`Case 6:07—cv—00080—LED
`Document 246
`Filed 07/30/2009
`Page 1 of 35
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
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`TYLER DIVISION
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`§ §
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`VIRNETX, INC.
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`Plaintiff
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`§ §
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`vs.
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`CASE NO. 6:07 CV 80
`§
`§
`PATENT CASE
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`MICROSOFT CORPORATION
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`§ §
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`§ §
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`Defendant
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`MEMORANDWI OPTNION
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`This claim construction opinion interprets the disputed terms in US. Patent Nos. 6,502,135
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`(“the ‘ 135 patent”); 6,839,759 (“the ‘759 patent”); and 7,188,180 (“the ‘180 patent”). Appendix A
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`contains the disputed terms, as they appear in the asserted claims of these patents. Appendix B
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`contains a chart summarizing the Court’s constructions.
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`BACKGROUND
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`PlaintiffVimetX, Inc. (‘Wimet ”) accuses Microsoft Corporation (“Microsoft”) of infringing
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`claims of the T35, 75?, and T80 patents. The ”T35 patent discloses a method or transparently
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`creating a Virtual private network between a client computer and a target computer. The ‘759 patent
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`mscbsesamemodferefiawghingaWNMmQMauseremefingwerflenfificafiwW
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`The ‘75 9 patent is related to the ‘ 135 patent through other continuation-in-part applications/patents.
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`The ‘ 180 patent discloses a method for establishing a VPN using a secure domain name service. The
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`—‘180_pammmmlmedmme‘B5patemfiamxisjond_patem_oLconfimaflmfinqlart—
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`applications/patents of the ‘135 patent. The ‘759 and ‘180 patents share the same specification.
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`Case 6:07—cv—00080—LED
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`APPLICABLE LAW
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which thepatentee isentitledtherightteexclude.” P1441119: HWHCmay, 445 F.3d1303,134°
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`(Fed. Cir. 2005) (en banc) (quoting [Imam/Pure Water Inc. v. Safari Wczlc/‘Flllrallon S131, Inc, 381
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`F .3d 1111, 1115 (Fed. Cir. 2004)).
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`1n claim construction, courts examine the patent’s intrinsic
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`evidence to define the patented invention’s scope. See id; C.R. Bard, Inc. v. US. Surgical Corp,
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`388 F.3d 858, 861 (Fed. Cir. 2004);Bcfl741‘l. i’V‘cfimfifim‘vfimflvadGmm’ns Group, Inc,
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`262 F.3d 1258, 1267 (Fed. Cir. 2001). This intrinsic evidence includes the claims themselves, the
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`specification, and the prosecution history. See Phillips, 415 F .3d at 1314; CR. Bard, Inc, 3 88 F .3d
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`at861. CeurfigivcchimersttherWandmcfiemcdmcMgasundcrstwdbyemef
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`ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips, 415
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`F.3d at 1312—13;Alloc, Inc. v. Int’l Trade Comm ’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).
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`The claims themselves provide substantial guidance in determining the meaning ofparticular
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`claim terms.
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`1977777717303, 4d5 F.3d at 13M. First, a Wmfittexfiffimmtemmmy—
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`instructive. Id. Other asserted or unasserted claims can also aid in determining the claim’s meaning
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`because claim terms are typically used consistently throughout the patent. Id. Differences among
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`the claim terms can also assist in understanding a term’s meaning. Id. For example, when a
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`dependent claim adds a lim1tation to an independent claim, it is presumed that the independent claim
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`does not include the limitation. Id. at 1314—15.
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`“[C]laims ‘must be read in View of the specification, of which they are a part.m Id. (quoting
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`Ma—rkman v. Widen} WS, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en barfcj). “[TIhe
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive;
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`it is the single best guide to the meaning of a disputed term.”’ Id. (quoting Vitronics Corp. v.
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`Conceptronic, Inc. , 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp, 299
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`F.3d1313,1325 (Fed. Cir. 2002). "HM is truebeeause apatentee maydefine Mew terms, give
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`a claim term a different meaning than the term would otherwise possess, or disclaim or disavow the
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`claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s lexicography governs.
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`Id. Also, the specification may resolve ambiguous claim terms “Where the ordinary and accustomed
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`ascertained from the words alone.” Tcleflex, Inc., 299 F .3d at 1325. But, “‘[a]1though the
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`specification may aid the court in interpreting the meaning of disputed claim language, particular
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`wmmmemswpemgmmewecificafiwMMgemmlbbemmteme
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`claims.”’ Comark Commc ’ns, Inc. v. Harris Corp, 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting
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`Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips,
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`415 F.3d at 1323. The prosecution history is another tool to supply the proper context for claim
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` tchpatcnt.
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`Ifinne
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`Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`specification, a patent applicant may define a tem1 in prosecuting a patent").
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`Although extrinsic evidence can be useful, it is “‘less significant than the intrinsic record in
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`determining the legally operative meaning ot claim language. ”‘ P711777ps, 41 5 F.3d at
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`3
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`7 (quoting
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`C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand
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`the underlying technology and the manner in which one skilled in the art might use claim terms, but
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` " y b'ovc-
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`indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid
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`a court in understanding the underlying technology and determining the particular meaning of a term
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`in the pertinent field, but an expert’s conclusory, unsupported assertions as to a term’s definition is
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`entirelynnheipfirl tea court. Id. Generally, extrinsic evidence is “less reliable than the patent and
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`its prosecution history in determining how to read claim terms.” [(1.
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`CONSTRUCTION OF DISPUTED TERMS IN THE ‘135 PATENTI’ 2
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`“virtual private network”
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`The‘l36patent,claimslandl0;the‘759patent,claimslandl63andthe‘l80patent,
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`claims 1, l7, and 33 contain the term “virtual private networ ” (“VPN”). VirnetX contends that
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`“virtual private network” means “a network ofcomputers capable ofprivately communicating with
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`cachethcr by encryptmgtrat‘fieeninseeureeemniunieatienpathsbctwecnthc cenrputcrs, and which
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`7)
`is capable of expanding to include additional computers and communication paths. Microsoft
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`contends that “virtual private network” means “a network implemented by encapsulating an
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`tunneling) over a shared networking
`encrypted IP packet within another 1P packet (that is,
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`infrastructure.” The parties dispute whefirwfirfi‘FrCchWlLdicfitmmy may be used tcrconstrue
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`“virtual private network,” whether VimetX’s proposed construction is overly broad, Whether “virtual
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`private network” requires anonymity, and whether IP tunneling is a limitation on “virtual private
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`network.” In light of intrinsic and extrinsic evidence, the Court construes “Virtual private network”
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`as “a network of computers which prrvately communicate With each other by encryptrng traffic on
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`insecure communication paths between the computers.”
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`lVUiileJhis heading states—‘Cnrnsnlujnm ofmspnterl Leunsin (he ‘lii Parr/burr," Thfllaim Terms addressed—
`rthi hain ma
`a1
`f ninth thra rt
`at nt
`Thi
`a1
`a
`1i
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`ntha in
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`n
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`2Citations to the patents will not include the US. patent numbers to maintain brevity. Unless otherwise
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`stated. these citations are of the US. patent numbers indicated in the heading that the citation falls under.
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`The ‘135 patent does not provide an explicit definition for “virtual private networ .”
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`However, the ‘ 135 patent uses “virtual private network” in ways that are consistent with a “virtual
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`private network” being “a network ofcomputem which privatelycommnnicate with each other by
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`encrypting traffic on insecure communication paths between the computers.” The specification
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`discusses a VPN in the context ofconnecting and communicating between nodes. For instance, the
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`specification states. “In a second mode referred to as ‘promiscuous per VPN’ mode, a small set of
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`fixedhardware -
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`nodes communicating over a virtual private network.” Col. 23: 1 1-14. This excerpt shows that the
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`‘135 invention includes nodes (computers) communicating over a virtual private network.
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`Furthermore, the claims and specification discuss a VLF—N in the context ofpriwate
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`communication on insecure communication paths. Claim 1 states “A method of transparently
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`creating a virtual private network (VPN) between a client computer and a target computer” and then
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`states the steps of accomplishing this method including “requesting access to a secure web site.”
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`Col. 47:20-22, 36-3l. Thus, claim l associates a““virtaa1 prixate notwork” with “seoarrtyi’ofirlso—
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`the specification states, “If the user is not authorized to access the secure site, then a ‘host unknown”
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`message is returned (step 2705). If the user has sufficient security privileges, then in step 2706 a
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`secure VPN is established between the user’s computer and the secure target site.” Col. 39:21:25.
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`This excerpt shows how a “Virtual private network” establishes a secure connection between nodes
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`where security may not otherwise exist. Thus. the claim language and the specification are
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`consistent with construing a “virtual private network” as “a network of computers which privately
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`computers.”
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`Extrinsic evidence also supports this construction. The Wiley Electrical and Electronics
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`Engineering Dictionary defines a “virtual private networ ” as
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`A networkWWWWWQW netwotk,
`but whichIs configured within a public network, such as the Internet. The use of a
`public infrastructure while ensuring privacy using measures such as encryption and
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`tunneling protocols, helps provide the security of a private network at a cost similar
`to that ofa public network.
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`WILEY ELECTRICAL AND ELECTRONICS ENGINEERING DICTIONARY 842 (2004) (published by the
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` . -sofaprivatenetwork
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`but runs on a public network. The dictionary definition further states that encryption may be used
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`to achieve privacy. The Court’s construction is in line with this definition. All pertinent aspects of
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`the Court’s construction are explicitb found in the dictionany definition exeept for “insecure
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`communication paths,” which simply corresponds to the dictionary defmition’s reference to “a public
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`network.” Thus, the Court’s construction is in accord with the dictionary definition.
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`Also,
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`the ‘135 patent refers to the “FreeS/WAN” project in the specification. The
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`—specificatiotrexplains that the “FreeS'W” prtject is devehrpihgwrmventional scheme that
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`provides secure virtual private networks over the Internet. Col. 37:50-58. The “FreeS/WAN”
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`project defines “virtual private network” as “a network which can safely be used as if it were private,
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`even though some of its communication uses insecure connections. All traffic on those connections
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`1s encrypted.”
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`“FreeSTWAN‘” Glossary 24-25, Pl. Br. (Docket No. [94) EX. 0. The Court’s
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`construction is consistent with this definition.3
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`3The Court’s construction largely adopts VirnetX’s proposal. However. this construction excludes
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`private network. Pl.’s Br. 6. The Court’s construction does not limit a “virtual private network" to any particular
`number of computers or communication paths. Thus, VirnetX’s proposed language is superfluous. Accordingly. the
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`Court‘s construction accounts for the possibility of additional computers or communication paths.
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`Microsoft contends that the “FreeS/WAN” glossary is not an explicit definition of “virtual
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`private networ ” and thus is not persuasive. Microsoft argues that the ‘ 135 patent’s reference to the
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`“Frees/WAN” preject is made only te describe the pnienantnand net to define “finned private
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`network.” However, the specification explains that the “FreeS/WAN” project has been developing
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`an implementation of one conventional scheme that provides secure virtual private networks over
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`the Internet. Col. 37:50-58. Also, the applicant disclosed the “FreeS/WAN” project as prior art.
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`SeeDef’s Br. fDocke’rNo. 201) Exs. M—O. Wethesereferencesto the “FreeS’W”project do
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`not explicitly define “virtual private network,” they at least point to extrinsic evidence that can be
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`considered in construing “virtual private network.” Thus, the Court mayconsider the “FreeS/WAN ”
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`—pfejeet%glessafi as extrinsic evidence for construing “Virtual pniynte netwenk.”
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`Microsoft also contends that even if the “FreeS/WAN” glossary offers an acceptable
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`definition for “virtual private network,” portions of the “FreeS/WAN” glossary definition show that
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`VirnetX’s proposed construction is overly broad. Microsoft cites the portion of the “FreeS/WAN”
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`—glossary1tefimtr(m fofi‘v'ntual pr'nate netwmks”that states “WSEC finterrre‘rProtocoi Security] is
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`not the only technique available for building VPNs, but it is the only method defined by RFCs
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`[Request for Comments, Internet documents—some of which are informative while others are
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`standards] and supported by many vendors. VPNs [Virtual private networks] are by no means the
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`only thlng you can do With IPSEC, but they may be the most important applicat1on for many users.”
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`Def/”s Br. (Docket No. 201) at 10; “FreeS/WAN” Glossary 25, Pl. Br. (Docket No. 194) Ex. 6.
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`Microsoft points out that IPSEC is the only method defined by RFCs and supported by many
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`identify Secure Sockets Layer (“SSL”) or Transport Layer Security (“TLS”) as methods for building
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`“virtual private networks.” Microsoft then argues that VirnetX’s proposed construction is overly
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`broad because it allows for a network using SSL and TLS. However, Microsoft’s cited excerpt is
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`—an4neflampe¢enfi$e“vfluflpfiv%em%rk”definifienamd$mtapaflmmfiemm
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`paragraph from the primary portion of the definition. See “FreeS/WAN” Glossary 24—25, P1. Br.
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`(Docket N o. 194) EX. 6. Also, Microsoft selectively asserts that lPSEC is the only method defined
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`by RFCs and supported by many vendors and ignores that its cited excerpt states that “IPSEC is not
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`—fliepnlytechmqtreavaflalaleforbtuldmg VPNs.” Thus, MicrOsoft’scited excerpt does not support
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`that the “FreeS/WAN ” glossary restricts “virtual private networ ” to lPSEC.
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`Microsoft also contends that VimetX’s proposed construction suggests that the “virtual
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`privatenctwerk”achievesenlydatasecuritywhenitsheuldincludebethdatasecurityand
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`anonymity. Microsoft is correct that “private” in “virtual private networks” means both data security
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`and anonymity. The specification supports this interpretation. The Background of the Invention
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`section states “[a] tremendous variety of methods have been proposed and implemented to provide
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`security and anonymity fimrrrrnrun'rcat'mns ovefljrre Internet.” Col. H647. Thrsseet'rmrfurtlrer—
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`describes data security as being “immune to eavesdropping” and states “[d]ata security is usually
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`tackled using some form of data encryption” and anonymity as “preventing[ing] an eavesdropper
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`from discovering that terminal 100 is in communication with terminal 110.” Col. 1:23-25, 38-39,
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`27-28. This language suggests that the claimed invention will achieve both data security and
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`anonymity because it prefaces the Detailed Description of the Invention section. which describes a
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`method of creating a virtual private network.
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`Indeed,the
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`network” means data security and anonymity. The Detailed Description of the Invention, Further
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`Extensions section describes a mode of the invention as being able to “reduce the amount of
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`overhead involved in checking for valid frames” while allowing “IP addresses .
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`.
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`. [to] Still be hopped
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`as before for secure communication within the VPN.” Col. 73:20-75 (Em-344W
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`“anonymity” feature of a VPN can be handled by the Tunneled Agile Routing Protocol (“TARP”),
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`which executes “address hopping.” See C 01. 2:66—3:17; see Col. 5:49—64. Thus, the language “still
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`be hopped” indicates that the modifications of the invention retain the anonymity feature of the
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`“virtual privatesiretwork.”4 AccordinglyfiheGourfconstrues “virtual privatenetwork” asrequiring—
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`both data security and anonymity.
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`Finally, Microsoft contends that “virtual private network” requires 1P tunneling. Microsoft
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`WmmmcvmchWMWWWWWnymfiy—
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`in a virtual private network. Microsoft then argues that tunneling is required to achieve anonymity
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`when TARP, IPSEC, or any other means is employed to achieve anonymity. The Court first and
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`foremost considers the intrinsic evidence. The claims do not assert “tunneling” as a limitation nor
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`’5 Citations to l'lTC
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`Background ofthe Invention section only state explanations ofhow TARP works and does not use
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`any limiting language. See Col. 315-18, 19-20, 58-60. Furthermore, Microsoft’s citation to the
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`Detailed Description of the Invention, Further Extensions section only refers to a preferred
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`implementation of the Virtual private network, stating “The VPN is preferably implemented usmg
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`. compromises the anonymity
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`4While the specification states that this mode ofthe invention “[o]fcoiirse .
`ofthe VPNs,” this only means that those outside the VPN can discover the VPN and does not mean that the
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`anonymity of the users within the VPN is compromised. This is clear from the example that follows the
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`“compromising anonymity of the VPN” statement: “(i.e., an outsider can easily tell what traffic belongs in which
`VPN,t/10ug/1 he cannot correlate it to a Specific I;1ac/1ine/pers0n).” Col. 23:25—28 (emphasis added). Thus, the
`specification is consistent with construing a “virtual private network” as achieving both data security and anonymity.
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`the IP address ‘hopping’ features of the basic invention described above, such that the true identity
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`of the two nodes cannot be determined even if packets during the communication are intercepted.”
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`—C91484—6—Aga+n, thisexcerpt does not include anvhmmngJanguage and in fact expresslyLuses
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`the non—limiting language “preferably.” Accordingly, “virtual private network” is not limited to IP
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`tunneling, and the Court construes “virtual private network” as “a network of computers which
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`privately communicate with each other by encrypting traffic on insecure communication paths
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`—betweerrthecomputers.”
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`“transparently creating [creates] a virtual private network”
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`The ‘ 135 patent, claims 1 and 10 contain the phrase “transparently creating [creates] a virtual
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`privatcnctwerk.” Thcparticsdisputewhetheiitraasparcntb creating aVirtualprivatc network” in
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`the preamble is limiting and whether “transparently” refers to not involving a user or not involving
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`the client and target computers in creating a virtual private network. VirnetX contends that this
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`phrase means “a user need not be involved in creating a virtual private networ .” Microsoft
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`Wsmmmtmsmmmmmmmfimmmpimms
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`“creating a virtual private network (VPN) without the client or target computer involved in
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`requesting such creation.”
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`“Transparently creating a virtual private network” in the preamble is not a limitation because
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`“transparently” does not add meaning to claims 1 and [0. “A preamble limlts the invention 1t 1t
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`recites essential structure or steps. or if it is ‘necessary to give life, meaning, and vitality” to the
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`claim. Convorscly, a prcamblc is not limiting ‘whcrc a patcntcc dcfincs a structurally complctc
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` ‘ inyu.’c"'
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`invention.”’ Catalina Mktg. Int ’1, Inc. v. Coolsavings.com, Inc, 289 F.3d 801, 808 (Fed. Cir. 2002)
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`(citations omitted). If a preamble “is reasonably susceptible to being construed to be merely
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`duplicative of the limitations in the body of the claim (and was not clearly added to overcome a
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`re}ect—ien9,wedenetcenstrueittebeaseparate'
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`1111’], Inc, 522 F.3d 1279, 1288—89 (Fed. Cir. 2008). “Transparently” is merely descriptive ofwhat
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`is found in steps (2) and (3) of claim 1. As discussed below, those steps require that a user is not
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`involved in creating a VPN. This requirement corresponds to the meaning of “transparently” as
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`transparently to the user (i.e., the user need not be involved in creating the secure link).” C 01. 39:28—
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`29. Thus, “transparently” is merely duplicative ofwhat is found in the body ofclaim 1. As a result,
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`, “ ntly” does not require construction.
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`“Domain Name Service”
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`The ‘ 135 patent, claims 1 and 10 and the ‘180 patent, claims 1, l7, and 33 contain the term
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`“Domain Name Service” (“DNS”). VirnetX contends that “Domain Name Service” means “a
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`servicethat receives requests fwconqruterrretwwlradc’rressemmespondmgto dm’rra'm names, and
`a
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`which provides responses.’ Microsoft contends that “Domain Name Service” means “the
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`conventional lookup service defined by the Internet Engineering Task Force (“IETF”) that returns
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`the IP address of a requested computer or host.” The parties dispute whether “Domain Name
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`Servrce” is limited by the definition given in the TETF that defines Domain Name Serv1ce as the
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`conventional scheme or if it more broadly includes both conventional and modified Domain Name
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`Service that is described in the specification.
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`.fi.
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`service that returns an IP address for a requested domain name.” The specification states
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`New Bay Capital, LLC
`Ex.1008-Page 11 of 35
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`Case 6:07—cv—00080—LED Document 246
`Filed 07/30/2009
`Page 12 of 35
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`Conventional Domain Name Servers (DNSs) provide a look-up function that returns
`the IP address of a requested computer or host. For example, when a computer user
`types in the web name “Yahoo.com,” the user’s web browser transmits a request to
`a DNS, which converts the name into a four-part IP address that is returned to the
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`user’sbtewserandthen usedbythebtewsertoeentactthedestinatienweb site.
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`C01. 37:22—29. According to this excerpt, a DNS “provides a look-up function” and “returns the 1P
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`address of a requested computer or host.” A “computer or host” includes domain names as
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`exemplified by the speeification’s reference to “Yahoo.com” and “destination web site” as “a
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` “DNS” as “a loolxup service that
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`returns an IP address for a requested domain name.”5
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`“domain name”
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`The‘l35patent,claintslandl0andthe‘l80patent,claims l, l7,and33 centainthetern—t
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`“domain name.’ VimetX contends that “domain name” means
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`a series of characters that
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`corresponds to an address of a computer or group of computers that is to be sent to a domain name
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`service (DNS).” Microsoft contends that “domain name” means “a hierarchical name for a computer
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`(suctras wwvx .mmmmeVcflb inttran W55.” "Fire parties
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`dispute whether “domain name” can correspond to a group of computers or only a single computer,
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`whether “domain name” is a hierarchical name for a computer, whether “domain name” is limited
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`to web site names, and whether “domain name” is limited to a computer name being converted into
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`an IP address.
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`The claims themselves describe “domain name.” Claim 1 states “a Domain Name Service
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`(DNS) request that requests an IP address corresponding to a domain name associated with the target
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`—cornfmter.” Col. 47123-26. Arse, cfairn IOWWWWW
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`..
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`See below tor the Court s construction of domain name.
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`Page 13 of 35
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`the client computer to look up an IP address for a domain name.” Col. 48:6-7. In both claim 1 and
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`claim 10 an IP address corresponds to a domain name. Thus, the domain name corresponds to an
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`1P address—Accordingly, the Cour—t censtmes “domain name” asia name conesponding4manJP—
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`address.”
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`VirnetX proposes that “domain name” corresponds to a group ofcomputers (IP addresses)
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`or a single computer because claims 1 and 10 of the ‘135 patent refer to IP address using the
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`—indefinite article “an.” The FederalCircuithas stated,
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`An indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or
`more’ in open-ended claims containing the transitional phrase ‘comprising.’” That
`‘ a” or an” can mean “one or more” is best described as a rule, rather than merely as
`a presumption or even a convention. The exceptions to [the “indefinite article”] rule
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`areextremeb iimited: apntentecmnst CVi—HCC [ ] arciear intent” to Limit“a” or an”
`—We%tmmmeWemmmW” 'rn erclaim to refer
`back to the same claim term does not change the general plural rule, but simply
`reinvokes that non— singular meaning. An exception to thegeneral rule that “a” or
`“an” means more than one only arises where the language of the claims themselves,
`the specification, or the prosecution history necessitate a departure from the rule,
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`Baldwin Graphic Sys., Inc. v. Siebert, 1110., 512 F.3d 1338, 1342-43 (Fed. Cir. 2008) (citations
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`omitted). Claims 1 and 10 of the ‘ 135 patent are open-ended construction claims using the word
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`“comprising” and use the indefinite article “an” to refer to “IP address.” See Col. 47:20-26; see Col.
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`4823-7. By the “one or more” rule, these claims allow for one or more IP addresses. Any subsequent
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`address” and thus reinvokes the non-singular meaning. See Col. 47:39-40; see Col. 48:8. Microsoft
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`—doesnotassefimyevidmmetoshommatmxeepflrmmjheimwmme”nfleexists Thusthere
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`may be more than one IP address, and thus more than one computer, that corresponds with the
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`doma1n name. Th1s would allow tor a s1tuat1on where the IP address that corresponds to the doma1n
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`Page 14 of 35
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`name is not the IP address of the target computer. See Col. 38:23-42. Accordingly, “domain name”
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`can correspond to more than one computer.
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`MicmsoflceMendthhepatentshnfit“doma#name”mahkramMealnamefora
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`computer under traditional hierarchical DNS format. However, Microsoft relies largely on extrinsic
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`evidence—including expert testimony and Microsoft’s own technology tutorial—to support its
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`contentions, which does not carry great weight in light of the fact that claim language provides
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`—gtridaneeprrthemeaning of“domain name.” Also, wherel‘vficrosoffiusefintrinsic evidence for
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`support, Microsoft only refers to non-limiting language from the specification. For instance,
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`Microsoft suggests that the examples used in the specification for domain names, which include
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`“Yaheefiem” ahd “Targetcem,” shew that the patents use “demaflfl—Haifi%’ifl—i-ts—EF&€h-Heflal—
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`hierarchical DNS format. Microsoft further suggests that “domain name” is limited to a traditional
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`hierarchical name because the patents do not provide a single example of “domain name” that is not
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`written in traditional hierarchical DNS format. However, Microsoft argues only the presence and
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`disclosure or omission of examples does not create limitations on claims. Accordingly, Microsoft
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`does not offer sufficient support for limiting “domain name” to a hierarchical name for a computer.
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`Microsoft also contends that the patents limit “domain name” to web site names. However,
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`no such fim1tat1on is found in the claims, and Microsoft merely references 1ts arguments on
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`construing “web site” without showing how “domain name” is necessarily linked to web site names.
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`Accordingly, “domain name” is not limited to web site names.
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`converted into an IP address. Microsoft supports this proposed limitation by arguing that a “domain
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`Case 6:07—cv—00080—LED Document 246
`Filed 07/30/2009
`Page 15 of 35
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`name” has the capacity to be converted by DNS into an IP address and that the specification
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`emphasizes this point by describing that identical DNS requests may result in conventional domain
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`on whether
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`something is a “domain name” but on what type of web site was requested. However, Microsoft
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`incorrectly argues that a “capacity” to be converted by DN S into an IP address demonstrates a
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`required limitation. A mere capacity to perform an act does not make that act necessary. Thus,
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`MtCl‘OsOfi has not ‘ namebeing
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`converted into an IP address. Accordingly, the Court construes “domain name” as “a name
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`corresponding to an IP address.”
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`The ‘135 patent, claims 1 and 10 contain the term “web site.” VirnetX contends that
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`construing “secure web site” as addressed below sufficiently addresses the meaning of “web site”
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`and that “web site” does not require further construction. Alternatively, VirnetX contends that “web
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`Microsoft contends that “web site” means “one or more related web pages at a location on the World
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`Wide Web.” The parties dispute Whether “web site” should be given a construction separate from
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`“secure web site” and whether “web site” is limited to web pages on the World Wide Web.
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`VirnetX argues that “web Site” should not be construed separately from “secure web s1te”
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`because the “135 patent claims never state “web site” without the preceding word “secure.”
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`7
`Howcvcr “sccurc” is sc arablc from “wcb site” as a modifier of “web site.” The claims show that
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`“secm’e”canbe7eplaccctbyothermrdrfierstc“welrsrfe.” Clairnsd and ffiofthe ‘13fpatenfrefcr—
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`to “web site” preceded by “non-secure” and “secure target.” Col. 47:28, 30; C01. 48:10, 14. This
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`Case 6:07—cv—00080—LED Document 246
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`Page 16 of 35
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`demonstrates that “web site” can be separated from its modifier and thus is its own term separate
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`from “secure.” Thus, “web site” may be construed as its own claim term.
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`The Court adeptsMeresef—tiseenstruettenandcenstrues “web site” as “one or more related
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`web pages at a location on the World Wide Web.” The patent does not state a definition for “web
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`77
`site. However, the term itself is instructive. “Web site” on its face refers to a “web” Internet
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`resource, which is a web page on the World Wide Web. The specification is consistent with
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`—constrtrnrg“website”asavvebpageontheWorldWideWeb. Examplesofwebs'rtesinthe
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`specification are “Yahoo.com” and “Target.com.” Col. 37:25, 45. “Yahoo.com” and “Target.com”
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`are well—known web pages on the World Wide Web. See Yahoo! Home Page, www.Yahoo.com;
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`—seel&rget Home Page, WWW. Targetcern. Also, the spec'tfieatien states thata “web brewser” can
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`be used to access a “web site.” Col. 39:48, 50-51, 55; C01. 40:1, 38. It is well—known that a “web
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`browser” is used to navigate “web pages” on the World Wide Web. Thus, the intrinsic evidence
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`supports Microsoft’s proposed construction.
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`.HwWWfichb
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`C onsortium, an industry standards-setting organization for the World Wide Web, defined web site
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`as “[a] collection of interlinked Web pages, including a host page, residing at the same network
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`location.’ Brian