Use of the term “preferred” when describing example embodiments implies that alternatives are contemplated. Here, for example, the mention in the specification of a “preferred” receive-only manner of communication was found to imply the invention’s ability to operate in a manner in which the device may transmit as well as receive. It may therefore be advantageous to explicitly describe any particular examples in the specification as being merely “preferred” or some other exemplary designation.
Background / Facts: The patent being asserted here is directed to systems for playing music and messages (e.g., advertisements) through telephones and public speaker systems. The claims recite a remote server that generates and “transmits” control signals to message playback devices, telling them to access and play back tracks in a specified order.
Issue(s): Whether the claim term “transmit” requires that all communication between the remote server and the message playback devices must be initiated by the server rather than by the message playback devices themselves.
Holding(s): No. “We find that the claim term ‘transmit’ and the specification support a construction that is neutral as to whether the message playback device or the server initiates the transmission. Nothing in the word ‘transmit’ suggests a limitation on initiation: there is no linguistic ambiguity to resolve. And the specification confirms the term’s neutrality as to initiation. For instance, the patent discloses that the ‘message playback device is preferably operational in a receive-only manner. [] The mention of a preferred ‘receive-only’ manner implies the invention’s ability to operate in a manner in which the message playback device may transmit. Operating in such a manner would allow for communications which are initiated by the message playback device.”