Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 1 of 40 PageID #: 2784
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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`TRIPLA Y, INC.,
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`Plaintiff,
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`v.
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`WHATSAPP, INC.,
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`Defendant.
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`Civil Action No. 13-1703-LPS-CJB
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`REPORT AND RECOMMENDATION
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`In this action filed by Plaintiff TriPlay, Inc. ("Plaintiff' or "TriPlay") against Defendant
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`WhatsApp, Inc. ("Defendant" or "WhatsApp"), Plaintiff alleges that Defendant directly (and as
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`to one patent, willfully) infringes four of Plaintiffs patents (the "Asserted Patents" or the
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`"patents-in-suit"). (D.I. 80) Presently before the Court is the matter of claim construction
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`regarding terms appearing in two of the Asserted Patents: United States Patent Nos. 8,332,475
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`(the '"475 patent") and 8,874,677 (the '"677 patent"). The Court recommends that the District
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`Court adopt the constructions set forth below.
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`I.
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`BACKGROUND
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`A.
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`The Parties
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`TriPlay is a Delaware corporation with its principal place of business in New York, New
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`York. (Id. at~ 2) It and its wholly owned subsidiary, TriPlay Communications, Ltd., were
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`formed for the purpose of "creating and developing a device agnostic content delivery technology
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`that would enable users to communicate across devices (mobile or otherwise) regardless of the
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`device manufacturer." (Id at~ 7) TriPlay is the owner of the patents-in-suit. (Id at~~ 1, 11)
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`Defendant WhatsApp is incorporated in Delaware, and has its principal place of business
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`Ex. 3001
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 2 of 40 PageID #: 2785
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`in Santa Clara, California. (Id. at ii 3) WhatsApp offers a "cross-platform messaging product
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`called WhatsApp Messenger[,]" which facilitates communication between users of mobile
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`devices made by various manufacturers. (Id. at ii 18)
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`B.
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`The Asserted Patents
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`The two Asserted Patents at issue here-the '475 and '677 patents-are both entitled
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`"Messaging System and Method[;]" they relate to the electronic messaging field, and, "in
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`particular, to cross-platform messaging." ('475 patent, col. 1 :5-6; '677 patent, col. 1 :5-6) The
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`patents share identical specifications. (D.I. 93 at 2 n.2) 1 The patents provide for, inter alia, a
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`system for "message communication via a communication media between one or more
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`originating communication devices assigned to a sender and one or more destination
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`communication devices assigned to a receiver[.]" ('475 patent, col. 5:22-26) The specification
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`describes the system as comprising an "access block" and a "media block[.]" (Id., col. 5:27-36)
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`The patents further set forth various systems and methods that generally involve adapting or
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`converting the layout and/or format of a message based on criteria relating to the capabilities of
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`the destination device or to the communication media being transferred. (See, e.g., id., cols.
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`5:22-45, 6:36-59, 7:1-19, 7:30-53) The '677 patent varies from the '475 patent, inter alia, in that
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`it explicitly recites an "initial message includ[ing] a video[,]" and conversion of that video. (See,
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`e.g., '677 patent, col. 23:23-51)
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`C.
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`Procedural Posture
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`TriPlay commenced this action on October 15, 2013, alleging that WhatsApp infringed
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`In light of this, the Court will cite only to the '475 patent unless otherwise noted,
`and when the Court hereafter refers to "the patent" or "the patent specification," that is a
`reference to the '475 patent unless otherwise noted.
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`2
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 3 of 40 PageID #: 2786
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`the '4 75 patent. (D.I. 1) In lieu of answering TriPlay' s Complaint, WhatsApp filed a motion to
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`dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), in which it argued that the claims
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`of the '475 patent fell outside the scope of patentable subject matter under 35 U.S.C. § 101
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`("Section 101 "). (D .I. 7, 8) Chief Judge Leonard P. Stark referred that motion (the "First Motion
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`to Dismiss") to the Court for resolution. (D.I. 19)
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`The Court ultimately issued a Report and Recommendation granting the First Motion to
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`Dismiss as to claim 12 of the '475 patent, and denying the motion without prejudice as to the
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`remaining claims. TriPlay, Inc. v. WhatsApp Inc., Civil Action No. 13-1703-LPS, 2015 WL
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`1927696, at *19 (D. Del. Apr. 28, 2015). In doing so, the Court concluded that the patent
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`eligibility of representative claim 1 of the '475 patent could turn on whether the constructions of
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`certain terms transformed an otherwise abstract idea into patent-eligible subject matter. Id at
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`* 17-19. Chief Judge Stark later issued a Memorandum Order adopting, in all substantive
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`respects, the Court's Report and Recommendation; in doing so, Chief Judge Stark agreed that
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`issues of claim construction had to be resolved before any further dispositive Section 101 motion
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`could be filed. TriPlay, Inc. v. WhatsApp, Inc., Civil Action No. 13-1703-LPS, 2015 WL
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`4730907, at *1 (D. Del. Aug. 10, 2015).
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`In the interim, TriPlay had filed a Second Amended Complaint, (D.I. 46), in which it
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`alleged that WhatsApp infringed not only the '475 patent but also the '677 patent.2 WhatsApp
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`responded with another motion seeking dismissal of the claims of both patents on Section 101
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`grounds (the "Second Motion to Dismiss"). (D.I. 58)
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`2
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`TriPlay later filed the operative Third Amended Complaint, which adds
`infringement allegations as to two other patents, not at issue here. (D.I. 80)
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`3
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 4 of 40 PageID #: 2787
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`After he adopted the Court's Report and Recommendation regarding the '475 patent,
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`Chief Judge Stark subsequently ordered, inter alia, that the parties submit both "a list of
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`representative claims of [the '475 and '677 patents] that [would] adequately represent all claims
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`of the '475 and '677 patents for purposes of deciding [WhatsApp's] motions to dismiss based on
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`Section 101 [,]" and a list of those claim terms or phrases that the "parties believe[ d] need[ ed]
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`construction and their proposed claim constructions[.]" (D.I. 82) After receiving the parties'
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`responsive submission, (D.I. 84), Chief Judge Stark ordered that: (1) WhatsApp's motions to
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`dismiss were denied without prejudice to renew; (2) all issues regarding claim construction
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`addressed in the parties' joint submission were referred to the Court for resolution; and (3) any
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`future renewed motions seeking dismissal of the claims on Section 101 grounds were also
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`referred to the Court for resolution, (D.I. 86).
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`The Court held a scheduling teleconference on October 2, 2015, in which it determined
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`that it would first conduct a Markman hearing before considering any renewed Section 101
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`motions. Claim construction briefing concluded on November 10, 2015, (D.I. 103), and the
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`Court held a Markman hearing on November 19, 2015, (D.1. 105 (hereinafter, "Tr.")).
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`II.
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`STANDARD OF REVIEW
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`A.
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`Principles of Claim Construction
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`It is well-understood that "[a] claim in a patent provides the metes and bounds of the right
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`which the patent confers on the patentee to exclude others from making, using, or selling the
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`protected invention." Corning Glass Works v. Sumitomo Elec. US.A., Inc., 868 F.2d 1251, 1257
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`(Fed. Cir. 1989). Claim construction is a generally a question of law, although subsidiary fact
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`finding is sometimes necessary. Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 837-38
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`4
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 5 of 40 PageID #: 2788
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`(2015).
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`The Court should typically assign claim terms their '"ordinary and customary
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`meaning[,]"' which is "the meaning that the term[ s] would have to a person of ordinary skill in
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`the art in question at the time of the invention, i.e., as of the effective filing date of the patent
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`application." Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations
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`omitted). However, when determining the ordinary meaning of claim terms, the Court should not
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`extract and isolate those terms from the context of the patent, but rather should endeavor to
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`reflect their "meaning to the ordinary artisan after reading the entire patent." Id at 1321; see also
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`Eon Corp. IP Holdings v. Silver Spring Networks, Inc., 815 F.3d 1314, 1320 (Fed. Cir. 2016).
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`To that end, the Court should look first and foremost to the language of the claims
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`themselves, because "[i]t is a bedrock principle of patent law that the claims of a patent define
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`the invention to which the patentee is entitled the right to exclude." Phillips, 415 F.3d at 1312
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`(internal quotation marks and citations omitted). For example, the context in which a term is
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`used in a claim may be "highly instructive." Id at 1314. In addition, "[o]ther claims of the
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`patent in question, both asserted and unasserted, can also be valuable" in discerning the meaning
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`of a particular claim term. Id This is "[b ]ecause claim terms are normally used consistently
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`throughout the patent, [and so] the usage of a term in one claim can often illuminate the meaning
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`of the same term in other claims." Id Moreover, "[d]ifferences among claims can also be a
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`useful guide[,]" as when, for example, "the presence of a dependent claim that adds a particular
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`limitation gives rise to a presumption that the limitation in question is not present in the
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`independent claim." Id at 1314-15.
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`In addition to the words of the claims, the Court should look to other intrinsic evidence.
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`5
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 6 of 40 PageID #: 2789
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`For example, the Court should analyze the patent specification, which "may reveal a special
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`definition given to a claim term ... that differs from the meaning [that term] would otherwise
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`possess." Id at 1316. In that case, "the inventor's lexicography governs." Id Even ifthe
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`specification does not contain a special definition of the term at issue, it "is always highly
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`relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to
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`the meaning of a disputed term." Id at 1315 (internal quotation marks and citation omitted).
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`That said, however, the specification "is not a substitute for, nor can it be used to rewrite, the
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`chosen claim language." SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed.
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`Cir. 2004).
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`Extrinsic evidence, "including expert and inventor testimony, dictionaries, and learned
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`treatises[,]" can also "shed useful light on the relevant art[.]" Phillips, 415 F.3d at 1317 (internal
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`quotation marks and citations omitted). Overall, while extrinsic evidence may be useful, it is
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`"less significant than the intrinsic record in determining the legally operative meaning of claim
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`language." Id (internal quotation marks and citations omitted); accord Markman v. Westview
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`Instruments, Inc., 52 F.3d 967, 981 (Fed. Cir. 1995).
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`In utilizing these resources during claim construction, courts should keep in mind that
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`"[t]he construction that stays true to the claim language and most naturally aligns with the
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`patent's description of the invention will be, in the end, the correct construction." Renishaw PLC
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`v. Marposs Societa 'per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998).
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`B.
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`Definiteness
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`Another issue that at times arises at the claim construction stage relates to whether a term
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`is indefinite under 35 U.S.C. § 112 ("Section 112"). Section 112 requires that a patent claim
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`6
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 7 of 40 PageID #: 2790
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`"particularly point[] out and distinctly claim[] the subject matter which the applicant regards as
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`his invention." 35 U.S.C. § 112, ii 2 ("Section 112, paragraph 2"). 3 If it does not, the claim is
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`indefinite and therefore invalid. Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2125
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`(2014) ("Nautilus"). In Nautilus, the Supreme Court of the United States set out the test to be
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`applied in the indefiniteness inquiry: "a patent is invalid for indefiniteness if its claims, read in
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`light of the specification delineating the patent, and the prosecution history, fail to inform, with
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`reasonable certainty, those skilled in the art about the scope of the invention." Id at 2124.
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`Definiteness is to be evaluated from the perspective of someone skilled in the relevant art at the
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`time the patent was filed. Id at 2128.
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`The primary purpose of the definiteness requirement is to ensure that patent claims are
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`written in such a way that they give notice to the public of what is claimed, thus enabling
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`interested members of the public (e.g., competitors of the patent owner) to determine whether
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`they infringe. All Dental Prodx, LLC v. Advantage Dental Prods., Inc., 309 F.3d 774, 779-80
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`(Fed. Cir. 2002). Put another way, "[a] patent holder should know what he owns, and the public
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`should know what he does not." Festa Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd,
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`535 U.S. 722, 731 (2002).
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`Like claim construction, definiteness is a question of law for the court. H-W Tech., L. C.
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`v. Overstock.com, Inc., 758 F.3d 1329, 1332 (Fed. Cir. 2014); Pi-Net Int'! Inc. v. JPMorgan
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`Chase & Co., 42 F. Supp. 3d 579, 585-86 (D. Del. 2014). The United States Court of Appeals
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`Here, the Court refers to the text of Section 112 as it read prior to the passage of
`the Leahy-Smith America Invents Act, since the application that led to the issuance of the two
`patents at issue was filed before September 16, 2012. (D.I. 96 at 3 n.1); see also Q.l Press
`Controls B. V v. Lee, 752 F.3d 1371, 1374 n.2 (Fed. Cir. 2014).
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`7
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 8 of 40 PageID #: 2791
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`for the Federal Circuit has stated that "[a]ny fact critical to a holding on indefiniteness ... must
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`be proven by the challenger by clear and convincing evidence." Intel Corp. v. VIA Techs., Inc.,
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`319 F.3d 1357, 1366 (Fed. Cir. 2003); see also Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d
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`1316, 1338 (Fed. Cir. 2008).4
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`III. DISCUSSION
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`The parties set out seven terms (or sets of terms) for the Court to construe.5 The Court
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`takes up the disputed terms in the order in which the parties addressed them at the Markman
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`hearing.
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`A.
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`"access block"
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`The parties first addressed the term "access block," a term appearing, inter alia, in
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`representative claim 1 of the '475 patent and representative claim 9 of the '677 patent. Instead of
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`providing a construction, WhatsApp asserts that the term is purely functional, and thus, indefinite
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`under Section 112, paragraph 2 (even if found to invoke means-plus-function claiming under 35
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`4
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`In Nautilus, the Supreme Court left open the question of whether factual findings
`subsidiary to the ultimate issue of definiteness should, in fact, trigger the application of a "clear(cid:173)
`and-convincing-evidence standard[,]" noting that it would "leave th[is] question[] for another
`day." Nautilus, 134 S. Ct. at 2130 n.10. In the absence of Supreme Court precedent to the
`contrary, the Federal Circuit's caselaw (utilizing the clear-and-convincing-evidence standard)
`controls. See Cal. Inst. of Tech. v. Hughes Commc 'ns Inc., 35 F. Supp. 3d 1176, 1182 n.4 (C.D.
`Cal. 2014).
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`The parties originally submitted an eighth term for construction-"block," (D.I.
`84 at 3)-for which they provided arguments in their claim construction briefing, (D.I. 93 at 9-
`1 O; D.I. 96 at 2). During the Markman hearing, both sides conceded that the Court need not
`separately construe the term "block" in light of the Court's consideration of the terms "access
`block" and "media block." (Tr. at 43, 67) As part of this concession, TriPlay suggested that as
`to both "access block" and "media block," the Court should understand a "block" to be "a
`computer[.]" (Id at 67) In light of the parties' positions, the Court will not separately construe
`the term "block."
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`8
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 9 of 40 PageID #: 2792
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`U.S.C. § 112, ~ 6 ("Section 112, paragraph 6"). (D.I. 96 at 6-12) The Court will consider
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`application of the latter paragraph first. 6
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`1.
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`35 u.s.c. § 112, ~ 6
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`Section 112, paragraph 6 provided:
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`An element in a claim for a combination may be expressed as a
`means or step for performing a specified function without the
`recital of structure, material, or acts in support thereof, and such
`claim shall be construed to cover the corresponding structure,
`material, or acts described in the specification and equivalents
`thereof.
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`35 U.S.C. § 112, ~ 6. This provision allows a patentee to express a claim limitation in terms of
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`the function to be performed (i.e., means-plus-function claiming), while restricting the scope of
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`the limitation "to only the structure, materials, or acts described in the specification as
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`corresponding to the claimed function and equivalents thereof." Williamson v. Citrix Online,
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`LLC, 792 F.3d 1339, 1347 (Fed. Cir. 2015). A means-plus-function clause is indefinite under
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`Section 112, paragraphs 2 and 6 "if a person of ordinary skill in the art would be unable to
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`recognize the structure in the specification and associate it with the corresponding function in the
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`claim[.]" Id. at 1352. The Federal Circuit has articulated the proper analysis for applying
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`6
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`Both parties devoted substantial portions of their briefing to the question of
`whether means-plus-function claiming has been invoked here; WhatsApp argues that Section
`112, paragraph 6 applies to both "block" terms ("access block" and "media block"), and TriPlay
`argues that it does not. In light of the fact that Section 112, paragraph 6 was addressed so
`substantially by both sides, and because the legal analysis regarding that issue helps to
`demonstrate why the relevant claim terms are not indefinite, the Court will undertake the Section
`112, paragraph 6 analysis first here. See Intellectual Ventures I, LLC v. Canon Inc., Civ. No. 13-
`473-SLR, 2015 WL 307868, at *2 (D. Del. Jan. 23, 2015) (analyzing a claim term to determine
`whether Section 112, paragraph 6 had been invoked, finding that the patent described sufficient
`structure such that the paragraph did not apply, and then explaining that the Court's analysis of
`that issue also demonstrated why the "description provided by the claims and specification [was]
`also sufficient" to not be indefinite pursuant to Section 112, paragraph 2).
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`9
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 10 of 40 PageID #: 2793
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`Section 112, paragraph 6 as follows:
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`The overall means-plus-function analysis is a two-step process ...
`. In the first step, we must determine if the claim limitation is
`drafted in means-plus-function format. As part of this step, we
`must construe the claim limitation to decide if it connotes
`"sufficiently definite structure" to a person of ordinary skill in the
`art, which requires us to consider the specification (among other
`evidence). In the second step, if the limitation is in
`means-plus-function format, we must specifically review the
`specification for "corresponding structure." Thus, while these two
`"structure" inquiries are inherently related, they are distinct.
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`Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1296 (Fed. Cir. 2014), overruled on other grounds
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`by Williamson, 792 F.3d 1339; Sarif Biomedical LLC v. Brain/ab, Inc., C.A. No. 13-846-LPS,
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`2015 WL 5072085, at *6 (D. Del. Aug. 26, 2015).
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`In undertaking the first step of this analysis, whether the claims at issue utilize the term
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`"means" or "means for" is important; if they do not, then a rebuttable presumption arises that
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`Section 112, paragraph 6 does not apply. Williamson, 792 F.3d at 13497
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`; M2M Sols. LLC v.
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`Sierra Wireless Am., Inc., Civil Action No. 12-30-RGA, 2015 WL 5826816, at *1 (D. Del. Oct.
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`2, 2015). The party challenging the presumption "bears the burden of overcoming the
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`presumption that Section 112, [paragraph] 6 does not apply by a preponderance of the evidence."
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`7
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`In Williamson v. Citrix Online, LLC, 792 F.3d 1339 (Fed. Cir. 2015), the Federal
`Circuit overruled prior precedent that had described this presumption as a '"strong"' one, and
`instead held that the presumption does not amount to a "heightened burden" nor does it require a
`"heightened evidentiary showing[.]" Williamson, 792 F.3d at 1349. Although Williamson
`altered the strength of the presumption, the Court agrees with TriPlay that it should still utilize
`pre-Williamson Federal Circuit caselaw in analyzing whether disputed terms convey sufficiently
`definite structure to a skilled artisan. (DJ. 98 at 4-5); cf M2M Sols. LLC v. Sierra Wireless Am.,
`Inc., Civil Action No. 12-30-RGA, 2015 WL 5826816, at *2-3 (D. Del. Oct. 2, 2015); Sarif,
`2015 WL 5072085, at *6. And during the Markman hearing, although WhatsApp's counsel
`suggested that the precedential effect of such cases had been "clouded" by the cases' use of the
`(prior) "strong" presumption, he also conceded that such cases could be helpful here, and that
`those cases in fact helped "prove[ WhatsApp's] point." (Tr. at 15, 37-38)
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`10
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`Apple, 757 F.3d at 1298. To do so, a challenger may "demonstrate[] that the claim term fails to
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`'recite sufficiently definite structure' or else recites 'function without reciting sufficient structure
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`for performing that function."' Williamson, 792 F.3d at 1349 (quoting Watts v. XL Sys., Inc., 232
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`F.3d 877, 880 (Fed. Cir. 2000)); M2M, 2015 WL 5826816, at* 1. The standard is "whether the
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`words of the claim are understood by persons of ordinary skill in the art to have a sufficiently
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`definite meaning as the name for structure." Williamson, 792 F.3d at 1349; M2M, 2015 WL
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`5826816, at * 1. "[I]t is proper to consult the intrinsic record, including the written description,
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`when determining if a challenger has rebutted the presumption that a claim lacking the term
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`'means' recites sufficiently definite structure." Inventio AG v. ThyssenKrupp Elevator Ams.
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`Corp., 649 F.3d 1350, 1357 (Fed. Cir. 2011), overruled on other grounds by Williamson, 792
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`F.3d 1339; see also Apple, 757 F.3d at 1298.
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`In taking up the first step of the Section 112, paragraph 6 analysis as to "access block,"
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`the Court notes that the claims do not use the words "means" or "means for" in discussing what
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`an "access block" does or how it functions. And so there is a presumption that Section 112,
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`paragraph 6 does not apply.
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`WhatsApp nevertheless contends that the presumption has been overcome here. (D.I. 96
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`at 9; D.I. 100 at 3-5) The Court will thus construe the term "to decide if it connotes 'sufficiently
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`definite structure' to a person of ordinary skill in the art[.]" Apple, 757 F.3d at 1296.
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`According to TriPlay, an "access block" is "a [computer] comprising a user's gateway
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`and a third party applications gateway that supports communications with communication
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`devices and third party applications and a traffic manager that is operably connected to the user's
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`gateway [and] manages the message delivery within the messaging system." (D.I. 93 at 10) The
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`11
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 12 of 40 PageID #: 2795
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`Court finds support for much of TriPlay's proposed construction in the intrinsic evidence.
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`For example, Claim 1 of the '475 patent recites:
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`a) an access block configured to receive, directly or indirectly,
`from at least one originating communication device a message
`having initial characteristics comprising, at least message format
`and an initial message layout, and to transmit the message to at
`least one destination communication device[.]
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`('4 7 5 patent, col. 23: 11-16) This claim language provides support for at least the portion of the
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`proposed construction describing an "access block" as something that "supports communications
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`with communication devices" and that plays a role in the process of message delivery.
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`Importantly, the specification provides further support for TriPlay's proposal. In a
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`section entitled "Detailed Description of Exemplary Embodiments," the specification explains
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`that the "processes/devices herein are not inherently related to any particular electronic
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`component or other apparatus, unless specifically stated otherwise." (Id, col. 10: 14-16
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`(emphasis added)) It goes on to note that "[t]he desired structure for a variety of these systems
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`will appear from the description below." (Id., col. 10:20-21) The specification then provides
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`figures and descriptions of embodiments of the invention.
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`One portion of the specification relating to the "access block" is what is depicted in
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`Figure 2 of the patent. Figure 2 represents an embodiment of the invention in which the "Access
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`Block 21" is shown as containing a "3rd party GW 214[,]" "Users' GW 211[,]" "Caching Block
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`212[,]" and "Traffic Server 213[.]" (Id, FIG. 2) The portion of the specification addressing
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`Figure 2 provides further description, noting that the "access block 21 includes a users' gateway
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`211and3rd party applications' gateway 214 supporting communication with communication
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`devices and 3rd party application(s)[.]" (Id., col. 13:4-6) The "users' gateway 211 is connected
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`12
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 13 of 40 PageID #: 2796
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`with a traffic management server 213 via a cashing layer block 212[81 also constituting a part of
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`the access block." (Id., col. 13:17-19) And with respect to the "traffic management server," the
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`specification describes it as being "configured to manage the message delivery within the
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`messaging system 16" and to "serve as an intersection of the system flows and to provide queues
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`mechanism to manage ... the flows of internal traffic (between functional and other blocks and
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`parts thereof)[.]" (Id, col. 14:46-52; see also id., FIG. 3)9
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`In light of the content of the patent specification, 10 then, the Court will recommend that
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`8
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`TriPlay does not include the term "cashing layer block" in its construction. By
`way of explanation, TriPlay states that because the specification does not further mention the
`structure and does not attach any significance to it with respect to messaging system
`functionality, a person of ordinary skill would attach no significance to the "cashing layer block,"
`other than to understand that the "access block" requires an "operable connection between the
`traffic management server and the users' gateway." (D.I. 93 at 11 (citing D.I. 95, Declaration of
`Rajeev Surati, Ph.D. ("Surati Deel.") at~ 21)) TriPlay explains that its proposed construction
`reflects this understanding by defining the traffic manager as being "operably connected" to the
`user's gateway. (Id) TriPlay's explanation in this regard is supported by extrinsic evidence,
`(id.), and the Court accepts it.
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`9
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`Additionally, Figures 7-9 similarly depict an "access block" as including the
`"users' gateway 211," and a "traffic server[.]" (See, e.g., '475 patent, cols. 17:47-55, 18:28-34,
`19:28-32) Figures 7-9 do not, however, include reference to a "3rd party applications' gateway"
`component as part of the depicted "access block." (See Tr. at 35, 71) TriPlay argues that a
`reference from the specification makes it clear that a "'3rd party application gateway' refers to
`the interface supporting communications with applications installed on client devices." (D.1. 93
`at 10 n.10 (citing '475 patent, col. 12:26-35)) And during the Markman hearing, TriPlay
`explained that it is "pretty clear from [the specification] and a general understanding of a gateway
`for various third-party applications to connect to the system." (Tr. at 71-72) Yet, in light of the
`fact that a number of figures in the patent depict the components of an "access block" but do not
`depict the "3rd party applications gateway," it is just not clear enough to the Court that this
`gateway is an absolutely necessary part of the structure of an "access block." ('475 patent, col.
`12:13-16 ("The messaging system 16 may . .. communicate with 3rd party applications 29."
`(emphasis added))) As such, the Court is unable to read this limitation into the construction of
`the term.
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`10
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`WhatsApp contends that the specification makes clear that the invention is not
`limited to the components that TriPlay asserts comprise an "access block." In support,
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`13
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`Case 1:13-cv-01703-LPS-CJB Document 108 Filed 06/30/16 Page 14 of 40 PageID #: 2797
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`the term be construed as "a computer comprising a user's gateway that supports communications
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`with communication devices and a traffic manager that is operably connected to the user's
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`gateway and manages the message delivery within the messaging system." 11
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`Having construed the term "access block," the question becomes whether that term "lacks
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`sufficiently definite structure to a person of ordinary skill in the art, [so that] the presumption is
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`overcome and the patentee has invoked means-plus-function claiming." Apple, 757 F.3d at 1300.
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`Because software does not contain physical structures, persons skilled in the art may understand a
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`computer-implemented invention's structure "through, for example, an outline of an algorithm, a
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`flowchart, or a specific set of instructions or rules." Id. at 1298-99 (citing cases). A claim term
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`relating to such an invention may also have sufficient structure where there is a description of the
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`WhatsApp points to the fact that, when describing the configuration of figures in the patent that
`include an "access block," the specification notes that certain specified components of an "access
`block" (such as a traffic server) are said to be found in "certain embodiments" of the present
`invention. (Tr. at 27-28, 41; see also '475 patent, cols. 14:27-31, 45-48; 18:9-17) TriPlay
`counters that the components' absence from figures and accompanying descriptions is due to the
`fact those examples simply do not reference the "access block," and therefore, "[do not] talk
`about the components." (Tr. at 68) When the specification uses and discusses the term "access
`block," TriPlay argues, "it's talking about gateways [and] traffic servers[.]" (Id. at 68-69) The
`Court agrees with TriPlay, finding that, as to the components of an "access block" that are
`included in the Court's construction of the term, there is a consistent description of those
`components whenever the specification references the "access block."
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`11
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`The Court also finds support for defining the "access block" (and, for that matter,
`the later-addressed term "media block") as a "computer." The claim language indicates that an
`"access block" (and a "media block") is something that is "configured" to perform the recited
`functions. ('4 75 patent, col. 23: 1 O; see also id., col. 23: 18) The specification states that the
`embodiments of the invention may use terms such as "computer" for performing the recited
`operations, and, when referring to the embodiments of the invention, states that "[t]his may be
`specially constructed" or "it may comprise a general purpose computer selectively activated or
`reconfigured by a computer program stored in the computer." (Id., cols. 9:64-10:3; see also id.,
`cols. 11 :64-12:3) TriPlay also submitted extrinsic evidence in support of its position in this
`regard. (Surati Deel. at ii 19; D.I. 102, Supplemental Declaration of Rajeev Surati, Ph.D. ("Supp.
`Surati Deel.") at ii 23)
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`term's "operation, such as its input, output, or connections." Apple, 757 F.3d at 1299; see also
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`lnventio, 649 F.3d at 1358-59. "The limitation's operation is more than just its function; it is
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`how the function is achieved in the context of the invention." Apple, 757 F.3d at 1299.
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`As construed, an "access block" contains a user's gateway and a traffic manager. Yet
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`WhatsApp asserts that even if this is so, that does not stop the term from being entirely
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`"functional." That is, WhatsApp argues that these components of an "access block" simply
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`amount to additional "empty boxes" that "are described, at most, in terms of what they do, not by
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`how they do it." (D.I. 96 at 7; see also id. at 8-9; D.I. 100 at 6-8; Tr. at 28-42) It contends that a
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`patentee has identified specific structure only when "we get out of being purely functional" and
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`when the components of an "access block" c