IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CIVIL ACTION NO. 2:07-CV-562 DF
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`_____________________________________
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`CIVIL ACTION NO. 2:08-CV-45 DF
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`§§§§§§§§§§§§§§§§§§§§§
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`PARALLEL NETWORKS, LLC,
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`Plaintiff,
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`v.
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`NETFLIX, INC., et al.,
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`Defendants.
`_____________________________________
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`PARALLEL NETWORKS, LLC,
`
`Plaintiff,
`
`v.
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`PRICELINE.COM INC., et al.,
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`Defendants.
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`CLAIM CONSTRUCTION ORDER
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`Before the Court is Plaintiff’s Opening Claim Construction Brief. Dkt. No. 186. Also
`1
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`before the Court are Defendants’ Responsive Claim Construction Brief, Plaintiff’s Reply Claim
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`Construction Brief, and Defendants’ Sur-Reply Claim Construction Brief. Dkt. Nos. 191, 201,
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`and 209, respectively. The Court held a claim construction hearing on August 13, 2009. Having
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`considered the briefing, oral arguments of counsel, and all relevant papers and pleadings, the
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`Court construes the disputed claim terms as set forth herein.
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`1
`indicated.
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` All references to docket entries are as docketed in Civil Action No. 2:07-CV-562 unless otherwise
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`1
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`Petitioner Microsoft Corporation - Ex. 1032, p. 1
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`

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`TABLE OF CONTENTS
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`I. BACKGROUND .
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`II. LEGAL PRINCIPLES OF CLAIM CONSTRUCTION .
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`III. DISCUSSION
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`1.
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`“Concurrently Processes”
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`“Data Dynamically Retrieved”
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`“Data Retrieved”
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`“Dispatcher” .
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`“Dispatching” .
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`“Dynamically Generating”
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`7.
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`“Dynamic Web Page Generation Request”
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`8.
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`11.
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`12.
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`14.
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`“HTTP-Compliant Device”
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`“Intercepting” .
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`“Page Server” .
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`“Releasing”
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`“Request(s)” and “Other Requests”
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`“Routing”
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`“Transferring”
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`2
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`15.
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`“Web Page” and “Page”
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`16.
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`“Web Server”
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`IV. CONCLUSION .
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`Petitioner Microsoft Corporation - Ex. 1032, p. 2
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`

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`I. BACKGROUND
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`Plaintiff alleges infringement of United States Patent Nos. 5,894,554 (“the ’554 Patent”)
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`and 6,415,335 (“the ’335 Patent”) (collectively, the “patents-in-suit”). The ’335 Patent is a
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`divisional of the ’554 Patent, and the patents-in-suit share a common specification. The ’554
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`Patent is titled “System for Managing Dynamic Web Page Generation Requests by Intercepting
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`Request at Web Server and Routing to Page Server Thereby Releasing Web Server to Process
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`Other Requests.” The ’335 Patent is titled “System and Method for Managing Dynamic Web
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`Page Generation Requests.” The Abstracts of both the ’554 Patent and the ’335 Patent state:
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`The present invention teaches a method and apparatus for creating and managing
`custom Web sites. Specifically, one embodiment of the present invention claims a
`computer-implemented method for managing a dynamic Web page generation
`request to a Web server, the computer-implemented method comprising the steps
`of routing the request from the Web server to a page server, the page server
`receiving the request and releasing the Web server to process other requests,
`processing the request, the processing being performed by the page server
`concurrently with the Web server, as the Web server processes the other requests,
`and dynamically generating a Web page in response to the request, the Web page
`including data dynamically retrieved from one or more data sources.
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`The claims at issue for claim construction include Claims 1 and 11 of the ’554 Patent and
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`Claims 1, 2, 15, and 16 of the ’335 Patent. Claim 1 of the ’554 Patent recites:
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`1. A computer-implemented method for managing a dynamic Web page
`generation request to a Web server, said computer-implemented method
`comprising the steps of:
`routing said request from said Web server to a page server, said page
`server receiving said request and releasing said Web server to process other
`requests, wherein said routing step further includes the steps of intercepting said
`request at said Web server, routing said request from said Web server to a
`dispatcher, and dispatching said request to said page server;
`processing said request, said processing being performed by said page
`server while said Web server concurrently processes said other requests; and
`dynamically generating a Web page in response to said request, said Web
`page including data dynamically retrieved from one or more data sources.
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`3
`
`Petitioner Microsoft Corporation - Ex. 1032, p. 3
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`

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`Claim 11 of the ’554 Patent recites:
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`11. A machine readable medium having stored thereon data representing
`sequences of instructions, which when executed by a computer system, cause said
`computer system to perform the steps of:
`routing a dynamic Web page generation request from a Web server to a
`page server, said page server receiving said request and releasing said Web server
`to process other requests wherein said routing step further includes the steps of
`intercepting said request at said Web server, routing said request from said Web
`server to a dispatcher, and dispatching said request to said page server;
`processing said request, said processing being performed by said page
`server while said Web server concurrently processes said other requests; and
`dynamically generating a Web page, said Web page including data
`retrieved from one or more data sources.
`
`Claim 1 of the ’335 Patent recites:
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`1. A computer-implemented method for managing a dynamic Web page
`generation request to a Web server, said computer-implemented method
`comprising the steps of:
`routing a request from a Web server to a page server, said page server
`receiving said request and releasing said Web server to process other requests
`wherein said routing step further includes the steps of:
`intercepting said request at said Web server and routing said request to
`said page server;
`processing said request, said processing being performed by said page
`server while said Web server concurrently processes said other requests; and
`dynamically generating a Web page in response to said request, said Web
`page including data dynamically retrieved from one or more data sources.
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`Claim 2 of the ’335 Patent recites:
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`2. The computer-implemented method in claim 1 wherein said step of routing
`said request includes the steps of:
`routing said request from said Web server to a dispatcher; and
`dispatching said request to said page server.
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`Claim 15 of the ’335 Patent recites:
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`15. A computer-implemented method comprising the steps of:
`transferring a request from an HTTP-compliant device to a page server,
`said page server receiving said request and releasing said HTTP-compliant device
`to process other requests wherein said transferring step further includes the steps
`
`4
`
`Petitioner Microsoft Corporation - Ex. 1032, p. 4
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`

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`of:
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`intercepting said request at said HTTP-compliant device and transferring
`said request to said page server;
`processing said request, said processing being performed by said page
`server while said HTTP-compliant device concurrently processes said other
`requests; and
`dynamically generating a page in response to said request, said page
`including data dynamically retrieved from one or more data sources.
`
`Claim 16 of the ’335 Patent recites:
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`16. The computer-implemented method in claim 15 wherein said step of
`transferring said request includes the steps of:
`transferring said request from said HTTP-compliant device to a dispatcher;
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`and
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`dispatching said request to said page server.
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`The parties have submitted the following disputed terms, which the Court has herein
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`grouped and arranged in alphabetical order for convenience: (1) “concurrently processes”;
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`(2) “data dynamically retrieved”; (3) “data retrieved”; (4) “dispatcher”; (5) “dispatching”;
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`(6) “dynamically generating”; (7) “dynamic web page generation request”; (8) “HTTP-compliant
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`device”; (9) “intercepting”; (10) “page server”; (11) “releasing”; (12) “request(s)” and “other
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`requests”; (13) “routing”; (14) “transferring”; (15) “Web page” and “page”; and (16) “Web
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`server.” See Dkt. No. 181 at Exs. A and B.
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`At the claim construction hearing, the Court provided the parties with preliminary
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`constructions for the terms “dispatching,” “intercepting,” “page server,” “other requests,”
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`“routing,” and “Web page.” See Court’s Preliminary Constructions, Dkt. No. 220 at Exhibit. Of
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`these, the parties agreed to the Court’s preliminary construction of “other requests,” as discussed
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`herein. Also, the Court provided the parties an opportunity to present a live technical tutorial
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`(see Dkt. No. 207), but the parties elected to submit tutorial presentations on compact disc.
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`5
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`Petitioner Microsoft Corporation - Ex. 1032, p. 5
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`

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`II. LEGAL PRINCIPLES OF CLAIM CONSTRUCTION
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`A determination of patent infringement involves two steps: first, the patent claims are
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`construed, and, second, the claims are compared to the allegedly infringing device. Cybor Corp.
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`v. FAS Techs., Inc., 138 F.3d 1448, 1455 (Fed. Cir. 1998) (en banc). Claim construction is a
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`legal question for the courts. Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996).
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`The legal principles of claim construction were reexamined by the Federal Circuit in Phillips v.
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`AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). The Federal Circuit in Phillips expressly
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`reaffirmed the principles of claim construction as set forth in Markman v. Westview Instruments,
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`Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996), Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996), and Innova/Pure Water, Inc. v. Safari Water
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`Filtration Sys., Inc., 381 F.3d 1111 (Fed. Cir. 2004).
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`The Court construes the disputed terms in accordance with the doctrines of claim
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`construction that it has outlined here along with those it has enunciated in the past. See Pioneer
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`Corp. v. Samsung SDI Co., No. 2:07-CV-170, Dkt. No. 94, at 2-8 (E.D. Tex. Mar. 10, 2008).
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`III. DISCUSSION
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`1.
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`“Concurrently Processes”
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`This term appears in Claims 1 and 11 of the ’554 Patent. Plaintiff proposes this term
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`means “processing a dynamic web page generation request by said page server while said web
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`server processes said other requests at the same time, either interleaved or in parallel.” Dkt. No.
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`181, Ex. A at 5. Defendants propose this term means “processing said request, said processing
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`being performed by said page server for an overlapping period of time while the Web server
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`processes said other requests.” Id., Ex. B at 11-12.
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`6
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`Petitioner Microsoft Corporation - Ex. 1032, p. 6
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`

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`a. The Parties’ Positions
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`Plaintiff proposes that “during one second[,] multiple processes may each receive many
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`fragments of processing time,” and “[s]uch processing would not strictly be ‘overlapping,’ but
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`would occur ‘at the same time,’ as that phrase would be understood by a person of ordinary skill
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`in the art.” Dkt. No. 186 at 24. Plaintiff argues that this Court has previously rejected
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`Defendants’ purported argument that processing of other requests occurs “literally at the same
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`time.” Id. at 23-24.
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`Defendants acknowledge that “the parties disagree ‘whether this processing must be ‘at
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`the same time, either interleaved or in parallel,’ or ‘for an overlapping period of time.’” Dkt. No.
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`191 at 7. Defendants argue that “the intrinsic record . . . clearly calls for simultaneous processing
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`by multiple servers,” and “[i]t would be contrary to the stated goal of ‘offloading’ requests to
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`page servers to incorporate Plaintiff’s ‘interleaved’ concept.” Id. at 8. Similarly, Defendants
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`argue that Plaintiff’s proposal should be rejected because “insert[ing] the term ‘interleaving’ into
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`the construction would mean that a web server could offload web page requests to a page server
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`running on the same processor.” Id. at 9.
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`Plaintiff replies by citing earlier claim construction proceedings in the epicRealm2
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`litigation in which this Court found “there is not a clear disavowal within the specification of the
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`use of a partitioned software architecture on a single machine.” Dkt. No. 201 at 8 (citing
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`8/15/2006 Report and Recommendation, Ex. C1 at 14, and 10/30/2006 Order, Ex. C2). Plaintiff
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`2
` Discussion of “epicRealm” refers to Civil Action Nos. 5:07-CV-125, 5:07-CV-126, and 5:07-CV-135, for
`which the Court held a jury trial on August 18-25, 2008. Plaintiff epicRealm Licensing LP was the predecessor of
`Plaintiff Parallel Networks LLC. Civil Action Nos. 5:07-CV-125 and 5:07-CV-126 were originally filed as Civil
`Action Nos. 2:05-CV-163 and 2:05-CV-356, respectively, before being transferred (pursuant to the plaintiff’s
`unopposed motions to transfer) from the Marshall Division to the Texarkana Division. See Civil Action Nos. 5:07-
`CV-125, Dkt. No. 379, and Civil Action No. 5:07-CV-126, Dkt. No. 354.
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`7
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`Petitioner Microsoft Corporation - Ex. 1032, p. 7
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`

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`argues that “[t]he specification doesn’t call for simultaneous processing by multiple machines; it
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`permits that processing to occur on a single machine, so long as that machine utilizes a
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`partitioned architecture that permits the offloading of processing . . . .” Id. at 9. Plaintiff thus
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`seeks adoption of the “at the same time” language in the Court’s previous construction with
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`clarification that this language includes both interleaved and parallel processing. Id.
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`b. Discussion
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`The Court previously considered “concurrently processes” during the epicRealm litigation
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`as part of the phrase “said processing being performed by said page server while said Web server
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`concurrently processes said other requests,” which the Court construed to mean “said processing
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`being performed by said page server while said Web server processes said other requests at the
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`same time.” Dkt. No. 186, Ex. C1 at 18-20. The Court at that time rejected arguments that
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`“concurrently processes” refers to processing “literally at the same time” because the
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`specification uses the word “concurrently” with the word “simultaneously” and teaches that
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`“simultaneous” processing can occur even where Web server and page server operations are
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`executed on the same machine. Id. at 19 (citing ’554 Patent at 4:48-51 and 6:21-27). Moreover,
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`the patent also uses the word “simultaneously” with regard to prior art time-interleaved multi-
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`threading techniques. ’554 Patent at 4:48-51. Further, because a Web server and a page server
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`can run on a single machine, the term “concurrently processes” can include interleaved or parallel
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`processing. See Dkt. No. 186, Ex. C1 at 12-14; see also IEEE Standard Dictionary of Electrical
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`and Electronics Terms (Sixth Edition), Dkt. No. 186 at Ex. D4 (“concurrent (software)” defined
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`as “Pertaining to the occurrence of two or more activities within the same interval of time,
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`achieved either by interleaving the activities or by simultaneous execution.”); Phillips, 415 F.3d
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`8
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`Petitioner Microsoft Corporation - Ex. 1032, p. 8
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`

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`at 1318 (noting that “dictionaries, and especially technical dictionaries,” can be “helpful”
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`evidence for claim interpretation)
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`The Court therefore adopts Plaintiff’s proposal to construe “concurrently processes” to
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`mean “processing a dynamic web page generation request by said page server while said
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`Web server processes said other requests at the same time, either interleaved or in
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`parallel.”
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`2.
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`“Data Dynamically Retrieved”
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`This term appears in Claim 1 of the ’554 Patent and Claim 1 of the ’335 Patent. Plaintiff
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`proposes this term means “data retrieved in response to a request.” Dkt. No. 181, Ex. A at 2
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`and 8. Defendants propose this term means “data retrieved in response to a request, rather than
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`data written to a Web page prior to said request.” Dkt. No. 191 at 9.3
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`a. The Parties’ Positions
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`Plaintiff argues that “[t]he Court should construe ‘data dynamically retrieved’ the same
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`way the parties agreed it should be construed in epicRealm.” Dkt. No. 186 at 27 (citing Ex. C6 at
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`2). Defendants argue that “‘[d]ynamically’ means that the retrieval is occurring at the time it is
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`needed rather than at a predetermined or fixed time.” Dkt. No. 191 at 9. Plaintiff replies that
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`Defendants’ proposed construction would exclude an embodiment because cached pages can be
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`retrieved. Dkt. No. 201 at 10-11.
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`3
` Defendants had proposed in their pre-hearing statement that the term “data dynamically retrieved” means
`“[d]ata retrieved during runtime.” Dkt. No. 181, Ex. B at 1.
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`9
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`Petitioner Microsoft Corporation - Ex. 1032, p. 9
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`

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`b. Discussion
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`As to the claims, Claim 1 of the ’554 Patent and Claim 1 of the ’335 Patent both recite
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`“dynamically generating a Web page in response to said request, said Web page including data
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`dynamically retrieved from one or more data sources,” wherein “said request” refers for
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`antecedent basis to “a dynamic Web page generation request.” The term “data dynamically
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`retrieved” thus refers to retrieval that occurs in response to a dynamic page generation request.
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`As to the specification, “dynamic content” is introduced in the “Description of Related
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`Art”:
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`The Common Gateway Interface (CGI) standard was developed to resolve the
`problem of allowing dynamic content to be included in Web pages. CGI “calls”
`or procedures enable applications to generate dynamically created HTML output,
`thus creating Web pages with dynamic content. Once created, these CGI
`applications do not have to be modified in order to retrieve “new” or dynamic
`data. Instead, when the Web page is invoked, CGI “calls” or procedures are used
`to dynamically retrieve the necessary data and to generate a Web page.
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`’554 Patent at 1:46-56 (emphasis added). The specification also discloses that “server 404(2)
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`dynamically generates a Web page in response to the Web client request, and the dynamic Web
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`page is then either transmitted back to requesting Web client 200 or stored on a machine that is
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`accessible to Web server 201, for later retrieval.” Id. at 6:27-32 (emphasis added). The
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`specification also uses the term “dynamically” in a somewhat broader context:
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`One embodiment of the claimed invention allows “plug and play” scalability. As
`described above, referring to FIG. 4, Dispatcher 402 maintains information about
`all the Page servers configured to be serviced by Dispatcher 402. Any number of
`Page servers can thus be “plugged” into the configuration illustrated in FIG. 4,
`and the Page servers will be instantly activated as the information is dynamically
`updated in Dispatcher 402.
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`’554 Patent at 8:10-17 (emphasis added). These passages teach that the patents-in-suit use
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`10
`
`Petitioner Microsoft Corporation - Ex. 1032, p. 10
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`

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`“dynamic” to refer to actions taken in response to something, such as a request. But Defendants’
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`proposed addition of “rather than data written to a Web page prior to said request” is potentially
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`too limiting. For example, a proper construction of “data dynamically retrieved” should not
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`exclude situations where data is cached, as disclosed in the specification:
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`[A]nother embodiment of the present invention supports the caching of finished
`Web pages, to optimize the performance of the data source being utilized. This
`“page caching” feature, illustrated in FIG. 4 as Page cache 414, allows the Web
`site administrator to optimize the performance of data sources by caching Web
`pages that are repeatedly accessed. Once the Web page is cached, subsequent
`requests or “hits” will utilize the cached Web page rather than re-accessing the
`data source. This can radically improve the performance of the data source.
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`’554 Patent at 6:66-7:8 (emphasis added). In such situations, data that has been dynamically
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`retrieved may be written to a Web page prior to a particular request seeking that data.
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`Defendants’ proposed construction would read out this preferred embodiment and is thus
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`disfavored. Vitronics, 90 F.3d at 1584; Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d
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`1379, 1383 (Fed. Cir. 2008) (noting caution “against interpreting a claim term in a way that
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`excludes disclosed embodiments, when that term has multiple ordinary meanings consistent with
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`the intrinsic record.”) (citation omitted); Oatey Co. v. IPS Corp., 514 F.3d 1271, 1276 (Fed. Cir.
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`2008) (“We normally do not interpret claim terms in a way that excludes embodiments disclosed
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`in the specification.”) (citations omitted). As to the word “retrieved,” the specification uses this
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`word to mean obtained, and the Court here incorporates Plaintiff’s proposal as to the term “data
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`retrieved,” discussed below. See ’554 Patent at 1:46-56; see also Oxford English Dictionary
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`(Second Edition 1989) (retrieve, v.) (“2. ... d. To obtain again (stored information)”).
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`The Court therefore construes “data dynamically retrieved” to mean “data obtained in
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`response to a dynamic page generation request.”
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`11
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`Petitioner Microsoft Corporation - Ex. 1032, p. 11
`
`

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`3.
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`“Data Retrieved”
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`This term appears in Claim 11 of the ’554 Patent. Plaintiff proposes this term means
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`“data that has been obtained.” Dkt. No. 181, Ex. A at 2. Defendants propose this term means
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`“data retrieved in response to a request.” Id., Ex. B at 1.
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`a. The Parties’ Positions
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`Plaintiff submits that “the context of ‘data retrieved’ does not indicate whether a request
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`prompted the generation and retrieval.” Dkt. No. 186 at 28. Defendants argue that Plaintiff’s
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`construction “interpose[s] a temporal element in this claim where time is no longer a factor in
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`either the use or presentation of data.” Dkt. No. 191 at 9. Plaintiff replies that “while other
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`claims require specify [sic] ‘dynamically generating a Web page in response to said request,’
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`claim 11 of the ’554 merely requires ‘dynamically generating a Web page.’” Dkt. No. 201 at 11.
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`b. Discussion
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`Contrary to Defendants’ proposal, neither the claims nor the specification require that
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`“data retrieved” in Claim 11 of the ’554 Patent must be “retrieved in response to a request.” To
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`the contrary, the absence of the word “dynamically” in this term suggests that “data retrieved” is
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`a more general term than “data dynamically retrieved.” See, e.g., Helmsderfer, 527 F.3d at 1382
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`(“different claim terms are presumed to have different meanings”). Dynamic concepts are
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`addressed with regard to other disputed terms, such as “data dynamically retrieved” and
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`“dynamically generating.” The Court otherwise construes the term “data retrieved” consistent
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`with its construction of “data dynamically retrieved.” The Court accordingly adopts Plaintiff’s
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`proposal to construe the term “data retrieved” to mean “data that has been obtained.”
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`12
`
`Petitioner Microsoft Corporation - Ex. 1032, p. 12
`
`

`
`4.
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`“Dispatcher”
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`This term appears in Claims 1 and 11 of the ’554 Patent and Claims 2 and 16 of the ’335
`
`Patent. Plaintiff proposes this term means “software, or a machine having software, that
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`performs the function of dispatching.” Dkt. No. 181, Ex. A at 2 and 8. Defendants propose this
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`term means “a machine having software, or software independent of the Web server, that
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`performs the function of ‘dispatching.’” Id., Ex. B at 2.
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`a. The Parties’ Positions
`
`Plaintiff submits that “[t]he parties agree that a ‘dispatcher’ ‘performs the function of
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`dispatching’” and that “[t]he parties also agree that [a dispatcher or a page server] may take the
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`form of just software or, at least in the case of a dispatcher, a machine having such software.”
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`Dkt. No. 186 at 8. Plaintiff argues that “[j]ust as the interceptor may be ‘an independent
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`module,’ or simply ‘an extension to Web server,’ so may the dispatcher, which receives requests
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`from the interceptor, take either form.” Id. at 9-10 (citations omitted).
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`Defendants respond that “[b]ecause the claims require that the web server route a request
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`to the dispatcher, they cannot be the same thing without rendering the language meaningless.”
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`Dkt. No. 191 at 10. Defendants submit that “[w]hen both Web server and dispatcher run on the
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`same machine, the dispatcher must be independent and separate from the Web server because
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`claims of the patents require the Web server to ‘route’ requests to the dispatcher.” Id.
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`Defendants also argue that the “interceptor and the dispatcher are not comparable elements of the
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`claims.” Id.
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`Plaintiff replies that Defendants’ proposal would introduce “superfluousness” because
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`“[t]he claims already prescribe that the routing occurs from the web server to the dispatcher.”
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`13
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`Petitioner Microsoft Corporation - Ex. 1032, p. 13
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`

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`Dkt. No. 201 at 12.
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`b. Discussion
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`The parties apparently dispute whether or not the dispatcher can be part of the Web server
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`or part of software that includes the Web server. The specification discloses that “[i]n one
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`embodiment of the invention, Dispatcher 402 resides on a different machine than Web server
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`201,” but “Dispatcher 402 can, however, also reside on the same machine as the Web server.”
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`’554 at 5:8-9 and 5:20-21. The patents-in-suit thus teach that the dispatcher and the Web server
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`can be on a single machine. Because the relevant claims recite “routing said request from said
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`Web server to a dispatcher” (emphasis added), the claims contemplate that the dispatcher is
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`distinct from the Web server. This interpretation is consistent with the “partitioned architecture”
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`articulated in the specification. ’554 Patent at 4:51-53 and 6:24-27.
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`The Court therefore construes “dispatcher” to mean “a machine having software
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`independent of the Web server, or software independent of the Web server, that performs
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`the function of ‘dispatching.’”
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`5.
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`“Dispatching”
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`This term appears in Claims 1 and 11 of the ’554 Patent and Claims 2 and 16 of the ’335
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`Patent. Plaintiff proposes this term means “examining a request to make an informed selection
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`of which page server should process the request; based on dynamic information maintained about
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`page servers, the dynamic information indicating which page server can more efficiently process
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`the request; and sending the request to the selected page server.” Dkt. No. 181, Ex. A at 3 and 8.
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`Defendants propose this term means “[s]ending a dynamic Web page generation request to one
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`14
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`Petitioner Microsoft Corporation - Ex. 1032, p. 14
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`

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`selected page server out of multiple page servers.” Dkt. No. 191 at 11.4
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`a. The Parties’ Positions
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`Plaintiff submits “examples” from the specification of “connection caching,” “data
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`caching,” and “load balancing.” Dkt. No. 186 at 15-16 (discussing ’554 Patent at 5:51-59,
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`5:60-65, 6:1-1, and 6:12-16). Plaintiff argues that “the patents make clear that the dispatcher
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`must make an informed selection based on dynamic information about the available page
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`servers,” which is “the very mechanism by which the invention achieved the efficiency that
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`distinguished it from the prior art.” Id. at 17.
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`Defendants respond that Plaintiff attempts to “improperly import[] limitations from the
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`specification . . . and violates the doctrine of claim differentiation.” Dkt. No. 191 at 12.
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`Defendants identify Plaintiff’s proposed language of “more efficiently process the request,”
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`“examining a request to make an informed selection,” and “based on dynamic information” as
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`unsupported by the intrinsic evidence. Id. at 13-14. Defendants propose that “[h]ow the
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`dispatcher comes to arrive at the selection of the page server . . . is not a limitation in the claims
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`of the patents.” Id. at 13. Defendants also argue claim differentiation with regard to Claim 29 of
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`the ’335 Patent and claims added or amended during reexamination, which purportedly “already
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`include[] the additional limitations sought by Plaintiff” or “attempt[] to further narrow the
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`‘dispatching’ step.” Id. at 15.
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`Plaintiff replies that “each embodiment describes a page server examining a request,
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`making an informed selection about which page server should process that request based on
`
`4
` Defendants had contended in their pre-hearing statement that “[t]his claim term is indefinite.” Dkt. No.
`181, Ex. B at 2. Defendants have evidently withdrawn that contention.
`
`15
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`Petitioner Microsoft Corporation - Ex. 1032, p. 15
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`

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`dynamic information maintained about the page servers, and sending the request to the page
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`server that can more efficiently process it.” Dkt. No. 201 at 12. Plaintiff submits that “the
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`patentee chose to be ‘his own lexicographer’” (quoting Vitronics, 90 F.3d 1576) and that
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`Defendants’ proposed construction contradicts the consistent usage of “dispatching” in the
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`specification. Id. at 12-13.
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`b. Discussion
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`The term “dispatching” appears nowhere in the specification, although the words
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`“dispatches” and “dispatched” do appear, in addition to “Dispatcher 402.” See ’554 Patent at
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`5:38-40 and 5:51-53. The Vitronics decision, relied upon by Plaintiff, states that “a patentee may
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`choose to be his own lexicographer . . . as long as the special definition of the term is clearly
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`stated in the patent specification or file history.” 90 F.3d at 1582. The specification provides no
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`such clear statement, and Plaintiff identifies no relevant file history, so the Court declines to find
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`that the patentee acted as lexicographer as to the meaning of “dispatching.” Instead, the
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`specification describes operations of the “Dispatcher 402,” such as that “Dispatcher 402 receives
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`the intercepted request and then dispatches the request to one of a number of Page servers 404
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`(1)-(n).” ’554 Patent at 5:38-40. The specification also articulates purported “advantages in the
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`areas of performance, security, extensibility and scalability” and describes “connection caching,”
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`“page caching,” and “load balancing.” Id. at 6:49-8:25.
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`First, the specification does not necessarily require that the dispatcher “examin[e]” a
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`request before sending it to one of multiple page servers. Instead, “load balancing,” for example,
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`can be effected by considering the load on various page servers. Id. at 8:21-25; see also id. at
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`6:12-19. The Court therefore rejects Plaintiff’s proposed “examining” language.
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`16
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`Petitioner Microsoft Corporation - Ex. 1032, p. 16
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`Second, the specification does not specify sending requests in accordance with “which
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`page server can more efficiently process the request,” as Plaintiff proposes. As Defendants
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`properly note, the specification discloses an objective of improving efficiency of Web servers, not
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`page servers, stating: “Current Web server architecture also does not allow the Web server to
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`efficiently manage the Web page and process Web client requests”; and “The claimed invention
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`addresses this need by utilizing a partitioned architecture . . . .” Id. at 2:4-7 and 4:51-53. The
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`Court accordingly rejects Plaintiff’s proposal in this regard.
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`Third, regarding Plaintiff’s proposal of including “dynamic information maintained about
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`page servers,” Defendants properly note that “[t]he dispatcher can achieve [the] purpose [of
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`making the Web server more efficient by off-loading dynamic Web page requests] by selecting
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`any of the page servers and sending the request to that page server for processing.” Dkt. No. 191
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`at 19. Defendants’ argument has merit because “[t]he claimed invention” is rooted in the
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`“partitioned architecture.” ’554 Patent at 4:51-53. Nonetheless, the specification consistently
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`discloses that “Dispatcher 402 maintains a variety of information regarding each Page server on
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`the network, and dispatches requests based on this information,” and “dispatching” should be
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`construed in light of this consistent disclosure. Id. at 5:51-53; see Nystrom v. TREX Co., Inc.,
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`424 F.3d 1136, 1143-46 (Fed. Cir. 2005) (affirming construction of “board” that included only
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`“material made from wood cut from a log” in light of “context . . . maintained throughout the
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`written description”). At a minimum, a person of ordinary skill in the art would understand that
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`the dispatcher must have information about the page servers’ existence and identities in order to
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`“dispatch[] the request to one of a number of Page servers . . . .” ’554 Patent at 5:38-40. Further,
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`“[f]or example, Dispatcher 402 retains dynamic information regarding the data sources that any
`
`17
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`Petitioner Microsoft Corporation - Ex. 1032, p. 17
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`given Page server can access.” Id. at 5:54-56. But overall, the specification does not necessarily
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`limit such information to either static or dynamic informati