Groove Digital, Inc. v. United Bank

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

GROOVE DIGITAL, INC.,
Plaintiff-Appellant

v.

UNITED BANK,
Defendant-Appellee
______________________

2019-1857
______________________

Appeal from the United States District Court for the
Eastern District of Virginia in No. 1:18-cv-00966-LO-TCB,
Judge Liam O’Grady.
______________________

Decided: September 3, 2020
______________________

B
RIAN SHERWOOD SEAL, Butzel Long, PC, Washington,
DC, for plaintiff-appellant. Also represented by MITCHELL
ZAJAC, Detroit, MI.

JEFFREY A. BERKOWITZ, Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, Reston, VA, for defend-
ant-appellee. Also represented by KEVIN D. RODKEY, At-
lanta, GA; U
MBER AGGARWAL, J. MICHAEL JAKES,
Washington, DC.
______________________
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GROOVE DIGITAL, INC. v. UNITED BANK
2

Before CHEN, SCHALL, and HUGHES, Circuit Judges.
SCHALL, Circuit Judge.
This is an appeal from a final judgment of the United
States District Court for the Eastern District of Virginia in
a patent infringement case. Groove Digital, Inc. (“Groove
Digital”) sued United Bank in the district court for in-
fringement of claims 1–37 of U.S. Patent No. 9,454,762
(“the ’762 patent”). The court held a Markman hearing on
April 16, 2019, during which it indicated it would issue a
claim construction order that would rely upon the explana-
tions provided in the parties’ briefing. J.A. 860. In due
course, the court issued an order construing various claim
terms. Order, Groove Digital, Inc. v. United Bank, 1:18-cv-
00966, Dkt. 94, 2019 WL 1869853, at *1 (E.D. Va. Apr. 24,
2019) (“Claim Construction Order”).
The parties subsequently filed a joint stipulation stat-
ing that, given the court’s constructions of certain claim
terms in the court’s Claim Construction Order, Groove Dig-
ital could not prove infringement of the ’762 patent by
United Bank. Stipulation and Proposed Summary Judg-
ment, 1:18-cv-00966, Dkt. 96 (E.D. Va. May 2, 2019); J.A.
862–65. In view of the parties’ stipulation, the district
court granted summary judgment of non-infringement of
claims 1–37 of the ’762 patent to United Bank. Groove Dig-
ital timely appealed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(1).
For the reasons stated below, we hold the district
court’s claim constructions were not erroneous. We there-
fore affirm the court’s grant of summary judgment of non-
infringement as to claims 1–37 of the ’762 patent and the
resulting judgment in favor of United Bank.
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GROOVE DIGITAL, INC. v. UNITED BANK
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BACKGROUND
I.
The ’762 patent discloses a method for delivering tar-
geted content, such as advertisements, by serving an “ap-
plet (also known as an alert or notification)” to an end
user’s device over a network. ’762 patent col. 1 ll. 13–16,
col. 2 ll. 55–60, col. 5 ll. 16–18.
Independent claim 1 is representative of all 37 claims
of the ’762 patent. It recites:
1. A system for delivering information to a net-
worked device of a user, the system comprising:
a microprocessor running a software application
for delivering an applet application to the net-
worked device and managing the delivery of the ap-
plet application to the networked device, wherein
the applet application passively deploys one or
more applets at a time of deployment,
wherein the applet application provides for deliv-
ery of content to the networked device and a dis-
play of the content in a predetermined portion of a
user display that is less than an entire display of
the networked device, by the one or more applets,
wherein the one or more applet is configured to de-
ploy at least one of independent of or in conjunction
with an internet browser window, wherein an in-
ternet browser is configured to deploy subsequent
to deployment of the one or more applets based on
at least one action or inaction of the user, wherein
at least one of the applets is configured to become
idle upon deployment of the internet browser, and
wherein the deployment of the one or more applets
is such that at the time of deployment of the one or
more applets the user can continue to operate the
networked device in a state prior to the deployment
of the one or more applets;
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GROOVE DIGITAL, INC. v. UNITED BANK
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a first database coupled to the microprocessor and
storing a first set of information relating to the
user; and
a second database coupled to the microprocessor
and including a second set of information for com-
parison to the first set of information,
wherein the microprocessor compares the first set
of information to the second set of information to
determine whether the content should be transmit-
ted to the networked device for display by the one
or more applets.
Id. at col. 14 ll. 9–43.
II.
In the Claim Construction Order, the court construed
the term “applet,” which appears in each of the ’762 pa-
tent’s independent claims—claims 1, 14, 25, 36, and 37—to
mean:
[A] program installed by a user onto the user’s de-
vice that is served based on a geotargeted specifi-
cation, provides at least one browser link to a
specific web page, is capable of displaying content
from a party other than the party supplying the ap-
plet application, and excludes email, fax, text mes-
sages, telephone calls, mail notifications, and
popups.
2019 WL 1869853, at *2. The court construed four “com-
paring” phrases appearing in the claims
1
to similarly re-
quire geotargeting.

1
The “comparing” phrases recite:
(1) “wherein the microprocessor compares the first
set of information to the second set of infor-
mation to determine whether the content
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GROOVE DIGITAL, INC. v. UNITED BANK
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The court construed the term “internet browser,” which
also appears in each of the ’762 patent’s independent
claims, to mean “a program that enables [a] user to find,
locate, retrieve, and navigate any web pages on the inter-
net.” Id.
DISCUSSION
I.
Claim construction is ultimately an issue of law that
we review de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc.,
574 U.S. 318, 325–26 (2015). We review the district court’s
underlying factual findings for clear error. Id. at 325–33.
However, “when the district court reviews only evidence in-
trinsic to the patent (the patent claims and specifications,

should be transmitted to the networked device
for display by the one or more applets” (claims
1 and 36);
(2) “comparing the first set of information to a sec-
ond set of information relating to parameters
for transmission of the content to the networked
device” (claim 14);
(3) “computer readable program code used to com-
pare the first set of information to a second set
of information relating to parameters for trans-
mission of the content to the networked device”
(claim 25); and
(4) “wherein the content is based on a comparison
of a plurality of data sets via the microproces-
sor, and wherein the microprocessor based on
the comparison determines whether the content
should be transmitted to the networked device
for display by the one or more applets” (claim
37).
Claim Construction Order, 2019 WL 1869853, at
*2.
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GROOVE DIGITAL, INC. v. UNITED BANK
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along with the patent’s prosecution history), the judge’s de-
termination will amount solely to a determination of law,”
which we review de novo. Id. at 331.
Claim terms are generally given their ordinary and
customary meaning as understood by persons of ordinary
skill in the art in view of the specification and prosecution
history. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.
Cir. 2005) (en banc). Where, however, the inventor has
clearly set forth a different definition of a claim term, or
has manifested that the invention does or does not include
a particular aspect, that intention “is regarded as disposi-
tive.” Id. at 1316 (citations omitted).
II.
A.
Groove Digital’s first argument is that the district
court erred when it construed the “applet” term and the
“comparing” phrases to require “geotargeting.” Groove
Digital objects to the Claim Construction Order’s lack of
reasoning in support of its construction. Groove contends
that, to the extent the court relied upon United Bank’s
claim construction arguments that the terms require ge-
otargeting, those arguments impermissibly incorporate
features of embodiments disclosed in the specification into
the claim construction. Appellant’s Br. 16–20 (citing col. 1
ll. 13–16; col. 3 ll. 25–36; col. 5 l. 65–col. 6 l. 3; col. 7 ll. 36–
43; col. 9 ll. 6–13, 17–21, 39–55; col. 10, ll. 40–42; col. 11 ll.
7–11, 17–35 and 45–50). According to Groove Digital, at
most, these specification references describe specific em-
bodiments that may use geotargeting “as an option,” but
they do not characterize the invention as a whole and thus
do not support a requirement of geotargeting in all in-
stances. Id. at 18–19. In support of its position, Groove
Digital directs us to our decision in Ancora Technologies,
Inc. v. Apple, Inc., 744 F.3d 732, 735 (Fed. Cir. 2014), where
we held non-limiting examples set forth in the specification
to be “not sufficient to redefine [a claim] term” to include a
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GROOVE DIGITAL, INC. v. UNITED BANK
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feature provided in the examples. In addition, Groove Dig-
ital asserts that the ’762 patent, at col. 6, ll. 38–62 and Fig.
2, describes an embodiment that does not require geotar-
geting. Appellant’s Br. 20.
2

United Bank responds that “[g]eotargeting is the pri-
mary objective of the patented system and method,” and
asserts that each of the embodiments discussing applet de-
livery described in the ’762 patent requires geotargeting.
3

Appellee’s Br. at 3, 14–15. United Bank contends that the
district court properly construed the corresponding claim
terms.
4

2
Groove Digital also notes that the Patent Trial and
Appeal Board (“Board”) declined to require geotargeting in
its construction of these claim terms in proceedings for in-
ter partes review of the ’762 patent. Appellant’s Br. 16 (cit-
ing J.A. 874 n.3); Appellant’s Notices of Supp. Authority
under Fed. Cir. R. 28(i), No. 19-1857, Dkt. Nos. 57 (May 6,
2020) & 58 (May 29, 2020).
3
According to United Bank, the embodiment Groove
Digital points to as not requiring geotargeting does not per-
tain to how applets are targeted for delivery, but rather ad-
dresses how a user may select an applet after it is deployed.
Appellee’s Br. 35–36.
4
United Bank responds to Groove Digital’s reference
to the Board’s claim construction in the inter partes review
proceedings by pointing out that the Board construed claim
terms under the broadest reasonable interpretation stand-
ard, not the Phillips standard applied by the district court.
Appellee’s Response to Groove Digital’s Notices of Supp.
Authority under Fed. Cir. R. 28(i), No. 19-1857, Dkt. No. 59
(June 1, 2020) (citing 37 C.F.R. § 42.100(b) (2018); Cuozzo
Speed Techs. LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)).
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GROOVE DIGITAL, INC. v. UNITED BANK
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B.
We agree with United Bank that the district court’s
claim construction was proper.
An explicit definition is not required to inform a claim
term’s meaning. Rather, a patent’s specification “may de-
fine claim terms by implication such that the meaning may
be found in or ascertained by a reading of the patent docu-
ments.” In re Abbott Diabetes Care Inc., 696 F.3d 1142,
1148–50 (Fed. Cir. 2012) (quoting Irdeto Access, Inc. v.
Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir.
2004)). We have held that a patent’s repeated and con-
sistent description of a claim term may inform its construc-
tion. In Abbott, we held a construction of “electrochemical
sensor” that encompassed sensors with external cables or
wires to be in error because the patents at issue “repeat-
edly, consistently, and exclusively depict[ed] an electro-
chemical sensor without external cables or wires while
simultaneously disparaging sensors with external cables or
wires.” Id. at 1150 (internal quotation marks and citation
omitted); see also Eon-Net LP v. Flagstar Bancorp, 653 F.3d
1314, 1321 (Fed. Cir. 2011) (“We agree . . . that the dis-
puted claim terms are limited to information that origi-
nates from a hard copy document. The written description
repeatedly and consistently defines the invention as a sys-
tem that processes information derived from hard copy doc-
uments.”).
Similarly, in Profectus Technology LLC v. Huawei
Technologies Co., 823 F.3d 1375, 1380–81 (Fed. Cir. 2016),
we upheld the district court’s construction of the term
“mountable” to require “having a feature for mounting”
where every disclosed embodiment in the patent specifica-
tion included a “mounting” feature and plaintiff was unable
to identify any disclosure that “contemplate[d] a situation
where no mounting features exist.” See also Poly-America,
L.P. v. API Indus., Inc., 839 F.3d 1131, 1137 (Fed. Cir.
2016) (concluding that the district court’s construction of
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GROOVE DIGITAL, INC. v. UNITED BANK
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the claim term “short seal” to require inward extension did
not improperly import a limitation from the specification
where “[e]very embodiment described in the specification
has inwardly extended short seals and every section of the
specification indicates the importance of inwardly ex-
tended short seals.”).
Here, like in Abbott, the ’762 patent ‘‘repeatedly, con-
sistently, and exclusively’’ depicts applets as being geotar-
geted. As an example, the Field of the Invention describes
the “present invention” as “delivering and serving local
content and advertisements.” ’762 patent col. 1 ll. 13–16
(emphasis added). Importantly, the patent explains:
For any [advertising] campaign to work effectively,
the system must be able to target the offer to the
right audience. . . . Although the system adminis-
trator may maintain multiple fields of information
on a user post installation, the primary field needed
for targeted delivery of applets is a zip code.
Id. at col. 9 ll. 38–51 (emphasis added). Further, as in
Profectus, in every pertinent embodiment disclosed in the
specification, applets are served based on geotargeted spec-
ifications. See, e.g., ’762 patent col. 5 ll. 49–50; col. 5 l. 65–
col. 6 l. 3; col. 7 ll. 24–43; col. 9, ll. 6–55; col. 10 ll. 40–42;
col. 11 ll. 7–50; Fig. 11. Groove Digital’s cites to col. 6, ll.
38–62 and Fig. 2 of the patent are unavailing because this
discussion in the specification pertains to selection and de-
ployment of an offer presented through an applet, not ap-
plet delivery.
5

5
We do not find Groove Digital’s reference to the
Board’s construction to be persuasive. As United Bank
points out, the Phillips standard differs from the broadest
reasonable interpretation standard applied in inter partes
review proceedings. These different standards can result
in different constructions. See PPC Broadband, Inc. v.
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Accordingly, the district court did not err when it con-
strued the “applet” term and the “comparing” phrases to
require geotargeting.
III.
A.
Groove Digital’s second argument is that the district
court erred when it construed the term “internet browser.”
According to Groove Digital, the specification of the ’762
patent only requires that the internet browser be the com-
ponent of the applet that sends and receives information
for display to the user and does not require the functions of
“enabl[ing a user] to find, locate, retrieve, and navigate any
web pages on the internet,” as required by the court’s con-
struction. Appellant’s Br. 20–23. In support of its argu-
ment, Groove Digital relies on the specification at col. 3, ll.
11–12, which states that the browser is “[t]he location in
the applet where the content is located,” and at col. 10, ll.
53–55, which states that the internet browser is where con-
tent “can be viewed.” Additionally, Groove Digital cites to
extrinsic evidence in the form of (1) a Microsoft Computer
Dictionary (5th ed. 2002) definition of “web browser” to
mean “[s]oftware that lets a user view HTML documents
and access files and software related to those documents,”
J.A. 69; and (2) a Modern Dictionary of Electronics (7th ed.
1999) definition of “browser” as “[a]n application used to
view information from the internet.” J.A. 63.
United Bank responds by pointing out that the specifi-
cation does not use the term “internet browser” but does
provide two examples of “[]web browser[s],” which both

Corning Optical Commc’ns RF, LLC, 815 F.3d 734, 742–43
(Fed. Cir. 2016)); Google Inc. v. Network-1 Techs., Inc., 726
Fed. App’x 779, 784–85 (Fed. Cir. 2018).
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GROOVE DIGITAL, INC. v. UNITED BANK
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parties have recognized describe an internet browser. Spe-
cifically, the specification states:
The location in the applet where the content is lo-
cated may be a mini-web browser, such as, for ex-
ample, Microsoft Internet Explorer or Netscape
Navigator.
’762 patent col. 3 ll. 11–13. United Bank contends that Mi-
crosoft Internet Explorer or Netscape Navigator would
have been understood by one of skill in the art as programs
that enable users to find, locate, retrieve, and navigate web
pages on the internet. Appellee’s Br. 37–38. United Bank
also points to multiple dictionary definitions it provided to
the district court in support of its claim construction. Ap-
pellee’s Br. 40–43 (citing Compact American Dictionary of
Computer Words (1998), J.A. 221–23 (the “Compact Dic-
tionary”); Webster’s New World Computer Dictionary (10th
ed. 2003), J.A. 225–227 (the “Webster’s Dictionary”); New-
ton’s Telecom Dictionary (18th ed. 2002), J.A. 229–31 (the
“Newton’s Dictionary”)). United Bank argues that these
dictionary definitions, as well as the dictionary definitions
Groove Digital provided, support the district court’s con-
struction of the term “internet browser.”
As noted, the district court did not set forth its analysis
in the Claim Construction Order, so we have no subsidiary
fact findings to review for clear error. However, even re-
viewing the district court’s construction de novo, we do not
believe the court erred.
As noted, the specification provides limited guidance
on the claim terms at issue, but the guidance it does pro-
vide supports the district court’s construction. Signifi-
cantly, Groove Digital does not dispute that both examples
of “browsers” provided in the specification—Microsoft In-
ternet Explorer and Netscape Navigator—can “enable a
user to find, locate, retrieve, and navigate any web pages
on the internet.” Reply Br. 7.
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We also read the dictionary definitions provided by the
parties to support the court’s construction. The Compact
Dictionary defines “browser” as “[a] program, such as
Netscape Navigator or Internet Explorer, that allows you
to find and access documents from anywhere on the Inter-
net.” J.A. 223 (emphasis added). The Webster’s Dictionary
defines “browser” as “[a] program that enables the user to
navigate the World Wide Web (WWW)” and includes
Netscape Navigator and Microsoft Internet Explorer as two
examples. J.A. 227. The Newton’s Dictionary defines “web
browser” as “software which allows a computer user . . . to
‘surf’ the World Wide Web. It lets us select, retrieve and
interact with resources on the web. It lets us move easily
from one World Wide Web site to another.” J.A. 231 (em-
phases added). The Modern Dictionary of Electronics, cited
by Groove Digital, defines “browser” both as (1) “[a] soft-
ware application that permits viewing and possibly search-
ing of content in an information database” and (2) as “[a]n
application used to view information from the Internet.”
J.A. 63 (emphases added). The Modern Dictionary of Elec-
tronics also states that “[b]rowsers provide a user-friendly
interface for navigating through and accessing the vast
amount of information on the Internet.” Id. (emphasis
added). In our view, these definitions well support the
court’s construction of “internet browser” to enable a user
to find, locate, retrieve, and navigate any web pages on the
Internet. At a minimum, these definitions illustrate that
Groove Digital’s proposed claim construction (“a program
capable of interacting with servers over the Internet to
send and receive information,” Appellant’s Br. 20) is overly
broad. In sum, we do not believe the district court’s claim
construction of the term “internet browser” was in error.
C
ONCLUSION
For the foregoing reasons, we affirm the district court’s
construction of the term “applet,” the “comparing” phrases,
and the term “internet browser.” We therefore affirm the
district court’s grant of summary judgment of non-
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infringement as to claims 1–37 of the ’762 patent and the
resulting judgment in favor of United Bank.
AFFIRMED
COSTS
No costs.

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