Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 1 of 17 Page ID #:856
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`STROOCK & STROOCK & LAVAN LLP
`JOSEPH DIAMANTE(Admitted Pro Hac Vice, NY State Bar Reg. No. 1672120)
`KENNETH L. STEIN (Admitted Pro Hac Vice, NY State Bar Reg. No. 2595569)
`IAN G. DIBERNARDO (Admitted Pro Hac Vice, NY State Bar Reg. No. 2780989)
`180 Maiden Lane
`New York, NY 10038
`Telephone: 212.806.5491
`Facsimile: 212.806.6006
`Email: jdiamante@stroock.com
`Email: kstein@stroock.com
`Email: idibernardo@stroock.com
`STROOCK & STROOCK & LAVAN LLP
`JAMES E. FITZGERALD (State Bar No. 108785)
`CRYSTAL Y. JONELIS (State Bar No. 265335)
`JOHN R. LOFTUS (State Bar No. 126841)
`2029 Century Park East
`Los Angeles, CA 90067-3086
`Telephone: 310-556-5800
`Facsimile: 310-556-5959
`lacalendar@stroock.com
`Email:
`
`Attorneys for Plaintiff and Counter-Defendant
`FARSTONE TECHNOLOGY, INC.
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. SA CV13-01537-ODW-JEM
`FARSTONE TECHNOLOGY’S
`REPLY BRIEF REGARDING
`CLAIM CONSTRUCTION
`Judge: Hon. Otis D. Wright, II
`Discovery Cutoff: April 6, 2015
`Pretrial Conf.:
`June 15, 2015
`Trial:
`
`July 7, 2015
`
`
`FARSTONE TECHNOLOGY, INC.
`Plaintiff.
`
`v.
`APPLE INC.
`Defendant.
`
`APPLE INC.
`Counterclaim-Claimant.
`
`v.
`FARSTONE TECHNOLOGY, INC.
`Counter-Defendant.
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`FARSTONE TECHNOLOGY’S REPLY BRIEF REGARDING CLAIM CONSTRUCTION
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`Apple Inc. Exhibit 1008 Page 1
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`Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 2 of 17 Page ID #:857
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`TABLE OF CONTENTS
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`STROOCK & STROOCK & LAVAN LLP
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`I.
`II.
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`C.
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`D.
`E.
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`F.
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`G.
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`H.
`I.
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`
`INTRODUCTION .............................................................................................. 1
`FARSTONE’S EXPERT IS WELL-QUALIFIED TO SERVE AS AN
`EXPERT IN THIS CASE ................................................................................... 2
`III. DISPUTED CLAIM TERMS ............................................................................. 3
`A.
`“recovery unit” ......................................................................................... 3
`B.
`“selecting means, said selecting means selecting a status
`corresponding to said processing system at the time of creation of
`each of said at least one recovery unit” .................................................... 5
`“selecting a status corresponding to said processing system at the
`time of creation of each of said at least one recovery unit” ..................... 6
`“said displaying system displaying said selected status” ......................... 8
`“said at least one recovery unit respectively reflects a
`corresponding status …” .......................................................................... 9
`“a status of said computer equipment at the time creating said
`corresponded recovery unit” .................................................................. 10
`“a processing system …, said processing system creating at least
`one recovery unit” .................................................................................. 10
`“loading said selected recovery unit into said processing system” ....... 11
`“displaying a status corresponding to said processing system
`which corresponds to said selected recovery unit” ................................ 12
`IV. CONCLUSION ................................................................................................ 12
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`FARSTONE TECHNOLOGY’S REPLY BRIEF REGARDING CLAIM CONSTRUCTION
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`Apple Inc. Exhibit 1008 Page 2
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`Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 3 of 17 Page ID #:858
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`Blackboard v. Desire2Learn, Inc.,
`574 F.3d 1371 (Fed. Cir. 2009) ............................................................................... 6
`
`Halliburton Energy Services, Inc. v. M-I LLC,
`514 F.3d 1244 (Fed. Cir. 2008) ............................................................................... 4
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S. Ct. 2120 (2014) ......................................................................................... 4, 7
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`Williamson v. Citrix Online, LLC,
`No. 2013-1130, 2014 WL 5649886 (Fed. Cir. Nov. 5 2014) ................................ 11
`
`Statutes
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`35 U.S.C. § 112 ¶ 6 ............................................................................................... 4, 5, 6
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`Apple Inc. Exhibit 1008 Page 3
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`Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 4 of 17 Page ID #:859
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`Farstone Technology, Inc. (“Farstone”) submits this reply brief in support of
`its claim constructions, as well as the Supplemental Declaration of Kenneth L. Stein
`(“Supp. Stein Decl.”) and the Declaration of Thomas Lin (“Lin Decl.”).
`I.
`INTRODUCTION
`Apple takes an unusual position here regarding claim construction—namely,
`that it finds the patent at issue (the ‘835 patent) “incomprehensible” and, as a result,
`asserts that all but one of the disputed claim terms is “indefinite.”1 However, while
`Apple, and its expert, Dr. Cummings, may have had difficulty understanding the
`‘835 patent, the United States Patent & Trademark Office (“PTO”) did not. The ‘835
`patent was examined by two Primary Examiners, both of whom understood the ‘835
`patent and its claims. Indeed, the examiners initially rejected the claims at issue in
`this case over prior art (see Exs. 1 and 22) and the PTO found them patentable only
`after they were amended to distinguish the prior art—occurrences that would have
`been impossible if the examiners did not understand the patent or the scope of the
`claims. Notably, the examiners were members of art units at the PTO that handle
`patent applications on backup/recovery systems. Supp. Stein Decl., ¶ 6. In addition,
`the individuals responsible for creating the invention both have substantial
`knowledge in computer software and, specifically, in backup/recovery systems. Lin
`Decl. at ¶¶ 4-10. The lead inventor of the ‘835 patent, Simon Qin, was Farstone’s
`Vice President of Research & Development at the time the ‘835 patent was filed and
`well-versed in backup/recovery software, Farstone’s primary product. Mr. Qin has
`obtained four U.S. patents on backup/recovery systems based on his work at
`Farstone, as well Taiwanese patents. Id. at ¶ 9. He is currently the owner and
`general manager of a technology company employing 50 people. Id. at ¶ 8. Apple
`has not come close to establishing indefiniteness by clear and convincing evidence.
`See Farstone Technology’s Opening Claim Construction Brief (Dkt. 43) (“Farstone
`
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`1 Apple Inc.’s Responsive Claim Construction Brief (D.I. 47) (“Apple Br.”) at 1.
`2 Ex. __ refers to Exhibits to Supp. Stein Decl. unless otherwise indicated.
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`Apple Inc. Exhibit 1008 Page 4
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`Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 5 of 17 Page ID #:860
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`Br.”) at 6-7 (citing cases). When the disputed terms are properly read in the context
`of the claims, as well as the specification and file history, their meanings are clear.
`II. FARSTONE’S EXPERT IS WELL-QUALIFIED TO SERVE AS AN
`EXPERT IN THIS CASE
`Apple asserts that the testimony of Farstone’s expert, Dr. Martin E. Kaliski,
`should be given no weight, because, according to Apple, he “lacks the requisite
`experience in backup/recovery.” Apple Br. at 5. To the contrary, Dr. Kaliski is well-
`qualified to serve as an expert in this case. In fact, Dr. Kaliski recently served as an
`expert for Symantec Corporation, a leading provider of backup/recovery software, in
`two patent cases involving backup/recovery software. Ex. 3, Kaliski Dep. Tr. at
`15:1-6. He also has served as an expert in numerous cases involving related
`technologies, such as network management systems and synchronization technology.
`Id. at 14:2-23, 15:6-9. In addition, Dr. Kaliski is a Professor Emeritus at California
`Polytechnic State University in San Luis Obispo (“Cal Poly”), having taught there
`for 36 years in the fields of Electrical Engineering, Computer Engineering and
`Computer Science. Kaliski Decl. at ¶ 3. 3 At Cal Poly, Dr. Kaliski was Department
`Chair of the Electrical Engineering Department for nine years and has been active in
`its Computer Engineering program since its inception in the early 1990’s. Id. at ¶ 4.
`He also has been involved in both contract research and private consulting for over
`40 years, including in areas such as software design reconstruction, algorithm
`development and implementation and software engineering. Id. at ¶ 5.
`Apple does not dispute that Dr. Kaliski is a person of ordinary skill in the art
`under Farstone’s proposal—namely, a person at the time the patent was filed having
`“a bachelor’s degree in computer science, computer engineering, electrical
`engineering or the equivalent, and 3-5 years of experience in the field of computer
`operating systems and data recovery, or a post-graduate degree in computer science,
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`3 Declaration of Martin E. Kaliski, Ph.D, In Support of Farstone Technology’s Opening Claim
`Construction Brief (D.I. 43) (“Kaliski Decl.”).
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`Apple Inc. Exhibit 1008 Page 5
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`Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 6 of 17 Page ID #:861
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`computer engineering, electrical engineering or the equivalent, and 1-2 years of
`experience in the field of computer operating systems and data recovery, or
`equivalent experience.” Id. at ¶ 17. As Dr. Kaliski explained, the ‘835 patent is
`“eminently understandable” by a person that meets the foregoing criteria. Ex. 3,
`Kaliski Dep. Tr. at 19:21-23.
`Notably, whereas Dr. Kaliski had no trouble understanding the ‘835 patent,
`Apple’s expert, Dr. Cummings, could not even describe the subject matter of the
`patent beyond stating that it “seems to be directed to backup and recovery.” Ex. 4,
`Cummings Dep. Tr. at 29:18-30:5. Farstone submits the Dr. Kaliski’s testimony will
`assist the Court in arriving at the proper claim constructions. Apple’s suggestion that
`it should be “given no weight” is baseless and grossly unfair to Farstone.
`III. DISPUTED CLAIM TERMS
`A.
`“recovery unit”
`Apple argues that the term “recovery unit” is indefinite because the claim
`language “says nothing about the structure of the ‘unit’” and the specification “fails
`to provide any explanation of what constitutes a ‘recovery unit.’” Apple Br. at 6.
`Apple is wrong. The specification and file history clearly explain that a recovery
`unit contains file backup data and configuration information reflecting the state of a
`computer hardware resource at the time the recovery unit is created. See Farstone
`Br. at 11-12. As described in the specification, the recovery units are stored in a
`storage device, such as a hard disk drive, CD-RW, or a tape, and each is displayed to
`the user in the form of a file folder that can be selected by the user. See, e.g., Stein
`Decl. 4 Ex. 1, ‘835 patent at 7:41-46, 5:54-57; Kaliski Decl. at ¶ 16; Ex. 3, Kaliski
`Dep. Tr. at 25:6-25. Notably, Apple acknowledges that “files and folders” is a
`structure that could hold data. Apple’s Br. at 7 (emphasis added); see also Stein
`Decl. Ex. 1, ‘835 patent at 6:29-30; 5:54-57. Apple never explains why the structure
`
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`4 Declaration of Kenneth L. Stein, In Support of Farstone Technology’s Opening Claim
`Construction Brief (D.I. 43) (“Stein Decl.”).
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`Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 7 of 17 Page ID #:862
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`identified by Farstone is insufficient. See Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S. Ct. 2120, 2129 (2014) (“The definiteness requirement, so understood,
`mandates clarity, while recognizing that absolute precision is unattainable.”).
`Apple also asserts that “recovery unit” is indefinite because the specification
`describes recovery unit only in terms of its function. Apple Br. at 6-7. As described
`above, Apple is wrong—the specification (and file history) explain that a recovery
`unit contains file backup data and configuration information, which is structure, not
`function. In addition, to the extent that the specification also describes the function
`of the recovery unit, that does not make the term indefinite.5
`Apple also apparently asserts that the term “recovery unit” is indefinite,
`because “the terms ‘recovery unit’ and ‘recovery point’ are sometimes used
`interchangeably [in the ‘835 patent] and sometimes appear to mean different things.”
`Apple Br. at 8. That is incorrect. While those terms are used synonymously in the
`‘835 patent, it is not unusual in computer science, as in ordinary language, to use
`synonyms. See Ex. 3, Kaliski Dep. Tr. at 23:10-12; 24:3-8. Apple points to a single
`sentence in which the terms supposedly mean different things (id. citing ‘835 patent
`at 6:26-29), but even Apple’s expert could not explain how the meaning of those
`terms differ in that sentence. Ex. 4, Cummings Dep. Tr. at 69:10-70:25.
`Apple also criticizes Farstone’s proposed construction on the basis that it
`“makes no sense” when substituted for the term “recovery unit” within claim 1.
`Apple Br. at 8. In so doing, Apple ignores the fact that the term “recovery unit” must
`be read to together with other claim language that specifies what a “recovery unit”
`is—namely, that a recovery unit “reflects a corresponding status of said at least one
`hardware resource at the time of creation of each of said at least one recovery unit.”
`See Stein Decl. Ex. 1, ‘835 patent (claim 1) at 8:66-67, 9:9-12; Farstone Br. at 11. It
`
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`5 Apple cites Halliburton Energy Serv., Inc. v. M-I LLC, 514 F.3d 1244, 1256, n. 7 (Fed. Cir. 2008)
`for the proposition that “35 U.S.C. § 112 ¶ 6 was meant to preclude the overbreadth inherent in
`open-ended functional claims.” Apple Br. at 7 (internal brackets omitted). But the “recovery
`unit” term is not subject to § 112 ¶ 6, and, again, it is not otherwise a functional limitation.
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`Case 8:13-cv-01537-ODW-JEM Document 48 Filed 11/24/14 Page 8 of 17 Page ID #:863
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`is improper to construe “recovery unit” out of context, as Apple apparently proposes.
`Apple further argues that “backing up configuration information not stored in
`files” is “not contemplated by Farstone’s proposed construction.” Apple Br. at 8,
`n.5. Apple is wrong. The patent and file history explain that the “status” of a
`hardware resource (as recited in the claims) includes file backup data and
`configuration information not stored in files. See Farstone Br. at 11-12. In
`particular, the file history distinguishes the backup of data that is stored in “files”
`from configuration information, which is stored elsewhere “in the processing
`system” (i.e., not in files). Stein Decl. Ex. 3, at 6-7. Notably, the asserted claims of
`‘835 patent were issued by the PTO after Farstone explained that the status includes
`configuration information, as well as file backup data. Id.
`B.
`“selecting means, said selecting means selecting a status
`corresponding to said processing system at the time of creation of
`each of said at least one recovery unit”
`As an initial matter, Apple does not respond to Farstone’s argument that 35
`U.S.C. § 112 ¶ 6 does not apply to this term (Farstone Br. at 14), other than to say
`that Farstone has not overcome the presumption that it does. Notably, Apple’s expert
`acknowledged that selecting means comprising a user-interface and input devices are
`known in the art. Ex. 4, Cummings Dep. Tr. at 90:15-23; 48:1-16.
`The crux of Apple’s argument is that the structure in the specification that is
`used for selecting items in a typical software system—namely, a user-interface and
`input devices, such as a mouse or keyboard—are not linked to the “selecting means”
`limitation. That argument is based on an unnatural reading of the specification. As
`explained in Farstone’s Opening Brief at 15, the selecting means is part of the
`displaying system, which includes a user-interface and input devices. The
`specification explains that recovery points representing different statuses are
`displayed as file folders, plainly referring to information displayed by the user-
`interface, and that a recovery point is selected by the user, plainly referring to input
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`via a keyboard, mouse, or the like. See Farstone Br. at 15. Apple simply refuses to
`acknowledge the obvious—namely, that the user-interface and input devices
`described in the specification are utilized in performing the selecting function.
`Apple also argues that Farstone’s proposed construction “falls apart because it
`assumes the user interface is separate and distinct from a keyboard and mouse.”
`Apple Br. at 11. However, Apple’s expert acknowledges that a user interface, as
`known in the art, is not limited to input devices, which is what Apple suggests. See
`Ex. 4, Cummings Dep. Tr. at 45:24-46:5; 48:10-16. Moreover, even if the user
`interface was limited to only input devices, as Apple suggests, that would not make
`the “selecting means” limitation indefinite—it would limit the corresponding
`structure under § 112 ¶ 6 to the input devices. Apple’s citation to Blackboard v.
`Desire2Learn, Inc., 574 F.3d 1371, 1385 (Fed. Cir. 2009) is misplaced. Apple Br. at
`11. In that case, the patent owner attempted to fill in structure missing from the
`specification by referencing the knowledge of those skilled in the art. In contrast, the
`question here is how one of ordinary skill in the art would understand the structure
`specifically described in the specification.
`C.
`“selecting a status corresponding to said processing system at the
`time of creation of each of said at least one recovery unit”
`Apple offers no construction for this phrase, but asserts that Farstone’s
`proposed construction “delet[es] key claim language.” Apple Br. at 11-13. Again,
`Farstone believes that no construction of this term is necessary, but offered one as an
`alternative in the event the Court finds it to be helpful to the jury. See Farstone Br. at
`15. Notably, Apple never explains why it believes that “selecting a status
`corresponding to said processing system …” (as recited in the claim) is different
`from “selecting a recovery unit” (Farstone’s proposed construction) or how
`Farstone’s construction “broadens the claim,” as Apple asserts See Apple Br. at 13.
`The specification, however, explains that “the user selects a recovery point [i.e.,
`recovery unit] and thereby selects the status corresponding to the processing system”
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`(Stein Decl. Ex. 1, ‘835 patent at 5:48-49)—thus, clearly drawing a parallel between
`selecting a status and selecting a recovery unit. In fact, Apple’s expert acknowledges
`that selecting a recovery point results in the selection of a status. Ex. 4 at 86:7-10.
`Apple also argues that the term “status” within this phrase is indefinite because
`it “could be any of a vast number of things.” Apple Br. at 12. Farstone addressed
`this argument in its Opening Brief on pages 12-13. Notably, in arriving at his
`opinions, Apple’s expert failed to mention relevant portions of the file history (see
`Stein Decl. Ex. 3 at 6-7) in which Farstone explained to the Examiner that the status
`includes file backup data and hardware configuration information. See Stein Decl.
`Ex. 14 (Cummings Decl.) at 11-13. He also failed to consider relevant portions of
`the specification, such as those describing the object of the backup/recovery system
`described in the ‘835 patent (which Apple’s expert admits he does not understand
`(see Ex. 4 at 29:18-30:5)). Accordingly, Apple’s arguments and expert’s declaration
`fall short of the standards set forth in the Supreme Court’s recent Nautilus decision.
`Nautilus v. Biosig, 134 S. Ct. at 2129 (determining definiteness requires “that a
`patent’s claims, viewed in light of the specification and prosecution history, inform
`those skilled in the art about the scope of the invention with reasonable certainty.”)
`(emphasis added).
`Apple further argues that Farstone improperly construes “status” in terms of
`the status of a “hardware resource,” whereas “the disputed claim term is about the
`status corresponding to said processing system.” Apple Br. at 12-13 (emphasis in
`original). Apple is wrong. When the claim is read as a whole, instead of in snippets,
`as Apple has done, “status” is focused on the status of at least one “hardware
`resource.” In particular, the claim recites creating recovery units (Stein Decl. Ex. 1,
`8:65-67) each of which “reflects a corresponding status of said at least one hardware
`resource at the time of creation of [the] recovery unit” (id. at 9:9-14). The claimed
`“processing system” includes “at least one hardware resource.” Id. at 8:64. When
`the claim refers to “selecting a status” (and “displaying said selected status”), it is
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`referring to the “status” reflected in a recovery unit, since, as described and claimed
`in the ‘835 patent, recovery units are where the backed up data and information are
`stored. See, e.g. id. at 9:2-4 (“said backed up data of said processing system
`corresponding to each of said at least one recovery unit”).
`In addition, contrary to Apple’s assertion, the file history is plainly relevant to
`the meaning of the term “status.” As explained above, the Examiner allowed the
`claims only after they were amended to specify that “said at least one recovery unit
`respectively reflects a corresponding status of said at least one hardware resource at
`the time of creation of each of said at least one recovery unit.” See, e.g., Stein Decl.
`Ex. 3 at 2 (emphasis added). Farstone explained to the Examiner that the recovery
`units include both file backup data and configuration information not stored in files
`in order to “restore the configuration of hardware resources to their status at the time
`of creation of the recovery unit.” See Stein Decl. Ex. 3 at 6-7; see also Farstone Br.
`at 11-12.
`Apple also argues that the required status information cannot be based on the
`data and information needed to return a hardware resource to “a state that is
`operational,” because “the specification provides conflicting definitions” as to what
`an operational state means, citing the ‘835 patent at 1:54-58 and 6:39-43. Apple Br.
`at 13. Apple is incorrect. The first cite relates to whether the computer system as a
`whole is operational (i.e. can be booted) and the second relates to whether a printer is
`operational. There is no inconsistency between them—in both cases the status
`includes the information necessary to return the hardware resources that are backed
`up to an operational state.
`D.
`“said displaying system displaying said selected status”
`Apple offers no construction for this phrase, but asserts that Farstone’s
`proposed construction is “difficult to follow.” Apple Br. at 15. Again, Farstone
`believes that no construction of this term is necessary, but offered one in the event
`the Court finds it to be helpful to the jury. See Farstone Br. at 16-17.
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`Apple criticizes Farstone’s proposed construction because it does not change
`“status” to “recovery unit,” as does Farstone’s proposed construction of the term
`“selecting a status ….” Apple Br. at 15. Farstone explained its rationale for its
`proposed construction in its Opening Brief at 16-17. To the extent that Apple is
`suggesting that this phrase should be construed to mean “the displaying system
`displays the selected recovery unit” (which Apple never suggested previously), that
`is unnecessary but would be acceptable too. Such a construction is supported by the
`specification. See Farstone Br. at 17 (explaining that, as used in the specification,
`displaying a “selected status” and displaying a selected “recovery unit” are the
`same). Apple also objects to Farstone’s use of “state or condition” as a substitute for
`“status” but proposes no alternative construction. Apple Br. at 16. Farstone
`previously addressed this issue in its Opening Brief at 13.
`Apple further asserts that Farstone’s proposed construction is wrong, because,
`according to Apple, displaying a selected status is not “the same as viewing the
`backup data in a recovery unit.” Apple Br. at 16. In so doing, Apple overlooks the
`fact that a “recovery unit” reflects the “status” of a hardware resource at the time the
`recovery unit is created. Stein Decl. Ex. 1, ‘835 patent at 9:9-12. Accordingly,
`displaying the files in a recovery unit is displaying the status. Apple also asserts that
`Farstone’s explanation “omits any discussion of displaying the hardware
`configuration information.” Apple Br. at 16. But as Farstone’s expert explained,
`hardware configuration information is “often not human readable” or “user visible.”
`Ex. 3, Kaliski Dep. Tr. at 47:9-48:7. The patent focuses on the display of user files
`because that is the information that is typically displayable and that a user would
`want to confirm before performing a recovery operation. Id. at 46:9-20.
`E.
`“said at least one recovery unit respectively reflects a corresponding
`status …”
`Farstone addresses Apple’s arguments regarding “status” and “state or
`condition” (Apple Br. at 17) in Section III.A and III.C, supra, and Farstone Br. at
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`Section IV.B. Apple also asserts that “it is not clear what purpose the word
`‘respectively’ serves in the term. Apple Br. at 17. That word simply serves to
`emphasize that, in the event there is more than one recovery unit, each recovery unit
`reflects a corresponding status. Apple also asserts that Farstone’s construction is
`unclear because of a mismatch in its use of “recovery units” and “recovery unit.”
`Apple Br. at 17-18. Apple never raised this issue previously. Farstone believes that
`its construction is readily understandable, but the second occurrence of “the recovery
`unit” could alternatively be replaced with the word “each.”
`F.
`“a status of said computer equipment at the time creating said
`corresponded recovery unit”
`Farstone addresses Apple’s arguments regarding “status” and “state or
`condition” (Apple Br. at 18-19) in Section III.A and III.C, supra, and Farstone Br. at
`Section IV.B. Apple’s other arguments are addressed in Farstone Br. at Section
`IV.G.
`
`G.
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` “a processing system …, said processing system creating at least
`one recovery unit”
`The threshold dispute between the parties as to this term is whether certain
`language appearing in the preamble of claim 9 limits the claim. Farstone explained
`that it does not, citing Federal Circuit precedent. See Farstone Br. at 20-21. Apple
`completely ignores both the case law and the substance of Farstone’s argument,
`responding only that “Farstone’s approach is inappropriate.” Apple Br. at 20. In
`addition, Apple completely ignores Farstone’s argument and case law that, even
`should the Court construe this term, it should be construed as an additional step in
`the method recited in claim 9, not as a mean-plus-function limitation. See Farstone
`Br. at 20-21.
`Apple also ignores Farstone’s argument that, should the Court construe this
`term as a means-plus-function limitation, the corresponding structure is a
`backup/recovery module. Farstone Br. at 20-21. As Apple acknowledges (Apple’s
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`Br. at 6, n.3), the Federal Circuit recently issued a decision in which it held, under
`circumstances similar to those present here, that a software module connotes
`structure. See Williamson v. Citrix Online, LLC, No. 2013-1130, 2014 WL 5649886,
`at *7 (Fed. Cir. Nov. 5 2014) (holding that the term “distributed learning control
`module” connotes structure). As Farstone explained in its Opening Brief, both the
`specification of the ‘835 patent and dictionary definitions support the conclusion that
`a backup/recovery module is structure. See Farstone Br. at 8-10, 21; see also
`Williamson, 2014 WL 5649886, at *6-7 (Federal Circuit considering dictionary
`definitions, adjectival modifiers in the claim, and usage of the term in the
`specification in concluding that “distr