Case 6:10-cv-00417-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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`Civil Action No. 6:10-cv-417
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`JURY TRIAL DEMANDED
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`VIRNETX’S REPLY CLAIM CONSTRUCTION BRIEF
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`VIRNETX, INC.,
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`vs.
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`CISCO SYSTEMS, INC., et al.
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`Plaintiff,
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`Defendants.
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`1
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`MICROSOFT 1015
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`Petitioner Apple Inc. - Exhibit 1015, p. 1
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 2 of 13 PageID #: 5157
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`I. ARGUMENT IN REPLY
`“virtual private network”
`1.
`“Anonymous.” With respect to the Defendants’ proposed “anonymity” construction, the
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`issue is whether the Court was correct in requiring all 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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`PSN Ill., LLC v. Ivoclar Vivadent, Inc., 525 F.3d 1159, 1166 (Fed. Cir. 2008) (“[C]ourts must
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`recognize that disclosed embodiments may be within the scope of other allowed but unasserted
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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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`“Directly.” VirnetX did not overcome Aventail by disclaiming the type of VPN taught by
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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 is a difference without a distinction.” They are wrong in this assertion. The
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`very inquiry of prosecution disclaimer is whether the ordinary scope of a term was disclaimed.
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`See Omega Eng’g, Inc. v. Raytek 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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`VirnetX’s three arguments over Aventail departed from the ordinary meaning of VPN.
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`1 Instead of addressing why the Background of the Invention discussion should limit 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
`anonymity. This argument completely misses the point. VirnetX preserved error for this
`construction, and VirnetX is specifically seeking reconsideration of this issue in this case.
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`2
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`Petitioner Apple Inc. - Exhibit 1015, p. 2
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 3 of 13 PageID #: 5158
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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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`that VirnetX made over the Aventail reference are “independent” of each other and therefore
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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
`computers connected according to Aventail do not communicate
`directly with each other. Aventail discloses a system where a client
`on a public network transmits data to a SOCKS server via a
`singular, point-to-point SOCKS connection at the socket layer of
`the network architecture. The SOCKS server then relays that data
`to a target computer on a private network on which the SOCKS
`server also resides. All communications between the client and
`target stop and start at the intermediate SOCKS server. The client
`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.
`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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`would not have considered computers in the Aventail system to be virtually on the same private
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`2 Contrary to the Defendants’ straw man attack, VirnetX never suggested that there cannot be
`unambiguous waiver anytime a patentee makes multiple distinctions over prior art. In its
`Opening Brief, VirnetX correctly cited the “clear and unmistakable” test for finding prosecution
`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
`determining whether a particular, isolated distinction rises to the level of clear and unmistakable
`disclaimer. See Opening Brief at 7-8.
`3 This also highlights the reason that VirnetX opposes the Defendants’ construction. If the Court
`adopts this construction, then the Defendants will undoubtedly argue that “directly” requires
`computers in a VPN to be physically directly connected. But this is not what VirnetX argued in
`re-examination. Rather, VirnetX used the word “directly” to explain how a VPN virtualizes a
`direct connection between computers on a physical network. See Ex. B. at 14 (“Third, Aventail
`has not been shown to disclose a VPN because computers connected according 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
`added). (Note that, in this brief, references to exhibits and Dr. Jones’s declaration refer to the
`exhibits and declarations attached to VirnetX’s Opening Brief.)
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`3
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`Petitioner Apple Inc. - Exhibit 1015, p. 3
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 4 of 13 PageID #: 5159
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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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`computers connected via the Aventail system are able to communicate with each other as
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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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`proposed construction should be rejected.
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`2.
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`“virtual private link”
`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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`simply requires a link. The Defendants have cited no evidence that this is the ordinary meaning
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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.
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`“secure communication link”
`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::49:1-53:9. 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
`be able to communicate as if they were on the same private network. See Opening Brief 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
`anonymity). Under this construction, it would be redundant to exclude from the scope of VPN
`communications that do not virtualize the physically direct communications of a private network.
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`4
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`Petitioner Apple Inc. - Exhibit 1015, p. 4
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 5 of 13 PageID #: 5160
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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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`lines that describe how the secure communication link in this particular embodiment is also a
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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 all
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`possible embodiments of the claims. This violates one of the most fundamental principles of
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`claim construction. “[A]lthough the specification often describes very specific embodiments of
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`the invention, [the Federal Circuit has] repeatedly warned against confining the claims to those
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`embodiments.” Phillips, 415 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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`were physically in that network). The Court should not follow the Defendants’ misunderstanding
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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 embodiment.5 For the foregoing reasons, the Court should reject the Defendants’
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`proposed construction and adopt VirnetX’s proposed construction.
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`5 The Defendants also argue that VirnetX “conceded” that a secure communication link is 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
`Court recognized in its Markman order, the claims of ’759 patent defined and limited the secure
`communication link to a virtual private network communication link. See Ex. A at 25.
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`5
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`Petitioner Apple Inc. - Exhibit 1015, p. 5
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 6 of 13 PageID #: 5161
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`4.
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`“domain name service”
`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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`“conventional” DNS operates misses the point. The patents explicitly teach “a specialized DNS
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`server” that “does not return the true IP 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 ’135::37:63-38:2. As such, the Defendants’ proposed construction should be
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`rejected.
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`5.
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`“domain name”
`The Defendants’ argument completely misses the point. For claim construction purposes,
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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 specification gives examples of hierarchical
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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.” Phillips, 415 F.3d at 1321. 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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`art would understand that the reason that domain names on the Internet have a hierarchical
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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 ¶ 10. But as far as the patents are
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`6
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`Petitioner Apple Inc. - Exhibit 1015, p. 6
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 7 of 13 PageID #: 5162
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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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`name on the Internet, a skilled artisan would understand that it is not necessary for 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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`6.
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`“DNS proxy server”
`In their Response, the Defendants do not present any argument for this term that VirnetX
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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. See Opening Brief at 16-17; Jones Decl. at ¶¶ 13-16. The Defendants respond by
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`asserting: “The statement is not so limited—it 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 ipse dixit—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.
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`7.
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`“secure domain name service”
`“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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`service is “non-standard.” The Court should not follow the Defendants’ misreading of the
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`prosecution history and should reject their proposed construction.
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`Petitioner Apple Inc. - Exhibit 1015, p. 7
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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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`is the service that is performed. As such, this language is superfluous at best, ambiguous at
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`worst, and should be rejected.
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`8.
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`“domain name service system”
`The Defendants assume, without any intrinsic support, that the word “system” must
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`connote an “extra something.” See Res. at 16-17. But as detailed below, the Defendants present
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`no cognizable legal basis for the unnecessary limitations added into their proposed construction.
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`“Differentiating.” The Defendants discuss how the specification teaches—in a preferred
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`embodiment—a DNS that is capable of differentiating between standard and secure top-level
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`domain names. But because the Defendants can point to no “words or expressions of manifest
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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 all claims. Cf. PSN Ill., 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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`9.
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`“web site” / “secure web site” / “secure target web site”
`During the re-examination of the ’135 patent, the examiner made a record of his
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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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`6 The Defendants also argued that certain passages from the prosecution history somehow
`support their proposed construction. For the sake of completeness, VirnetX notes that these cited
`passages do not even mention “differentiating” or “secure top-level domain names.”
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`Petitioner Apple Inc. - Exhibit 1015, p. 8
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 9 of 13 PageID #: 5164
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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 the Court is not bound by an examiner’s evaluation of prior art. See Res. at 26,
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`n.17. 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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`ordinary skill reads, interprets, and applies these claims in light of the specification.
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`10.
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`“secure web computer”
`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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`no evidence that would support this assertion—not even from their own expert. In any event, the
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`correct inquiry is how a skilled artisan would understand the ordinary meaning of a claim term—
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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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`11.
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`“secure server”
`This claim term appears only in the ’151 patent, which concerns encrypted channels as
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`opposed to VPNs. 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 Ex. A. at 18. Conversely, when “secure” modifies a
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`type of communication, it refers to encryption. See, e.g., ’135::1:38-39 (“Data security is usually
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`Petitioner Apple Inc. - Exhibit 1015, p. 9
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 10 of 13 PageID #: 5165
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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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`12.
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`“target computer”
`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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`as if it were in that private network. See Jones Decl. at ¶ 19. Further, the preferred embodiments
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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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`more than attorney argument. Moreover, even if the Defendants’ characterizations of the
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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 supports establishing a secure
`communication link” / “indicate/indicating . . . whether the domain name service system
`supports establishing a secure communication link”
`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,
`which is that the Defendants have conflated “secure” as used in a computer/server context and
`“secure” as used in a communication context.
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`Petitioner Apple Inc. - Exhibit 1015, p. 10
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`14.
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`“between [A] and [B]”
`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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`encryption—is only necessary for public communication paths for the security objective of the
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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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`15.
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`“enabling a secure communication mode of communication”
`The Defendants offer only non-limiting examples to support their construction. But as
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`this Court has recognized, “The specification’s disclosure or omission of examples does not
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`create limitations on claims.” See Ex. A at 14.
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`16.
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`“generating from the client computer a Domain Name Service (DNS) request”
`The Defendants employ faulty logic to support their construction. Namely, the
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`Defendants argue that, since the DNS request must be transmitted, it follows that: (i) generating
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`means creating and transmitting; and (ii) the creating and transmitting must occur at the client
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`computer. But logic does not dictate this result. Method claims can have unclaimed steps. “Use
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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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`17.
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`“cryptographic information”
`The Defendants did not meaningfully address VirnetX’s concerns of ambiguity.
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`8 The Defendants assert that Dr. Jones claim construction declaration in the Microsoft case
`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 ¶ 33. Dr. Jones did not argue that the VPN
`extended beyond the server, which is what the Defendants’ construction would require, as that
`communication path is private and therefore physically secure. See id.
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`11
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`Petitioner Apple Inc. - Exhibit 1015, p. 11
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 12 of 13 PageID #: 5167
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`DATED: December 19, 2011
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`Respectfully submitted,
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`McKOOL SMITH, P.C.
`/s/ Douglas A. Cawley
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`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@mckoolsmith.com
`Luke F. McLeroy
`Texas State Bar No. 24041455
`E-mail: lmcleroy@mckoolsmith.com
`Jason D. Cassady
`Texas State Bar No. 24045625
`E-mail: jcassady@mckoolsmith.com
`John Austin Curry
`Texas State Bar No. 24059636
`E-mail: acurry@mckoolsmith.com
`Daniel R. Pearson
`Texas State Bar No. 24070398
`E-mail: dpearson@mckoolsmith.com
`Stacie Lynn Greskowiak
`Texas State Bar No. 24074311
`E-mail: sgreskowiak@mckoolsmith.com
`McKool Smith P.C.
`300 Crescent Court, Suite 1500
`Dallas, Texas 75201
`Telephone: (214) 978-4000
`Telecopier: (214) 978-4044
`
`Sam F. Baxter
`Texas State Bar No. 01938000
`E-mail: sbaxter@mckoolsmith.com
`MCKOOL SMITH P.C.
`104 East Houston, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Telecopier: (903) 923-9099
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`Petitioner Apple Inc. - Exhibit 1015, p. 12
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`Case 6:10-cv-00417-LED Document 192 Filed 12/19/11 Page 13 of 13 PageID #: 5168
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`Robert M. Parker
`Texas State Bar No. 15498000
`E-mail: rmparker@pbatyler.com
`Robert Christopher Bunt
`Texas State Bar No. 00787165
`E-mail: rcbunt@pbatyler.com
`PARKER, BUNT & AINSWORTH, P.C.
`100 East Ferguson, Suite 1114
`Tyler, Texas 75702
`Telephone: (903) 531-3535
`Telecopier: (903) 533-9687
`
`ATTORNEYS FOR PLAINTIFF
`VIRNETX, INC.
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`CERTIFICATE OF 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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` /s/ Austin Curry
` John Austin Curry
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`case.
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`13
`
`Petitioner Apple Inc. - Exhibit 1015, p. 13