The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
In this decision, the Court construes additional disputed terms in the claims of various patents at issue in the upcoming trial in this case. Familiarity with the allegations in the case is assumed. See generally Rowe Int'l Corp. v. Ecast, Inc., No. 06 C 2703, 2008 WL 4133516 (N.D. Ill. Aug. 25, 2008) (decision on motions for summary judgment); Rowe Int'l Corp. v. Ecast, Inc., 500 F. Supp. 2d 891 (N.D. Ill. 2007) (claim construction); Rowe Int'l Corp. v. Ecast, Inc., 500 F. Supp. 2d 885 (N.D. Ill. 2007) (decision on motion to dismiss); Rowe Int'l Corp. v. Ecast, Inc., 241 F.R.D. 296 (N.D. Ill. 2007) (decision on disputed privilege issue).
1. U.S. Patent No., 5,848,398
Claim 1 of the '398 patent discloses:
1. A computer jukebox capable of receiving and storing digital data representing a plurality of advertisements, data representing the identity of each of said advertisements, and data representing when and the number of times each of said advertisements is to be run, comprising:
a visual screen associated with said jukebox; a song selection means displayed on said visual screen, actuable by a user for retrieving and playing a signal representing a song selected from a plurality of songs stored in said jukebox; a communication interface for receiving said advertisement data, said data representing the identity of each of said advertisements, and said data representing when and the number of times each of said advertisements is to be run; a programmable computer memory storing said digital data representing each advertisement on said jukebox, the location of said digital data representing each advertisement, and said data representing when and the number of times each of said advertisements is to be run on said visual screen; and processing means for displaying one of said plurality of advertisements on said visual screen, when said jukebox is not generating a signal representing a song selected from said plurality of songs stored in said jukebox, wherein said processing means is responsive to said data representing when and the number of times each of said advertisements is to be run.
U.S. Pat. No. 5,848,398, claim 1 (emphasis added).
The italicized reference to "processing means" is a means-plus-function limitation and, as such, covers the "structure, material, or acts described in the specification" that correspond to the function recited in the claim, and equivalents thereof. 35 U.S.C. § 112 ¶ 6. The function recited in the claim is displaying, on the jukebox's visual screen, one of a plurality of advertisements when the jukebox is not playing a song. The Court agrees with Rowe and Arachnid that as the claim is worded, the phrase "wherein such processing means is responsive to said data representing when and the number of times each of said advertisements is to be run" is not the function of the processor, but rather a claim limitation (which, as Rowe and Arachnid concede, must be separately shown as part of their infringement case) describing how the function is performed.
The structure, in a claim like this one, is the algorithm disclosed in the specification that runs on the disclosed microprocessor. See Rowe Int'l Corp., 500 F. Supp. 2d at 904. This "structure," as described in the specification of the '398 patent, is as follows:
In the preferred embodiment, if a conflict arises between a song being played and the time for an advertisement to be played, the conflict is resolved as follows. If the song contains audio only and no associated graphics being shown on the visual display 125, then the advertisement, if it is video only, will be played simultaneously. If the advertisement contains video data and audio data, the advertisement will be run at the next available time slot or be [skipped] altogether. As each jukebox 13 tracks when an advertisement starts and when it stops, if a particular advertisement is never run, then the central management system will receive such information and the advertiser will be billed accordingly. '398 patent, col. 9, lines 9-21 (emphasis added).*fn1 The structure corresponding to the function described in the disputed language in the patent is found in the italicized sentences. It consists of a microprocessor that directs the display of one of the advertisements at the same time a song is played if the song is just audio and the advertisement is just video, or at the next available time slot if the advertisement is both video and audio.
b. "Programmable Computer Memory"
Claim 1 of the '398 patent also contains a claim limitation referencing "programmable computer memory." The Court has a hard time seeing why this term requires further definition; it quite plainly refers to computer memory that can be programmed. The Court rejects Ecast's contention that this is a reference only to a particular type of memory, specifically random access memory, or RAM. That is not the only type of programmable computer memory, and the Court sees nothing in the claims, the ...