Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 1 of 34 PageID #: 3966
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`IN THE UNITED STATES DISTRICT COURT
`OF THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`No. 2:05CV163
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`No. 2:05CV356
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`§§
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`§§
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`§
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`§
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`EPICREALM, LICENSING, LLC
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`v
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`AUTOFLEX LEASING, INC., et al.
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`EPICREALM, LICENSING, LLC
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`v
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`FRANKLIN COVEY CO., et al.
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`REPORT AND RECOMMENDATION
`REGARDING CLAIM CONSTRUCTION
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`Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the
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`Adoption of Local Rules for Assignment of Duties to United States Magistrate Judges, the above-
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`entitled and numbered cause of action was referred to the undersigned for pretrial purposes. Claim
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`construction arguments in cause numbers 2:05-CV-163 and 2:05-CV-356 were combined, and
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`Defendants submitted joint briefing. The Court conducted a claim construction hearing on July 13,
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`2006. This Report and Recommendation construes certain terms in United States Patent Nos.
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`5,894,554 (“the ‘554 Patent) and 6,415,335 (the ‘335 Patent).
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`1
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`Petitioner Microsoft Corporation - Ex. 1035, p. 1
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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 2 of 34 PageID #: 3967
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`I. BACKGROUND
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`The ‘554 Patent issued on April 13, 1999. The ‘335 Patent issued on July 2, 2002 and is a
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`divisional application of the ‘554 Patent. The ‘554 Patent and the ‘335 Patent share a common
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`specification. The patents generally relate to managing Web sites. More particularly, the patents
`1
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`relate to managing dynamic Web page generation. Col. 2:15-23. The patents distinguish some Web
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`pages as having a static nature that remains static until manually modified and other Web pages as
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`being dynamic Web pages which contain content that is generated dynamically by retrieving the
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`necessary requested data and generating the requested Web page dynamically. Col. 1:38-55. The
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`patents describe prior art Web servers as handling both static and dynamic Web page requests. Col.
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`3:64 - Col. 4:37; Figures 2-3. The techniques described in the patents include routing a Web request
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`from the Web server to a Page server. The Page server may than process the request, and the Web
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`server is released to process other requests. Col. 2:20-35; Col. 4:54 - Col. 6:32. In this manner,
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`dynamic Web pages may be generated by the Page servers.
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`Some of the claim construction disagreements involve common themes. For example, in
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`general the Plaintiff construes various terms so that Web servers and Page servers do not have to be
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`separate machines while the Defendants seek constructions that would include a separate machine
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`concept. The Plaintiff also seeks constructions that do not include the concept of Uniform Resource
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`Locators (URLs) while the Defendants add the term URL to some of the constructions they seek.
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`Other conflicting claim construction positions are more specific to individual terms that are in
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`dispute.
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`1
` References to the specification will refer to the column and line numbers of the ‘554 Patent.
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`2
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`Petitioner Microsoft Corporation - Ex. 1035, p. 2
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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 3 of 34 PageID #: 3968
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`II. APPLICABLE LAW
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381
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`F.3d 1111, 1115 (Fed. Cir. 2004)). In claim construction, courts examine the patent’s intrinsic
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`evidence to define the patented invention’s scope. See id.; C.R. Bard, Inc. v. U.S. Surgical Corp.,
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`388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc.,
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`262 F.3d 1258, 1267 (Fed. Cir. 2001). This intrinsic evidence includes the claims themselves, the
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`specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d
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`at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of
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`ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips, 415
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`F.3d at 1312-13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).
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`The claims themselves provide substantial guidance in determining the meaning of particular
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`claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim can be very
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`instructive. Id. Other asserted or unasserted claims can also aid in determining the claim’s meaning
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`because claim terms are typically used consistently throughout the patent. Id. Differences among
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`the claim terms can also assist in understanding a term’s meaning. Id. For example, when a
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`dependent claim adds a limitation to an independent claim, it is presumed that the independent claim
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`does not include the limitation. Id. at 1314–15.
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`Claims “must be read in view of the specification, of which they are a part.” Id. (quoting
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`Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed. Cir. 1995)). “[T]he specification
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`‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single
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`3
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`Petitioner Microsoft Corporation - Ex. 1035, p. 3
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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 4 of 34 PageID #: 3969
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`best guide to the meaning of a disputed term.’” Id. (quoting Vitronics Corp. v. Conceptronic, Inc.,
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`90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325
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`(Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term a
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`different meaning than the term would otherwise possess, or disclaim or disavow the claim scope.
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`Phillips, 415 F.3d at 1316. In these situations, the inventor’s lexicography governs. Id. Also, the
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`specification may resolve ambiguous claim terms “where the ordinary and accustomed meaning of
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`the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained
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`from the words alone.” Teleflex, Inc., 299 F.3d at 1325. But, “although the specification may aid
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`the court in interpreting the meaning of disputed claim language, particular embodiments and
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`examples appearing in the specification will not generally be read into the claims.” Comark
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`Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998); see also Phillips, 415 F.3d
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`at 1323. The prosecution history is another tool to supply the proper context for claim construction
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`because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics, Inc.,
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`v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the specification, a patent
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`applicant may define a term in prosecuting a patent.”).
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`Although extrinsic evidence can be useful, it is “less significant than the intrinsic record in
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`determining ‘the legally operative meaning of claim language.’” Phillips, 415 F.3d at 1317 (quoting
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`C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand
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`the underlying technology and the manner in which one skilled in the art might use claim terms, but
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`technical dictionaries and treatises may provide definitions that are too broad or may not be
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`indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid
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`a court in understanding the underlying technology and determining the particular meaning of a term
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`4
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`Petitioner Microsoft Corporation - Ex. 1035, p. 4
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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 5 of 34 PageID #: 3970
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`in the pertinent field, but an expert’s conclusory, unsupported assertions as to a term’s definition is
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`entirely unhelpful to a court. Id. Generally, extrinsic evidence is “less reliable than the patent and
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`its prosecution history in determining how to read claim terms.” Id.
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`The patents in suit also contain means-plus-function limitations that require construction.
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`Where a claim limitation is expressed in “means plus function” language and does not recite definite
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`structure in support of its function, the limitation is subject to 35 U.S.C. § 112, ¶ 6. Braun Med., Inc.
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`v. Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997). In relevant part, 35 U.S.C. § 112, ¶ 6
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`mandates that “such a claim limitation ‘be construed to cover the corresponding structure . . .
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`described in the specification and equivalents thereof.’” Id. (citing 35 U.S.C. § 112, ¶ 6).
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`Accordingly, when faced with means-plus-function limitations, courts “must turn to the written
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`description of the patent to find the structure that corresponds to the means recited in the
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`[limitations].” Id.
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`Construing a means-plus-function limitation involves multiple inquiries. “The first step in
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`construing [a means-plus-function] limitation is a determination of the function of the means-plus-
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`function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311
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`(Fed. Cir. 2001). Once a court has determined the limitation’s function, “the next step is to
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`determine the corresponding structure disclosed in the specification and equivalents thereof.” Id.
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`A “structure disclosed in the specification is ‘corresponding’ structure only if the specification or
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`prosecution history clearly links or associates that structure to the function recited in the claim.” Id.
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`Moreover, the focus of the “corresponding structure” inquiry is not merely whether a structure is
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`capable of performing the recited function, but rather whether the corresponding structure is “clearly
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`linked or associated with the [recited] function.” Id.
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`5
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`Petitioner Microsoft Corporation - Ex. 1035, p. 5
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`III. DISCUSSION
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`A.
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`1.
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`Disputed Claim Terms
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`“Web Page”
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`“Web page” is utilized in asserted claims 1, 3, 6, 7, 9, and 11 of the ‘554 Patent and 1, 4, 7,
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`and 8 of the ‘335 Patent. The Plaintiff asserts that “Web page” does not need construction.
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`Alternatively, if construed, the Plaintiff asserts that the proper construction of the term is “content
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`displayable through a Web browser.” The Defendants assert that the terms should be construed as
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`“an HTML document accessible through a URL.”
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`The Court first notes that the Plaintiff’s original briefing expressed concern that the
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`Defendants construction implies that dynamically generated Web pages are not included within the
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`term “Web page.” The Court finds this concern somewhat unfounded, and it is noted that the
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`Defendants clearly referred to “Web page” in their briefing and oral argument as encompassing both
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`static and dynamic Web pages.
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`The other assertions by the parties primarily revolve around two issues, the inclusion of terms
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`“HTML” and “URL” in the construction. The Plaintiff argues that the term “content” is utilized in
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`the specification at least twice to describe what is displayed on a Web page. Col. 1:47-51; Col. 7:23-
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`26. Further, the Plaintiff points out that in the Defendants’ own briefing Web pages are referred to
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`as containing content. Defendants’ Brief at 11-12. The Plaintiff further asserts that the Defendants
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`are also attempting to read in limitations from the specification and that such a construction would
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`exclude documents formatted in other formats such as SGML, XHTML, XML, and JPG.
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`The Defendants state that HTML is a software language and argue that as described within
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`the specification HTML documents are what are sent back as Web pages. Col. 1:18-22; Figures 3
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`6
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`Petitioner Microsoft Corporation - Ex. 1035, p. 6
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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 7 of 34 PageID #: 3972
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`and 5. The Defendants also cite a Microsoft Press Computer Dictionary definition which states that
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`“A Web page consists of an HTML file…” Defendants’ Brief at 9. The Defendants further assert
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`that “content” in the specification refers to information included in a Web page and that such content
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`itself does not form a Web page.
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`The Court notes that the specification does appear to consistently refer to the HTML
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`language and does not mention other software languages. However, the Defendant does not identify
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`persuasive support within the specification that the invention must be limited to only one type of
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`software language. Moreover, Defendants have not persuaded the Court that in light of the
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`specification one skilled in the art would assume a Web page as referred to in the patents could only
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`be generated with the HTML language. Further, upon review of the whole specification and claims,
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`with respect to Web pages the described concepts are not related to the intricacies of what particular
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`programming languages are used to display a Web page but rather merely the higher level
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`differentiation of static pre-existing Web pages verse dynamically generated Web pages. In these
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`circumstances, the Court finds it improper to incorporate the limitation of HTML within the more
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`general term Web page that is utilized in the claims themselves.
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`With regard to the URL concept, the Plaintiff asserts that the Defendants’ definition adds
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`additional complexity to the claim construction as the meaning and scope of “accessible through a
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`URL” could itself require construction. Further, citing the extrinsic evidence that the Defendants
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`themselves put before the Court, the Plaintiff argues that it is known that when a Web browser sends
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`a request what is actually sent does not match what is commonly known as a full URL. In oral
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`argument the Plaintiff asserted that the Defendants’ extrinsic evidence shows a URL as “http_URL
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` =”http:” “//” host [ “:” port ] [ abs_path] thus requiring four components: a protocol (HTTP), a host,
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`7
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`Petitioner Microsoft Corporation - Ex. 1035, p. 7
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`a port and an absolute path. Further the Plaintiffs argue that this same extrinsic evidence shows that
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`a request most commonly is structured for example “GET / pub / WWW / TheProject.html HTTP
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`/ 1.0” The Plaintiff asserts that this also emphasizes the concern over the ambiguity of the meaning
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`of “accessible through a URL.”
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`The Defendants turn to the specification, which includes the statement “[a] URL is a Web
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`address that identifies the Web page and its location on the Web.” Col. 1:30-33. The Defendants
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`also note the language that states “[w]hen the appropriate Web site receives the URL, the Web page
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`corresponding to the requested URL is located….” Col. 1:33-34. Further, the Defendants point to
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`other examples in the specification, such as Figure 3, which refer to the Web browser sending the
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`URL request. At oral argument, the Defendants also stated that what is sent by a Web browser does
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`include the URL information.
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`The arguments of the parties highlight some of the concerns the Court has with the inclusion
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`of the term URL. A definition of the meaning of URL within the usage of the patent would further
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`be necessitated as URL is alternatively referred to as “what is examined by the Web browser,” a
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`URL request is received by the Web server, and a URL request can be sent to a page server. Col.
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`4:13-14; Col. 8:28-32; Col. 8:38-39. The specification does not make clear what is the particular
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`structure and content that is meant by the use of the term “URL” at each of these stages of the
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`process. Again, as with the HTML term, this is not surprising as the specification and claims as a
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`whole do not focus on the particular type of request that is made or the particular structure/content
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`of a request as it processed through the system beyond the static and dynamic distinction discussed
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`above. Further, to add the term “accessible” to the construction would necessitate further claim
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`construction as to what “accessible” means. As described within the specification, a Web page is
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`8
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`Petitioner Microsoft Corporation - Ex. 1035, p. 8
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`a mechanism through which static and dynamic content may be displayed. The particular
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`addressing mechanism at each step of the processing of a dynamic Web page is not noted in the
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`specification to be a requirement or of particular importance to the claimed invention. An inclusion
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`of the term URL would improperly incorporate limitations from the specification for the term Web
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`page which has a meaning that is adequately described within the full context of the specification.2
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`Thus, the Court construes “Web page” to mean “Web content displayable through a Web
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`browser.”
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`2.
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`“Request”
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`“Request” is utilized in asserted claims 1, 9, 11 of the ‘554 Patent and 1, 15, and 29 of the
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`‘335 Patent. The Plaintiff asserts that the proper construction of “request” is “a message that asks
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`for content.” The Defendants assert that the term should be construed as “a message containing a
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`URL that asks for a Web page specified by the URL.”
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`The Court first notes that the term “request” generally appears in the claims in different
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`circumstances. In some claims (for example claim 1 of the ‘554 Patent), request is first utilized with
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`relation to “a dynamic Web page generation request” and multiple references are then made to “said
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`request.” Such claims also use the term “other requests” which imply a request different from “said
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`request.” Other claims (for example claim 15 of the ‘335 Patent) begin with the general use of “a
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`request” but later refer to “dynamically generating a page in response to said request.” These
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`claims also refer to “other requests.” As noted in the specification, a request can refer to static Web
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`2 t
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` Additional discussion regarding the inclusion of URL limitations is also provided below with regard to the
`erm “request.”
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`9
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`Petitioner Microsoft Corporation - Ex. 1035, p. 9
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`pages (such as a static document) or dynamic Web pages (such as a Web page dynamically generated
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`by an application). Col. 1:38-56, Col. 4:16-32 Thus, in its general use, request is not limited to
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`dynamic or static requests. It is also noted that both types of claims consistently refer to either “Web
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`page” generation or “page” generation. The specification uniformly refers to pages in the context
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`of Web pages. Thus, it is not unreasonable that in light of the consistent specification one would
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`interpret “requests” as relating to requests for Web pages.
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`The primary point of distinction between the proposed constructions relates to inclusion of
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`“URL” in the construction of request. The specification notes that “a Web browser allows a Web
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`client to request a particular Web page from a Web site by specifying a Uniform Resource Locator
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`(URL). A URL is a Web address that identifies the Web page and its location on the Web.” Col.
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`1:29-32
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`The Defendants cites numerous places in the specification text in which “URL request” is
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`utilized to refer to what is requested. The Plaintiff asserts that a request may be made at multiple
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`points, such as shown in Figure 4 between the Web client and Web server, between the Web server
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`and the Dispatcher and between the Dispatcher and the Page servers. The Plaintiff further argues
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`that once a message is received by a Web server a full URL is not utilized subsequently, such as by
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`Page servers.
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`The Defendants counter by noting numerous specification citations to the term “URL
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`request” including “route the URL request to a Page server” and “the dispatcher sends the URL
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`request to an appropriate Page server.” Col. 6:9-10, Col. 8:38-39, See Defendants’ Brief at 13-14.
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`The Plaintiff responds that there is no teaching in the specification that a page server utilizes a URL.
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`10
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`Petitioner Microsoft Corporation - Ex. 1035, p. 10
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`Moreover, the Plaintiffs assert that it would be illogical for a request provided to the page server to
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`utilize a URL as such address would refer to the Web server.
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`The Court notes that within the claims “request” is used in context of multiple steps of the
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`page generation process. For example, within claim 1 a request may be provided to a Web server
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`while “said request” is also received by a Page server. The specification provides varied and not
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`always consistent uses of the terms “request” and “URL request.” As noted above, URL request is
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`often utilized. However, the more general term “request” is also often utilized. Col. 2:1-12; Col.
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`2:18-35; Col. 4:33-53; Col. 5:8-59; Col. 6:20-32; Col. 7:5-6. In at least two of these instances,
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`language stating “requests or ‘hits’” is utilized. Col. 4:38-39; Col. 7:5-6. Further, the Defendants
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`have not shown within the specification that a Page server utilizes a URL. Thus, even when “URL
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`request” is provided in the specification it is not clear that such request is required to contain a URL
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`or is merely a request generated from an initial URL provided at a Web client. To require “request”
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`to include a URL would thus include limitations that the specification does not clearly support and
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`clearly require.
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`The remaining dispute between the parties relates to the use of “content” verse “Web page.”
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`This dispute relates to the underlying meaning of the term Web page as discussed above and thus
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`does not need to be re-addressed. As the Court has noted, the context of the patent is uniformly
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`directed towards Web page requests. Under the guidance provided in Phillips, it is appropriate when
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`viewing the specification and the language of the claims themselves to limit “request” to Web page
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`applications. Thus, the Court construes “request” to mean “a message that asks for a Web
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`page” (with the term Web page having the construction provided herein)
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`11
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`Petitioner Microsoft Corporation - Ex. 1035, p. 11
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`3.
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`“Page Server”
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`“Page server” is utilized in asserted claims 1, 4, 7, and 9-11 of the ‘554 Patent and 1, 2, 5,
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`8, 15-16, 19, 22 and 29 of the ‘335 Patent. The Plaintiff asserts that the proper construction of “page
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`server” is “a processing system operable to receive a request and dynamically generate content in
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`response to the request.” The Defendants assert that the term should be construed as “page-
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`generating software that generates a dynamic Web page on a machine separate from the Web server
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`machine.” In the claim construction Oral Argument, the Plaintiff agreed to the use of “page-
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`generating software” in place of the term “a processing system” as previous proposed by the
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`Plaintiff. The differences between the parties with regard to the use of “content” verse “Web page”
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`are rooted in the basic dispute over the meaning of Web page as discussed above. Both parties
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`include the concept of dynamic generation in their proposed constructions.
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`In the post oral hearing briefing, the parties each acknowledged that the primary dispute
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`regarding the construction of “page server” is whether the Page server has to be on a machine
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`separate from the Web server. As discussed below, the Court agrees with the Plaintiff with regard
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`to this point of dispute.
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`Each party points to the specification to support their asserted position. The Plaintiff asserts
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`that the specification includes statements that indicate that the Page server could operate on the same
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`machine as the Web server. In particular, the Plaintiffs have pointed to passages which state:
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`FIG. 1 illustrates a typical computer system 100 in which the present invention
`operates. Col. 2:66-67.
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`The preferred embodiment of the present invention is implemented as a software
`module, which may be executed on a computer system such as computer system 100
`in a conventional manner. Col. 3:55-58.
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`12
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`Petitioner Microsoft Corporation - Ex. 1035, p. 12
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`Figure 1 illustrates a computer system having a processor, bus, memory and mass storage. Further,
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`it is stated that “the preferred embodiment of the present invention” may be implemented on a
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`personal computer or alternatively a workstation. Col. 2:67-Col. 3:5. The Plaintiff asserts that this
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`language is consistent with the specification as a whole by asserting that the specification describes
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`a partitioned software architecture in which in some embodiments the software modules may all
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`reside on the same machine and in other embodiments the software modules may reside on different
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`computers.
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`The Plaintiff also points to a passage that describes an embodiment that does not have the
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`advantage of “off-loading the processing of Web requests from the Web server machine” to a
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`separate machine. Col. 5:26-36. However, the Court notes that this passage makes specific
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`reference to the division between a Web server and a Dispatcher, and it is not clear in this passage
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`alone that the Page server is also included in this use of a single machine.
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`The Defendants argue that the specification describes a distinction over the prior art that
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`amounts to an explicit characterization of the invention that disclaims the prior art. See SciMed Life
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`Sys. V. Advanced Cardiovascular Sys., 242 F.2d 1337, 1343 (Fed. Cir. 2001). In particular, the
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`Defendants point to a passage of the specification that describes the multi-threading techniques of
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`prior art Web servers. Col. 4:32-53. This passage concludes with “[t]he claimed invention addresses
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`this need by utilizing a partitioned architecture to facilitate the creation and management of custom
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`Web sites and servers.” The Defendants assert that this clearly demonstrates that the purpose of the
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`invention was to partition the various modules on separate machines. As to the passages cited by
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`the Plaintiff, the Defendants assert those passages do not describe the entirety of the claimed
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`invention. The Plaintiff asserts that the passage cited by the Defendants is directed toward the Web
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`13
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`Petitioner Microsoft Corporation - Ex. 1035, p. 13
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`site management “need” recited in the passage, and this need is addressed by a partitioned
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`architecture.
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`The parties have thus each pointed to somewhat conflicting passages of the specification to
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`support their positions. The passages cited by the Plaintiff establish that there is not a clear
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`disavowal within the specification of the use of a partitioned software architecture on a single
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`machine. The Defendants do correctly point to cases which stand for the proposition that when the
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`specification makes clear that the invention does not include a particular feature than that feature is
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`deemed to be outside of the reach of the claims of the patent. Defendants’ Joint Sur-Reply, p. 8.
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`However, in the specification before this Court, the specification does not make clear that the
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`invention must only be operated on separate machines.
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` The Court construes “page server” to be “page-generating software that generates a
`dynamic Web page.”
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`4.
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`“Web Server”
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`“Web Server” is utilized in asserted claims 1 and 11 of the ‘554 Patent and 1-2 of the ‘335
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`Patent. The Plaintiff asserts that the proper construction of “Web server” is “a processing system
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`capable of processing an HTTP request and producing a response to such a request.” The
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`Defendants assert that the terms should be construed as “a machine running a Web server executable
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`capable of storing, locating, and returning Web pages in response to Web client requests.” In the
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`claim construction Oral Argument, the Plaintiff stated that it would agree to language including
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`“software” in place of the Plaintiff’s originally proposed “system” language similar to the Plaintiff’s
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`agreement with regard to “page server.”
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`14
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`Petitioner Microsoft Corporation - Ex. 1035, p. 14
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`

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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 15 of 34 PageID #: 3980
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`The focus point of the dispute between the parties is whether the term “Web server” requires
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`a machine or whether the term may merely represent software or a combination of the two. Both the
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`Plaintiff and Defendants cite conflicting extrinsic evidence to support their positions in the form of
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`dictionaries, industry guides, and protocols. Some of the Plaintiff’s extrinsic evidence includes
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`citations to extrinsic evidence first brought before the Court by the Defendants. The conflicting
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`extrinsic evidence presented by the parties fits the rationale presented in Phillips regarding the
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`cautions that should be considered relating to such evidence.
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`Looking to the specification, the Plaintiff points to passages in which “Web server” is not
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`used to describe a machine. In particular, the Plaintiff points to the statement in the specification
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`that:
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`The preferred embodiment of the present invention is implemented as a software
`module, which may be executed on a computer system such as computer system 100
`in a conventional manner. Col. 3:55-58.
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`The Plaintiff also highlights the following passage:
`
` from Netscape,
`This embodiment is appropriate for Web servers such as Netsite
`TM
`that support such extensions. A number of public domain Web servers, such as
`NCSA from the National Center for Supercomputing Applications at the
`TM
`University of Illinois, Urbana-Champaign, however, do not provide support for this
`type of extension. Thus, in an alternate embodiment, Interceptor 400 is an
`independent module, connected via an ‘intermediate program’ to Web server 201.
`This intermediate program can be a simple CGI application program that connects
`Interceptor 400 to Web server 201. Alternate intermediate programs the perform the
`same functionality can also be implemented. Col. 4:63-Col. 5:7.
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`The Defendants counter that the specification uses the terms “Web server,” “Web server
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`executable” and “Web server machine” and that the proper interpretation is that the machine is
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`referred to as a Web server machine, the software is referred to as the “Web server executable” and
`
`15
`
`Petitioner Microsoft Corporation - Ex. 1035, p. 15
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`

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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 16 of 34 PageID #: 3981
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`the combination is referred to as a “Web server.” To support this argument, the Defendants cite to
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`various passages and figures in the specification. Figures 2-4; Col. 4:39-41; Col. 4:59-62; Col. 5:7-
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`36.
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`While the Defendants may be correct that “Web server” may be utilized at times as indicating
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`a combination of a machine and software, the specification clearly does not require the term “Web
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`server” to include a machine. The passages of the specification noted above by the Plaintiff make
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`clear that the Web server is contemplated to be at least in one embodiment, software. It is also noted
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`that in general in other passages of the specification the term “Web server machine” is more often
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`used when describing the machine component and “Web server” to describe merely the software
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`component. Thus, for example, it is noted that the “Web servers process each of these requests on
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`a single machine, namely the Web server machine,” “Interceptor 400 resides on the Web server
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`machine as an extension to Web server 201,” and the Dispatcher “can, however, also reside on the
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`same machine as the Web server.” Col. 4:39-42; Col. 4:61-62; Col. 5:20-21. Passages such as these
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`imply a utilization of the term “Web server” as the software module as opposed to the combination
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`of both the machine and software. Thus, some usage of “Web server” implies just software and at
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`other times implies a combination of software and hardware.
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` The Court construes “Web server” to be “software, or a machine having software, that
`receives Web page requests and returns Web pages in response to the requests.
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`5.
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`“HTTP-complaint device”
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`“HTTP-complaint device” is utilized in asserted claims 15-16 and 19 of the ‘335 Patent. The
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`Plaintiff asserts that “HTTP-complaint device” does not need construction. Alternatively, if
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`16
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`Petitioner Microsoft Corporation - Ex. 1035, p. 16
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`

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`Case 5:07-cv-00125-DF-CMC Document 194 Filed 08/15/06 Page 17 of 34 PageID #: 3982
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`construed, the Plaintiff asserts that the proper construction is “a device that understands HTTP and
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`whose b