, 1344 (Fed.Cir.2002). The second inquiry is a question of fact, although summary judgment of infringement or non-infringement may nonetheless be appropriate when no genuine dispute of material fact exists. Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1299 (Fed.Cir.2004) (quoting Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed.Cir.1998)). The patentee bears the burden of proving infringement by a preponderance of the evidence. Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1535 (Fed.Cir.1991). This burden can be met by showing that the patent is infringed either literally or under the doctrine of equivalents. See Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1318 (Fed.Cir.2004). To support a finding of literal infringement, the patentee must establish that “every limitation recited in the claim appears in the accused product, i.e., the properly construed claim reads on the accused product exactly.” Jeneric/Pentron, Inc. v. Dillon Co., 205 F.3d 1377, 1382 (Fed.Cir.2000) (citing Amhil Enters. Ltd. v. Wawa, Inc., 81 F.3d 1554, 1562 (Fed.Cir.1996)). 2. Charter’s Motion for Non-Infringement-Claims 10 and 11 of the '150 Patent Charter raises four non-infringement arguments with respect to claims 10 and 11 of the '150 patent. Together these claims recite: 10. A process for interfacing a telephonic communication system including remote terminals with a multiple port, multiple format data processing system, said multiple port, multiple format data processing system for concurrently processing data from said remote terminals according to a plurality of formats, at least one of said formats having at least one condition for a calling terminal, and wherein said telephonic communication system provides call data signals, as to indicate called and calling numbers, said process including the steps of: receiving said call data signals from said telephonic communication system for a calling remote terminal; selecting a processing format of said multiple port, multiple format processing system for the calling remote terminal under control of said data signals as the selected format; testing the selected format in relation to said call data signals; and conditionally interfacing said selected format to a calling terminal under control of said testing of call data signals. 11. A process according to claim 10 further including the step of fetching control data addressable with said call data for use in the step of testing. (emphasis added). a. Multiple Formats The parties agree that claim 10 requires multiple “formats.” This Court previously defined “format” as follows: Format refers to a call processing flow implemented by at least one computer program that sets forth the content and sequence of steps to gather information from and convey information to callers through pre-recorded prompts and messages. Selection of, or branching to, a module or subroutine within a computer program does not constitute selection of a separate format. Selection of (or branching to), a second computer program by a first computer program, that together implement a call process flow application also does not constitute selection of a separate format. (February 21, 2008 Claim Construction Order at p. 16.) Katz argues that Charter’s call centers supported multiple call processing flows that correspond to different formats. Katz says Charter’s formats include the Tier 2 Support Main and Customer Care formats. These call flows were associated with different telephone numbers. Charter’s system directed calls to 1-888-550-9400. These calls were sent to the main menu for “Tier 2 Support.” (Kelly Decl. ¶ 29; Newland Decl. Ex. 10 at CHA0010868.) Similarly, calls to 1-866-472-7100 were directed to the Customer Care call flow. That call flow checked the caller’s number against a table of blocked numbers. If the numbers were not blocked, the caller was allowed to proceed. (Kelly Decl. ¶ 30; Newland Decl. Ex. 10 at CHA0010878.) Katz says that these two numbers and calls flows represent two different formats while Charter argues that they are simply part of one large format. In support of its multiple format position, Katz points out that each flow is accessed through one or more unique numbers. Katz also argues that each call flow is not a branch or subroutine of a single computer program. In support of the single format position, Charter points out that Charter’s Core Routing Application and vector software modules implement the different call flows Katz identifies. Specifically, a call enters Charter’s Avaya Definity G3PBX/ACD (“G3”). Subsequently, the Core Routing Application, which runs on the G3, links the call’s DNIS (i.e. the called number) to a Vector Directory Number (“VDN”). The VDN points the call to a vector software module within the G3. The vector software module determines how the call is handled. Relying on these facts, Charter argues that its system only uses a single core routing application to process calls and “the vector software modules are simply branches from or subroutines of the Core Routing Application.” (Charter’s Opp’n to Summ. J. at p. 5.) Since the definition of format states that selection or branching to a module, a subroutine or a second program does not constitute selecting a separate format, Charter concludes that the call flows Katz identifies relate to a single format. Charter overstates the impact of the Court’s claim construction. Although branching does not constitute selection of a separate format, the existence of branching does not exclude the possibility of a separate format. In sum, Katz has presented evidence that the Tier 2 Support and Customer Care flows are accessed by different unique telephone numbers. This evidence suggests that these services correspond to multiple formats. Moreover, Charter’s evidence does not show that there is only one format. Accordingly, this Court DENIES Charter’s motion for summary judgment on this issue. b. Selecting and Testing Claim 10 requires: 1) “selecting a processing format ... under control of said call data signals as the selected format,” 2) “testing the selected format in relation to said call data signals,” and 3) “conditionally interfacing said selected format.” Charter argues that its CSS system does not perform these steps and the accused features are not performed in the required order. i. Meaning of “Call Data Signals” In support of the first argument, Charter interprets “call data signals” to require both ANI and DNIS signals. Since, Charter CSS only selects a format based on DNIS (ie. the called number), Charter concludes that CSS does not select a format based on call data signals. Since CSS only tests ANI (ie. the calling number) to determine whether the call may proceed, Charter concludes that CSS does test call data signals and does not conditionally interface the call based on the test. Accordingly, Charter argues that three limitations from claim 10 are not satisfied. In response, Katz challenges Charter’s claim construction. Relying on two previous orders in this MDL, Katz argues that “call data signals” can refer to any one of several call signals. Indeed, that is precisely what this Court found when it defined “call data signals” to refer to “signals identifying the called number, the calling number, and/or an equipment type designation.” (February 21, 2008 Claim Construction Order at pp. 48-49; see August 14, 2008 Order Denying Defendants’ Motion for Partial Reconsideration of 112 SJ Denial at 4-5 (finding that with respect to claim 10 of the '150 patent “testing ... call data signals” only required either the called or the calling number); Order Denying In Part Defendants’ Joint Motion for Summ. J. of Invalidity Under Section 112 at p. 23.) Although Charter points out that the Section 112 Orders only discussed “call data signals” in terms of the testing step, not the selecting step, that distinction is irrelevant. “Call data signals” carries the same meaning in both parts of the claim. Finally, Charter focuses on the language “for the calling remote terminal” to argue that equipment signals must be present. (Charter Opp’n to Summ. J. at pp. 16-17.) Specifically, Charter argues that to select a format for the remote terminal, the system must receive equipment signals that indicate “whether the caller is using either a rotary or touch-tone phone, and based on those equipment signals, choosing a “format” that can function with that particular terminal.” (Charter Opp’n to Summ. J. at p. 17.) Charter reads too much into the term “for.” The plain meaning of “for” means “on behalf of.” That interpretation is entirely consistent with both the claim language and specification. Accordingly, this Court finds that Katz has presented substantial evidence to satisfy each of the three limitations discussed above. ii. Sequence of Steps Charter also argues that the accused CSS steps were not performed in the required order. Katz says that ANI blocking (ie. not permitting callers associated with certain numbers to proceed) satisfies the “testing” step. However, Charter argues that the claim requires that the testing step occur before the format starts while ANI blocking occurs after the call processing flow has started. Therefore, Charter concludes that there is no infringement. In response, Katz does not challenge Charter’s claim interpretation. Rather, Katz argues that ANI blocking occurs before the callers interface with the format. In support of Katz’s position, Katz’s expert, Dr. Kelly, points to how “vector 10” operates. (Charter App. Ex 58, (CHA— 0010813).) The ANI block is performed. If the caller is not “blocked,” information is conveyed to the caller for the “first” time. (Dr. Kelly Decl. ¶ 40.) Thus, Dr. Kelly concludes that the format begins after the testing step. Charter disagrees with Dr. Kelly’s characterization because ANI blocking affects the caller’s experience. The definition of format refers to “a call process flow that sets forth the content and sequence of steps to gather information from and convey information to caller.” Since a caller will receive a busy signal if it is “blocked,” Charter argues that a caller receives different content according to the ANI Block vector processing. Therefore, Charter concludes that the ANI Block must be part of the alleged format. This Court rejects Charter’s argument. The busy signal can hardly be considered part of the information conveyed to the caller. Moreover, CHA — 0010813 shows that the caller does not receive any information and cannot make any choices prior to the ANI Blocking step. Therefore, a reasonable juror could conclude that the format does not begin until after ANI Blocking. Based on the forgoing, this Court DENIES Charter’s summary judgment as it relates to the limitations discussed in this section. c. Multiple Port, Multiple Format Claim 10 requires interfacing callers to a “multiple port, multiple format data processing system.” Dr. Kelly states that portions of the Avaya Definity G3s and each of the Dialogic Communications Corp. IVRs satisfy this limitation. (Dr. Kelly Decl. ¶ 55.) He also says that these components have processors with multiple ports, which accommodate multiple formats. (Dr. Kelly Decl. ¶ 56.) Charter argues that these allegations are insufficient because Dr. Kelly has failed to identify a specific processor in Charter’s CSS to which a call was connected. Here, Katz’s expert has identified the systems that contain the accused processor. Charter’s opposition does not appear to contest that these systems contain processors. Nor does Charter’s opposition suggest that Dr. Kelly is incorrectly testifying that the processors have the required limitations. Instead, Charter appears to believe that Dr. Kelly should identify the processors with a higher level of detail. This complaint is not sufficient to justify granting summary judgment. Accordingly, this Court DENIES Charter’s motion for summary judgment as it relates to the multiple port, multiple format limitation. d. Fetching Control Data with “Call Data” Claim 11 recites “further including the step of fetching control data addressable with said call data....” Katz argues that the ANI blocking table satisfies this limitation “by fetching data from the vector routing table (‘VRT’) of blocked ANIs on Charter’s Avaya Definity G3s for testing against received ANI’s to determine whether or not to provide a fast busy signal and terminate the call.” (Katz Charter Opp’n to Summ. J. at p. 7.) Charter argues that the ANI blocking table cannot satisfy claim 11 because the phrase “control data” refers to “both the called number and equipment data signals.” (Charter Summ. J. at p. 15 (emphasis in original).) Since the ANI blocking table only uses one type of “call data,” Charter concludes that there is no infringement. This Court has already rejected Charter’s interpretation of “call data” above in subsection (b). The limitation can be satisfied by the called number, calling number and/or equipment type designation. Accordingly, this Court also DENIES Charter’s motion for summary judgment with respect to the issues raised here. 3. Katz’s Motion for Infringement-Claims 10 and 11 of the '150 Patent Katz’s motion for summary judgment asks the Court to rule that Charter’s CSS infringes claim 10 and 11. For the most part, both parties took the same positions found in the briefing on Charter’s motion for summary judgment. To the extent the Court’s analysis is the same, this decision will merely provide the Court’s ruling on Katz’s motion. a.Multiple Formats Although Katz has presented evidence that suggest that CSS supports more than one format, there are a number of factual questions left open. For example, what is the relationship between the Tier 2 Support and Customer Call flows? Do they support different services? Does one flow allow callers to access the other flow? Although these questions are not dispositive, there is simply insufficient evidence for the Court to rule on this issue. Moreover, Charter assails the accuracy of the documents Katz relies upon, calling them “preliminary.” Although Charter’s expert relied on these same documents, there are credibility issues to be determined. In sum, this Court finds that there is a factual issue as to whether there is more than one format. b.Multiple Port, Multiple Format Katz’s expert has generally testified that portions of the Avaya Definity G3s and each of the Dialogic Communications Corp. IVRs satisfy the multiple port, multiple format data processing limitation. (Dr. Kelly Decl. ¶ 55.) Although the content of his testimony sufficiently raises a triable issue of fact, Charter raises a number of issues regarding the credibility of Dr. Kelly’s opinion. In particular, Charter argues that Dr. Kelly has changed positions and cannot describe the specific processor in sufficient detail to provide a basis for his conclusion. These arguments present credibility issues for the jury. Accordingly, this Court finds that there is a factual issue with respect to the multiple port, multiple format limitation, c.Selecting a Format Under Control Of Call Data Signals As discussed above, this Court rejects Charter’s interpretation of “call data signals.” In its opposition to Katz’s motion for summary judgment, Charter raises two additional non-infringement arguments. First, Charter argues that to the extent that a format is actually selected, the format is selected under control of the VDN, not the DNIS. Although multiple DNIS entries can point to a single VDN, this does not change the fact that the selection uses the DNIS (ie. the called number). Second, Charter argues that there is a distinction between “data” and “data signals.” This Court sees nothing within the specification or the claims to justify this distinction. Accordingly, this Court rejects both of these arguments as well. In sum, this Court finds that using DNIS to make a selection satisfies the “under control of said [call] data signals” portion of claim 10. d.Fetching Control Data with “Call Data” As discussed above, this Court rejects Charter’s interpretation of “call data signals.” In its opposition to Katz’s motion for summary judgment, Charter raises an additional non-infringement argument. Specifically, Charter interprets “fetching control data addressable with said call data” to mean “identification of a memory location and retrieval of its contents wherein the address of the memory location is addressed by the call data.” (Charter Opp’n to Summ. J. at 21.) Charter’s interpretation impermissibly imports limitations from the disclosed embodiment. See Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1379 (Fed.Cir.2005). Since there is nothing in the claim language itself to limit the claim in the manner Charter suggests, this Court reject’s Charter’s claim construction. Accordingly, this Court finds that using the ANI blocking table satisfies the limitation at issue. e. Evidence That Calls Were Processed Finally, Charter generally argues that Katz has failed to present evidence that calls were actually handled in the manner outlined by the experts, witnesses and documents. Specifically, Charter argues that Katz’s evidence shows only how Charter’s system was designed, not how it operated. This Court disagrees. Katz has presented strong circumstantial evidence. Evidence of the design of a system is also strong evidence of a system’s operation. To the extent that Charter relies on this argument to refute Katz’s motion for summary judgment, the Court rejects this evidentiary argument. In its motion and supporting papers, Katz has shown that several of the limitations in dispute were satisfied by Charter’s CSS. However, this Court has found factual issues with respect to various other limitations. Accordingly, this Court DENIES Katz’s motion for summary judgment of infringement. 4. Claim 5 of the '223 Patent Charter raises five separate non-infringement arguments with respect to claim 5 of the '223 patent. Although this decision found that claim 5 was invalid as indefinite, the Court will address Charter’s non-infringement arguments. Claim 5 recites: 5. A telephone call processing system for receiving calls through a telephone communication facility from a multitude of terminals for processing in a select interface format wherein callers are cued by synthesized voice signals supplied to said multitude of terminals and respond with digital signals, as by actuating push buttons at said multitude of terminals, said telephone call processing system comprising: means for selectively receiving calls from said multitude of terminals to establish telephone communication with a select subset of callers, said means for selectively receiving calls comprising means for receiving calls in a plurality of call modes including a toll free calling mode and a caller charge calling mode or an area code mode; means for providing identification signals entered by said callers of said select subset; means for individually cueing said callers of said select subset to prompt digital signals, wherein at least certain of the cues and their responsive digital signals are a part of common processing operations for the plurality of call modes to isolate a sub-subset of said callers; and means for storing identification signals for said callers of said sub-subset. a. “Means for Providing Identification Signals” Claim 5 recites a “means for providing identification signals entered by said callers of said select subset.” Katz identified “a processor with DTMF detection capability in each of Avaya Definity G3s” as the “means for providing identification signals.” (Kelly Decl. ¶ 62.) Charter argues its systems had no such processor, and instead that the DTMF detection capability was provided through “cards” (ie. “boards” or “circuit packs”), known as tone detectors (touch tone decoder or touch tone receiver). (Charter Summ. J. at p. 16.) However, Katz argues that Charter’s arguments are consistent with its analysis. Specifically, Dr. Kelly says that these cards resided in the Avaya Definity G3s and that they contained the processors with DTMF detection capability. (Kelly Decl. ¶ 64.) In its reply brief, Charter challenges the basis for Dr. Kelly’s conclusion, but not the conclusion itself. In sum, Katz argues that processors with DTMF detection capability are found in the cards or circuit packs in the Avaya Definity G3s. Charter merely argues that there is not sufficient evidence to support that conclusion. The parties have not presented a sufficient record for this Court to resolve this question. Accordingly, this Court finds that there is a factual issue with respect to whether the processor with DTMF detection capability in each of Ava-ya Definity G3s satisfies the “means for providing identification signals” limitation, b. Signals vs. Data As noted above, claim 5 requires a “means for providing identification signals entered by said callers.” Charter argues that the claim language requires a means for providing “signals,” not “data,” entered by a caller. (Charter Summ. J. at p. 17.) Relying on this claim interpretation, Charter goes on to state that Katz has only provided evidence that a caller enters “data.” As stated in Section 111(B)(3)(c), neither the specification nor the claims justify this distinction. Accordingly, this Court rejects this argument. c. Synthesized Voice Signals The preamble of claim 5 requires that “callers [be] cued by synthesized voice signals.” Katz interprets the term “synthesized voice signals” to include concatenated pre-recorded voice signals. Relying on that interpretation, Katz argues that Charter’s system satisfied the limitation by combining and playing pre-recorded voice prompts to callers. Charter disagrees with Katz’s claim construction and argues that synthesized voice signals do not encompass pre-recorded voices regardless of whether they are concatenated. In addition, Charter’s Reply brief argues that Katz has failed to identify a processor responsible for voice synthesis capability and that the example messages Katz identified are not “prompts.” Charter interprets the term “synthesized voice signals” to exclude the use of pre-recorded human voice. In support of that interpretation, Charter relies on a statement that Katz’s expert, Dr. Brody, made in opposing defendants’ joint motion for invalidity under § 112. This passage describing a “voice generator” providing a “simulated voice” question necessarily describes and discloses to the POSITA at the relevant 1989 time period that the voice generator generates synthesized voice signals, which are “simulated” rather than prerecorded human voice. (Brody Decl. in Opp’n to 112 Summ. J. at ¶ 142 (emphasis added).) Thus, Dr. Brody was contrasting “synthesized voice signals” from a “prerecorded human voice.” However, Katz and Dr. Brody now argue that synthesized voice signals include concatenations of pre-recorded human speech, or “concatenative synthesis.” (Brody Decl. in Opp’n to 112 Summ. J. at ¶¶ 271-283.) In support of that position, Dr. Brody points out that at least some of the references found in the '223 patent prosecution history describe speech synthesis in terms of concatenating different phrases. See Perdue et al., “Conversant 1 Voice System: Architecture and Applications (cited in '223 patent prosecution).” Although Dr. Brody’s earlier statements suggest that the term “synthesized voice signals” excludes using pre-recorded human voices, the Section 112 motion and Dr. Brody’s declaration do not address whether the term covers concatenated synthesis. To determine that question, the Court first looks to the intrinsic evidence. The '223 patent specification describes an inventory of questions that are addressable by number. '223 patent at 5:53-59. When one of those questions is selected, the voice generator provides signals that result in providing the caller with a “simulated voice question.” Id. at 6:2-6. Thus, the specification indicates that a “simulated voice” is at least one type of “synthesized voice signal.” ■ However, that lone example does not resolve the parties’ dispute. The prior art references cited in the file history comprise the only helpful evidence. They describe concatenating different prerecorded human voices as one form of voice synthesis. As a result, this Court rules in favor of Katz and finds that the term “synthesized voice signals” covers concatenated pre-recorded voice signals. This Court does not address the two new arguments Charter raised in its reply brief because Katz did not have an opportunity to brief these issues. As a result, the Court rejects the arguments Charter raised with respect to the synthesized voice signals limitation. d. Selectively Receiving Calls Claim 5 requires a “means for selectively receiving calls from said multitude of terminals ... to establish telephone communication (emphasis added).” Katz argues that the ANI blocking function of Charter’s CSS satisfies this limitation. However, Charter argues that the ANI blocking function cannot satisfy this limitation because ANI Blocking was part of the call flow. Since all calls entered the call flow (prior to ANI blocking), Charter concludes that CSS did not selectively receive calls. Charter raised a variation of this argument in Section 111(B)(2) (b)(ii). In that section, we concluded that Katz has provided sufficient evidence for a reasonable juror to conclude that the format does not begin until after ANI Blocking. Accordingly, this Court finds that there is a factual issue with respect to the “selectively receiving calls” limitation. e. “Common Processing Operations” Claim 5 also requires “means for individually cueing said callers ..., wherein at least certain of the cues and their responsive digital signals are a part of common processing operations for the plurality of call modes to isolate a sub-subset of said callers.” Charter argues that Katz’s expert, Dr. Kelly, failed to consider the “common processing operation” portion of this claim. Thus, Charter asks for a ruling of non-infringement for lack of evidence. In response, Dr. Kelly now says that the “common processing operation” language is satisfied because Charter had common processing operations-providing cues and receiving digitally responsive signals. (Kelly Decl. ¶ 83.) Charter’s reply brief simply asserts that Dr. Kelly’s argument is new, but Charter never explains what the “common processing operations” language means and why the limitation is satisfied. This Court finds both parties’ briefing lacking. Katz’s argument is conclusory while Charter’s is almost non-existent. With this limited record, the Court finds that Charter has failed to satisfy its burden of proof on the issue of the “common processing operations” limitation. Based on the discussions in subsections (a)-(e), this Court DENIES Charter’s motion for summary judgment as it relates to the non-infringement arguments Charter raised against claim 5 of the '223 patent. 5. Claim 1 of the '285 Patent Charter raises four separate non-infringement arguments with respect to claim 1 of the '285 patent. Claim 1 recites: 1. An interface control system for use with, (1) a communication facility including remote terminals for individual callers, wherein said remote terminals may comprise a conventional telephone instrument including voice communication means and digital input means for providing data, (2) a multiple port, multiple format processor for interfacing a substantial number of callers in any of a plurality of formats to concurrently process data, and (3) a plurality of live operator stations with prompting capability for a plurality of formats, said interface control system comprising: call data means for receiving signal-represented call data from said terminals including DNIS automatically provided by said telephonic communication system; selection means coupled to said call data means for selecting one of said formats under control of said call data including DNIS to thereby further specify imposed conditions that must exist for a connection of a call either to said multiple port, multiple format processor or one of said live operator stations in accordance with said select one of said formats, at least one of said formats having at least one imposed condition; and interconnect switch means for providing format data and controlling connections from a calling remote terminal to a port of said multiple port, multiple format processor or one of said live operator stations under control of said selection means. (emphasis added). a.Multiple Port, Multiple Format Charter argues that its CSS does not infringe claim 1 because Katz has failed to identify any specific processor in Charter’s CSS with multiple port, multiple format properties. This issue was considered in Section 111(B)(2)(c). For the same reasons discussed in that section, this Court DENIES Charter’s motion for summary judgment as it relates to the multiple port, multiple format limitation. b.Interconnect Switch Means Claim 1 requires an “interconnect switch means for providing format data and controlling connections from a calling remote terminal to a port of said multiple port, multiple format processor or one of said live operator stations under control of said selection means.” Although the claim language discusses connections between “a remote terminal” and a “multiple port, multiple format processor” or a “live operator station,” Charter says that the proper construction of this element requires that the “ ‘switch means’ be able to format data and control connections for both the multiple port processor and live operator stations.” (Charter Summ. J. at p. 19-20 (emphasis in original).) Katz disagrees with Charter’s claim construction and stresses the disjunctive “or” in the claim language. Strikingly, Charter provides no support for its argument. It never even explains how the specification may impact the claim interpretation. In view of such a minimal record, this Court is unwilling to construe the claim. Rather than simply adopt Katz’s claim construction, this Court DENIES Charter’s motion for summary judgment for failing to present substantial evidence to support its request. c.Selection Means Claim 1 also recites a “selection means coupled to said call data means for selecting one of said formats.” Katz says that the profile table and processor of each of the Avaya Definity G3s satisfies this limitation. However, Charter interprets the “selection means” to require a “control register” that holds “equipment signals” bits. Charter argues that Katz has failed to prove that the accused CSS include a control register with bits. As a result, Charter asks for a ruling of non-infringement. Katz disagrees with Charter’s claim interpretation and argues that Charter is impermissibly importing limitations from the specification. The parties agree that the “selection means” is a means plus function limitation governed by 35 U.S.C. § 112, ¶ 6. The construction of a means plus function limitation follows a two-step approach. First, the claimed function must be identified, staying true to the claim language and the limitations expressly recited by the claims. Next, the corresponding structures in the written description that perform those functions must be ascertained. Omega Engineering Inc. v. Raytek Corp., 334 F.3d 1314, 1321 (Fed.Cir.2003). Here the claim language indicates that the recited function is selecting one of said formats. Although Katz argues that the specification provides several alternative embodiments, this Court’s review of the specification shows it describes a single set of structures to select the format. The different embodiments Katz identifies merely reflect additional details regarding the same embodiment. This Court finds that the structures that select the format are the control unit 66, including the control register 70 and look-up table 84. See '285 patent at 8:54-60 (“Generally, the control unit 66 implements specific formats which may involve coupling a caller either to a live operator station OSl-OSn or to the processor P. In that regard, the control unit 66 provides a series of timing signals tl — 16 to sequence the operations of individual component blocks as illustrated.”); id. at 8:68-9:2 (“The control register 70 receives format control words specified, as by the called number and having a form as illustrated in FIG. 4.”); id. at 6:58-61 (“the fetched control word of the block 36 prompts an inquiry as to the conditions attendant the selected operating format as indicated by a query block 38.”); id. at 10:31-34 (“the first sixteen bits comprise the format control word and are provided from a look-up table 84 (FIG. 3, right, central) upon being addressed by call data from the register 64.”). The Court does not include the “equipment signal” bits in its construction because Charter has failed to show that those bits are clearly linked to recited function. Even though Katz’s infringement contentions have not specifically identified a control register in the processor of each of the Avaya Definity G3s, this Court is cognizant that: 1) this decision just ruled that a “control register” is part of the proper interpretation of selection means; 2) control registers are a common feature of most processors; and 3) Charter’s evidence does not show that the accused processors do not have a control register. Thus, Katz may identify a control register if it can. Alternatively, a reasonable jury could still find that the processor in an Avaya Definity G3s is equivalent to the '285 patent’s control unit 66 including the control register 70. Accordingly, this Court DENIES Charter’s motion for summary judgment with respect to the “selection means” limitation. d. Multiple Formats Claim 1 of the '285 patent also requires a “plurality of formats.” As discussed earlier, Charter argues that its CSS does not have multiple formats. This Court DENIES Charter’s motion for summary judgment for the reasons discussed in Section 111(B)(2)(a). 6. Claim 2 of the '415 Patent Charter raises two separate non-infringement arguments with respect to claim 2 of the '415 patent. Claim 2 depends from independent claim 1. Together these claims recite: 1. A process for determining the acceptability of calls and executing formats in association with a communication facility including remote terminal apparatus for individual callers, wherein said remote terminal apparatus includes a telephonic instrument with voice, communication means and digital input means in the form of an array of alphabetic, numeric buttons for providing data, said process including the steps of: receiving associated telephone number signals upon the instance of a call from one of said remote terminal apparatus; testing said associated telephone number signals with respect to stored negative data to determine the acceptability of said call from said one of said remote terminal apparatus as indicated by an acceptability signal; accepting said call from said one of said remote terminal apparatus conditioned on said acceptability signal; interfacing via said communication facility to accepted calls to provide voice signals for cueing callers and receiving responsive digital data in accordance with a select format; and testing at least certain of the responsive digital data against stored positive data to determine if further voice signals for cueing callers should be provided. 2. A process according to claim 1 wherein said step of receiving associated telephone number signals includes receiving data represented by number identification signals provided automatically by said communication facility to indicate called or calling numbers, (emphasis added). a. “Associated Telephone Number Signals” Claim 1 requires that Charter “test[] said associated telephone number signals ...,” and dependent claim 415:2 requires “said step of receiving associated telephone number signals includes receiving data represented by number identification signals provided automatically by said communication facility to indicate called or calling numbers.” Once again, Charter contends that testing of both calling and called number signals is required while Katz argues that only testing of ANI or DNIS is required. Charter’s reasoning is that if the “associated telephone number signals” in claim 1 “did not encompass both calling and called numbers, claim 2 would impermissibly broaden, not narrow, the scope of claim 1.” (Charter Summ. J. at 22-23.) Charter’s argument is flawed for two reasons. “First, the term “associated number signals” must not be read in a vacuum. The addition of the phrase “called or calling numbers” in the claim is not the only possible narrowing language. Claim 2 adds the steps of receiving data represented by number identification signals provided automatically ...” (emphasis added). Read together, these claims simply require that some type of telephone number signal (e.g., ANI) be received and tested against stored negative data and, in addition, that the receiving step include automatically-provided data indicating called or calling numbers. Thus, dependant claim 2 is different from the independent claim 1 because the number identification signals must be provided automatically. Second, Charter’s reasoning is illogical — requiring both ANI and DNIS for claim 1 would be more restrictive and, as such, would render it more narrowly. Moreover, Charter is ignoring the plain language of the claims by reading “or” to mean “and.” As a result, this Court rejects Charter’s construction. Since it is undisputed that there is substantial evidence that Charter’s CSS tested callers’ ANIs, this Court DENIES Charter motion for summary judgment as it relates to the “associated telephone number signals” limitation. b. “Testing ... to Determine the Acceptability of Said Calls” Claim 1 also requires “testing said associated telephone number signals with respect to stored negative data to determine the acceptability of said calls.... ” Charter argues that it does not meet this limitation because it “accepted all calls,” before testing the calling number and performing ANI blocking. Charter raised a variation of this argument in Section III(B)(l)(b)(ii). In that section, we concluded that Katz has provided sufficient evidence for a reasonable juror to conclude that the format does not begin until after ANI blocking. Accordingly, this Court DENIES C