Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 1 of 24 PageID #: 47877
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-JLH
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`Original Version Filed: February 2, 2023
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`Public Version Filed: February 9, 2023
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`))))))))))
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`ARENDI S.A.R.L.,
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR
`CLARIFICATION OF CLAIM CONSTRUCTION AND MOTION TO STRIKE
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`

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`Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 2 of 24 PageID #: 47878
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`
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`TABLE OF CONTENTS
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`Page
`Background ..................................................................................................................................... 2 
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`Argument ........................................................................................................................................ 6 
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`1.  Defendants Violated the Court’s Rules................................................................................ 6 
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`A.  Defendants motion violates Local Rule 7.1.5(a) .......................................................... 6 
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`B. 
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`C. 
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`Defendants motion violates the Court’s scheduling order and Rule 16 ....................... 9 
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`O2 Micro does not require repeated construction of the same term ........................... 11 
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`2.  Defendants’ proposed construction still fails on the merits. .............................................. 12 
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`Conclusion .................................................................................................................................... 19 
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`i
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`Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 3 of 24 PageID #: 47879
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`
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`Cases
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Becton Dickinson & Co. v. Tyco Healthcare Grp. LP,
`No. CIV.A. 02-1694 GMS, 2006 WL 890995 (D. Del. Mar. 31, 2006) ....................................7
`
`Boyer v. Taylor,
`No. CIV.A. 06-694-GMS, 2013 WL 1336221 (D. Del. Mar. 29, 2013) .................................10
`
`Cronos Techs., LLC v. Expedia, Inc.,
`No. CV 13-1538-LPS, 2015 WL 5234040 (D. Del. Sept. 8, 2015) .........................................13
`
`DoseLogix, LLC v. Reflex Med. Corp.,
`No. 21-cv-1275, 2022 U.S. Dist. LEXIS 205131 (D. Minn. Nov. 10, 2022) ..........................10
`
`Finjan, Inc. v. Secure Computing Corp.,
`626 F.3d 1197 (Fed. Cir. 2010)..........................................................................................11, 12
`
`Flash Seats, LLC v. Paciolan, Inc.,
`No. CIV. 07-575-LPS, 2011 WL 4501320 (D. Del. Sept. 28, 2011).........................................7
`
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)................................................................................................16
`
`IPPV Enters., LLC v. EchoStar Commc’ns Corp.,
`No. CIV.A.99-577-KAJ, 2003 WL 723260 (D. Del. Feb. 27, 2003) ........................................7
`
`Loughlin v. Harada,
`No. CV 20-1055-LPS, 2022 WL 610672 (D. Del. Feb. 28, 2022) ............................................7
`
`McDerby v. Daniels,
`No. C.A.08-882-GMS, 2010 WL 2403033 (D. Del. June 16, 2010) .........................................9
`
`Mylan Pharms., Inc. v. Kremers Urb. Dev. Co.,
`No. C.A. 02-1628-GMS, 2004 WL 57218 (D. Del. Jan. 13, 2004) ...........................................7
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)..................................................................................1, 7, 11, 12
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................................16
`
`Skedco, Inc. v. Strategic Operations, Inc.,
`685 F. App'x 956 (Fed. Cir. 2017) ...........................................................................................16
`
`ii
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`Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 4 of 24 PageID #: 47880
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`Summit 6, LLC v. Samsung Elecs. Co.,
`802 F.3d 1283 (Fed. Cir. 2015)..............................................................................11, 12, 14, 15
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`Rules
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`Fed. R. Civ. P. 16 .......................................................................................................................9, 10
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`Local Rule 7.1.5 .......................................................................................................................1, 6, 7
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`iii
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`Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 5 of 24 PageID #: 47881
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`Defendants take a persistent approach to claim construction. If at first they don’t succeed,
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`they try, try (wait for a new judge), and try again. The Court construed the disputed limitation in
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`August 2019; and the Court confirmed the plain and ordinarily meaning of its construction in
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`March 2022, when ruling on both summary judgment and Daubert motions. Those latter motions
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`briefed the exact issue Defendants rehash now, and the Court settled that issue decisively:
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`While the eligible “predefined categories” of information must be categories “that
`can be searched for in an information source external to the document,” the Court’s
`construction does not require that the searchability determination of the first
`information must be made by the accused infringing products while performing this
`step of the claimed process. The contrary interpretation of the term would
`effectively read the word “predefined” out of the Court’s construction. In other
`words, “the phrase ‘that can be searched for’ modifies the allowable ‘predefined
`categories’ and does not specify a distinct determination to be made.”
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`Dkt. 400 at 6-7 (emphasis added). As a result, the Court denied Defendants’ motion for summary
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`judgment, and the Court ordered Defendants’ technical expert be “precluded from testifying that
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`the Accused Devices or Accused Apps do not satisfy the claim limitation because they do not
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`determine the searchability of the first information.” Id. at 7 (emphasis added).1
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`Defendants ignore the procedural rules and substantive rulings of this Court. They filed
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`their motion, without seeking leave, in violation of the Court’s scheduling order, which required
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`claim construction briefing to conclude by summer 2019. Their motion also violates Local Rule
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`7.1.5(a), which limits motions for reargument to 10 pages filed within 14 days of the Court’s
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`challenged order, whether viewed vis-à-vis the Court’s August 2019 claim construction order or
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`its March 2022 summary judgment and Daubert orders. And, in a baseless attempt to invoke O2
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`Micro, they pretend the Court has addressed determining searchability only “while the document
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`1 This brief and Exhibit 1 contain materially the same argument and evidence as those filed in
`opposition to the same motion in Arendi S.A.R.L. v. Motorola Mobility LLC, C.A. No. 12-1601-
`JLH. Arendi has filed separate versions in the two cases because each version incorporates material
`from sealed filings in its respective case.
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`1
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`is being displayed.” That pretense is inconsistent with the Court’s rulings; it ignores the parties’
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`extensive prior briefing; and it lacks support in the claims. The claims contain only one
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`“analyzing . . . to determine” limitation.
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`BACKGROUND
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`
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`The Court construed the disputed limitation at Markman in 2019. The Court’s scheduling
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`order required the parties to exchange proposed constructions by May 8, 2019; to submit their joint
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`claim construction chart by May 22, 2019; to file opening claim construction briefs by June 19,
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`2019; and to file their responses by July 17, 2019. Dkt. 85. The Court then held a Markman hearing
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`on July 26, 2019. Dkt. 134. Defendants argued the term was indefinite. Dkt. 118 at 13-14. Arendi
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`proposed the construction, “to determine if the first information belongs to one or more of several
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`predefined categories of information that can be searched for” Dkt. 120 at 18-20. The Court
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`adopted a version of Arendi’s construction, which defined both the eligible categories of
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`information and where a search for them must occur: “to determine if the first information belongs
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`to one or more of several predefined categories of identifying information (e.g., a name) or contact
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`information (e.g., a phone number, a fax number, or an email address) that can be searched for in
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`an information source external to the document.” Dkt. 143 at 13 (claim construction order); see
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`also Dkt. 134 (Markman Hr’g Tr.) at 86:24-88:1 (agreement by Arendi to Court’s proposal).
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`At the Daubert and summary judgment stage, the parties fully briefed, and the Court
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`resolved, the present dispute: whether the claims and the Court’s construction require a
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`determination that the predefined categorized “can be searched for information search external to
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`the documents.” Exhibit 1 excerpts the parties’ briefing and argument on this issue, consolidating
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`Dkt. 270 at 3-6 (Arendi’s Daubert Mtn.); Dkt. 338 at 4-9 (Google’s Daubert Opp.); Dkt. 363 at 1-
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`5 (Arendi’s Daubert Reply); Dkt. 276 (Google’s Mtn. for Summ. J.) at 3, 23-27; Dkt. 345 (Arendi’s
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`2
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`Opp. to Summ.J.) at 2, 23-29; Dkt. 370 (Google’s Reply in Supp. of Summ.J.) at 9-14; Dkt. 385
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`(Summ. J. & Daubert Hr’ g Tr.), at 57:6-72:7. The Court resolved the dispute in Arendi’s favor.
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`Dkt. 400, at 6-7, 15.
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`On March 5, 2021, Arendi brought its Daubert motion against Defendants’ infringement
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`expert, Martin Rinard. Dkt. 269. Arendi argued that, contrary to the Court’s|
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`Specifically, Dr. Rinard opines that there must be
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`whereas the Court’s construction requires only a determination of whether first
`information “belongs to one or more of several predefined categories” of the
`specified type. The plain meaning of the Court’s construction, and the claim
`languageitself, is that the phrase “that can be searched for” modifies the allowable
`“predefined categories” and does not specify a distinct analyzing step to be made.
`Because the eligible “predefined categories” necessarily consist of types of
`information “that can be searched for,” there is no requirement to also determine if
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`the information “can be searchedor
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`Dkt. 270 at 4 (citations omitted). Arendi explained why Dr. Rinard’s construction conflicted with
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`both the Court’s prior construction and the specification of the ’843 Patent. Jd. at 4-5.
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`Defendants filed their opposition to Arendi’s motion on April 4, 2021. Dkt. 338 at 4-9.
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`Google argued that the Court’s “construction (and the claim language) expressly requit[e] a
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`determination that the information category ‘can be searched for in an information source external
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`to the document.’” Dkt. 338 at 5; see also id. at 6 (same). Defendant warnedthat, if the Court
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`agreed with Arendi, “the claim would require only that the process determine whetherthe first
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`information is of a predefined category such as a phone number.”/d.at5.
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`On May4, 2021, Arendifiled its Daubert reply. Dkt. 363. Arendireiterated, “The Court’s
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`construction is clear that there need only be a single determination,” i.e., whether the first
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`information belongs to one of the eligible categories. Jd. at 1. Arendi argued that the plain and
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`ordinary meaning of“that can be searched for” should govern the limitation:
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`The plain meaningis that the concluding “that can be searched for” phraserestricts
`the set of potential “predefined categories” of first information. The “predefined
`categories” can only consist of “identifying information. .
`. or contact information
`..- that can be searchedfor in an information source external to the document.”
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`Id. at 2 (citations omitted). As Arendi explained, Defendants and Dr. Rinard erredin asserting that
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`“the accused produes mst notny
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`I 2.3 (citations omites)
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`In parallel to Arendi’s Daubert motion, Defendants moved for summary judgment based
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`on their belief that the claims require a determination of searchability:
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`[T]he ’843 Patent claims require a determination that a phone number “can be
`searchedfor” on the user’s system to find associated second information(e.g., that
`the user’s system can access a contact database and/or a networkservice that
`permits a search using
`a
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`phone numberto find additional, associated information).
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`as expressly required by the Asserted Claims.
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`Dkt. 276 at 3. Defendants stressed the “material difference between merely determining that
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`informationis of a particular type (e.g., identifying text as a likely phone number) and determining
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`that the information is of a type ‘that can be searched for in an information source external to the
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`document. (e.g., determining that the user’s device possesses a contact manager program that can
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`use a phone numberasa search term).’” Jd. at 24. In support of that position, Defendants made
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`manyof the same arguments it does now. Comparee.g., id. at 25 (incorrectly alleging that Arendi’s
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`invalidity expert, Dr. Sacerdoti adopted Defendants’ construction when opining on Newton
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`device) with Dkt. 422 at 13 (same).
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`

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`Opposing Defendants’ motion, Arendi accused Defendants of “invent[ing] a new claim
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`limitation of analyzing first information to determine its searchability.” Dkt. 345 at 2; id. at 25
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`(“Google must resort to manufacturing claim limitations. According to Google, there exists an
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`additional analyzing step ‘to determine that the type of first information can be searched for.’”).
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`Arendi again explained how both the plain meaning of the Court’s claim construction and the
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`intrinsic record conflict with Defendants’ construction. Id. at 26-27. And Arendi rebutted
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`Defendants’ efforts to misconstrue the testimony of Dr. Earl Sacerdoti (Arendi’s validity expert)
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`and the prosecution history. Id. at 27-29.
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`Defendants’ reply brief again advanced their present position: “the claims expressly require
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`that the Accused Products make the required determination that these categories of information
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`can be searched for.” Dkt. 370 at 10; see also id. n.10 (advancing present claim construction).
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`Indeed, Defendants devoted a quarter of their replies to the issue. Id. at 9-14.
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`
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`The present dispute was also argued extensively at the combined Daubert and summary
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`judgment hearing on July 29, 2021. Dkt. 385 (Hr’g Tr.), at 57:6-72:7. Defendants reprised their
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`position “that part of the determination is whether the information types can be searched for.” Id.
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`at 58:15-19; see also id. at 60:19-61:1 (arguing that, because claim 1 is a method claim, it “requires
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`that the accused products make the determination” of searchability). Arendi responded that neither
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`the claims nor the court’s construction require a distinct searchability analysis because the
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`“predefined categories” of first information are limited, a priori, to categories of information that
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`can be searched for. Id. at 65:3-21 (“Searchability is a characteristic of a category. There’s no
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`secondary or separate determination of searchability.”).
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`On March 31, 2022, the Court ruled on the summary judgment and Daubert motions. The
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`Court rejected Defendants’ contention that it requires a determination of searchability:
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`5
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`Under the Court’s construction, an infringing product must analyze to determine,
`while a document is being displayed, whether the first information “belongs to one
`or more of several predefined categories of identifying information ... or contact
`information.” While the eligible “predefined categories” of information must be
`categories “that can be searched for in an information source external to the
`document,” the Court’s construction does not require that the searchability
`determination of the first information must be made by the accused infringing
`products while performing this step of the claimed process. The contrary
`interpretation of the term would effectively read the word “predefined” out of the
`Court’s construction. In other words, “the phrase ‘that can be searched for’ modifies
`the allowable ‘predefined categories’ and does not specify a distinct determination
`to be made.”
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`Dkt. 400 at 6-7. As a result, “Dr. Rinard is precluded from testifying that the Accused Devices or
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`Accused Apps do not satisfy the claim limitation because they do not determine the searchability
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`of the first information.” Dkt. at 7. The Court simultaneously denied Defendants’ motion for
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`summary judgment with respect to this limitation. Id. at 15.
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`When ruling against Defendants, the Court understood them to raise the same construction
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`as they do now: “Google contends that the Court should grant summary judgment of non-
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`infringement as to all Accused Products because none of the Accused Products “analyze to
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`determine whether identified information is of a type that ‘can be searched for’ on a user’s device.”
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`(Id. D.I. 276 at 23) Arendi . . . argues that the Court’s construction of this claim term does not
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`require the Accused Products to perform “an additional analyzing step” to determine the
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`searchability of the first information. (C.A. No. 13-919 D.I. 345 at 25).” Id. at 15.
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`ARGUMENT
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`1. Defendants Violated the Court’s Rules
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`A. Defendants motion violates Local Rule 7.1.5(a)
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`The Court should deny Defendants’ improper motion for reargument. “Motions for
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`reargument shall be sparingly granted.” L.R. 7.1.5(a). They “are granted only if the court has
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`patently misunderstood a party, made a decision outside the adversarial issues presented by the
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`6
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`parties, or made an error not of reasoning but of apprehension,” and they “are not to be used simply
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`to rehash arguments which have been previously briefed by the parties and considered and decided
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`by the Court.” Flash Seats, LLC v. Paciolan, Inc., No. CIV. 07-575-LPS, 2011 WL 4501320, at
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`*2 (D. Del. Sept. 28, 2011); see also, e.g., Becton Dickinson & Co. v. Tyco Healthcare Grp. LP,
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`No. CIV.A. 02-1694 GMS, 2006 WL 890995, at *2 (D. Del. Mar. 31, 2006) (same and collecting
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`cases). “Even if the court has committed one of these errors, there is no need to grant a motion for
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`reconsideration if it would not alter the court’s initial decision.” Becton Dickinson & Co, No.
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`CIV.A. 02-1694 GMS, 2006 WL 890995, at *2. Motions for reargument must be filed “within 14
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`days after the Court issues its opinion or decision” and must “not exceed 10 pages.” Id.2
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`Rule 7.1.5(a) does not have a “claim construction” or O2 Micro exception. See Mylan
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`Pharms., Inc. v. Kremers Urb. Dev. Co., No. C.A. 02-1628-GMS, 2004 WL 57218, at *2 (D. Del.
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`Jan. 13, 2004) (denying motion to reargue claim construction); IPPV Enters., LLC v. EchoStar
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`Commc’ns Corp., No. CIV.A.99-577-KAJ, 2003 WL 723260, at *9 (D. Del. Feb. 27, 2003)
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`(denying another “bite[]” at “claim construction apple” where party “failed to timely seek
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`reconsideration” pursuant to L.R. 7.1.5). Thus, in Becton Dickinson & Co., No. CIV.A. 02-1694
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`GMS, 2006 WL 890995, at *9, the court denied defendant’s arguments for reconsideration of a
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`claim construction in the guise of a post-trial motion for JMOL. Not only did the motion
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`improperly “rehash[] arguments that the court ha[d] already considered and rejected” at both
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`Markman and summary judgment, id.; the motion was also untimely under Rule 7.1.5, id. n.6
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`(violation of Rule 7.1.5 deadline provided “further reason to deny” motion).
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`2 “A reply brief is not an authorized submission in connection with a motion for reconsideration.”
`Loughlin v. Harada, No. CV 20-1055-LPS, 2022 WL 610672, at *1 (D. Del. Feb. 28, 2022). Any
`further briefing by Defendants, without leave, should be stricken.
`7
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`Defendants motion for reargument is years overdue, exceeds the page-limit, and rehashes
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`past briefing. The Court construed the disputed limitation on August 19, 2019. Dkt. 143. On March
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`31, 2022, the Court clarified that its “construction does not require that the searchability
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`determination of the first information must be made by the accused infringing products while
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`performing this step of the claimed process.” Dkt. 400 at 6. On that basis, the Court denied the
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`relevant portions of Defendants’ summary judgment motion and precluded Defendants’ expert
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`from testifying that accused products “do not satisfy the claim limitation because they do not
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`determine the searchability of the first information.” Dkt. 400 at 7, 15.3 As detailed above, supra
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`at 2-6, the Court’s rulings followed extensive briefing and argument from both parties (collected
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`as Exhibit 1) about whether the disputed limitation requires a determination of searchability.
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`
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`Defendants pretend the Court merely resolved that a searchability determination need not
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`occur “while the document is being displayed” but has not addressed whether the claims require
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`such a determination at another time. E.g., Dkt. 422 at 2, 9. That hairsplitting conflicts with the
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`Court’s rulings, the parties’ briefing, and the language of the claims. Neither the Court’s Daubert
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`nor summary judgment rulings contained any temporal limitation. Instead, the Court rejected a
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`determination-of-searchability element, full stop. Dkt. 400 at 6-7, 15. The parties’ briefing likewise
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`focused on whether a determination of searchability was required—not when it must occur. See,
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`e.g., Dkt. 338 (Google’s Daubert Opp.), at 5 (warning, if Court granted Arendi’s motion, “the
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`claim would require only that the process determine whether the first information is of a predefined
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`category”); Dkt. 400 (Daubert and Summ. J. order) at 15 (contrasting Google’s position that
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`accused products must “analyze to determine whether identified information is of a type that ‘can
`
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`3 Defendants announce their intent to defy the Court’s order. Dkt. 422 at 2 (“At trial, Defendants
`intend to argue non-infringement on this basis, as the evidence establishes that none of the accused
`products assess searchability . . . .”). Arendi may move in limine to prevent such abuse.
`8
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`be searched for’ on a user’s device” with Arendi’s view rejection of “‘an additional analyzing
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`step’ to determine the searchability of the first information”).
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`Defendants misconstrue the Court’s statement that the claims do “not require that the
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`searchability determination of the first information be made by the Accused Products while
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`performing this step of the claimed process.” Dkt. 400 at 15 (emphasis added). Defendants would
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`have “this step” refer only to “while the document is being displayed,” implying that a searchability
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`determination must still occur at another time. Dkt. 422 at 8. The Court, however, referred to the
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`entire “step” (i.e., limitation) of analyzing “to determine if the first information is at least one of a
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`plurality of types of information that can be searched for.” The claims do not support severing the
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`determination of whether “the first information is at least one of a plurality of types of
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`information”—which must occur “while the document is being displayed—from a hypothesized
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`determination of searchability at some other time. The claims include only one analyzing-to-
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`determine step: “while the document is being displayed, analyzing, in a computer process, first
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`information from the document to determine if the first information is at least one of a plurality of
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`types of information that can be searched for.” D.I. 97-1 (“’843 Patent”) at 10:43–48. That lone
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`determination must occur “while the document is being displayed.”
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`B. Defendants motion violates the Court’s scheduling order and Rule 16
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`Defendants’ motion also violates the Court’s scheduling order and Rule 16. Rule 16
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`requires good cause and the Court’s consent to modify a scheduling order. Fed. R. Civ. P. 16(b)(6).
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`“‘Good cause’ means that scheduling deadlines cannot be met despite a party’s diligent efforts.”
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`McDerby v. Daniels, No. C.A.08-882-GMS, 2010 WL 2403033, at *6 (D. Del. June 16, 2010)
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`(citation omitted). The party seeking modification bears the burden of establishing good cause. Id.
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`Failure to meet this burden warrants denial of a party’s motion. E.g., id. (denying motion to amend
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`9
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`Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 14 of 24 PageID #: 47890
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`complaint that “does not address the good cause requirement”); Boyer v. Taylor, No. CIV.A. 06-
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`694-GMS, 2013 WL 1336221, at *3 (D. Del. Mar. 29, 2013) (striking summary judgment motion
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`filed late and without leave); see also DoseLogix, LLC v. Reflex Med. Corp., No. 21-cv-1275
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`(ECT/DJF), 2022 U.S. Dist. LEXIS 205131, at *6 (D. Minn. Nov. 10, 2022) (refusing to consider
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`claim constructions raised in violation of scheduling order).
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`Claim construction briefs were due in 2019, more than three and a half years ago. Dkt. 85
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`(requiring opening claim construction briefs by June 19, 2019, and responses by July 17, 2019).
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`Defendants neither moved to modify the scheduling order nor showed good cause to do so. The
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`Court should deny Defendants’ tardy motion.
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`Nor could Defendants have established good cause. They could have raised their present
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`argument—that the claims require an analysis to determine searchability—at the Markman stage.
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`They did not. Instead, they argued the term was indefinite. Dkt. 118 at 13-14. Defendants did not
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`seek reargument when they lost at Markman in August 2019. They did not move for supplemental
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`claim construction after their disagreement with Arendi crystalized in August 2020, when Arendi
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`served its expert reports. See Dkt. 210 at 3. Defendants plainly focused on the present dispute on
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`March 5, 2021, when Defendants moved for summary judgment and Arendi filed its Daubert
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`motion. Yet Defendants still did not seek a clarifying construction. Defendants claim to address
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`“ambiguity and dispute” created by the Court’s Daubert and summary judgment rulings on March
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`31, 2022. Dkt. 422 at 8. But, even then, Defendants sat on their hands for eight months. Only in
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`January 2023 did Defendants bring this motion—shortly before trial and long after Arendi had
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`completed discovery, served its experts reports, and briefed dispositive motions. They have not
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`practiced the diligence necessary to establish good cause under Rule 16(b)(4) to extend claim
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`construction briefing by three-and-a-half years.
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`C. O2 Micro does not require repeated construction of the same term
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`Defendants misread O2 Micro International Ltd. v. Beyond Innovation Technology Co.,
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`521 F.3d 1351 (Fed. Cir. 2008), as a license to ignore the Court’s procedural rules and reopen
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`settled claim constructions. “Restating a previously settled argument does not create an ‘actual
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`dispute regarding the proper scope of the claims’ within the meaning of O2 Micro.” Finjan, Inc.
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`v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010); Summit 6, LLC v. Samsung
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`Elecs. Co., 802 F.3d 1283, 1291 (Fed. Cir. 2015) (same). A district court, moreover, is not required
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`to accede to a party’s demand to construe terms “comprised of commonly used terms,” when “used
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`in common parlance” and without “special meaning in the art.” Summit 6, LLC, 802 F.3d at 1291.
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`In Finjan, Inc., for example, the Federal Circuit rejected defendants’ 02 Micro-based
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`challenge. 626 F.3d 1197. Defendants had appealed the district court’s refusal to construe the term
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`“addressed to a client” and to permit the defendants’ expert to testify that the plain and ordinary
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`meaning of that term required an IP address. Id. at 1206-07. At claim construction, the Court
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`already had assigned “addressed to the client” its “plain and ordinary meaning,” denying
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`Defendants’ proposed construction of “addressed” as “containing the IP [Internet Protocol] address
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`of the client computer,” and “client” to mean “the computer from which the user is making a
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`request.” Id. O2 Micro did not require the Court to revisit that “previously settled argument” at
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`trial. Id. at 1207 (emphasis added).
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`The Federal Circuit rejected an O2 Micro appeal on the same basis in Summit 6, LLC. At
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`claim construction, Samsung had argued that the term “said one or more pre-processing
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`parameters being provided to said client” required that provision of the parameters occur during
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`the claimed method. 802 F.3d at 1288, 1290. The district court had disagreed and “declined to
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`further construe the term because it was a ‘straightforward term’ that required no construction.”
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`Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 16 of 24 PageID #: 47892
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`Id. At trial, the district court therefore permitted plaintiff to argue that receipt did not have to occur
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`during operation of the method. Id. at 1289. The Federal Circuit found no O2 Micro violation.
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`First, reprising the same claim construction dispute already presented to the district court did “not
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`create an actual dispute within the meaning of O2 Micro.” Id. at 1291. Second, because “being
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`provided to” was comprised of common terms without “special meaning in the art,” its “plain and
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`ordinary meaning” was clear and required no construction. Id.
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`As in Finjan, Inc. and Summit 6, LLC, the Court does not need to revisit its settled
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`construction of the disputed term. The Court has already considered that term’s meaning in the
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`context of three motions. At Daubert and summary judgment, the Court even considered—and
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`rejected—the same construction Defendants raise now. Three bites at the apple is enough.
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`Moreover, the disputed term is composed only of common terms without any specialized meaning.
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`The dispute is purely grammatical: does “that can be searched for” restrictively modify the class
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`of “predefined categories” or does it specify a distinct determination? The Court, of course,
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`adopted the former reading, Dkt. 400 at 6-7, 15 (emphasis added).
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`2. Defendants’ proposed construction still fails on the merits.
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`The claim limitation at issue does not require an analysis to determine whether the
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`predefined categories of first information can be searched for; rather, the term “that can be searched
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`for” restricts the eligible class of “predefined categories” to which first information may belong.
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`Just like the predefined categories must be categories of identifying or contact information, those
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`predefined categories must be ones “that can be searched for in an information source external to
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`the document.” Dkt. 143 at 13. Arendi incorporates by reference its prior briefing and argument
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`on this identical issue at Dkt. 270 at 3-6 (Arendi’s Mtn. to Exclude), Dkt. 363 at 1-5 (Arendi’s
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`Reply in Supp. of Mtn. to Exclude), Dkt. 345 (Arendi’s Opp. to Summary J.) at 2, 23-29, and Dkt.
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`Case 1:13-cv-00919-JLH Document 436 Filed 02/09/23 Page 17 of 24 PageID #: 47893
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`385 at 64:24-69:16 (argument at summary judgment & Daubert hearing). This material is included
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`in Exhibit 1.
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`The Court already resolved the claim construction in Arendi’s favor, when granting the
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`relevant portion of Arendi’s Daubert motion and denying that portion of Defendant’s mirror-image
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`motion for summary judgment:
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`Under the Court’s construction, an infringing product must analyze to determine,
`while a document is being displayed, whether the first information “belongs to one
`or more of several predefined categories of identifying information ... or contact
`information.” While the eligible “predefined categories” of information must be
`categories “that can be searched for in an information source external to the
`document,” the Court’s construction does not require that the searchability
`determination of the first information must be made by the accused infringing
`products while performing