Surfcast, Inc. v. Microsoft Corp. (6 F. Supp. 3d 136, 2014)

MEMORANDUM OPINION, CLAIM CONSTRUCTION ORDER AND ORDER ON MOTION TO STAY

JOHN A. WOODCOCK, JR., Chief Judge.

SurfCast, Inc. (SurfCast) has filed a patent infringement lawsuit against Microsoft Corporation (Microsoft), alleging infringement of United States Patent No. 6,724,-403 (filed Oct. 30, 2000) (the '403 Patent). The parties dispute a number of claim terms in the '403 Patent, and have called on the Court to construe them. The Court has done so with able assistance from the parties’ briefs, exhibits, and oral arguments; and the Court lays out its construction in this Order.

I. LEGAL STANDARD

“Infringement analysis involves a two-step process: the court first determines the meaning of disputed claim terms and then compares the accused device to the claims as construed.” Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed.Cir.2009) (citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)). The construction of language in patent claims must be performed by a judge before any jury trial on the issue of infringement. Markman, 517 U.S. at 391, 116 S.Ct. 1384. The purpose of claim construction is to assist the finder of fact in evaluating claims of infringement. See id. at 388-91, 116 S.Ct. 1384.

The primary source of evidence for claim construction is intrinsic evidence; that is, “the patent itself, including the claims, the specification and, if in evidence, the prosecution history.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). The words used in a claim are generally given their ordinary and customary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1313-14 (Fed.Cir.2005) (en banc). However, “the ‘ordinary meaning’ of a claim term is its meaning to the ordinary artisan after reading the entire patent.” Id. at 1321. The correct construction of a claim term is one “that stays true to the claim language and most naturally aligns with the patent’s description of the invention.” Id. at 1316 (quoting Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed.Cir.1998)).

The patent specification supplies the primary basis for understanding the meaning of claim language. “Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.” Id. at 1315. In other words, the claim terms are to be understood in the context of the specification. Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed.Cir.2001). A claim construction “that excludes a preferred embodiment from the scope of the claim is rarely, if ever, correct.” Accent Packaging, Inc. v. Leggett & Platt, Inc., 707 F.3d 1318, 1326 (Fed.Cir.2013). Nonetheless, details from the specification may not be imported into the claim through the guise of claim interpretation. SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed.Cir.2004). “[T]he line between construing terms and importing limitations can be discerned with reasonable certainty and predictability if the court’s focus remains on understanding how a person of ordinary skill in the art would understand the claim terms.” Phillips, 415 F.3d at 1323.

The ordinary meaning of a word to one skilled in the art at the time of the patent issue is not evaluated in isolation, however. “[T]he specification may reveal a special definition given to a claim term by the patentee that differs from the meaning it would otherwise possess.” Id. at 1316. This redefinition need not be express, so long as it is apparent from the specification. Id. at 1321. Furthermore, “the specification may reveal an intentional disclaimer, or disavowal, of claim scope by the inventor.” Id. at 1316. In both cases, it is “the inventor’s intention, as expressed in the specification,” that controls the interpretation of claim terms. Id.

The prosecution history can also play a role in claim interpretation. Id. at 1317. However, because the prosecution history “represents an ongoing negotiation between the [United States Patent and Trademark Office (PTO)] and the applicant,” it can lack the clarity of the specification and be less useful in claim construction. Id. A court may also consider extrinsic evidence, such as dictionaries, treatises, and expert testimony to the extent it is consistent with the intrinsic evidence. Id. at 1319. However, extrinsic evidence may not contradict the language of the claims or the teachings of the specification. Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1382 (Fed.Cir.2008).

Two further rules of construction aid the Court. First, “the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim.” Phillips, 415 F.3d at 1315 (citing Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed.Cir.2004)). This is sometimes called the doctrine of “claim differentiation.” E.g., Seachange Int’l, Inc. v. C-COR, Inc., 413 F.3d 1361, 1369 (Fed.Cir.2005). The presumption may be rebutted by “a contrary construction dictated by the written description or prosecution history.” Id. Second, if after applying these rules of construction a claim term remains susceptible to more than one reasonable interpretation, the term is to be construed in a way that preserves the validity of the patent. Phillips, 415 F.3d at 1327. This will usually be a narrower construction. Id.

II. BACKGROUND

In 1998, Ovid Santoro and Klaus Lager-mann invented a “System and Method for Simultaneous Display of Multiple Information Sources,” for which they obtained a patent in 2000. 403 Patent at 1, PI. Surfcast, Inc.’s Claim Construction Br. at 1 (ECF No. 60) (PL’s Br.). The patent describes

[a] computerized method of presenting information from a variety of sources on a display device. Specifically the ... invention describes a graphical user interface for organizing the simultaneous display of information from a multitude of information sources. In particular, the ... invention comprises a graphical user interface which organizes content from a variety of information sources into a grid of tiles, each of which can refresh its content independently of the others. The grid functionality manages the refresh rates of the multiple information sources.

'403 Patent, at [57]. The '403 Patent has three independent claims — claims 1, 22, and 46 — -and forty-nine dependent claims.

SurfCast commenced this patent infringement suit against Microsoft on October 30, 2012. Compl. (ECF No. 1). The parties submitted a joint claim construction statement on May 7, 2013. Joint Claim Construction Statement (ECF No. 57). With the statement came a claim construction chart showing the disputed terms and the parties’ proposed eonstruc-tions. Joint Claim Construction Statement Attach. 1 Joint Claim Construction Chart (ECF No. 57). SurfCast submitted a brief in support of its constructions on May 17, 2013, along with an expert affidavit and exhibits. Pl.’s Br. Microsoft filed its opposition brief on June 7, 2013, Def. Microsoft Corporation’s Responsive Claim Constmction Br. at 7 (ECF No. 64) (Def.’s Br.), and SurfCast replied to the opposition on June 21, 2013. PI. SurfCast, Inc.’s Claim Constmction Reply Br. (ECF No. 68) (PI. ’s Reply).

The Court originally scheduled a claim construction hearing on June 28, 2013 (ECF No. 75), but rescheduled for August 30, 2013 to accommodate the schedules of the parties’ counsel. Notice Cancelling Claim Construction Hearing (ECF No. 76), Minute Entry (ECF No. 113). At the claim construction hearing, counsel for both sides indicated there might be some terms on which they might compromise and reach an agreement on construction. Consequently, the Court ordered the parties to attempt to negotiate on these terms and report back by September 6, 2013. Minute Entry (ECF No. 113). On September 6, 2013, both parties reported back that no compromise had been reached, but both parties also submitted revised claim constructions. Def. Microsoft Corporation’s Notice of Proposed Compromise Claim Constructions (ECF No. 115); Def. Microsoft Corporation’s Notice of Proposed Compromise Claim Constmctions Attach. 1 Microsoft’s Proposed Compromise Constmctions (Def.’s Revised Con-stmctions); PI. SurfCast’s Notice of Revised Claim Constmction (ECF No. 116) (PI. ’s Revised Constmctions).

On November 19, 2013, while claim construction was under advisement before the Court, the Patent Trial and Appeal Board of the PTO granted inter partes review of the '403 Patent under 37 C.F.R. § 42.108. Microsoft Corp. v. SurfCast, Inc., No. IPR2013-00292 (P.T.A.B. Nov. 19, 2013) (PTO Op.). Inter partes review is an administrative proceeding in which the PTO reviews an issued patent to determine if some claims should be canceled because they are unpatentable in light of the prior art. 35 U.S.C § 311(b); 37 C.F.R. § 42.108(a), (b). For the purpose of granting inter partes review, the PTO construed some of the claim terms in the '403 Patent currently before the Court. PTO Op. at 8-23. The PTO’s construction is persuasive but not binding on this Court. See Def. Microsoft Corporation’s Notice of Institution of Inter Partes Review of the Patent-In-Suit at 2 (ECF No. 146) (Nov. 21, 2013).

On December 20, 2013, SurfCast moved to stay proceedings pending the inter paries review. PI. ’s Mot. to Stay Pending Inter Partes Review (ECF No. 150) (Pi’s Mot. to Stay). Microsoft opposed this motion on January 13, 2014. Def. Microsoft Corporation’s Resp. to Pi’s Mot. to Stay Pending Inter Partes Review (ECF No. 153) (Def.’s Opp’n to Stay). SurfCast replied to Microsoft’s opposition on January 27, 2014. PI. ’s Reply in Support of Its Mot. to Stay Pending Inter Partes Review (ECF No. 154) (Pi’s Reply to Stay).

III. THE MOTION TO STAY

SurfCast argues that the Court should stay proceedings in this matter because Microsoft will not suffer any undue prejudice from a stay, granting a stay during the inter partes review (IPR) will simplify the issues for trial, a stay will conserve judicial resources, and proceeding without a stay may result in inconsistent decisions. Pi’s Mot. to Stay. Microsoft replies that a stay will not simplify any issues because there is an appellate process that will follow IPR, and, in any event, Microsoft will continue to pursue its inequitable conduct and unclean hands counterclaims, the claim construction process is already under way, and Microsoft’s litigation posture would be prejudiced by a stay. Def.’s Opp’n to Stay. Microsoft is also eager to prevail in the litigation so as to clear an accusation of wilful infringement from its public reputation. Id. at 8-9.

The Court accepts SurfCast’s formulation of the factors it should consider in deciding whether to grant a stay:

Courts consider three factors in determining whether a stay is appropriate in patent cases: (1) whether a stay would unduly prejudice or present a clear tactical disadvantage to the non-moving party; (2) whether a stay will simplify the issues in question and trial of the case; and (3) whether discovery is complete and a trial date has been set.

PI.’s Mot. to Stay at 5 (citing Pi-Net Int’l, Inc. v. The Hertz Corp., No. CV 12-10012 PSG, 2013 WL 7158011, at *1, 2013 U.S. Dist. LEXIS 81570, at *3 (C.D. Cal. Jun 5, 2013)). On the first factor, the Court accepts Microsoft’s assertions that it “expects that important testimony will be provided by long-time employees who were intimately involved in Microsoft’s prior software development. But the technology industry often evolves at a staggering pace, and valued technology employees frequently move on.” Def.’s Opp’n to Stay at 6-7. Microsoft is also concerned that, absent the Court’s claim construction decision, it might not be able to modify its allegedly-infringing products to cut off potential ongoing damages. Id. at 7-8.

The Court also does not conclude that a stay will simplify the issues for trial. The outcome of the IPR process is too uncertain to predict with confidence that it will result in a different patent underlying the suit; indeed, waiting for the entire process to proceed through the PTO channels (including the likely appeals to the Federal Circuit) will likely add confusion and complexity. Furthermore, SurfCast has asked the Court to impose a stay only “pending the Board’s final written determination of the IPR,” PI. ’s Mot. to Stay at 10; it would have the Court lift the stay after the Board rules, but before the Federal Circuit resolves any appeals. Given that the Court disagrees with the PTO’s construction of many of the disputed claim terms, see infra, it would make little sense to proceed to trial on whatever patent emerges from the IPR process. If the parties proceed briskly to dispositive motions and trial, the Federal Circuit will have the advantage of the outcome in this Court when considering the result of the IPR process.

Finally, on the third factor, the case has been underway for over a year and fact discovery is complete. A trial date has not yet been set, but a scheduling order will issue shortly after this claim construction opinion.

The Court concludes that the three factors weigh in favor of denying a stay at this time.

IV. CLAIM CONSTRUCTION

A. “tile(s)”

The words “tile” or “tiles” appear in every independent claim and many of the dependent claims. E.g., '403 Patent at claims 1, 22, 46. They are also elements of several other disputed terms. “Tiles” are fundamental to the entire patent, and so the meaning of this word merits careful and exacting analysis.

SurfCast proposes that “tile(s)” be construed as a “graphical representation of an associated information source capable of displaying refreshed content, the graphical representation being persistent and selectable to provide access to underlying information of the associated information source.” Joint Claim Construction Chart at 1. Microsoft initially proposed that “tile(s)” be construed as “[a]n area of a display which presents content from an information source.” Id. In its compromise offer, Microsoft suggested that “an area of’ become “a graphic image on.” Def.’s Revised Constructions at 1. The PTO construed “tile(s)” to mean “a graphical user interface element whose content may be refreshed and that, when selected, provides access to an information source.” PTO Op. at 9.

1. Position of the Parties

a. SurfCast

SurfCast argues that the word “tile” should mean “graphical representation of an associated information source capable of displaying refreshed content, the graphical representation being persistent and selectable to provide access to underlying information of the associated information source.” Pl.’s Br. at 10. SurfCast starts with the premise, based on its expert’s affidavit, that the term “tile” had no plain and ordinary meaning in the art at the time of the '403 Patent. Id. at 11. It also notes that the specification indicates that it is defining the word: “In the present invention, a third graphical representation of programs and files [distinct from windows and icons], herein called a tile, is introduced.” '403 Patent at 8:29-30.

SurfCast observes that the specification states that “a tile presents content from any information source,” while the claim language specifies that “each tile ... is associated with an information source.” Pl.’s Br. at 11 (quoting '403 Patent at 7:64-65; '403 Patent at claim 1, 24:20-21). Furthermore, each independent claim associates a “refresh rate” or a “retrieval rate” — also disputed terms — with each “tile.” Id. at 11 (quoting '403 Patent at claim 1, 24:23-28). SurfCast concludes that a person of ordinary skill in the art, reading the patent, would understand that a tile is “a graphical representation of an associated information source capable of display refreshed content.” Id.

SurfCast also finds support for the phrase “the graphical representation being persistent” in the specification. Id. at 12. It points to the specification’s description of one embodiment of the invention in which “[t]iles ... are created, saved, and restored via the metabase.” Additionally, “[i]tems in the metabase are ‘persistent,’ that is they are not saved explicitly but are preserved from session to session.” Id. (quoting '403 Patent at 15:54-64). SurfCast also points to language in the Summary of the Invention: “The present invention comprises a grid of tiles that resides on a user’s [computer] desktop.” Id. (quoting '403 Patent at 4:37-38). Surf-Cast suggests that the word “reside” also implies persistence, and that that persistence should be imputed to “tiles.” Id.

Next, SurfCast offers more language from the specification for the proposition that tiles are “ ‘selectable’ so as to ‘instantly provide[] the user with access to the underlying information’ when the tile is selected.” Id. (quoting '403 Patent at 9:25-27). SurfCast asserts that a person of ordinary skill in the art would appreciate that the “selectable” feature of the “tile” distinguishes it from a conventional window.” Id. at 13.

Finally, SurfCast disputes Microsoft’s proposed construction, because it fails to reflect the attributes of the “tile” that, in the specification, distinguish a “tile” from a “window.” Id. at 13. Specifically, Surf-Cast claims that a “tile” is persistent and selectable, while a “window” is not. Id. SurfCast views Microsoft’s proposed construction as an effort to “read the paten-tee’s chosen definition for ‘tile’ out of the claim.” Id.

b. Microsoft

Microsoft’s preferred construction of “tile” was originally “[a]n area of a display which presents content from an information source.” Def.’s Br. at 7. Microsoft later offered to revise this construction to “a graphic image on a display which presents content from an information source.” Def.’s Revised Constructions at 1. In support of this shorter construction, Microsoft cites the first independent claim, which describes “partitioning a visual display of the device into an array of tiles,” Def.’s Br. at 7 (quoting '403 Patent at 24:19-22), and also requires that, in Microsoft’s own words, “content from an information source be presented to the tiles.” Id. (paraphrasing '403 Patent at 24:26-33). Microsoft also quotes the first substantive paragraph of the specification, which states: “ ‘The present invention relates to methods of presenting information from a variety of sources on a display device.’ ” Id. (quoting '403 Patent at 1:11-15). Likewise, it offers a phrase from the specification’s introduction of “tiles” stating that “[a] tile presents content from any information source.” Id. (quoting '403 Patent at 7:64-65). From these pieces of the first independent claim and the specification, Microsoft concludes that a “tile” is “an area of a display which presents content from an information source.”

Microsoft disputes SurfCast’s construction, first on the grounds that “[t]he patent specification does not provide any special definition for ‘tile.’ ” Id. In Microsoft’s view, the '403 Patent’s use of “tile” throughout is consistent with the usage of the term in prior art, and particularly in United States Patent No. 5,321,750. Microsoft contends that SurfCast’s construction improperly reads limitations from the specification into the claim language.

For instance, Microsoft asserts that nothing in the patent requires that “tiles” be “persistent.” Id. at 8. The claims do not use the word “persistence,” Microsoft points out, and several dependent claims speak of downloading tiles from a second computer onto the user’s computer. Id. (citing '403 Patent at claims 15, 16). It also points to an embodiment in which the tiles are downloaded to the user’s system when the user logs onto a separate server computer, '403 Patent at 22:1-15, which suggests to Microsoft that the user’s computer does not have the tiles when the user’s computer is started. This, Microsoft maintains, is inconsistent with the notion of “persistence” put forth by SurfCast.

Microsoft also argues that the only embodiment that uses the word “persistent” does so in the context of describing “items” stored in the “metabase.” Def.’s Br. at 8 (quoting '403 Patent at 14:27-28). Even this storage is optional; “[ajctual tiles that a user visualizes can be spawned from the metabase.” Id. (quoting '403 Patent at 14:42-43) (emphasis added by Microsoft). Microsoft reads the phrase “can be” to indicate that even in the meta-base embodiment, persistence of the tiles is optional. Microsoft further points out that the “metabase” is not mentioned in any claim.

As to “selectability,” Microsoft relies primarily on the doctrine of claim differentiation to argue that “tiles” are not “selectable.” Id. at 9. It points out that dependent claims 5 and 32 of the '403 Patent, require that “tiles” be “selectable.” Id. From this, Microsoft concludes that the “tiles” of independent claims 1 and 22 must not be selectable; construing “tiles” to be “selectable” would improperly import limitations from the specification into the claims. Id.

Microsoft also disputes that a “tile” must be a “graphical representation of an associated information source,” as advanced by SurfCast. Id. at 9-10. Even the specification, Microsoft points out, only states that the content of a tile “is typically a miniaturized representation of a graphic or still-frame from a datastream.” Id. at 9 (quoting '403 Patent at 9:3-5). Microsoft concludes that some tiles do not represent data in this way. Id. at 10.

As to “capable of displaying refreshed content,” Microsoft objects because only independent claim 1 and its descendants— not independent claims 22 and 46 — have a reference to “refresh.” Id. Microsoft contends that reading “capable of displaying refreshed content” into “tiles” would improperly rewrite the claims. Id.

Finally, Microsoft vigorously disputes SurfCast’s claim that Microsoft’s preferred construction ignores the specification’s distinctions between a “tile” and a “window.” Id. at 10-11. Microsoft claims that prior art “windows” were both “persistent” and “selectable.” Id. at 10 (citing id. at Ex. 1, Decl. of David R. Karger on Claim Construction for U.S. Patent No. 6,724,W3 at ¶ 23 (ECF No. 64-1) (Karger Declaration)). Furthermore, Microsoft claims that SurfCast never argued to the patent examiner that its “tiles” were distinct from “windows” because of persistence or se-lectability; rather, SurfCast made other arguments distinguishing “windows” from “tiles.” Id. at 11 (citing id. at Ex. 4, Amendment and Resp. Under 37 C.F.R. § 1.111 at 12 (ECF Nos. 60-4, 60-5) (’403 File History)).

2. Analysis

a. The Patentee as Lexicographer

As a preliminary matter, the Court must determine whether the paten-tee intended to “act as its own lexicographer.” Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed.Cir.2012). The patentee seeking to redefine the plain and ordinary meaning of a term must “ ‘clearly express an intent’ to redefine the term.” Id. (quoting Helmsderfer, 527 F.3d at 1381). If the patentee in this case intended to redefine “tile,” the Court must give much heavier weight to the specification than to any extrinsic evidence of the plain and ordinary meaning of the word. On the other hand, if it appears that the patentee was using “tile” without any special definition local to the patent, the Court can look to extrinsic evidence of the plain and ordinary meaning at the time.

In Thomer, the Federal Circuit held that a district court wrongly redefined the word “attached” to mean “affixed to an exterior surface.” 669 F.3d at 1367-68. The patent had used the word “attached” without explicitly redefining it, but all the examples of “attached” in the specification had attachments to the exterior surface of a human interface device. Id. at 1367. However, the Federal Circuit reasoned that mere usage was not enough to show intent to redefine or disavow the ordinary meaning of the term. Id. “If the applicant had redefined the term ‘attached’ to mean only ‘attached to an outer surface,’ then it would have been unnecessary to specify that the attachment was ‘to [an] outer surface’ in the specification.” Id. at 1368. Consequently, it was error to limit “attached” beyond its plain and ordinary meaning. Id.

Here, by contrast, the Court concludes that the patentee intended to redefine the term. This intent is naked on the face of the patent. The specification devotes an entire section to “Tile Objects,” which begins with this language: “In the ensuing discussion, tile objects are introduced and described and contrasted with existing elements of graphical user interfaces.” '403 Patent at 7:62-64. The patentee clearly states that he is not using “tile” in any sense other than that which he is preparing to “introduce” and “describe.” After criticizing the current art, consisting (in his view) of icons and windows, the paten-tee states: “In the present invention, a third graphical representation of programs and files, herein called a tile, is introduced.” Id. at 8:29-30. Again, the paten-tee is “introducing]” something called a “tile,” which is different than the prior art. Id.

No clearer statement of intent to redefine is needed. This is not a case in which the Court must imply intent by analyzing the usage of the term in the specification, as the district court wrongly did in Thor-ner. The '403 Patent, expressly intends to redefine the word “tile.” That the intent to redefine occurs in the specification is no barrier. See 3M Innovative Props. Co. v. Avery Dennison Corp., 350 F.3d 1365, 1369, 1371 (Fed.Cir.2003) (permitting the patent specification to redefine a term).

Consequently, the Court rejects Microsoft’s contention that the patent uses “tile” in a manner to be understood by reference to the prior art. Its meaning must be found in the patent itself. The Court now turns to the parties’ proposed constructions.

b. Construction of “tile(s)”

i. Microsoft’s Proposed Construction Is Too Broad

First, the Court does not accept Microsoft’s proposed construction: “An area of a display which presents content from an information source.” This is a much broader definition of “tile” than appears in the patent. The whole point of a “tile” in the invention is to combine features of “windows” and “icons” in a way that balances the advantages of each while discarding some features not desirable in the new “tile” interface paradigm.

The patent defines “tile” largely by reference to “window” and “icon”; that is, it explains what a “tile” is by adopting some elements of “window” and “icon” while discarding others, and also adding what it claims are some new features not present in either. To this end, it provides its own specific definitions of “window” and “icon,” along with the requisite intent to define these terms locally. '403 Patent at 7:66-8:14. The patent makes quite clear what the patentee considers to be the defining characteristics of both “windows” and “tiles,” and which of those characteristics are adopted by “tiles.”

For instance, the patent states that a “tile” contains a “view[ ] of a single information source,” Id. at 8:32, and that an icon does not. See id. at 8:2-14 (describing icons as the method by which one accesses information from a data source, distinct from the “window” in which one actually views the information). Likewise, the patent describes a “tile” as fulfilling many of the functions of an icon that a window does not fulfill. By the patent’s terms, a “tile” provides a simplified, rather than detailed, representation of the current state of the data source, id. at 8:49-53; it prevents overlapping with other tiles, reducing visual clutter, id. at 8:45-49; and it enforces a uniformity of appearance. Id. at 8:52-56. The patent distinguishes a “window” from a “tile” in each of these respects.

Microsoft’s proposed construction disregards this specificity in the patentee’s description of a tile. Instead, Microsoft’s definition would apply equally to both a “window” and an “icon” as the patentee presents both those terms. “An area of a display which presents content from an information source” describes virtually every visual element of the interface between a computer and a human being, a construction too broad to be correct.

ii. “graphical representation of an associated information source”

SurfCast’s proposed construction of “tile” begins with “graphical representation of an associated information source,” PI. ’s Br. at 10, and adds specificity. Each independent claim speaks of “partitioning” or “arranging” a “display.” Id. claim 1, 24:19-20; id. at claim 22, 25:28-29; id. at claim 46, 26:58. This language addresses the human interface purpose of the invention, making “graphical representation” an appropriate abstraction. The specification supports this interpretation when it refers to a tile as a “graphical representation of programs and files.” Id. at 8:29-30. As for “an associated information source,” the specification states that “a tile presents content from any information source,” '403 Patent at 7:64-65, and the language of the first independent claim instructs that “each tile ... is associated with an information source.” Id. claim 1, 24:19-21. Likewise, independent claim 22 speaks of “associat[ing] a first information source ... to a first tile and a second information source ... to a second tile,” id. at claim 22, 25:30-34, while independent claim 46 uses similar language. Id. claim 46, 26:59-63.

Microsoft’s objections to this clause of SurfCast’s proposed construction do not address the claim language itself, nor do they speak to the plain language of the specification cited above. Def.’s Br. at 9-10. The Court concludes that the construction of “tile” should begin with “graphical representation of an associated information source.”

iii. “persistent”

SurfCast next proposes to add the phrase “the graphical representation being persistent.” Microsoft objects in substance only to the word “persistent.” As a starting point, the Court notes that both parties apparently agree on what “persistent” means: “tiles are not lost when a computer is restarted.” Pl.’s Br. at 12; Def.’s Br. at 8. The PTO concluded, after considering material from columns 4 and 15 of the '403 Patent, that construing a “tile” to be. “persistent” would improperly import a limitation from the specification into the claims. PTO Op. at 11. The Court respectfully disagrees.

In support of its construction, SurfCast offers the phrase “preserved from session to session,” found in reference to one preferred embodiment of the invention. '403 Patent at 15:54-64. This embodiment makes use of the “metabase” data store concept to cause tiles to persist across user sessions. Id. SurfCast also points to another embodiment that “replaces the functionality of the computer ‘desktop’ ” and “understands the interests of the user and acts as a repository for password and identifiers.” Id. at 11:32-33, 46-47. But these are two phrases selected from two embodiments; the text does not mandate that they are inherent features of a tile. The presence of these specific features in two embodiments instead suggests, not that they are fundamental characteristics of a tile, but that they are particular uses to which a tile may be put in the overall invention. Put another way, the fact that in one embodiment a metabase can cause tiles to be persistent does not by itself mean that all tiles are persistent. The invention is not a tile; the invention is a human interface that incorporates tiles.

From the Court’s perspective, the Summary of the Invention presents a more compelling ease for persistence than Microsoft or the PTO credits. SurfCast points to this phrase to show that tiles are persistent: “The present invention comprises a grid of tiles that resides on the user’s computer desktop.” Id. at 4:37-38. The most relevant definition of “reside” is “to abide, lie, or be present habitually,” The Random House DictionaRY of the English Language 1638 (Stuart Berg Flexner & Leonore Crary Hauck eds., 2d ed. unabridged 1987), and this does strongly suggest persistence. At the same time, the sentence is ambiguous as to what, exactly, resides. Clearly something “resides” on the desktop, but the sentence could either mean that the grid resides there or that the tiles do. Nonetheless, a “grid” is a grid “of tiles”; if the grid abides, so must the tiles within. '403 Patent at 4:37-38.

The language of the independent claims provides no clear indication that tiles are persistent. Granted, the independent claims speak repeatedly of “assigning” refresh rates or information sources to tiles. But persistence is more than merely the ability to be assigned a value and hold it for some measurable period of time; according to SurfCast, “persistence” means that those assignments are necessarily stored and restored when the user terminates one session and starts another. See PI. ’s Br. at 12 (“the concept of permanence ... mean[s] that tiles are not lost when a computer is restarted”). It is true that some of the dependent claims speak of “storing” the array of tiles on a “device”— which might implicate persistence. But the fact that some dependent claims make use of a particular method to implement persistence does not prove that the independent claims from which they descend necessarily have persistence. Just the opposite presumption applies under the doctrine of claim differentiation, and this presumption prevents the dependent claims from definitively imputing persistence to tiles.

In Thomer, the Federal Circuit faulted a district court for implying the limitation that “attached” meant “externally attached” from the fact that the embodiments only used “attached” to speak of external attachments. Thomer, 669 F.3d at 1368. But here the patent gives the reader more than mere consistent usage; at least arguably it introduces the idea of persistence as a feature of “tile” in the Summary of the Invention. The doctrine of claim differentiation creates a presumption that the persistence feature suggested in the dependent claims is not present in the independent claims, but that presumption can be rebutted by “a contrary construction dictated by the written description or prosecution history.” Seachange, 413 F.3d at 1369. In this case, neither of these legal tools resolves the dispute; there is strong tension between the Summary and the claims. This leaves the Court at the fine “line between construing terms and importing limitations,” which the Federal Circuit instructs “can be discerned with reasonable certainty and predictability if the court’s focus remains on understanding how a person of ordinary skill in the art would understand the claim terms.” Phillips, 415 F.3d at 1323.

The Court agrees with the PTO that, considering only columns 4 and 15, the specification displays insufficient evidence of persistence to construe “tile(s)” to be persistent. But one of skill in the art would read the patent not only for the trees but also for the forest, and it is on this broad reading that the Court parts ways with the PTO. This invention is, at its heart, a human interface concept that is meant to replace the icon-based paradigm with a tile-based paradigm. In order to accomplish this function, the invention must preserve critical functionality of the old paradigm while also introducing something new and useful. Icons are indisputably “persistent” in the old paradigm, and this functionality is essential to human beings who must interface with computers. If icons were not persistent, a computer user would have to recreate his desktop— his “home base” — every time he started his computer. This would be an enormous aggregate waste of time, and would greatly impede the usefulness of the human interface. It follows that tiles could not replace icons without also being persistent, or providing some wholly new way of interfacing that did not make persistence a necessary feature. If Microsoft were correct in its objection, the '403 Patent would purport to replace the icon paradigm without providing any alternative to persistence. This would be futile. One of skill in the art, after reading and digesting the patent as a whole, would understand that a “tile,” as a human interface concept, would be of little use were it not to persist between sessions.

Turning to a “big picture” conceptualization of the patent is not appropriate for every claim term. In some cases this would run afoul of the Federal Circuit’s commandment not to import limitations of the specification into the claims. See, e.g., Section IV.L.2, infra (construing “grid”). If the rales of claim construction lead to a clear legal result, no further conceptualization is needed. Here, though, where the minutiae of the words do not lead to an impregnable legal answer in either direction, the big picture reveals what one skilled in the art would understand after reading the patent.

The Court will include “the graphical representation being persistent” in its construction of “tile(s).”

iv. “selectable”

The specification, in the section defining a “tile,” states that “[tjiles are selectable” so as to “instantly provide[ ] the user with access to the underlying information.” '403 Patent at 9:25-27. This text occurs before any description of specific embodiments, and so gives rise to a strong inference that it applies to all tiles.

Against this inference, Microsoft raises the doctrine of claim differentiation, pointing out that some of the dependent claims mention selectability. Def.’s Br. at 9 (citing '403 Patent at claims 5, 32). As a preliminary matter, claims 5 and 32 do not actually describe selectability. Instead, they speak of “attributing a selected state or an unselected state to said first tile and said second tile” and “selectively assigning] a selected or unselected state to specified tiles.” '403 Patent at claims 5, 32. Assigning a selected or unselected state is different than being selectable; a thing may be selectable without inherently bearing a selected or unselected state. The fact that dependent claims 5 and 32 mention that the tile can have a selected or unselected state does not mean that other tiles (which lack this state feature) must also not be selectable.

However, even assuming that the language in some dependent claims does speak to the concept of “selectability,” this would only give rise to a presumption that the “tiles” of the independent claims are not selectable. In this case the plain language of the specification, defining “tile,” rebuts that presumption because it is a “contrary construction dictated by the written description.” Seachange, 413 F.3d at 1369; see also Marine Polymer Techs., Inc. v. HemCon, Inc., 672 F.3d 1350, 1358-59 (Fed.Cir.2012) (rebutting the presumption of claim differentiation using descriptive material from the specification). In other words, where the patentee has defined a “tile” to be “selectable,” tiles are still selectable even if an independent claim does not mention selectability and a dependent claim does.

v. “capable of displaying refreshed content”

Microsoft’s stated objection to this phrase stems from its position that “refresh rate” and “retrieval rate” mean different things in the context of the patent. Def.’s Br. at 10. It points out, correctly, that the word “refresh rate” only appears in independent claim 1, while independent claims 22 and 46 use “retrieval rate” in its place. Id. This, in Microsoft’s view, means that only the tiles of claim 1 are capable of displaying refreshed content, and therefore a “tile” generally is not.

The Court later addresses the respective meanings of “refresh rate” and “retrieval rate.” However, even if “refresh rate” and “retrieval rate” are given Microsoft’s construction, a “tile” is still “capable of displaying refreshed content.” First, Microsoft concedes that the tiles of independent claim 1 are capable of displaying “refreshed” content, Def.’s Br. at 10; the dispute is only whether the tiles of independent claims 22 and 46 have the same characteristic. Microsoft’s preferred construction of “retrieval rate,” the phrase in those claims, is “a recurring time interval at which information is retrieved.” Id.

Independent claim 22 speaks of a collection of tiles and a collection of information sources, a set of instructions for associating the tiles with the information sources, a set of instructions for retrieving information from the information sources “in accordance with a ... retrieval rate,” and a set of instructions to “present information” to the tiles “in accordance with [the] ... retrieval rate.” '403 Patent at claim 22, 25:25-42. The sum of this process — adopting for the moment Microsoft’s construction of “retrieval rate” — is to repeatedly obtain information from some source at a “recurring time interval” and present it to the tile. Claim 22 also states that the display is “arrange[d] [into] an array of tiles.” Id. claim 22, 25:28-29. If the display is divided up into tiles, a tile is a “graphical representation of an associated information source,” and the tiles are periodically given new information from the information source, it must be the case that a tile is “capable of displaying refreshed content.” This is true even if one accepts Microsoft’s definition of “retrieval rate.”

The relevant portions of independent claim 46 are nearly identical. That claim speaks of dividing “a display into an array of tiles,” associating an information source to each tile, retrieving information from the information source “in accordance with a ... retrieval rate,” and presenting the information to the tile “in accordance with said ... retrieval rate.” Id. claim 46, 26:58-27:4. Again, even if “retrieval rate” means “a recurring time interval at which information is retrieved,” as Microsoft insists, the tile must be “capable of displaying refreshed content.”

Because all three independent claims logically require that tiles are capable of displaying refreshed content, the Court includes “capable of displaying refreshed content” in its construction of “tile.”

vi. Conclusion

It is impermissible to import details of the specification into the claims in the guise of claim construction. Super-Guide, 358 F.3d at 875. However, the Court takes- as a corollary to this principle that it is equally impermissible to ignore the' specification altogether to broaden a claim into invalidity. After careful consideration, the Court concludes that within the '403 Patent, a “tile” is “a graphical representation of an associated information source capable of displaying refreshed content, the graphical representation being persistent and selectable to provide access to underlying information of the associated information source.”

B. “array of tiles”

SurfCast proposes that “array of tiles” be construed as “multiple tiles displayed in an orderly fashion.” Joint Claim Construction Chart 1. Microsoft proposes that the phrase mean “[a] collection of tiles. The tiles may, but need not, be arranged in a grid.” Id. The PTO construed “array of tiles” to mean “an ordered set of two or more tiles.” PTO Op. at 11.

1. Position of the Parties

a. SurfCast

SurfCast argues that an “array of tiles” is “multiple tiles displayed in an orderly fashion.” Pl.’s Br. at 14. Its argument rests mainly on portions of the specification that use the phrase “array of tiles.” For instance,, the Summary of the Invention states that the invention’s method includes steps of “partitioning a visual display of a computer into an array of tiles in a non-overlapping configuration.” Id. at 14 (citing '403 Patent at 4:57-59). The section defining “tile objects” states that a representative tile can contain a secondary grid of tiles; the representative tile “displays a further array of tiles that may be displayed in full by expanding [the representative tile] to occupy the full area of the display.” Id. (citing '403 Patent at 9:8-11). It also cites several embodiments with similar language. Id. (citing '403 Patent at 12:6-8 (“FIG. 8 shows one embodiment in which all tiles are the same size and are presented in an array comprising M rows and N columns”)); id. (citing '403 Patent at 13:59-60 (“When a tile is partitioned into a further array of tiles, the grid configuration program can also be used”). In SurfCast’s view, this language establishes that when the patent uses the phrase “array of tiles” it means “multiple tiles displayed in an orderly fashion.” Id.

b. Microsoft

Microsoft’s preferred construction of “array of tiles” is: “A collection of tiles. The tiles may, but need not, be arranged in a grid.” Def.’s Br. at 11. Microsoft begins with the proposition that “[a]n ‘array’ is a common term in computer science with a well-understood meaning: a collection of items.” Id. (citing Dictionaey of COMPUTER AND INTERNET TERMS 24 (Douglas Downing, Michael Covington, & Melody Mauldin Covington eds., 6th ed. 1998) (DiCtionary of Computer Terms) (defining “array” as “a collection of data items that are given a single name and distinguished by numbers (subscripts)”)). It claims that “nothing in the specification provides a reason to depart from this well understood meaning, and thus an ‘array, of tiles’ should be construed to mean simply a collection of tiles.” Id. at 11-12.

Microsoft disputes that an “array of tiles” should be inherently ordered, as SurfCast proposes, because “displayed in an orderly fashion” is “thoroughly subjective.” Id. at 12. As a demonstration, Microsoft presents four small boxes inside a larger box, each smaller box placed into one of four equal quadrants of the larger box. Id. Although each small box is inside its own quadrant, its position relative to the top left of the quadrant varies slightly from quadrant to quadrant. Id. Microsoft proposes that “a juror who believes this arrangement is ‘orderly’ is no less wrong or right than one who believes it is not.” Id. The Court understands Microsoft to mean that it would be reasonable for a juror to find it orderly because the small boxes are all within one of four equal quadrants, but that it would also be reasonable for a juror to find it disorderly because each small box is at a slightly different offset within its quadrant. Microsoft cites Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1350-51 (Fed.Cir.2005) for the proposition that subjective claim requirements have in the past been held to render the claim invalid as indefinite.

Finally, Microsoft attacks the specification passages presented by SurfCast, claiming that they do not show that an “array of tiles” must necessarily display in an “orderly fashion.” Def’s Br. at 12. It claims that the passages show instead that an array of tiles may be ordered, but that this is not a required characteristic of an array of tiles. Id. at 12-13. Consequently, Microsoft concludes that SurfCast’s construction improperly reads limitations from the specification into the claims.

2. Analysis

a. The Patent Does Not Use the Computer Science Meaning of “Array”

First, the Court is not convinced by Microsoft’s attempt to conflate the computer science definition of “array” with the patent’s use of “array.” It is true that “array” is a venerable term in computer science. E.g., Dennis M. Ritchie, The Development of the C Language, in 2 HistoRY OF PROGRAMMING LANGUAGES 688 (Thomas J. Bergin & Richard G. Gibson eds., 1996) (tracing the development of the early programming languages BCPL, B, and C, and noting the use of “array” to denote collections of data in memory). It is equally true that the word “array,” as used by computer programmers in the year 2000 while writing computer programs, referred to a collection of data items. DictionaRY of Computer TeRms, supra, at 24. But “array” as used in this sense refers to data stored in computer memory, not to a group of elements in a human interface. Microsoft’s own documentation of the “CArray” class in Microsoft Foundation Classes 6.0, Microsoft’s then-current software development kit in 2000, demonstrates that an “array” is a collection of instantiated objects residing in computer memory. CAr-ray, Microsoft Developer Network, http:// msdn.microsoft.com/en-usflibrary/aa 235465(v=vs.60).aspx (last visited Mar. 12, 2014) (CArray Documentation) (describing a programming language construct used to store and refer to data in memory).

But when the '403 Patent speaks of an “array of tiles,” it consistently refers to them in the context of a human interface. It refers, not to the virtual objects in the computer’s memory, but to the layout of visual elements in the display space. E.g., '403 Patent at 4:57-59 (“partitioning a visual display of a computer into an array of tiles in a non-overlapping configuration”). The visual layout of a human interface is a wholly different conceptual terrain than the inner workings of computer memory. Furthermore, nowhere else in the patent is there any reference to a specific programming language construct that would be used to implement the invention; even the patent’s discussion of the software architecture of the invention lacks any implementation details at this level of specificity. See '403 Patent at 14:26-23:28.

b. Construction of “array of tiles”

SurfCast’s proposed construction is more convincing than Microsoft’s because it reflects, not only the consistent usage of “array of tiles” in the specification, but the overall purpose of the invention. The Court is mindful that in Thomer, the Federal Circuit reversed a district court for reading “attached” as “affixed to an exteri- or surface” merely because of consistent usage in the specification. 669 F.3d at 1368. Under Thomer, were consistent usage the only consideration here, it might be improper to read “array of tiles” as implying an orderly presentation. However, upon reading and digesting the full context of the '403 Patent, one skilled in the art would understand that “array of tiles” necessarily includes “displayed in an orderly fashion.”

First, “orderly” is not, as Microsoft claims, necessarily subjective. The most apt definition of “orderly” in this context is “arranged or disposed in a neat, tidy manner or in a regular sequence.” Flexner & Hauck, supra, at 1363. The Court grants that “neat” and “tidy” are subjective. However, whether things are “arranged in a ... regular sequence” is mathematically objective. Although a “regular sequence” might be quite complex and governed by conditional rules, it is ultimately objective and predictable. The Court understands SurfCast to use “orderly” in this second, objective manner because it is the only usage that makes sense in the context of the '403 Patent.

Next, the overwhelming majority of references to “array of tiles” in the specification and claims are consistent with orderliness in the objective sense. The Summary of the Invention makes three broad statements about visual collections of tiles: (1) “[t]he present invention comprises a grid of tiles,” '403 Patent at 4:37-39; (2) “the present invention comprises a method executed by a computer ... comprising the steps of: partitioning a visual display ... into an array of tiles in a non-overlapping configuration,” id. at 4:55-61; and (3) “the present invention additionally includes ... a ... set of instructions to partition a display into an array of tiles.” Id. at 4:65-5:3. If the invention comprises a grid of tiles, and also a method and instructions for rendering an array of tiles, it stands to reason that the array of tiles will be rendered with reference to a grid. This is not to say that “array” and “grid” mean the same things; it only means that the Summary imputes the orderly properties of a grid to the usage of “array.”

The illustrations of the invention bear out this association; whenever the patent shows groups tiles, they are in a grid, which is “orderly.” Id. at figs. 1, 4, 7-11, 14. Furthermore, the patent, describing a representative tile, uses “array of tiles” when referring to tiles arranged in a grid. Id. at 9:1-11 (“FIG. 4 illustrates representative tiles.... Tile 406 displays a further array of tiles [illustrated as a 3x3 grid in Fig. 4] that may be displayed in full by expanding tile 406 to occupy the full area of the display”). The descriptions of Figures 8-11, all of which are objectively orderly, refer to the tiles as an “array.” E.g., id. at 12:6-8 (“FIG. 8 shows one embodiment in which all tiles are the same size and are presented in an array comprising M rows and N columns”).

The preceding discussion goes to consistent usage, and the Thomer Court made clear that consistent usage alone is not enough to impute a limitation to the claims. 669 F.3d at 1368. But in this case, the purpose of the invention and the description of its purported novelty confirm that an “array of tiles” is orderly.

The human interface concept described in the '403 Patent is meant to allow a computer user to keep track of multiple information sources in a more rational way than the prior art. It criticizes the icons and windows paradigm:

[Ujsers .. are ... finding that they have no effective way of managing the multiplicity of available data types and information sources. It is difficult both to conduct two or more different types of computing activities at the same time or to monitor two or more different information sources simultaneously because the tools available are confusing, inflexible, and/or otherwise difficult to implement. Users require immediate access to a wide variety of up to date content presented in a flexible, easily customized interface.

'403 Patent at 2:54-63. Likewise, it states that “[t]he user must contend with a wide range of icons and program windows that may occupy space on a user’s display screen ... An effort to standardize the ways in which different types of information are presented to the user would be advantageous.” Id. at 3:13-15, 16-19. Criticizing the then-present method of bookmarking internet locations and other information, it claims that “[t]he missing capability is a visual categorization in which an area of the display unit itself becomes the bookmark and the arrangement on the display becomes the categorization, independent of the type of content.” Id. at 4:3-7.

This is the context in which the claims state that the invention is, for instance, “[a] method ... comprising ... partitioning a visual display of the device into an array of tiles.” Id. claim 1, 24:15-20. The point of the invention, from the patent’s perspective, is to bring order to a human interface paradigm that had grown chaotic as evolving technologies increased the number of information sources that computer users wished to view. The “array of tiles,” while not the exclusive name for a visual collection of tiles, is certainly the most common, both in the specification and the claims. In this context, one of skill in the art, upon reading and digesting the patent, would appreciate that an “array of tiles” is “multiple tiles displayed in an orderly fashion.” Were the array not orderly in the objective sense, it would defeat the purpose of the invention.

As a postscript, the Court points out that an “orderly fashion” is not necessarily a grid. There is no need to add Microsoft’s additional sentence — clarifying that “[t]he tiles may, but need not, be arranged in a grid” — because this is already communicated by “orderly.” Many orderly arrangements are not grids. The Court construes “array of tiles” to mean simply that they are displayed in some objectively orderly fashion.

C. “partitioning a visual display of the device into an array of tiles” and “arrange a display into an array of tiles”

The parties initially agreed that these two phrases — the first found in independent claim 1, the second found in independent claims 22 and 46 — should be given the same construction. Joint Claim Construction Chart 1. Microsoft proposed that they both be construed as “depicting/depict an array of tiles on some or all of a display,” and SurfCast proposed “dividing/divide some or all of a display into an array of tiles.” Id. Microsoft later amended its proposed construction and asked that “arrange a display into an array of tiles” not be given any particular construction. Def.’s Revised Constructions at 1. The PTO construed the phrase to mean “dividing a display or window into two or more tiles.” PTO Op. at 13.

1. Position of the Parties

a. SurfCast

SurfCast contends that the plain meanings of the claim terms “partitioning” and “arrange,” as used in the patent, are more consistent with “dividing/divide some or all of a display” than “depicting/depict ... on ... a display.” PI. ’s Br. at 15. It claims that “partitioning” means to divide space, and here the space is a display. Id. It cites the American Heritage Dictionary for the common meaning of “partition”: “to divide into parts, pieces, or sections.” Id. (citing The AmeRican Heritage DictioNary of the English Language 1320 (3d ed.1992)). It insists that Microsoft’s definition “operates to remove any meaning imputed by the term ‘partitioning’ from the claim.” Id. SurfCast cites Innova/Pure Water, Inc. v. Safari Water Filtration Systems, 381 F.3d 1111, 1119 (Fed. Cir.2004), for the proposition that “all claim terms are presumed to have meaning in a claim,” and that consequently it would be improper to construe these phrases without the meaning of “partition.” Surf-Cast also disagrees with Microsoft’s construction because it “flips the focus of the claim language from the display to the tiles and only requires showing a collection of tiles on the display with no particular order or arrangement.” Pl.’s Br. at 16.

b. Microsoft

Microsoft argues that the specification refers to the functionality described in the independent claims in terms of “displayed,” “presented,” and “rendered.” Defi’s Br. at 13 (citing '403 Patent at 9:5-67, 12:6-8, 19:34-36, 22:51-56). It takes from this language that the array of tiles should be “depicted,” its chosen verb. Microsoft also contends that SurfCast’s “divided” will be confusing to the jury because it is not consistent with presentational language of the specification. It also claims that dependent claim 3 speaks of partitioning an array into non-overlapping tiles; in Microsoft’s view, if claim 1 requires “dividing” then partitioning into non-overlapping tiles is superfluous. Thus, Microsoft contends, under the doctrine of claim differentiation, “dividing” cannot be the correct verb.

2. Analysis

The dispute about these terms stems in large part from the parties’ different understanding of “array of tiles.” If, as Microsoft requested, an array of tiles is given its computer science meaning — a collection of virtual objects in memory — then it makes sense to “depict an array of tiles on some or all of a display.” This is because the array itself, a blob of data in memory, has no inherent visual characteristics; the tiles within the array must be “depicted,” or made perceivable by a human being. But if, as SurfCast requested, an array of tiles means “multiple tiles displayed in an orderly fashion,” then it makes sense to “divide some or all of a display into an array of tiles.” The array already has some visual characteristics because it is a human interface element (it is “displayed”); it remains only to present the array on screen by allocating some visual space to it.

The Court already determined that an “array of tiles” is “multiple tiles displayed in an orderly fashion,” and that conclusion weighs heavily in favor of SurfCast’s construction here. “Dividing/divide some or all of a display into an array of tiles” would be consistent with the Court’s construction of “array of tiles,” and therefore would make more sense to a jury. Microsoft’s assertion of the doctrine of claim differentiation does not defeat SurfCast’s construction because the “partitioning” of the visual display into an array of tiles, found in claim 1, does not require the “non-overlap