`Case 6:11—cv—OOO18—LED Document 218
`Filed 06/25/12 Page 1 of 13 PageID #: 7600
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Plaintiff,
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`andAvayaInc. mmmmmmmmmmwmmm
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`vs.
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`Mitel Networks Corporation,
`Mite] Networks, Inc.,
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`E
`C
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`CASE NO. 6zf1-cv-18
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`Jury Trial Demanded
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`GmbH & Co. KG,
`Siemens Enterprise Communications, Inc.,
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`Defendants.
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`VIRNETX’S REPLY CLAIM CONSTRUCTION BRIEF
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`New Bay Capital, LLC
`Ex.1011-Page 1 0m
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`New Bay Capital, LLC
`Ex.1011-Page 1 of 13
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`Case 6:11—ov—OOO18—LED Document 218 Filed 06/25/12 Page 2 of 13 PageID #: 7601
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`I. ARGUMENT IN REPLY
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`1.
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`“virtual private network"
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`“Anonymous.” Defendants appear to suggest that the Court should not reconsider its
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`prior construction of this claim term, which requires communication to be both “secure and
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`anonymous,” because it is “long-settled.” See Defendants” Responsive Claim Construction Brief
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`(“Response”) (Dkt. No. 165) at 8. Presumably, the Defendants do not want the Court to
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`reconsider its construction for fear that the Court will agree that the ordinary meaning of VPN
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`does not require anonymity.1 VirnetX respectfully requests the Court revisit its rationale for
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`reference its rationale from its Microsoft claim construction opinion. The Court’s opinion in the
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`Microsoft case adopted “anonymlty” as part offiits construction for Virtual pr1vate networks by
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`noting that the ’ 135 patent discloses a way to achieve anonymity, i.e., “preventing[ing] an
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`However, this section does not define or describe VPNs in teaching these background concepts,
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`and the detailed descriptions of the patentiwhich all involve IP address hoppingido not
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`suggest that all VPNs require anonymity. Conversely, if all VPNs achieved anonymity, why
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`would there be any need for or additional benefit to IP address hopping? For these reasons,
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`VirnetX respectfully requests the Court revisit its construction for this term.
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`In which a computer is able to address additional computers over the network without
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`additional setup.” Defendants point to statements made by VirnetX during reexamination of the
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`1 Instead of addressing whether the Background of the Invention discussion should limit all
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`cla1ms, the D?fendants attempt to Justify their construction by pomting out that VirnetX proved
`Microsoft’s infringement under the Court’s Markman Order (“Microsoft Order”) in that case
`which required anonymity. See Response at 7 n. 8. This argument completely misses the point.
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`VfinmXpmservedmformiLcmflnmionaLfididmCmLandVfinmXW
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`—seekingreconsiderationofthisissueinthiscase
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`McKool 448655vl
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`New Bay Capital, LLC
`Ex.1011-Page 2 0m
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`New Bay Capital, LLC
`Ex.1011-Page 2 of 13
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`Case 6:11—ov—OOO18—LED Document 218
`Filed 06/25/12 Page 3 of 13 PageID #: 7602
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`’ 135 patent as support for their proposed requirement that the VPN be a network “in which a
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`computer is able to address additional computers over the network without additional setup.”
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`do not form a VPN because the computers cannot communicate as if they are on the same private
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`network because the computers cannot address data to each other directly as if they are on the
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`same private network. VirnetX recognized in re-exam that Aventail does not prevent computers
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`computers to directly address each other; something else is needed. (Specifically, those
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`,andth'rs
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`explanation is not separate from VirnetX’s argument related to direct addressability, which the
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`Court has already included in its construction. In sum, the Defendants proposed constructioni
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`which would only further complicate this case by inviting a dispute as to what is “additional
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`setup”—should be rejected.
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`2.
`“virtual private link”
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`VirnetX does not dispute that “virtual private network” and “virtual private link” should
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`be construed consistently. Indeed, VirnetX’s proposed constructions for these claim terms are
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`very similar. See Opening Brief at 3, 9. The issue, however, is whether these terms should be
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`construed identically). As the patentee chose to use the word “link” rather than “network” that
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`choice should be reflected in different constructions for the terms.2
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`“Encryption.” Vi rnetX’s prosecution statements regarding encryption are a consequence
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`effimmngHHeQC’sWafiHegfidingefiwpfiewemwdebefmemefieufihadmwedfis
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`2 Contrary to Defendants’ assertion, VimetX’s reference to its discussion of “virtual private
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`network” was not a mflectionflmerZCmeposedJonstnmtmfimheLDefendams—
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`attempttointergiectthesameextraneouslimitationsforbothterms
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`McKool 448655Vl
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`New Bay Capital, LLC
`Ex.1011-Page 3 OFT?)
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`New Bay Capital, LLC
`Ex.1011-Page 3 of 13
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`Case 6:11—cv—OOO18—LED Document 218
`Filed 06/25/12 Page 4 of 13 PageID #: 7603
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`more precise construction for this term in the Cisco case. Had the timing been reversed—ie,
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`had the Court issued its construction for the term “secure communication link” before VirnetX’s
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`wmwmewwwmmm
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`alleged prior art references do not teach or disclose data security as opposed to encryption
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`These arguments are entirely consistent; again, the only difference is that the Court‘s
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`construction in the Cisco case is more precise.
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`Moreoyer, VirnetX’sstatementsjmheBTQLegaLdingjhemdinaguneaning of“secure
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`communication link” do not dictate that the Court should adopt Defendants’ proposed
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` .thisCourtdm’rng
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`claim construction in the Cisco case, and the Court rejected VirnetX’s proposed construction in
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`favor of its better construction.
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`“Insecure communication paths.” Simply put, the Court should reject the Defendants”
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`z'pse dixit argument regarding “the inherent nature” of the claimed invention. See Response at
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`11.
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`a
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`‘In which a computer is able to address additional computers over the network without
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`—additional flp” 'LheCouiIisfamiliarwith
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`of the ’ 181 patent, as they were the subject of additional briefing submitted by the Cisco
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`defendants and the basis for the Court’s conclus1on that the claims require “cfirect”
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`communication in Cisco. See VirnetX Inc. v. Cisco Sys., Inc, No. 6: lO-cv-l7 (ED. Tex. Jan. 12,
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`ZDLDQDkLNQMQstLdeIaIU—ll Homemasfiiscussedabomhfihemntexlof—
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`New Bay Capital, LLC
`Ex.1011-Page 4 0m
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`New Bay Capital, LLC
`Ex.1011-Page 4 of 13
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`Filed 06/25/12 Page 5 of 13 PageID #: 7604
`Case 6:11—ov—OOO18—LED Document 218
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`“virtual private network,” the statements made during the prosecution of the ’181 patent do not
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`support the Defendants’ proposed construction.3
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`4 “MWWWWWWMW’'
`asecure
`communication link" / ”indicate/indicating. .
`. whether the domain name service system
`suggorts establishing a secure communication link”
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`The Court never agreed that the ’504 and ’211 claims require that an “indication” be
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`presented to the user as Defendants suggest. See Response at 15. Rather, the Court noted that
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`Cisco Order at 27. However, as this Court is well aware, “[t]he specification’s disclosure or
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`omission of examples does not create limitations on claims.” Opening Brief, EX. 4 at 14.
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`Furthermore, the Defendants are not arguing that the plain meaning of this claim term
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`—requirespresentatientotheuser lndeed,theplainmeaningefiindieatien”eouldbeteauserer
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`a computer. Rather, Defendants spend nearly three pages discussing preferred embodiments of
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`the specifi cati on where—according to the Defendants—the user receives an indication. Even if
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`the Court were to accept the Defendants” characterizations of the preferred embodiments, the
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`Court should still not import the “to the user” limitation. The Defendants do not (and cannot)
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`demonstrate any disclaimer of the claims to these preferred embodiments. Consequently, such a
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`construction would violate well established principles of claim construction. Moreover, the
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`Federal Circuit recentlv reaffirmed these long—standing principles of claim construction in
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`unequivocal terms:
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`"3" |.7|
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`words. Only the patentee can do that. To constitute disclaimer, there must be a
`clear and unmistakable disclaimer.
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`New Bay Capital, LLC
`Ex.1011-Page 5 OFT?)
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`New Bay Capital, LLC
`Ex.1011-Page 5 of 13
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`Case 6:11—ov—00018—LED Document 218
`Filed 06/25/12 Page 6 of 13 PageID #: 7605
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`See Thomer v. Sony Computer Enim ’1 Am. LLC, 669 F.3d 1362, 1366—1367 (Fed. Cir. 2012); see
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`also id. at 1365 (There are “two exceptions” to the general rule that the plain meaning of the
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`when the patentee disavows the full scope of a claim term either in the specification or during
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`prosecution”).
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`Also, the Defendants do not even contemplate whether the “indication” they point to in
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`service system. At a high level, the claimed domain name service system: (i) stores domain
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`and (iv) comprises some indication. The preferred embodiments teach that SDNS 3313
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`“contains a cross—reference database of secure domain names and corresponding secure network
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`addresses.” See ’504: :5 l : 1 1—12. In response to a query for a network address, the preferred
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`embodiment teaches that “SDNS 3313 returns a secure URL to software module 3309 for the
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`.scom server address for a secure server 3320 corresponding to server 3304.” See ’504::51:45-
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`47. The Defendants do not even consider whether returning this secure URL to a software
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`modulersae::
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`buttons described in the patent, which was provided by server computer 3304—not SDNS 3313.
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`See 5043414245.
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`As such, the Court should reject the Defendants’ erroneous construction.
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`“domain name service ”
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`The Defendants” discussion of this claim term ignores entirely the arguments made in
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`VirnetX’ s Opening Brief. As previously indicated, the language relied upon by the Court in
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`(‘isco merely describes an embodiment of the invention. See Opening Brief at 9-10. Indeed, the
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`—1miguagem.38:36—42iscioseiy- =-=--~
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`New Bay Capital, LLC
`Ex.1011-Page 6 OFT?)
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`New Bay Capital, LLC
`Ex.1011-Page 6 of 13
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`Filed 06/25/12 Page 7 of 13 PageID #: 7606
`Case 6:11—cv—OOO18—LED Document 218
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`or “[i]n one embodiment” ’135 patent at 38:33, 38:23. The Defendants do not (and cannot)
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`demonstrate that the claims should be limited to these preferred embodiments, and in light of the
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`always return an address to the requester, the phrase “to the requestor” should not be added to the
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`construction offhis claim term. See 133-6 at 171; ‘133 patent at 37:63—382
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`“domain name ”
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`Thefiotrrt’s prior construction of“donra'rn narne” properly traclxsthercla'rmnanguage.—
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`See Opening Brief, EX. 4 at 12—15. Defendants assert that the Court’s construction is
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`superfluous and, thus, improper. See Response at 19. The Defendants are wrong that the Court’s
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`construction is superfluous: They ignore the fact that the construction requires that a domain
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`Id. at 20, This professed concern is specious, as
`construction on hardware and MAC addresses.
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`VirnetX has never contended that hardware addresses or MAC addresses would fall under its
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`proposed definition of “domain name.”
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`In advocating against the Court’s prior construction, Defendants cite to Thomer for the
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`proposition that the patentee did not set out a definition for “domain name” different from its
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`ordinary and customary meaning. 669 F.3d at 1365—66. This is a red herring. VirnetX’s
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`proposed construction and the Court’s construction is the plain meaning of“domain name.” It is
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`the Defendants who are seeking to impose limitations on this claim term in a way that would
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`u
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`DNS Qroxy server ”
`7.
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`did not already preemptively address in its Opening Brief. As explained in VirnetX’s Opening
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`Brief and in Dr. Jones’s declaration, the discussion of DNS proxy servers in the Background of
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`New Bay Capital, LLC
`Ex.1011-Page 7 0m
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`New Bay Capital, LLC
`Ex.1011-Page 7 of 13
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`Filed 06/25/12 Page 8 of 13 PageID #: 7607
`Case 6:11—ov—OOO18—LED Document 218
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`the Invention of the patents refers to a specific use of proxy servers to attempt to achieve
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`anonymity. See Opening Brief at 12—13, Jones Declaration at W 12—15. The Defendants offered
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`such, the Court should reject the Defendants’ proposed construction for the reasons given in
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`VirnetX‘s Opening Brief.
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`“domain name service system ”
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`8.
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`their proposed construction for this claim term. Apart from relying upon arguments made by the
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`Cisco Defendants, which the Court has already rejected, Defendants point only to statements
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`made during the prosecution of the ’504 reexamination, However, none of the passages cited by
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`—Defendantsevenfifientienidifferentiatingloriseeuretop-level domain names.” See Dkt. No.
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`165-2] at 3. Because the Defendants have offered no legitimate support for their construction, it
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`should be rejected.
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`9. “web site " / “secure web site " / ”secure Iargetweb sire "
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`During the re—examination of the T33 patent, the examiner made a record ofhis
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`application of these claims terms to the alleged prior art. In doing so, the examiner made no
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`mention of the “web page” and “World Wide Web” requirements in the Court’s prior
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`constructions, The Defendants attempt to dismiss this evidence by citing a case that stands for
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`the position that it is error for the PTO to apply the mode of claim interpretation that is used by
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`the courts in litigation. See Response at 27. The argument misses the point. VirnetX is not
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`arguing that the Court should be bound by the examiner‘s conclusions regarding patentability;
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`rfihaflmeefiisafiemgmeCeufimmegmiethMemmfl’sapphcafiwefmesHmimss
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`objective evidence of how one of ordinary skill reads, interprets, and applies these claims in light
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`of the specification.
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`McKool 448655vl
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`New Bay Capital, LLC
`Ex.1011-Page 8 OFT?)
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`New Bay Capital, LLC
`Ex.1011-Page 8 of 13
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`Filed 06/25/12 Page 9 of 13 PageID #: 7608
`Case 6:11—ov—00018—LED Document 218
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`10.
`“target comguler ”
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`Defendants’ reassert the arguments made by the Cisco defendants in support of their
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`proposed construction. However, as made clear in the Cisco briefing and the Court’s Order,
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`there is nothing in the claim language that precludes a communication from going beyond a
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`target computer. See Cisco Order at 31. As such, the Court should again reject Defendants’
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`improper attempt to interj ect extraneous limitations.
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`11. “m
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`The Defendants complain that VirnetX gives “no guidance as to the meaning” of this
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`term. Thisrshecausenenersneeded. Mereever,theCenrtrsenly4equiredtereselveclaim
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`construction disputes. Contrary to the Defendants’ suggestions, this does not mean that a Court
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`must give a construction for every disputed claim term; rather, “no construction necessary” IS an
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`available resolution of such disputes. See Finjan, Inc. v. Secure Computing Corp, 626 F.3d
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`119], L203 QFed. Cir. 20109£reiectingtheargumentthaLQ21Micmdmemationallzd v. Beyond
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`Innovation Tech. C0., 521 F.3d 1351 (Fed. Cir. 2008) stands for the proposition that every term
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`in dispute must be glven a spec1t1c construction). The clalm term ‘ query” is a term that the Jury
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`will be able to understand with no construction. Also, the Defendants” proposed construction
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`should be rejected because it attempts to incorporate extraneous limitations. Particularly, the
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`Defendants’ construction requires that a query be made “to a database.” Under the plain
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`meaning of the term, however, a query can be made to devices other than databases. As such,
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`the Defendants” proposed construction should be rejected.
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`)' /n
`”secure website” / ”secure for rel web site
`tar rel com )mer” [/belween a /(he
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`.1 ill.
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`flui
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`@1anng
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`12.
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`The Defendants make no attempt to address the substantive arguments made by VirnetX
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`fer these claim terms. Rather, Defendants merely direct the Court tethe Cince briefing and¢er
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`New Bay Capital, LLC
`Ex.1011-Page 9 OFT?)
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`New Bay Capital, LLC
`Ex.1011-Page 9 of 13
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`Case 6:11—cv—00018—LED Document 218
`Filed 06/25/12 Page 10 of 13 PageID #: 7609
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`Order and summarily reassert the arguments advanced by the Cisco defendants. See Response at
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`27—29. As VirnetX has already addressed these arguments in its Opening Brief, no further
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`reasons outlined in its Opening Brief
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`New Bay Capital, LLC
`Ex.1011-Page 10 OFT?)
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`New Bay Capital, LLC
`Ex.1011-Page 10 of 13
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`Case 6:11—cv—00018—LED Document 218
`Filed 06/25/12 Page 11 of 13 PageID #: 7610
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`DATED: June 25, 2012.
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`Respectfully submitted,
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`MCKOOL SMITH, P.C.
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`/s/ Douglas A. Cawley
`Douglas A, Cawley, Lead Attorney
`Texas State Bar No. 04035500
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`E-mail: dcawley@mckoolsmith.com
`Bradley W. Caldwell
`Texas State Bar No. 24040630
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`E-mail: bcaldwell@mckoolsmithcom
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`lasonD Cassady
`Texas State Bar No. 24045625
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`E—mail: jcassady@mckoolsmith.com
`Christopher L. Limptts
`Texas State BarNo 24026599
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`E-mail: c1impus@mckoolsmith.com
`Daniel R. Pearson
`Texas State Bar No. 24070398
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`Email: dpearson@mckoolsmith.com
`Ashley N. Moore
`Texas State Bar No. 24074748
`Email: ameere@mekeelsmith.cem
`Ryan A. Hargrave
`Texas State Bar No. 24071516
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`rhargrave@mckoolsmith.com
`lVchOOL SMITH, RC.
`
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
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`Telephone—2149184000
`Facsimile: 214—978—4044
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`Sam F. Baxter
`Texas State Bar No. 0T938000
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`E-mall: sbaxter@mckoolsm1th.com
`MCKOOL SMITH RC.
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`104 East Houston. Suite 300
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`MarshalLTexasZfilO
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`Telephone: (903) 923—9000
`Telecopier: (903) 923-9099
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`Craig N. Tolliver
`Texas State Bar No. 24028049
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`E—mail: ctolliver@mckoolsmithcom
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`Ramzi R. Khazen
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`McKool 448655Vl
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`New Bay Capital, LLC
`Ex.1011-Page 1“] 0m
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`New Bay Capital, LLC
`Ex.1011-Page 11 of 13
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`Case 6:11—cv—00018—LED Document 218
`Filed 06/25/12 Page 12 of 13 PageID #: 7611
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`Texas State Bar No 24040855
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`Email: rkhazen@mckoolsmith.com
`McKOOL SMITH, RC.
`300 W. 6th Street; Suite 1700
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`AusfinlexasBlOJ
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`Telephone: (512) 692-8700
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`Texas State Bar No. 15498000
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`Email: rmparker@pbatyler.com
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`R, Christopher Bunt
`TemStMe Bar No 00787165
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`Email: rcbunt@pbatyler.com
`Charles Ainsworth
`Texas StateBarNo. 007—83571
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`Andrew T. Gorham
`Texas State Bar No. 24012715
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`Email:
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`PARKER, BUNT & AINSWORTH, RC.
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`100 East Ferguson, Suite 1 1 14
`Tyler, Texas 75702
`Telephone: 6903) 531-3535
`Telecopier: (903) 533-9687
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`ATTORNEYS FOR PLAINTIFF
`VIRN ETX INC.
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`MeKool 448655V1
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`New Bay Capital, LLC
`Ex.1011-Page 12 CW
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`New Bay Capital, LLC
`Ex.1011-Page 12 of 13
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`Filed 06/25/12 Page 13 of 13 PageID #: 7612
`Case 6:11—cv—00018—LED Document 218
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`Robert M. Parker
`Texas State Bar No. 15498000
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`E-mail: rmparker@pbatyler.com
`Robert Christopher Bunt
`Texas StateBar No 0018] L65
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`E-mail: rcbunt@pbatyler.com
`PARKER, BUNT & AINSWORTH, RC.
`100 East Ferguson, Suite 1114
`Tyler, Texas 73702
`Telephone: (903) 531-3535
`Telecopier: (903) 533-9687
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`AITQRNEXSEQRJZLAINTIEF
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`VIRNETX, INC.
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`CERTIFICATEOF SERVICE
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`The undersigned certifies that, on June 25, 2012, the foregoing document was
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`served Via the Court’s ECF system on all counsel who has filed notices of appearance in this
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`case.
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`/s/ Ryan Hargzave
`Ryan Hargrave
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`McKool 448655V1
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`New Bay Capital, LLC
`Ex.1011-Page 13 OFT?)
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`New Bay Capital, LLC
`Ex.1011-Page 13 of 13
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