CardSoft v. Verifone: Construction of "virtual machine"

Category: Claim Construction 
By: Jesus Hernandez, Blog Editor/Contributor
TitleCardSoft, LLC v. Verifone, Inc., No. 2014-1135 (Fed. Cir. Oct. 17, 2014).
IssueVeriFone appeals the district court’s construction of “virtual machine,” found in all asserted claims. It argues that the district court erred by not requiring the claimed “virtual machine” to include the limitation that the applications it runs are not dependent on any specific underlying operating system or hardware.
CardSoft, LLC, at *5.
Holding[T]he district court’s construction does not reflect the ordinary and customary meaning of “virtual machine” as understood by a person of ordinary skill in the art [to mean an interpreter platform between applications and the underlying hardware or operating system.]
Id. at *5 (text added).
Procedural HistoryCardSoft alleges that Appellants infringe two patents directed to software for small, specialized computers, like payment terminals. In construing the patent claims, the district court adopted CardSoft’s proposed construction for the claim term “virtual machine.” Applying the district court’s construction, a jury returned a verdict for CardSoft.
Cardsoft, LLC, at *2.
Legal Reasoning (Prost, Taranto, Hughes)
Specification[T]he specification describes a “virtual machine,” acting as an “interpreter” between an application program (like a particular merchant’s payment processing software) and a payment terminal’s underlying hardware and operating system. [...] Instead of writing a payment processing application for a particular hardware configuration or operating system, a developer can write the application for the virtual machine. [...] This application can then run on any payment terminal running the virtual machine, creating “a complete portable environment for program operations.” [...]
Cardsoft, LLC, at *3.
Claim at issueClaim 1 of the ’945 patent is representative of the asserted claims:

A communication device which is arranged to process messages for communications, comprising a virtual machine means which includes

a virtual function processor and function processor instructions for controlling operation of the device, and

message in[str]uction means including a set of descriptions of message data;

a virtual message processor, which is arranged to be called by the function processor and which is arranged to carry out the message handling tasks of assembling the messages, disassembling messages and comparing the messages under the direction of the message instruction means that is arranged to provide directions for operation of the virtual message processor, whereby when a message is required to be handled by the communications device the message processor is called to carry out the message handling task,

wherein the virtual machine means is emulatable in different computers having incompatible hardwares or operating systems.

Id. at *4-5.
Legal StandardThe person of ordinary skill in the art is “deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent,” including the specification and the prosecution history. [...]. It can also be appropriate to use extrinsic evidence to determine a term’s meaning, but “while extrinsic evidence can shed useful light on the relevant art . . . it is less significant than the intrinsic record in determining the legally operative meaning of claim language.” [...].
Id. at *5-6.
Error by district court[T]he district court held that the claimed “virtual machine” need not run applications or instructions that are hardware or operating system independent. The district court’s construction improperly conflates the claimed virtual machine with applications written to run on the virtual machine. The claimed virtual machine is operating system or hardware dependent because it must communicate directly with the underlying operating system or hardware. But the applications written to run on the virtual machine are not correspondingly dependent because the applications are written to communicate with the virtual machine, not the actual underlying operating system or hardware.
Cardsoft, LLC, at *6 (internal citations omitted).
RecordThe intrinsic and extrinsic evidence establishes that, at the time the asserted patents were filed, the defining feature of a virtual machine was its ability to run applications that did not depend on any specific underlying operating system or hardware. One problem with the prior art, as the specification notes, was that applications were hardware or operating system dependent. [...]. The patent teaches using a virtual machine to solve this problem because a virtual machine “creates a complete portable environment,” which “allows programs to operate independent of processor” and allows “[d]ifferent arrangements of hardware [to] be controlled by the same application software.” [...]
Id. at *7 
(internal citations omitted).
"virtual machine"The defining characteristic of a virtual machine was, and is, that it acts as an interpreter between applications and the underlying hardware or operating system. That the claimed virtual machine “includes” applications, in the sense that it acts as an interpreter for applications, does not mean that the applications can be hardware or operating system dependent. Such a construction would leave “virtual machine” essentially meaningless.
Id. at *8.
Because the district court erred by failing to give “vir- tual machine” its ordinary and customary meaning, we reverse the district court’s construction of this term.
Cardsoft, LLC, at *10.

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