`Case 6:11—cv—OOO18—LED Document 218
`Filed 06/25/12 Page 1 of 13 PageID #: 7600
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`
`Plaintiff,
`
`
`andAvayaInc. mmmmmmmmmmwmmm
`
`vs.
`
`Mitel Networks Corporation,
`Mite] Networks, Inc.,
`S
`E
`C
`
`.
`
`.
`
`CASE NO. 6zf1-cv-18
`
`Jury Trial Demanded
`
`
`
`GmbH & Co. KG,
`Siemens Enterprise Communications, Inc.,
`
`Defendants.
`
`
`VIRNETX’S REPLY CLAIM CONSTRUCTION BRIEF
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`New Bay Capital, LLC
`Ex.1011-Page 1 0m
`
`New Bay Capital, LLC
`Ex.1011-Page 1 of 13
`
`

`

`
`
`Case 6:11—ov—OOO18—LED Document 218 Filed 06/25/12 Page 2 of 13 PageID #: 7601
`
`
`I. ARGUMENT IN REPLY
`
`1.
`
`“virtual private network"
`
`“Anonymous.” Defendants appear to suggest that the Court should not reconsider its
`
`
`prior construction of this claim term, which requires communication to be both “secure and
`
`anonymous,” because it is “long-settled.” See Defendants” Responsive Claim Construction Brief
`
`(“Response”) (Dkt. No. 165) at 8. Presumably, the Defendants do not want the Court to
`
`
`reconsider its construction for fear that the Court will agree that the ordinary meaning of VPN
`
`
`does not require anonymity.1 VirnetX respectfully requests the Court revisit its rationale for
`
`
`
`reference its rationale from its Microsoft claim construction opinion. The Court’s opinion in the
`
`
`Microsoft case adopted “anonymlty” as part offiits construction for Virtual pr1vate networks by
`
`noting that the ’ 135 patent discloses a way to achieve anonymity, i.e., “preventing[ing] an
`
`
`
`
`However, this section does not define or describe VPNs in teaching these background concepts,
`
`
`and the detailed descriptions of the patentiwhich all involve IP address hoppingido not
`
`suggest that all VPNs require anonymity. Conversely, if all VPNs achieved anonymity, why
`
`would there be any need for or additional benefit to IP address hopping? For these reasons,
`
`VirnetX respectfully requests the Court revisit its construction for this term.
`
`
`In which a computer is able to address additional computers over the network without
`
`
`additional setup.” Defendants point to statements made by VirnetX during reexamination of the
`
`
`
`1 Instead of addressing whether the Background of the Invention discussion should limit all
`
`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.
`
`VfinmXpmservedmformiLcmflnmionaLfididmCmLandVfinmXW
`
`—seekingreconsiderationofthisissueinthiscase
`
`McKool 448655vl
`
`
`-1-
`
`
`New Bay Capital, LLC
`Ex.1011-Page 2 0m
`
`New Bay Capital, LLC
`Ex.1011-Page 2 of 13
`
`

`

`
`Case 6:11—ov—OOO18—LED Document 218
`Filed 06/25/12 Page 3 of 13 PageID #: 7602
`
`
`
`’ 135 patent as support for their proposed requirement that the VPN be a network “in which a
`
`computer is able to address additional computers over the network without additional setup.”
`
`
`
`do not form a VPN because the computers cannot communicate as if they are on the same private
`
`
`network because the computers cannot address data to each other directly as if they are on the
`
`same private network. VirnetX recognized in re-exam that Aventail does not prevent computers
`
`
`
`
`computers to directly address each other; something else is needed. (Specifically, those
`
`
`,andth'rs
`
`
`explanation is not separate from VirnetX’s argument related to direct addressability, which the
`
`
`Court has already included in its construction. In sum, the Defendants proposed constructioni
`
`which would only further complicate this case by inviting a dispute as to what is “additional
`
`setup”—should be rejected.
`
`
`2.
`“virtual private link”
`
`VirnetX does not dispute that “virtual private network” and “virtual private link” should
`
`be construed consistently. Indeed, VirnetX’s proposed constructions for these claim terms are
`
`very similar. See Opening Brief at 3, 9. The issue, however, is whether these terms should be
`
`construed identically). As the patentee chose to use the word “link” rather than “network” that
`
`choice should be reflected in different constructions for the terms.2
`
`
`
`“Encryption.” Vi rnetX’s prosecution statements regarding encryption are a consequence
`
`
`effimmngHHeQC’sWafiHegfidingefiwpfiewemwdebefmemefieufihadmwedfis
`
`2 Contrary to Defendants’ assertion, VimetX’s reference to its discussion of “virtual private
`
`network” was not a mflectionflmerZCmeposedJonstnmtmfimheLDefendams—
`
`attempttointergiectthesameextraneouslimitationsforbothterms
`
`McKool 448655Vl
`
`
`-2-
`
`
`New Bay Capital, LLC
`Ex.1011-Page 3 OFT?)
`
`New Bay Capital, LLC
`Ex.1011-Page 3 of 13
`
`

`

`
`Case 6:11—cv—OOO18—LED Document 218
`Filed 06/25/12 Page 4 of 13 PageID #: 7603
`
`
`
`more precise construction for this term in the Cisco case. Had the timing been reversed—ie,
`
`had the Court issued its construction for the term “secure communication link” before VirnetX’s
`
`
`wmwmewwwmmm
`
`alleged prior art references do not teach or disclose data security as opposed to encryption
`
`
`These arguments are entirely consistent; again, the only difference is that the Court‘s
`
`construction in the Cisco case is more precise.
`
`Moreoyer, VirnetX’sstatementsjmheBTQLegaLdingjhemdinaguneaning of“secure
`
`communication link” do not dictate that the Court should adopt Defendants’ proposed
`
` .thisCourtdm’rng
`
`
`claim construction in the Cisco case, and the Court rejected VirnetX’s proposed construction in
`
`
`favor of its better construction.
`
`“Insecure communication paths.” Simply put, the Court should reject the Defendants”
`
`z'pse dixit argument regarding “the inherent nature” of the claimed invention. See Response at
`
`11.
`
`a
`
`‘In which a computer is able to address additional computers over the network without
`
`
`—additional flp” 'LheCouiIisfamiliarwith
`
`of the ’ 181 patent, as they were the subject of additional briefing submitted by the Cisco
`
`
`defendants and the basis for the Court’s conclus1on that the claims require “cfirect”
`
`communication in Cisco. See VirnetX Inc. v. Cisco Sys., Inc, No. 6: lO-cv-l7 (ED. Tex. Jan. 12,
`
`ZDLDQDkLNQMQstLdeIaIU—ll Homemasfiiscussedabomhfihemntexlof—
`
`
`
`
`
`
`
`McKool 448655Vl
`
`
`
`New Bay Capital, LLC
`Ex.1011-Page 4 0m
`
`New Bay Capital, LLC
`Ex.1011-Page 4 of 13
`
`

`

`Filed 06/25/12 Page 5 of 13 PageID #: 7604
`Case 6:11—ov—OOO18—LED Document 218
`
`
`“virtual private network,” the statements made during the prosecution of the ’181 patent do not
`
`support the Defendants’ proposed construction.3
`
`
`4 “MWWWWWWMW’'
`asecure
`communication link" / ”indicate/indicating. .
`. whether the domain name service system
`suggorts establishing a secure communication link”
`
`The Court never agreed that the ’504 and ’211 claims require that an “indication” be
`
`presented to the user as Defendants suggest. See Response at 15. Rather, the Court noted that
`
`
`
`Cisco Order at 27. However, as this Court is well aware, “[t]he specification’s disclosure or
`
`
`omission of examples does not create limitations on claims.” Opening Brief, EX. 4 at 14.
`
`Furthermore, the Defendants are not arguing that the plain meaning of this claim term
`
`
`—requirespresentatientotheuser lndeed,theplainmeaningefiindieatien”eouldbeteauserer
`
`a computer. Rather, Defendants spend nearly three pages discussing preferred embodiments of
`
`the specifi cati on where—according to the Defendants—the user receives an indication. Even if
`
`the Court were to accept the Defendants” characterizations of the preferred embodiments, the
`
`
`Court should still not import the “to the user” limitation. The Defendants do not (and cannot)
`
`demonstrate any disclaimer of the claims to these preferred embodiments. Consequently, such a
`
`construction would violate well established principles of claim construction. Moreover, the
`
`Federal Circuit recentlv reaffirmed these long—standing principles of claim construction in
`
`
`unequivocal terms:
`
`
`Ii
`"3" |.7|
`l|"' Fl
`Wedo
`
`words. Only the patentee can do that. To constitute disclaimer, there must be a
`clear and unmistakable disclaimer.
`
`
`
`
`
`
`
`
`McKool 448655Vl
`
`
`
`New Bay Capital, LLC
`Ex.1011-Page 5 OFT?)
`
`New Bay Capital, LLC
`Ex.1011-Page 5 of 13
`
`

`

`
`Case 6:11—ov—00018—LED Document 218
`Filed 06/25/12 Page 6 of 13 PageID #: 7605
`
`
`
`See Thomer v. Sony Computer Enim ’1 Am. LLC, 669 F.3d 1362, 1366—1367 (Fed. Cir. 2012); see
`
`also id. at 1365 (There are “two exceptions” to the general rule that the plain meaning of the
`
`
`
`when the patentee disavows the full scope of a claim term either in the specification or during
`
`
`prosecution”).
`
`Also, the Defendants do not even contemplate whether the “indication” they point to in
`
`._
`' ll
` .
`
`|
`
`.
`
`
`service system. At a high level, the claimed domain name service system: (i) stores domain
`
`
`
`and (iv) comprises some indication. The preferred embodiments teach that SDNS 3313
`
`
`“contains a cross—reference database of secure domain names and corresponding secure network
`
`addresses.” See ’504: :5 l : 1 1—12. In response to a query for a network address, the preferred
`
`embodiment teaches that “SDNS 3313 returns a secure URL to software module 3309 for the
`
`
`.scom server address for a secure server 3320 corresponding to server 3304.” See ’504::51:45-
`
`47. The Defendants do not even consider whether returning this secure URL to a software
`
`
`modulersae::
`
`buttons described in the patent, which was provided by server computer 3304—not SDNS 3313.
`
`See 5043414245.
`
`As such, the Court should reject the Defendants’ erroneous construction.
`
`i
`“domain name service ”
`
`The Defendants” discussion of this claim term ignores entirely the arguments made in
`
`
`VirnetX’ s Opening Brief. As previously indicated, the language relied upon by the Court in
`
`(‘isco merely describes an embodiment of the invention. See Opening Brief at 9-10. Indeed, the
`
`—1miguagem.38:36—42iscioseiy- =-=--~
`
`McKool 448655vl
`
`
`
`New Bay Capital, LLC
`Ex.1011-Page 6 OFT?)
`
`New Bay Capital, LLC
`Ex.1011-Page 6 of 13
`
`

`

`Filed 06/25/12 Page 7 of 13 PageID #: 7606
`Case 6:11—cv—OOO18—LED Document 218
`
`
`or “[i]n one embodiment” ’135 patent at 38:33, 38:23. The Defendants do not (and cannot)
`
`demonstrate that the claims should be limited to these preferred embodiments, and in light of the
`
`
`
`always return an address to the requester, the phrase “to the requestor” should not be added to the
`
`construction offhis claim term. See 133-6 at 171; ‘133 patent at 37:63—382
`
`“domain name ”
`6.
`
`
`Thefiotrrt’s prior construction of“donra'rn narne” properly traclxsthercla'rmnanguage.—
`
`
`See Opening Brief, EX. 4 at 12—15. Defendants assert that the Court’s construction is
`
`
`superfluous and, thus, improper. See Response at 19. The Defendants are wrong that the Court’s
`
`construction is superfluous: They ignore the fact that the construction requires that a domain
`
`
`
`Id. at 20, This professed concern is specious, as
`construction on hardware and MAC addresses.
`
`VirnetX has never contended that hardware addresses or MAC addresses would fall under its
`
`proposed definition of “domain name.”
`
`
`In advocating against the Court’s prior construction, Defendants cite to Thomer for the
`
`proposition that the patentee did not set out a definition for “domain name” different from its
`
`ordinary and customary meaning. 669 F.3d at 1365—66. This is a red herring. VirnetX’s
`
`proposed construction and the Court’s construction is the plain meaning of“domain name.” It is
`
`
`the Defendants who are seeking to impose limitations on this claim term in a way that would
`
`
`
`u
`
`DNS Qroxy server ”
`7.
`
`
`
`
`did not already preemptively address in its Opening Brief. As explained in VirnetX’s Opening
`
`Brief and in Dr. Jones’s declaration, the discussion of DNS proxy servers in the Background of
`
`McKool 448655Vl
`
`
`—6—
`
`
`New Bay Capital, LLC
`Ex.1011-Page 7 0m
`
`New Bay Capital, LLC
`Ex.1011-Page 7 of 13
`
`

`

`Filed 06/25/12 Page 8 of 13 PageID #: 7607
`Case 6:11—ov—OOO18—LED Document 218
`
`
`the Invention of the patents refers to a specific use of proxy servers to attempt to achieve
`
`anonymity. See Opening Brief at 12—13, Jones Declaration at W 12—15. The Defendants offered
`
`
`
`
`
`such, the Court should reject the Defendants’ proposed construction for the reasons given in
`
`
`VirnetX‘s Opening Brief.
`
`“domain name service system ”
`
`
`8.
`
`their proposed construction for this claim term. Apart from relying upon arguments made by the
`
`
`Cisco Defendants, which the Court has already rejected, Defendants point only to statements
`
`made during the prosecution of the ’504 reexamination, However, none of the passages cited by
`
`—Defendantsevenfifientienidifferentiatingloriseeuretop-level domain names.” See Dkt. No.
`
`165-2] at 3. Because the Defendants have offered no legitimate support for their construction, it
`
`
`should be rejected.
`
`
`
`9. “web site " / “secure web site " / ”secure Iargetweb sire "
`
`During the re—examination of the T33 patent, the examiner made a record ofhis
`
`application of these claims terms to the alleged prior art. In doing so, the examiner made no
`
`
`mention of the “web page” and “World Wide Web” requirements in the Court’s prior
`
`constructions, The Defendants attempt to dismiss this evidence by citing a case that stands for
`
`
`the position that it is error for the PTO to apply the mode of claim interpretation that is used by
`
`
`the courts in litigation. See Response at 27. The argument misses the point. VirnetX is not
`
`
`arguing that the Court should be bound by the examiner‘s conclusions regarding patentability;
`
`
`rfihaflmeefiisafiemgmeCeufimmegmiethMemmfl’sapphcafiwefmesHmimss
`
`
`objective evidence of how one of ordinary skill reads, interprets, and applies these claims in light
`
`
`of the specification.
`
`McKool 448655vl
`
`
`New Bay Capital, LLC
`Ex.1011-Page 8 OFT?)
`
`New Bay Capital, LLC
`Ex.1011-Page 8 of 13
`
`

`

`Filed 06/25/12 Page 9 of 13 PageID #: 7608
`Case 6:11—ov—00018—LED Document 218
`
`
`
`10.
`“target comguler ”
`
`Defendants’ reassert the arguments made by the Cisco defendants in support of their
`
`proposed construction. However, as made clear in the Cisco briefing and the Court’s Order,
`
`there is nothing in the claim language that precludes a communication from going beyond a
`
`target computer. See Cisco Order at 31. As such, the Court should again reject Defendants’
`
`improper attempt to interj ect extraneous limitations.
`
`
`11. “m
`
`The Defendants complain that VirnetX gives “no guidance as to the meaning” of this
`
`term. Thisrshecausenenersneeded. Mereever,theCenrtrsenly4equiredtereselveclaim
`
`construction disputes. Contrary to the Defendants’ suggestions, this does not mean that a Court
`
`must give a construction for every disputed claim term; rather, “no construction necessary” IS an
`
`available resolution of such disputes. See Finjan, Inc. v. Secure Computing Corp, 626 F.3d
`
`
`119], L203 QFed. Cir. 20109£reiectingtheargumentthaLQ21Micmdmemationallzd v. Beyond
`
`Innovation Tech. C0., 521 F.3d 1351 (Fed. Cir. 2008) stands for the proposition that every term
`
`
`in dispute must be glven a spec1t1c construction). The clalm term ‘ query” is a term that the Jury
`
`will be able to understand with no construction. Also, the Defendants” proposed construction
`
`
`should be rejected because it attempts to incorporate extraneous limitations. Particularly, the
`
`Defendants’ construction requires that a query be made “to a database.” Under the plain
`
`
`meaning of the term, however, a query can be made to devices other than databases. As such,
`
`
`the Defendants” proposed construction should be rejected.
`
`)' /n
`”secure website” / ”secure for rel web site
`tar rel com )mer” [/belween a /(he
`
`
`
`
`
`.1 ill.
`
`flui
`_
`,
`
`
`
`@1anng
`’135mj
`
`12.
`
`The Defendants make no attempt to address the substantive arguments made by VirnetX
`
`
`fer these claim terms. Rather, Defendants merely direct the Court tethe Cince briefing and¢er
`
`McKool 448655vl
`
`
`—8—
`
`
`New Bay Capital, LLC
`Ex.1011-Page 9 OFT?)
`
`New Bay Capital, LLC
`Ex.1011-Page 9 of 13
`
`

`

`
`Case 6:11—cv—00018—LED Document 218
`Filed 06/25/12 Page 10 of 13 PageID #: 7609
`
`
`
`Order and summarily reassert the arguments advanced by the Cisco defendants. See Response at
`
`27—29. As VirnetX has already addressed these arguments in its Opening Brief, no further
`
`
`
`
`reasons outlined in its Opening Brief
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`McKool 448655V1
`
`
`
`New Bay Capital, LLC
`Ex.1011-Page 10 OFT?)
`
`New Bay Capital, LLC
`Ex.1011-Page 10 of 13
`
`

`

`
`Case 6:11—cv—00018—LED Document 218
`Filed 06/25/12 Page 11 of 13 PageID #: 7610
`
`
`
`
`DATED: June 25, 2012.
`
`Respectfully submitted,
`
`MCKOOL SMITH, P.C.
`
`/s/ Douglas A. Cawley
`Douglas A, Cawley, Lead Attorney
`Texas State Bar No. 04035500
`
`E-mail: dcawley@mckoolsmith.com
`Bradley W. Caldwell
`Texas State Bar No. 24040630
`
`E-mail: bcaldwell@mckoolsmithcom
`
`lasonD Cassady
`Texas State Bar No. 24045625
`
`E—mail: jcassady@mckoolsmith.com
`Christopher L. Limptts
`Texas State BarNo 24026599
`
`E-mail: c1impus@mckoolsmith.com
`Daniel R. Pearson
`Texas State Bar No. 24070398
`
`Email: dpearson@mckoolsmith.com
`Ashley N. Moore
`Texas State Bar No. 24074748
`Email: ameere@mekeelsmith.cem
`Ryan A. Hargrave
`Texas State Bar No. 24071516
`
`rhargrave@mckoolsmith.com
`lVchOOL SMITH, RC.
`
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`
`Telephone—2149184000
`Facsimile: 214—978—4044
`
`Sam F. Baxter
`Texas State Bar No. 0T938000
`
`E-mall: sbaxter@mckoolsm1th.com
`MCKOOL SMITH RC.
`
`104 East Houston. Suite 300
`
`MarshalLTexasZfilO
`
`Telephone: (903) 923—9000
`Telecopier: (903) 923-9099
`
`
`Craig N. Tolliver
`Texas State Bar No. 24028049
`
`E—mail: ctolliver@mckoolsmithcom
`
`Ramzi R. Khazen
`
`McKool 448655Vl
`
`
`New Bay Capital, LLC
`Ex.1011-Page 1“] 0m
`
`New Bay Capital, LLC
`Ex.1011-Page 11 of 13
`
`

`

`
`Case 6:11—cv—00018—LED Document 218
`Filed 06/25/12 Page 12 of 13 PageID #: 7611
`
`
`Texas State Bar No 24040855
`
`Email: rkhazen@mckoolsmith.com
`McKOOL SMITH, RC.
`300 W. 6th Street; Suite 1700
`
`AusfinlexasBlOJ
`
`Telephone: (512) 692-8700
`Facsimile: (512) 692-8744
`
`Robert M. Parker
`Texas State Bar No. 15498000
`
`Email: rmparker@pbatyler.com
`
`R, Christopher Bunt
`TemStMe Bar No 00787165
`
`Email: rcbunt@pbatyler.com
`Charles Ainsworth
`Texas StateBarNo. 007—83571
`
`Andrew T. Gorham
`Texas State Bar No. 24012715
`
`Email:
`tgorham@pbatyler.com
`PARKER, BUNT & AINSWORTH, RC.
`
`100 East Ferguson, Suite 1 1 14
`Tyler, Texas 75702
`Telephone: 6903) 531-3535
`Telecopier: (903) 533-9687
`
`ATTORNEYS FOR PLAINTIFF
`VIRN ETX INC.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`MeKool 448655V1
`
`
`New Bay Capital, LLC
`Ex.1011-Page 12 CW
`
`New Bay Capital, LLC
`Ex.1011-Page 12 of 13
`
`

`

`Filed 06/25/12 Page 13 of 13 PageID #: 7612
`Case 6:11—cv—00018—LED Document 218
`
`
`Robert M. Parker
`Texas State Bar No. 15498000
`
`E-mail: rmparker@pbatyler.com
`Robert Christopher Bunt
`Texas StateBar No 0018] L65
`
`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
`
`AITQRNEXSEQRJZLAINTIEF
`
`VIRNETX, INC.
`
`
`
`CERTIFICATEOF SERVICE
`
`The undersigned certifies that, on June 25, 2012, the foregoing document was
`
`
`served Via the Court’s ECF system on all counsel who has filed notices of appearance in this
`
`case.
`
`
`/s/ Ryan Hargzave
`Ryan Hargrave
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`McKool 448655V1
`
`
`New Bay Capital, LLC
`Ex.1011-Page 13 OFT?)
`
`New Bay Capital, LLC
`Ex.1011-Page 13 of 13
`
`