`Case 6:10-cv-OO417-LED Document 192
`Filed 12/19/11 Page 1 of 13 PageID #: 5156
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`w INC,
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`§ §
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`Plaintiff,
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`§ §
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`vs.
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`§
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`Civil Action No. 6:I0-cv-4T7
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`§ §
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`CISCO SYSTEMS, INC., et al.
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`JURY TRIAL DEMANDED
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`—De£endam
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`§ §
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`VTRNETX’S REPLYCLAHVI CONSTRUCTION’BRTEF
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`New Bay Capital, LLC
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`Case 6:10-ov-OO417-LED Document 192
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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.” With respect to the Defendants’ proposed “anonymity” construction, the
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`issue is whether the Court was correct in requiring a_ll claims to achieve both data security and
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`anonymity based on the discussion in the Background of the Invention. Even though VirnetX
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`squarely raised this issue in its Opening Brief, the Defendants avoided the issue. There is no
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`reason—and the Defendants have offered none—that all claims must achieve anonymity. Cf.
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`PSNI/l., [11' v. [vac/gr Vivadenf, Inc, 525 F.3d 1 159, ll66 (Fed. Cir. 2008) (“[C]ourts must
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`memmmamrmmmm
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`claims”). Moreover, VirnetX explained in its Opening Brief how it is just the unasserted “IP
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`address hopping” dependent claims—as opposed to all claims—that achieve the anonymity
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`discussed in the Background of the Invention.1
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`“
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`'
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`.”
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`'bydisclaimmg''
`thetypeofVPNtaughtby
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`Aventail; rather. VirnetX demonstrated that Aventail did not teach a VPN at all. The Defendants
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`assert that ‘[t]his 1s a difference Without a distinction.” | hey are wrong in this assertion. The
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`very inquiry of prosecution disclaimer is whether the ordinary scope ofa term was disclaimed.
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`Sec Omega Eng’g, Inc. v. Ra trek Corp.) 334 F.3d 1314, 1324 (Fed. Cir. 2003) (“[W]here the
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`patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of
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`prosecution disclaimer attaches and narrows the ordinary meaning of the claim congruent with
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`the scope of the surrender”) (emphasis added). And the Defendants have failed to establish that
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`Vi rnetX’s three arguments over Aventail departed from the ordinary meaning of VPN.
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`1 Instead of addressmg why the Background of the Invention discusswn should fimit all claims,
`the Defendants attempt
`to justify their construction by pointing out
`that VirnetX proved
`Microsoft’s infringement under the Court’s Markman Order in that case which required
`—amymMLargumem_complQelymissesmeMVnnetXpmservederrmfmmis
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`rationofthisissueinthiscase
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`Moreover, the Defendants failed to establish a “clear and unmistakable” disclaimer.2 The
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`Defendants assert—without any justification, analysis, or argument—that the three arguments
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`thatVirnetX
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`disclaim scope of the claim term. See Res. at 6-7. The Defendants are demonstrably wrong in
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`this assertion. In re-examination, VirnetX explained the meaning of its third argument:
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`Third, Aventail has not been shown to disclose a VPN because
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`computers connected according to Aventail do not communicate
`directly with each other Aventail disclosem system where a client
`on a public network transmits data to a SOCKS server via a
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`singular point—to—point SOCKS connection at the socket layer of
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`thehetworkarehiteeture TheSOCKSserverthenreiaysthatdata
`to a target comprterwprrafirnet—orlfon—hich the SOCKS
`server also resides. All communications between the client and
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`target stop and start at the intermediate SOCKS server. The client
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`cannot open a connection with the target itself. Therefore, one
`skilled in the art would not have considered the client and target to
`be virtually on the same private network.
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`See EX. B. at 14 (internal citations removed). In other words, because Aventail does not
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`virtualize the physically direct communications of a private network,3 one skilled in the art
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`wouldnmhaveconsidetedwmputasmmeAventaflwmmmbeMaflymmesamepfivate
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`2 Contrary to the Defendants’ straw man attack, VirnetX never suggested that there cannot be
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`unambiguous waiver anytime a patentee makes multiple distinctions over prior art. In its
`Openlng Br1ef, V1rnetX correctly c1ted the “clear and unmlstakable” test for fincfing prosecutlon
`history estoppel and discussed the Federal Circuit’s opinion in Momentus Golf to illustrate how,
`in cases involving multiple distinctions in the prosecution history, courts must be careful in
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`disclaimer VeeOpeningBriefat7-8.
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`3This also highlights the reason that VirnetX opposes the Defendants construction If the Court
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`adopts this eenst1:aetieh, then the Defeiidahts will undoubtediybatgue4hat—‘dheetiyLrequites—
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`.But thisis hot what VirnetX arguedin
`re-examination.Rather, VirnetX used the word‘directly” to explain how a VPN virtualizes a
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`direct connection between computers on a physical network, See Ex. B, at 14 (“Third Aventail
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`has not been shown to cfisclose a VPN because computers connected accorcfing to Aventail do
`not communicate directly with each other
`.Therefore, one skilled in the art would not have
`considered the client and target to be virtually on the same private network.) (emphasis
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`added; (Note that,inW refer mhe
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`exhibitsahd declatatiensattachedtoAhtnetXésOpenithtief )
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`network. In this way, VirnetX’s third argument over Aventail in re-examination is a corollary of
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`its first argument over Aventail—that “Aventail has not been shown to demonstrate that
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`though they were on the same network” See Ex. B. at 12 (emphasis added). And because
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`VirnetX‘s third argument over Aventail is a corollary of its first, it would be improper to impose
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`the third argument onto the claims with no regard to the first.4 For these reasons, the Defendants’
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`l
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`l
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`l
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`1
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`1
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`“virtual grivate link”
`2.
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`The parties’ respective constructions are very similar, but the Defendants” proposed
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`construction requires the link to be a link in a network whereas VirnetX’s proposed construction
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`of“link,” and there is no limiting language in the claims, written description, or prosecution
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`history that would require the link to be in a network. Consequently, the Defendants’ proposed
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`construction includes an extraneous limitation and should be rejected. See Phillips v. AWH
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`Corp, 415 F.3d 1303, 1316—17 (Fed. Cir. 2005).
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`3. ”secure communication link”
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`The Detailed Description of the Invention teaches a “One—click Secure” preferred
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`embodiment. This preferred embodiment, which spans over four columns, teaches how a secure
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`communication link can be augmented to create a virtual private network communication link.
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`See ’504: :49: l-53:9. VirnetX discussed this preferred embodiment at length in its Opening Brief
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`4 Moreover, VirnetX’s proposed construction for this term would require computers in a VPN to
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`be able to commun1cate as if they were on the same pr1vate network. See Openmg Br1ef at 5-6
`(explaining how “privately” in the Court’s construction should refer to the ability of computers
`to communicate as though they were on the same private network and should not refer to
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`to demonstrate that a secure communication link is not always a virtual private network
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`communication link. See Opening Brief at 11-12. In their response, the Defendants quote a few
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`virtual private network communication link. but the Defendants fail to explain why a secure
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`communication link must always be a virtual private network communication link for a]?
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`possible embodiments of the claims. This violates one of the most fundamental principles of
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`the invention. [the Federal Circuit has] repeatedly warned against confining the claims to those
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`embodiments.” Piafhpflfl F.3d at 1323,
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`As VirnetX discussed in its Opening Brief, this preferred embodiment teaches how
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`software module 3309 augments the secure communication link to create a virtual private
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`network communication link. See ’504::50:25—27 (“At step 3407, a secure VPN communications
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`mode of operation has been enabled and software module 3309 begins to establish a VPN
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`communication link.”) (emphasis added); see also ’504::50:40-52 (describing how the software
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`module 3309 enables computer 3301 to communicate in the private network 3311 as though it
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`Aphvsmaflvmthatm'
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`.TheCourishouldnotfollowtheDefendantsW' '
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`of the preferred embodiment and should not restrict this term to the special case presented in the
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`preferred embodlment. _ For the foregorng reasons, the Court should reject the Defendants’
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`proposed construction and adopt VimetX’s proposed construction.
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`The Defendants also argue that VlmetX “conceded” that a secure commun1cat1on link 1s a
`virtual private network communication link in the Microsoft litigation. Not so. The only patent in
`that case that contained the term‘ ‘secure communication link” was the ’759 patent. And as the
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`—Coim_recogmzednnntsMatkmazLorder,JhmlaLmLof 759patentdefinedandlimitedthesecure
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`Filed 12/19/11 Page 6 of 13 PageID #: 5161
`Case 6:10-ov-OO417-LED Document 192
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`4. “domain name service”
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`The Defendants seem to have a truncated view of the role of “ordinary meaning” in claim
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`construction. The standard for determining the legally operative scope of a claim term is not
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`simply looking to a term’ s “ordinary meaning” irrespective of the patent. Rather, “the ‘ordinary
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`meaning” of a claim term is its meaning to the ordinary artisan after reading the entire patent.”
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`Phillips, 415 F.3d at 1321 (emphasis added). As such, the Defendants’ argument as to how a
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`server” that “does not return the true 1P address of the target node, but instead automatically sets
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`up a virtual private network between the target node and the user” if secure communications are
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`requested. See ’135zz37t63-38z2, As such, the Defendants” proposed construction should be
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`—rejeeted.
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` “
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`(1107710171 11617118
`J.
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`TheDefindanm’argumemcomplaelymissamepomtTmclamwnsWes—
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`),‘
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`it is irrelevant that the most typical syntax of domain names is the hierarchical syntax of domain
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`names on the Internet. Nor does It matter that the spec111cat10n gives examples ofhierarchical
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`domain names. See Ex. A (the Court’s Claim Construction Opinion from the Microsoft litigation)
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`at 14. (“The specification’s disclosure or omission of examples does not create limitations on
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`claims”) Rather, “the ‘ordinary meaning” of a claim term is its meaning to the ordinary artisan
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`after reading the entire patent, Phifiips, 41 5 FBd at I32 I. As Dr. Jones explained in his
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`declaration, a skilled artisan would not have imported the hierarchical syntax of the typical
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`domain name after reading the patents. Specifically, Dr. Jones explained that one skilled in the
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`—afiwveuld%md%%andmathemasenmademainnameswthe1mmhaveahiemrchica
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`syntax is because that syntax enables a distributed approach to managing the naming of a huge
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`number of computers around the world. See Jones Decl. at 1] 10. But as far as the patents are
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`concerned, formatting domain names in this way would be unnecessary. Specifically, because
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`the DNS proxy server taught in the patents is not expected to provide answers for every domain
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`names to have a hierarchical syntax to practice the patents. See id, As such, the Court should
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`reject the Defendants‘ proposed construction.
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`“DNS groxy server”
`6.
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`In their
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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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`the Invention of the patents refers to a specific use of proxy servers to attempt to achieve
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`—anonymity$eeOpeningBFiefatl6-l7;}enesDeel atfifil l3-l6. TheDei—‘endantsrespefiekby—
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`asserting: “The statement is not so limitediit describes what a ‘proxy server’ is, regardless of
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`the system in which it is used,” See Res. at 18 (emphasis in original). The Defendants support
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`this assertion with only their [pse dixil—the Defendants offered no counterargument and their
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`own expert was conspicuously silent on this point. As such, the Court should reject the
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`Defendants’ proposed construction for the reasons given in VirnetX’ s Opening Brief.
`{l
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`secure domain name servzce
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`7.
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`“Non-Standard,” The Defendants misinterpret the prosecution history in their brief A
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`secure domain name service can resolve addresses for a secure domain name because: (i) it can
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`recognize that a query message is requesting a secure computer address and (ii) it can return a
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`secure computer network address for a requested secure domain name—not because the lookup
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`prosecution history and should reject their proposed construction.
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`Case 6:10-ov-OO417-LED Document 192
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`“Performs Its Services Accordingly.” VirnetX opposes this aspect of the Defendants’
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`construction because “returning a secure network address for a requested secure domain name”
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`worst, and should be rej ected.
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`8.
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`“domain name service system "
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`The Defendants assume, without any intrinsic support, that the word “system” must
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`—conm1tean;extrwsomefl‘rmg.” See Res. at l6-17. But as detailedbelowfiheBefendantspresent—
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`no cognizable legal basis for the unnecessary limitations added into their proposed construction.
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`The Defendants discuss how the specification teaches—in a preferred
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`“Differentiatin
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`embodiment—a DNS that is capable of differentiating between standard and secure top-level
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`domflnnm.meeewsefleeBefendanfiewpeimmm“wordsmexmmmfiSflfm&ni%st—
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`exclusion or restriction” that limit the invention to this embodiment, this discussion is
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`meaningless. See E-Pass Techs, 343 F.3d at 1369.
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`“Secure Top-Level.” The Defendants argue that the description of the invention in the
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`Summary of the Invention limits all claims of the patent. This summary, however, refers to
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`certain dependent claims and should not be applied against a_ll claims. Cf PSNIll, 525 F.3d at
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`1166 (“[C]ourts must recognize that disclosed embodiments may be within the scope of other
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`allowed but unasserted claims”). Because the Defendants have offered no legitimate support for
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`their construction,6 it should be rejected.
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`During the re-examination of the ”135 patent, the examiner made a record of his
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`apphcafieneftheswlfimskrms$theeflegedpfimafimdeingsameexaminamadene
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`6 The Defendants also argued that certain passages from the prosecution history somehow
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`” or “secure top-level domain names.”
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`—passagesdohoteven4ne1mgn—differentiatmg'“ ' ' '
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`Case 6:10-ov-OO417-LED Document 192
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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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` .‘nofpfioraILSeeResaLZQ
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`n, l 7. The argument misses the point, VirnetX is not arguing that the Court should be bound by
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`the examiner’s conclusions regarding patentability; rather, VirnetX is asking the Court to
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`recognize that the examiner’s application of these claims is objective evidence of how one of
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`I'
`skilll'
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`.3.
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`II'I
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`|"I'|3|
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`rt
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`10.
`secure web comQuZer ”
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`The Defendants argue that one of ordinary skill would parse this term into “secure web”
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`and “computer” and then concatenate “secure web” with “site.” The Defendants, however, offer
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`correct inquiry is how a skilled artisan would understand the ordinary meaning of a claim termi
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`not how a skilled artisan would rewrite it. As such, the Court should reject the Defendants’
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`proposed construction for this term.
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`I].
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`u
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`4
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`secure server
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`. n
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`This claim term appears only in the ’ 151 patent, which concerns encrypted channels as
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`opposed to VPN s. The Defendants have offered no cognizable legal basis for overriding the
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`language of the claims and forcing the claimed encrypted channels to further be VPNs‘
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`Moreover, the Defendants ignore that the meaning of secure ’ depends on its context. As this
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`Court has recognized, when “secure” modifies computers and servers, it refers to “authorization
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`for access” of those computers/servers. See Exp A. at l8‘ Conversely, when “secure” modifies a
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`—typeefeemmumeatrer,rrt+efers teenceyptien. Sea—eg, ”135::lz38-39 (“Data securityis usually
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`tackled using some form of data encryption”).7 Because the Defendants have conflated these
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`meanings, the Court should reject the Defendants’ proposed construction.
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`L2
`“tar
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`)1
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`There is nothing in the claim language that precludes a communication from going
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`beyond a target computer. In fact, when a client computer forms a VPN with a target computer,
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`the client computer might communicate with multiple computers on the private network virtually
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`afifiwmmMpfivfienfiwofl.See}mesDedmfil9.Furfl1a,memefefiedembodhnems—
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`that the Defendants discuss do not support their construction. Indeed, the lynchpin of the
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`Defendants’ argument (“But only the ultimate destination with which the client computer seeks
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`to communicate is the target computer.” Res. at 24) lacks citation to any evidence and is nothing
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`preferred embodiments were accurate (which they are not), the Defendants would still need to
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`show “words or expressions of manifest exclusion or restriction” to support their narrowing
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`construction (which they have not). See E—Pass Techs, 343 F.3d at 1369.
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`13.
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`”an indication that the domain name service system saggggorts establishing a secure
`communication link” / ”indicate/indicating. .
`. whether the domain name service system
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`suggorts establishing a secure communication link ”
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`The Defendants argue that “visible” should be imported from the preferred embodiments
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`because all of preferred embodiments allegedly have this characteristic. See Response at 19 (“All
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`of these examples have one thing in common — they are user-visible. ) (emphasis in original).
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`But as this Court has recognized, “The specification’s disclosure or omission of examples does
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`not create limitations on claims.” See Ex. A at 14,
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`7 The Defendants also argue that “secure” also requires anonymity, but that is beside the point,
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`whmhfiahmmeDeibndamLhamflamdjsemeasmsednnmmmservmmnmand
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`“secure”asysedinacommunicationcontext
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`14.
`“between (AZ and [Bl ”
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`The Defendants argue that their proposed construction is necessary because, if a secure
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`communication did not extend from one endpoint to the other, “the entire security objective of
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`the patents would be undermined because there would be unprotected gaps along the way.” See
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`Response at 22. But if this reasoning were truly airtight, then the Defendants would not need
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`their construction. Indeed, the Defendants are wrong in their reasoning. Security—i.e.,
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`patents to be met because security can be inherently present on private portions of the path.8
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`“enablin a secure communication mode 0 communication ”
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`15.
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`The Defendants offer only non-limiting examples to support their construction. But as
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`this Court has recognized, “The spec1ficat10n’s disclosure or omiss1on of examples does not
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`create limitations on claims.” See Ex. A at 14.
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`means creating and transmitting; and (ii) the creating and transmitting must occur at the client
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`of the open-ended transition ‘which comprises’ indicates that there may be additional unclaimed
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`steps in the method.” Wasinger v. Levi Strauss & Co, 106 Fed. Appx. 34, 36 (Fed. Cir. 2004).
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`“crygtogzaghic information ”
`I 7.
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`The Defendants did not meaningfully address VimetX’s concerns of ambiguity.
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`8 The Defendants assert that Dr. Jones claim construction declaration in the Microsoft case
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`supports their construction. Not so. In that declaration, the example Dr. Jones gave was Just
`that—an example. Further, Dr. Jones stated that the VPN “is the entire path between the laptop
`computer and the server.” See Dkt. No. 182-20 at 1] 33. Dr. Jones did not argue that the VPN
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`—eMmdedheymdmeservenwhmthmmeDefendamLcmmemnmfldmmmeiuhat—
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`—communicaiionpaihispiivaieandtheiefoiephysicallysecuie Seeid.
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`Case 6:10-Cv-00417—LED Document 192
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`DATED: December 19, 201 1
`Respectfully submitted,
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`/s/ Douglas A. Cawley
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`DouglasAflaMsy, LeadAlZamey
`Texas State Bar No. 04035500
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`McKOOL SMITH, P.C.
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`E-m ail: _c_1__c_aw].sly.@111._9_ls_9_91__s_m_i__t_h_‘_9_gm
`Bradley W. Caldwell
`Texas State Bar No. 24040630
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`E-mailz bcaldllI
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`Luke F. McLeroy
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`Texas State Bar No. 24041455
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`E-ma1L ____________________________________________________________________
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`Jason D. Cassady
`Texas State Bar No. 24045625
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`311134163me
`John Austin Cmry
`Texas State Bar No. 24059636
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`E-mail: acurry@mckoolsmith.com
`Daniel R. Pearson
`Texas State Bar No. 24070398
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`E-mail: dpearson@mckoolsmith.com
`Stacie Lynn Greskowiak
`TexasStateBarNe.—24974r311
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`E-mail: sgreskowiak@mckoolsmith.com
`McKool Smith PC.
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`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
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`Telephone: (214) 978-4000
`Telecopier: (214) 97 8-4044
`
`Sam F. Baxter
`Texas State Bar No. 01938000
`E-mail: sbaxter mckoolsmithcom
`McKOOL SMITH P.C.
`
`Marshall, Texas 75670
`Telephone: (903) 923-9000
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`Telecopien (9039 923-9099
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`104 East Houston, Su1te 300
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`McKool 405485Vl
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`New Bay Capital, LLC
`mow-Page T2 OFT?)
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`New Bay Capital, LLC
`Ex.1012-Page 12 of 13
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`Filed 12/19/11 Page 13 of 13 PageID #: 5168
`Case 6:10-cv-00417—LED Document 192
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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@pbaty1er.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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`
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`CERTIFICATEOF SERVICE
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`The undersigned certifies that, on December 19, 2011, the foregoing document
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`was 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/ Austin Curry
`John Austin Curry
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`McKool 405485V1
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`New Bay Capital, LLC
`Ex.1012-Page 13 OFT?)
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`New Bay Capital, LLC
`Ex.1012-Page 13 of 13
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`