Ceats, Inc. v. Continental Airlines, Inc.

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

CEATS, INC.,
Plaintiff-Appellant,

v.

CONTINENTAL AIRLINES, INC., ALASKA
AIRLINES, INC., HORIZON AIR INDUSTRIES, INC.,
DELTA AIR LINES, INC., JETBLUE AIRWAYS
CORPORATION, UNITED AIRLINES, INC., VIRGIN
AMERICA, INC., US AIRWAYS, INC.,
TICKETMASTER, LLC, TICKETSNOW.COM, INC.,
AND LIVE NATION WORLDWIDE, INC.,
Defendants-Appellees,

AND

AIRTRAN AIRWAYS, INC.,
Defendant-Appellee.

______________________

2012-1614
______________________

Appeal from the United States District Court for the
Eastern District of Texas in No. 10-CV-0120, Chief Judge
Leonard Davis.
______________________

Decided: April 26, 2013
2 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
______________________

MICHAEL S. NADEL, McDermott, Will & Emery LLP, of
Washington, DC, argued for plaintiff-appellant.

MARK A. LEMLEY, Durie Tangril LLP, of San Francis-
co, California, argued for defendants-appellees, Continen-
tal Airlines, Inc., et al. With him on the brief were
CLEMENT ROBERTS and EUGENE NOVIKOV.

J. MICHAEL HEINLEN, Thompson & Knight LLP, of
Dallas, Texas, argued for defendant-appellee AirTrans
Airways, Inc. With him on the brief were MAX CICCARELLI
and GARY R. SORDEN.

______________________

Before RADER, Chief Judge, SCHALL, and PROST, Circuit
Judges.
Opinion for the court filed by Chief Judge RADER.
Concurring-in-part and dissenting-in-part opinion filed by
Circuit Judge SCHALL.
RADER, Chief Judge.
This case involves four patents: U.S. Patent Nos.
7,454,361 (the ’361 patent); 7,548,866 (the ’866 patent);
7,660,728 (the ’728 patent); and 7,548,869 (the ’869 pa-
tent). The later three patents are continuations of the
’361 patent and generally claim “electronic means by
which people can select the exact seat or seats they want”
for events, venues, or on airplanes over the internet. See
’361 patent, Abstract, col. 2, ll. 37–49.
In 2010, the patent-holder, CEATS, Inc., filed an in-
fringement suit against multiple airlines and online ticket
reservation companies. Ultimately, the jury found the
asserted claims infringed but invalid as anticipated and
CEATS, INC. v. CONTINENTAL AIRLINES, INC. 3
obvious. After the verdict, CEATS challenged this verdict
as a matter of law and also sought a new trial. The
district court denied relief. Having reviewed the record
and the parties’ arguments, this court affirms.
I.
Each asserted patent involves providing information
over a network about the availability of seats at an event
or on a plane flight, and permitting the user to select or
purchase the seats of his choice. According to the patents,
information on seat availability is stored in a database.
’361 patent, col. 7, ll. 10–15. The seat availability infor-
mation is transmitted to a remote user’s computer, result-
ing in the display of an interactive seat map of the venue
or airplane. Id. at col. 7, ll. 16–23. The seat map shows
available seats, allows a user to select seats, and provides
“additional information in response to user interaction
with the display.” Id. at col. 8, ll. 7–8. The “user interac-
tion is a mouse over of a seating chart.” Id. at col. 8, ll.
10–11. In other words, when a user’s mouse cursor hovers
over individual seats, a text box or small separate window
displays additional information such as a seat number.
See id. at col. 6, ll. 34–39.
The patents vary somewhat. For example, the ’728
patent is specifically directed to selecting seats on an
airplane. ’728 patent, col. 6, ll. 57–58. The ’869 patent is
directed to venues and recites providing ticketing infor-
mation relating to “sets of individual seats.” ’869 patent,
col. 7, l. 7. The “sets of seats” language contrasts with the
“plurality of available individual seats” language in the
other asserted patents. See e.g., ’361 patent, col. 7, l. 17–
18. All four patents claim priority to the filing date of the
original application that led to the ’361 patent: April 22,
1999. The parties also stipulated to an invention date of
May 31, 1998.
CEATS accused all defendants except Tick-
etsNow.com of infringing the ’361 and ’866 patents.
4 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
CEATS accused only the airlines of infringing the ’728
patent and only the ticketing companies of infringing the
’869 patent.
During claim construction, CEATS argued that no
construction of the term “sets” in the ’869 patent was
required. It stated: “A ‘set’ is a set. This term will be
familiar to the jury and needs no further construction. A
set can include one or more than one item, here a seat or
more than one seat.” J.A. 9694.
At trial, the defendants focused on a single prior art
reference: Microsoft’s Expedia 2.0 system. The Expedia
2.0 system was an online travel reservation system that
permitted customers to buy plane tickets and to select
their seats online. Microsoft launched the system in May
1997, and the date of release is not disputed. The core of
the dispute was the functionality of the Microsoft prior
art, specifically its “mouse over” element.
In proving that the publicly released Expedia 2.0
system contained the claimed functionality, the defend-
ants presented testimony from two engineers who worked
on Expedia 2.0: Mr. Broas and Mr. Lubetkin. These
individuals testified that the publicly released Expedia
2.0 system contained something called “Seat Pinpointer.”
Seat Pinpointer was a seat map of a particular airplane
with the ability to select specific seats. These engineers
testified that Seat Pinpointer had mouse over functionali-
ty upon release in May 1997.
The defendants also presented testimony from two
Continental Airlines employees. Continental licensed the
Expedia 2.0 system from Microsoft as a “white-label”
product in mid-1997. “White-label” products are versions
sold without branding so the purchasing entity can brand
the product itself. Continental branded its version of the
Expedia 2.0 system as the “CO.O.L Travel Assistant.”
The Continental employees testified that the system
CEATS, INC. v. CONTINENTAL AIRLINES, INC. 5
Continental purchased contained the Seat Pinpointer
feature and the mouse over functionality.
The defendants also presented physical evidence in-
cluding the Expedia 2.0 test specification, a testing check-
list, and videos from a Microsoft “usability study.” In
usability studies, a non-Microsoft employee would use the
software in a controlled environment. The interaction
was videotaped and recorded as part of Microsoft’s regular
business practice.
Lastly, the defendants presented expert testimony
linking this evidence to each claim limitation. The expert
concluded that the asserted claims were anticipated by
the Expedia 2.0 system.
At the close of trial, the jury found the defendants in-
fringed all the asserted claims. However, the jury also
concluded that all the asserted claims were invalid as
both anticipated and obvious. CEATS timely moved for
judgment as a matter of law of non-invalidity or, alterna-
tively, a new trial. The trial court denied CEATS’ post-
trial motions in toto. The court entered final judgment,
and this appeal followed. This court has jurisdiction
under 28 U.S.C. § 1295(a)(1).
II.
CEATS raises a two-pronged challenge. First, it
claims that the jury’s invalidity verdict is not supported
by substantial evidence. Specifically, CEATS argues that
the evidence of invalidity was not sufficiently corroborat-
ed, and that the record contains no evidence showing
invalidity of the “sets of seats” limitation. Second, CEATS
claims the trial court gave an erroneous jury instruction
on anticipation.
This court reviews the trial court’s JMOL decision
under regional circuit law. Muniauction, Inc. v. Thomson
Corp., 532 F.3d 1318, 1323–24 (Fed. Cir. 2008). The jury’s
decision on invalidity may only be overturned “if the
6 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
evidence points so strongly and overwhelmingly” in favor
of CEATS that “no reasonable juror could return a contra-
ry verdict.” Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 296
(5th Cir. 2005). A jury may draw reasonable inferences
from the evidence, and this court must view the evidence
(and any reasonable inferences) in the light most favora-
ble to the jury’s determination. Hiltgen v. Sumrall, 47
F.3d 695, 700 (5th Cir. 1995).
The Fifth Circuit will reverse the denial of a motion
for a new trial if the district court abused its discretion or
misapprehended the law. Poly-American, L.P. v. GSE
Lining Tech., Inc., 383 F.3d 1303, 1307 (Fed. Cir. 2004).
A jury verdict can only be set aside if a party can estab-
lish that: “(1) it made a proper and timely objection to the
jury instructions, (2) those instructions were legally
erroneous, (3) the errors had prejudicial effect, and (4) it
requested alternative instructions that would have reme-
died the error.” Advanced Display Sys., Inc. v. Kent State
Univ., 212 F.3d 1272, 1281 (Fed. Cir. 2000) (citations
omitted).
III.
A.
Under the Barbed-Wire doctrine, “corroboration is
required of any witness whose testimony alone is asserted
to invalidate a patent.” TypeRight Keyboard Corp. v.
Microsoft Corp., 374 F.3d 1151, 1159 (Fed. Cir. 2004).
The requirement “arose out of a concern that inventors
testifying in patent infringement cases would be tempted
to remember facts favorable to their case by the lure of
protecting their patent or defeating another’s patent.”
Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1577 (Fed.
Cir. 1996); see also Washburn & Moen Mfg. Co. v. Beat
’Em All Barbed-Wire Co., 143 U.S. 275, 284 (1892) (noting
that testimony regarding invalidity can be “unsatisfacto-
ry” given “the forgetfulness of witnesses, their liability to
mistakes, their proneness to recollect things as the party
CEATS, INC. v. CONTINENTAL AIRLINES, INC. 7
calling them would have them recollect them”). This
court has since expanded this doctrine to require corrobo-
ration of invalidity regardless of the witness’s level of
interest. Finnigan Corp. v. Int’l Trade Comm’n, 180 F.3d
1354, 1369 (Fed. Cir. 1999).
This court also measures the sufficiency of corroborat-
ing evidence under a “rule of reason.” See Woodland
Trust v. Flowertree Nursery, Inc., 148 F.3d 1368, 1371
(Fed. Cir. 1998). Courts consider a variety of factors
including: (1) the relationship between the corroborating
witness and the alleged prior user; (2) the time period
between the event and trial; (3) the interest of the corrob-
orating witness in the subject matter in suit; (4) the
record’s showing of contradiction or impeachment of the
witness’s testimony; (5) the extent and details of the
corroborating testimony; (6) the witness’s familiarity with
the subject matter of the patented invention and the prior
use; (7) the probability that a prior use could occur con-
sidering the state of the art at the time; and (8) the im-
pact of the invention on the industry and the commercial
value of its practice. Id.
Here, the defendants presented two key fact witnesses
on invalidity and corroborated their testimony with
contemporaneous documents and videos. The first wit-
ness, Mr. Broas, began working as a software engineer for
Expedia when it was part of Microsoft. Expedia is now a
separate company, and Mr. Broas is its eCommerce
Director. He testified that the Expedia 2.0 system had
“Seat Pinpointer,” which showed the internals of an
airplane, and allowed users to select specific seats with
their mouse. He stated “mouse-over” capability was part
of the publicly released version of Expedia 2.0, meaning
users could hold the cursor over a seat, and they would
get “a little bubble-text or a tooltip that would have the
seat number in it.” J.A. 891.
8 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
The second witness was Mr. Lubetkin, a software
engineer who wrote much of the code for the Seat Pin-
pointer functionality in Expedia 2.0. He testified that the
system, as publicly released, contained mouse over func-
tionality: “It would pop up the number of the seat and the
word ‘available;’ or if you had already selected a traveler
for that seat, it would give you the name of the traveler.”
J.A. 914.
CEATS correctly notes this testimony alone cannot
show that the Expedia 2.0 system contained the claimed
functionality. However, the test specification and the
usability study videos (which predate Expedia 2.0’s re-
lease) coupled with the testing checklist (which postdates
the release) sufficiently corroborate the proffered testimo-
ny.
The test specification was created on December 13th,
1996 by Mr. Broas. It was last updated on March 19,
1997. The specification explains the functioning of the
Expedia 2.0 system. It states the Expedia 2.0 system
would contain a seat map, and that the seat map would
function as follows:
Positioning the cursor over an available seat will
display the seat number in “bubble-text.” If the
seat has been marked then the text will also con-
tain the passenger’s name. [If the user changes
the seat selection], the bubble-text should be up-
dated appropriately.
J.A. 9333.
The usability study videos, in turn, show the imple-
mentation and testing of the Expedia 2.0 system. In
January and March 1997, Microsoft conducted multiple
usability studies of Expedia 2.0. The videos showed users
hovering a mouse cursor over a seat and obtaining a pop-
up box listing the seat number and its availability.
CEATS, INC. v. CONTINENTAL AIRLINES, INC. 9
The testing checklist post-dates Expedia 2.0’s public
release by almost two months. Titled “Seat Map & Seat
Selection Test Cases,” the testing checklist required
testers to verify certain levels of functionality in the
system. These included:
• “that the Seat Map page comes up . . . after clicking
‘Continue’ on the Seat Preference Page;”
• “location of available/unavailable seats;”
• “that positioning the cursor over an unoccupied
seat will display the correct seat number in ‘bubble-
text’;”
• “that positioning the cursor over an occupied seat
will display the correct seat number along with the
appropriate passenger’s name;” and
• that “the seat becomes occupied” and “that the
number of the occupied seat is now assigned to the
selected passenger” when an unoccupied seat is
clicked.
J.A. 9327–28.
CEATS argues this evidence cannot corroborate
Broas’ and Lubetkin’s testimony because they are im-
proper “memory aids.” See The Barbed Wire Patent, 143
U.S. at 284 (noting the danger of prodding witnesses’
memories). Particularly, it challenges the videos as
aiding Lubetkin “in incorrectly recalling the details of the
public May 1997 system.” Appellant’s Br. 32.
Contrary to CEATS’ assertion, “[d]ocumentary or
physical evidence that is made contemporaneously with
the inventive process provides the most reliable proof that
the inventor’s testimony has been corroborated,” because
such evidence eliminates “the risk of litigation inspired
fabrication or exaggeration.” Sandt Tech., Ltd. v. Resco
Metal and Plastics Corp., 264 F.3d 1344, 1350–51 (Fed.
Cir. 2001). The videos, the test specification, and the
10 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
testing checklist are all contemporaneous pieces of evi-
dence from the relevant inventive time period: January
1997 to August 1997. As such, they are “the most reliable
proof” for corroborating the testimony given at trial. Id.
Here, the defendants presented testimony that the
public Expedia 2.0 system contained the claimed func-
tionality and thus anticipated the asserted claims. The
test specification corroborates this testimony because it
shows that Microsoft intended to create a system with the
claimed functionality. The usability study videos corrobo-
rate the testimony because they show that Microsoft
actually created a system with the claimed functionality.
The post-release testing checklist corroborates the testi-
mony because it shows Microsoft was testing for the
claimed functionality shortly after the public release.
While CEATS raises several arguments against finding
corroboration, this court is not persuaded. Corroboration
is a “rule of reason,” Woodland Trust, 148 F.3d at 1371,
and this court finds a jury could reasonably rely on the
proffered physical evidence to corroborate the testimony
of Messrs. Broas and Lubetkin.
Based on its argument that the evidence presented is
not sufficiently corroborated, CEATS argues the jury did
not have sufficient evidence to find anticipation of four
claim elements: (1) mouse over; (2) database; (3) receive;
and (4) add. To the contrary, this court’s discussion above
shows that the record sufficiently provides evidence that
the Expedia 2.0 system contained the mouse over func-
tionality. The evidence also discloses the other elements.
Claim 8 of the ’866 patent, which is representative of
all the asserted claims for this purpose, requires “a data-
base storing a plurality of entries denoting seat availabil-
ity of a venue.” ’866 patent, col. 8, ll. 8–9. Mr. Broas
testified that the Expedia 2.0 system used a database.
Mr. Lubetkin testified in detail about the Expedia 2.0
database, including the information contained within, the
CEATS, INC. v. CONTINENTAL AIRLINES, INC. 11
information returned in response to a request, what
would happen if the user sent a request for something
that was not in the database, and how the database
communicates with Expedia’s servers and with the end
user.
The patent claims also require that the system “re-
ceiv[e] from the end user a selection of [a] specific individ-
ual seat.” See ’361 patent, col. 7, ll. 29–30. The videos
and the test specification show that a user could select a
seat and the system would update to reflect that selection.
The record also supplies testimony to confirm these
points. Mr. Broas testified that the Expedia 2.0 system
received the user’s choice of seats through the seat map.
Mr. Lubetkin testified that Expedia 2.0 provided seat
availability information that allowed the user to select a
seat, and that the seat map was updated when the server
received the user’s choice of seats.
Claim 8 of the ’866 patent requires that the server
“add the specific individual seat to a list of selected seats
to be displayed in response to the selection.” ’866 patent,
col. 8, ll. 24–25. Claim 1 of the ’361 patent has a similar
requirement. See ’361 patent, col. 7, ll. 31–32. Both the
test specification and the usability study videos showed
users adding individual seats to a list of selected seats.
The defendants’ expert also testified regarding each of
these elements. He identified each element in the Expe-
dia 2.0 system and concluded that the system anticipated
the asserted claims. Based on this testimony and the
evidence in the record, a reasonable jury could have found
these limitations present in the Expedia 2.0 system.
CEATS has not identified sufficient justification to dis-
turb the jury’s conclusion on this point.
B.
CEATS argues that, even if the Expedia 2.0 system
functioned as testified, the record lacks evidence that this
12 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
prior art included the “sets of seats” limitation in the ’869
patent. As noted above, the ’869 patent requires mouse
over functionality relating to “sets of available individual
seats.” ’869 patent, col. 6, ll. 44–45. CEATS points out
that while the prior art may have allowed “separately
selecting three distinct individual seats for three separate
passengers,” this “does not satisfy the numerous claim
limitations regarding a ‘set of available individual seats.’”
Appellant’s Br. 61–62. It states the seat map must “dis-
play additional information about a set of seats, not a
single seat, when a user places his mouse indicator over a
set of seats, not a single seat.” Id. at 62.
At trial, CEATS’ argued that “set” needed no con-
struction; the jury would understand its meaning. J.A.
9694. Thus, the question is whether the jury had suffi-
cient evidence to find that in this context, the term “set”
could include a single seat, thus rendering it anticipated
by the Expedia 2.0 system.
The ’869 patent itself resolves this question. Figure
4B shows a seat map of a dinner theater. In CEATS’
view, each table is a set or section with multiple individu-
al seats which can be selected from the set. The patent
labels the tables as “S” followed by a number, such as S54.
J.A. 113. Unavailable individual seats are shown as
crossed out. Id. Some sets of seats, for example S62,
contain as many as ten seats per set. Id. Some smaller
booths, such as S55, are also labeled as sets and contain
four seats. Opposite the stage is a bar with 17 seats.
Each seat is labeled as its own set, S100 through S117.
Id. The figure shows each individual seat at the bar as a
single set. Id. Based on this evidence, the jury could
reasonably find that a “set” could be comprised entirely of
a single individual seat.
This court considers and rejects CEATS’ remaining
arguments on anticipation. Sufficient evidence supports
CEATS, INC. v. CONTINENTAL AIRLINES, INC. 13
the jury’s verdict, and this court affirms the denial of
CEATS’ motion for judgment as a matter of law.

IV.
CEATS seeks a new trial because the district court
allegedly erroneously instructed the jury on anticipation
by prior invention. The record shows that CEATS timely
objected to the instruction. However, CEATS has not
shown that the jury instruction as a whole was erroneous
or that it was prejudiced through any alleged error.
This court reviews jury instructions in their entirety
and only orders a new trial when errors in the instruc-
tions as a whole clearly mislead the jury. DSU Med.
Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed. Cir. 2006) (en
banc in relevant part) (internal citations and quotations
omitted). “In reviewing jury instructions, the full trial
record and the jury instructions in their entirety must be
examined because instructions take on meaning from the
context of what happened at trial, including how the
parties tried the case and their arguments to the ju-
ry.” Therasense, Inc. v. Becton Dickinson & Co., 593 F.3d
1325, 1331 (Fed. Cir. 2010) (en banc).
CEATS contends that part of the jury instruction
regarding prior invention under former 35 U.S.C. §
102(g)(2) was incorrect because it did not explicitly state
that an alleged prior inventor must make the alleged
invention public after conception and reduction to prac-
tice. In other words, the jury was allowed to find the
patent anticipated on the basis of “secret prior art.”
Appellant’s Br. 67. CEATS states the district court’s
instruction “permitted the jury to invalidate the claims for
anticipation by prior invention without finding that the
prior inventor did not abandon, suppress, or conceal the
invention. Accordingly, it was contrary to law.” Id. at 70.
14 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
The instruction as a whole does not evince error. The
court’s general instructions concerning invalidity made
clear that the only prior art relevant to the case were
prior publications, prior public uses, prior art triggering
the on-sale bar, and “[a]nything that was made in this
country by another before the inventor made the inven-
tion, and has not subsequently been abandoned sup-
pressed, or concealed.” J.A. 485–86. With respect to
former § 102(g), the district court explained that a prior
invention can anticipate “if the claimed invention was
already made by someone else in the United States before
May 1998,” and repeated that the other person must not
have “conceal[ed] the invention, suppress[ed] it, or ke[pt]
it secret.” J.A. 491–92.
The court then correctly instructed the jury to deter-
mine the identity of the first inventor in case of a dispute:
“the person who first conceived of the claimed invention
and first reduced it to practice is the first inventor; if one
person conceived of the claimed invention first, but re-
duced it to practice second, that person is the first inven-
tor only if that person (a) began to reduce the claimed
invention to practice before the other party conceived of it
and (b) continued to work with reasonable diligence to
reduce it to practice from a time just before the other
party’s conception.” Id. The district court therefore twice
made clear that a prior invention that was abandoned,
suppressed, or concealed could not anticipate.
Even if the instructions were not the model of clarity,
any error is harmless. See NTP, Inc. v. Research in
Motion, Ltd., 418 F.3d 1282, 1312 (Fed. Cir. 2005). As
discussed above, the full record shows the defendants’
anticipation case was based on the publicly released
Expedia 2.0 system. The jury instruction concerning
public use, which CEATS does not challenge, allowed the
jury to find anticipation based on the features of Expedia
2.0 as it was released to the public. Any alleged error
regarding an instruction on prior invention does not reach
CEATS, INC. v. CONTINENTAL AIRLINES, INC. 15
the basis for the jury’s finding: public use. Therefore, this
court affirms the denial of CEATS’ motion for a new trial.

V.
This court affirms the decision of the trial court
because substantial, corroborated evidence supports the
jury’s verdict and because there was no error in the jury
instructions. Because this court affirms, there is no need
to reach the alternative grounds for affirmance raised by
defendant AirTran.
AFFIRMED
 NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

CEATS, INC.,
Plaintiff-Appellant,

v.

CONTINENTAL AIRLINES, INC., ALASKA
AIRLINES, INC., HORIZON AIR INDUSTRIES, INC.,
DELTA AIR LINES, INC., JETBLUE AIRWAYS
CORPORATION, UNITED AIRLINES, INC., VIRGIN
AMERICA, INC., US AIRWAYS, INC.,
TICKETMASTER, LLC, TICKETSNOW.COM, INC.,
AND LIVE NATION WORLDWIDE, INC.,
Defendants-Appellees,

AND

AIRTRAN AIRWAYS, INC.,
Defendant-Appellee.

______________________

2012-1614
______________________

Appeal from the United States District Court for the
Eastern District of Texas in No. 10-CV-0120, Chief Judge
Leonard Davis.
2 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
SCHALL, Circuit Judge, concurring-in-part and dissenting-
in-part.
I join the court’s opinion except for the analysis in
Part III.B, relating to the “sets of seats” limitations in
claim 5 of the ’869 patent. In my view, the record does not
contain sufficient evidence for a reasonable jury to find
those limitations satisfied by Expedia 2.0. I therefore
would reverse the denial of CEATS’s motion for judgment
as a matter of law of non-invalidity of that claim, and
would remand for a determination of damages for in-
fringement. Accordingly, I respectfully concur-in-part and
dissent-in-part.
After noting that CEATS took the position that “set”
needed no construction, the majority frames the issue as
follows: “[T]he question is whether the jury had sufficient
evidence to find that in this context, the term ‘set’ could
include a single seat, thus rendering it anticipated by the
Expedia 2.0 system.” Majority Op. at 12. I believe that
“set” cannot reasonably be construed to include or consist
of an individual seat because neither the specification of
the ’869 patent nor the dictionary definition of that term
supports such an interpretation.
To support its view that “sets of seats” could be com-
prised entirely of a single individual seat, the court high-
lights barstools S100 through S117 in Figure 4B of the
’869 patent. Majority Op. at 12. Specifically, the court
views the “S” in the identifying letter-number strings as
an abbreviation of “Set” as that term is used in claim 5.
Id. (“The figure shows each individual seat at the bar as a
single set.”) However, in Figure 4B, tables in a shaded
region in the center of the theater are identified with a
“P,” followed by a number, while tables outside of the
shaded area are identified with an “S,” followed by a
number. The legend near the top of Figure 4B makes
clear that the “P” and “S” in the identifier strings stand
for “Premium Seating” and “Standard Seating.” In other
 CEATS, INC. v. CONTINENTAL AIRLINES, INC. 3
words, “S” in Figure 4B does not stand for “Set” but rather
“Standard Seating.” Thus, the “S” at each of the eighteen
numbered barstools simply means that each stool is
standard rather than premium seating. Further, the
corresponding written description does not address the
barstools or identify those individual seats as “sets.” See
’869 patent, col. 5, l. 55 – col. 6, l. 16. For these reasons, I
do not believe Figure 4B supports the proposition that the
patentees acted as their own lexicographers to broaden
the ordinary meaning of “set” to include individual seats.
In its claim construction opinion, the district court
addressed whether “sets of seats” could be limited to
individual seats. See CEATS, Inc. v. Cont’l Airlines, No.
6:10-cv-120, 2011 WL 2971243 (E.D. Tex. July 21, 2011).
Although the district court did not construe the various
related disputed phrases, the court made clear that it
“does not adopt Defendants’ proposed limitations that
would limit sets of seats to individual seats.” Id. at *3–4.
Because, as discussed above, the specification does not
broaden the ordinary meaning of “sets of seats” to include
individual seats, when assessing CEATS’s motion, rather
than finding that “sets of seats” should not be limited to
individual seats, the district court should have relied on a
dictionary meaning to find that no reasonable construc-
tion of “sets” could include individual seats. See Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1584 n.6 (Fed.
Cir. 1996) (“Judges are free to consult such resources [i.e.,
technical treatises and dictionaries] at any time in order
to better understand the underlying technology and may
also rely on dictionary definitions when construing claim
terms, so long as the dictionary definition does not con-
tradict any definition found in or ascertained by a reading
of the patent documents.”). The word “set” in this context
means a “collection or group” of things. See The Oxford
American Dictionary and Language Guide 921 (1999).
While a “set[] of available individual seats” might
have only one available seat in it, based on the word’s
4 CEATS, INC. v. CONTINENTAL AIRLINES, INC.
ordinary meaning, a “set” must have two or more seats or
it is not actually a “set,” i.e., a collection or group. Here,
the defendants did not contend, and the record does not
support, that Expedia 2.0 provided information about a
grouping of two or more seats. ∗ Because no reasonable
jury could find claim 5 invalid when applying the evidence
to a reasonable construction of the “sets of seats” limita-
tions, I would reverse the denial of judgment as a matter
of law and would remand for a determination of damages
for infringement of claim 5.

∗
For example, a user of Expedia 2.0 could not
mouse over a row on the seat map of an aircraft—which
includes, for sake of example, seven seats—and receive
information about how many of those seats are, in fact,
available.