At CAFC, Microsoft gets reversal of ITC decision as to US '133: "Unavoidable proximity is still proximity."
As to the claims of the ’133 patent that are at issue, however, we hold that the Commission relied on incorrect claim constructions in finding no infringement, the only basis for its finding no violation, for the main group of accused products, while we affirm the non- infringement finding for the accused alternative design. We therefore partly reverse the Commission’s final determination as to the ’133 patent and remand for further proceedings.
As to US '133
Finally, we address the Commission’s finding of no section 337 violation based on the ’133 patent. Entitled “Context Sensitive Menu System/Menu Behavior,” the ’133 patent generally discloses and claims a computer system having a graphical user interface that presents a set of representations corresponding to actual computer resources, including objects and containers, and offers “context sensitive” menus for user interaction.4 ’133 patent, col. 2, lines 47-50. When a user selects a comput- er resource, such as a picture file, a “context menu” is automatically generated. Id., col. 10, lines 38-47. This context menu has information of two types: it includes at least one selection relating to a class of objects to which that resource belongs (e.g., the class of personal contacts, or of telephone numbers, or of pictures) and at least one selection associated with a container in which the selected computer resource resides (e.g., the directory of contacts, or of telephone numbers, or of pictures). Id., col. 10, lines 47-54. The menu, moreover, is displayed in a position in proximity to the selected computer resource. Id., col. 10, lines 54-56.
The ALJ construed “a menu selection relating to a class of objects” as “a choice or option in a menu based upon or determined by the class of objects to which the selected computer resource belongs.” Certain Mobile Devices, Associated Software, and Components Thereof, Inv. No. 337-TA-744, EDIS No. 467464, at 68. He also construed “a menu selection associated with a container” as “a choice or option in a menu based upon or determined by the environment or context in which the selected computer resource resides.” Id. Based on those construc- tions, the ALJ found that the accused products do not meet the retrieving or adding limitations because each application in the accused products acts only on a single class of objects. Id. at 70.
The Commission’s grounds for finding no infringe- ment rest ultimately on its view of what the claims re- quire. There is no dispute here about how the accused products work, only about what the claims require. These are matters of claim construction, which we review with- out deference. On a correct understanding of the claim requirements, we conclude, the main group of accused products infringe, but the alternative design does not.
As to the “retrieving” and “adding” limitations, the ev- idence is clear that the accused products contain at least two applications, each one of which, when a user sum- mons a menu for an object, displays a menu that contains both an entry dependent on the particular object (say, a telephone number) and an entry concerning the container (say, the inclusion of the number in the contact-list fold- er). To use the language of the ALJ’s own construction, a menu for a contact, for example, offers an option to email the person, which is an option “based upon or determined by” the fact that this object is a person with an email address (not, say, a picture), and another option to delete the contact from the list, which is an option “based upon or determined by” the file in which the listing resides.
No more is required by the claim language or, even, the express construction adopted by the ALJ. An applica- tion gives menu choices, one based on the type of object, another based on the container. Although the ALJ seemed to think otherwise, the object-based choice is no less object-based just because what makes it object-based is the action that selecting it will perform (call a number, say, or open a photo). And nothing in the claim language or the express construction requires an individual appli-cation itself to offer different menus for different objects or, what amounts to the same thing, to make an inquiry about a particular object once the application is launched to see which of several application-specific menus to display. The ALJ’s non-infringement finding with respect to the “retrieving”/“adding” limitations rested entirely on incorrectly imposing such extraneous restrictions. With- out those unwarranted additions, the limitations encom- pass the accused products—both the main group of products and the alternative design.
The “displaying” limitations also read on the main group of accused products, for which the Android operat- ing system provides context menus that are centered on the screen and occupy most of it. It is undisputed that, at a minimum, the menu is often at or near the location of the selected object. On a small-screen device, that may always be so, because it may be effectively impossible to be anything but proximate, for lack of space.
The ALJ’s sole basis for finding the display-in- proximity requirement not to be met for the main group of products was a notion of “deliberate” positioning that cannot be justified. No such notion is fairly found in the claim or the agreed-on construction. The claim does not require a user’s choice about display;
it plainly contem- plates control of the display by built-in software, making the language of “deliberate” odd. Perhaps the ALJ meant that the software must make the menu-display location an explicit function of the location of the graphical repre- sentation of the selected object. But the claim speaks only of results, not the details of underlying functions. Nor would it support the ALJ’s claim construction to observe that, on a small screen, the display may always be in proximity to the location of the object’s representation.7 Unavoidable proximity is still proximity. And in any event the practical consequence for small screens does not alter the evident meaning of the claim language, which is not limited to small-screen devices. This conclusion requires reversal of the ’133 patent non-infringement judgment as to the main group of accused products.
We reach a different conclusion regarding Motorola’s alternative design.
In short, as to the main group of accused products, with no alternative grounds advanced to support the Commission’s non-infringement finding, we reverse that finding. No further issue remains about direct infringe- ment by those products. But the Commission, having rejected direct infringement, did not reach the additional requirements for indirect infringement. Without prejudg- ing the issues raised by those additional requirements in any way, we think it advisable to remand for the Commis- sion to address those issues in the first instance. Also for the Commission to address on remand are the effect of infringement findings—direct infringement already established, indirect infringement possibly to be found on remand—on whether there is a section 337 violation and what remedy is appropriate, on which we likewise state no views. See Certain Electronic Devices with Image Processing Systems Components Thereof, and Associated Software, Inv. No. 337-TA-724, 2012 WL 3246515, at *13 (Dec. 21, 2011) (Comm’n Op.)