VIRNETX EXHIBIT 2001
`Apple v. VirnetX
`Trial IPR2015-00813
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`

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`Case B:07—cv—0OO80—LED Document 246
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`Filed 07/30/09 Page 2 of 35
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`APPLICABLE LAVV
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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 ‘.2. A WH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en bane) (quoting Ixmova/Pure Water Inc. v. Safari I/Vzzrer Fi..’rraz‘r'cn .S3.=,r., Inc. , 3 81
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`F.3d 1111, 1115 (Fed. Cir. 2004)).
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`In claim construction, courts examine the patent’s inttinsic
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`evidence to define the patented invention’s scope. Sec ial; CR. Bard, Inc. V. US. Surgical Corp,
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`388 F.3d 85 8, 861 (Fed. Cir. 2004); Bei’lAtI. Ne1‘w0i'kServS., Inc. v. Covczd 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; CR. 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. Pltillips, 415
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`F.3d at 131243; Ailoc, Inc. v. Int '1 Trade Comm '11, 342 F.3d 1361, 1368 (Fed. Cir. 2003).
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`The claims themselves provide substantial guidance in determining the meaning ofparticular
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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 deteimining 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 tem1‘s meaning.
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`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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`“[C]la§ms ‘must be read in View of the specification, cfwhich they are a part,’” Id. (quoting
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`Markman. 12, Westview Instruments, Inc, 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive;
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`it is the single best guide to the meaning of a disputed tenn.” Id. (quoting Virronics Corp. v.
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`Conceptrorzic, Inc, 90 F.3d 15 76, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Fic:0saN. Am. Com, 299
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`F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms, give
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`a claim term a different meaning than t.he term would otherwise possess, or disclaim or disavow the
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`claim scope. Phillips, 415 F.3d at 1316.
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`In these situations, tl1einventor’s lexicography governs.
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`Iof. Also, the specification may resolve ambiguous claim terms “where the ordinary and accustomed.
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`meaning ofthe Words used in the claims lack sufficient clarity to permit the scope ofthe claim to be
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`ascertained from the words alone.” Teleflex, 1110., 299 F3 01. at 1325. But, “‘ [a]1thongh the
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`specification may aid the court in interpreting the meaning of disputed claim language, particular
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`embodiments and examples appearing in the specification will not generally be read into the
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`claims.” Comarfc Comma ’ns, Inc. 12. Harris Corp, 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting
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`Constant 12. AdvancedMicro~Devica9, Inc, 848 F.2d 1560, 1571 (Fed. Cir. 198 8)); See also Philfips,
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`415 F.3d at 1323. The prosecution history is another tool to supply the proper context for claim
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`construction because a patent applicant may also define a term in prosecuting the patent. Home
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`Diagnostics, Inc., v. Ltfescen, Inc, 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`specification, a patent 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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`CR. 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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`Case B:0T—cv—O0080-LED Document 246
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`a court in understanding the underlying technology and determining the particular meaning of a term .
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`in the pertinent field, but an expe1t’s conclusory, unsupported assertions as to a term’ s definition is
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`entirely unhelpful to a cotnt. Id. Generally, extrinsic evidence is “less reliable than the patent and
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`its prosecution history in detennining how to read. claim terms.” Id.
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`CONSTRUCTION OF DISPUTED TERMS IN THE ‘135 PATENT”
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`“virtual private network”
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`The ‘l35 patent, claims 1 and 10; the ‘759 patent, claims 1 and 16; and the ‘LS0 patent,
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`claims 1, 17, and 33 contain the term “virtual private network" (“VPN”). VirnetX contends that
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`“virtual private network" means “a network of compu ters capable ofpriv ately communicating with
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`each other by encrypting traffic on insecure corninuznication paths between the computers, and which
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`is capable of expanding to include additional computers and communication paths." Microsoft
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`contends that “virtual private network” means “a network implemented by encapsulating an
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`encrypted [P packet within another IP packet (that is, tunneling) over a shared networking
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`infrastructure."° The parties dispute whether the “FreeS/WAN" dictionary may be used to construe
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`“virtual private network,” whether VirnetX’s proposed construction is overly broad, Whether “virtual
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`private network” requires anonymity, and Whether IP tunneling is a limitation on “virtuai private
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`network.” In light of intrinsic and extrinsic evidence, the Court construes “virtual private network”
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`as “a network of computers which privately communicate with each other by encrypting traffic on
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`insecure cornniunication paths between the computers.”
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`‘While this heading states “Construction of Disputed Terms in the ‘.735 Pa.ten.r,” the ctairn terms addressed
`under this heading may also be found in the other asserted patents. This also applies to subsequent headings.
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`2Citarions to the patents will not include the U.S. patent numbers to maintain brevity. Unless otherwise
`stated, these citations are of the 13.5. patent numbers indicated in the heading that the citation falls under.
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`The ‘135 patent does not provide an explicit definition for “virtual private network.”
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`However, the ‘l35 patent uses “virtual private networ ” in ways that are consistent with a “virtual
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`private network” being “a network of computers which privately communicate with each other by
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`encrypting traffic on insecure communication paths between the computers.” The specification
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`discusses a VPN in the context of connectin g and corninunicating between nodes. For instance, the
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`specification states, “In. a second mode referred to as ‘promiscuous per VPN‘ mode, a small set of
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`fixed hardware addresses are used, with a fixed source/destinatiori hardware address used for all
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`nod.es cornrnunicating over a virtual private network." Col. 23:11-14. This excerpt shows that the
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`‘ 135 invention includes nodes (computers) communicating over a virtual private network.
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`Furthermore,
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`the claims and M specification discuss a VPN in the context of private
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`communication on insecure coirnnunication paths. Claim 1 states “A method of transparently
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`creating a virtuai private network (VPN) between a ciient computer and a target computer” and then
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`states the steps of accomplishing this method including “requesting access to a secure web site.”
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`Col. 47:20-22, 3031. Thus, claim 1 associates a “virtual private network" with “security.” Also,
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`the specification states, “If the user is not authorized to access the secure site, then a ‘host unknown’
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`message is returned (step 2705). If the user has sufficient security privileges, then in step 2706 a
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`secure VPN is established between the user’s computer and the secure target site.” Col. 39:21:25.
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`This excerpt shows how a “virtual private network” establishes a secure connection between nodes
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`where security may not otherwise exist. Thus, the claim language and the specification are
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`consistent with construing a “virtual private network” as “a network of computers which privately
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`communicate with each other by encrypting traffic on insecure communication paths between the
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`computers.”
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`Extrinsic evidence also supports this construction. The Wiley Electrical and Electronics
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`Engineering Dictionary defines a “virtual private network” as
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`A netvvorlc which has the app earance, functionaiity, and s ecurity o fa private network,
`but which is configured. within a public network, such as the Internet. The use of a
`public infrastructure while ensuring privacy using measures such as encryption and
`tunneiing protocols, helps provide the security of a private network at a cost similar
`to that of a public network.
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`WILEY ELECTRICAL AND ELECTRONTCS ENGINEERING DICTIONARY 842 (2004) (pubtislied by the
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`TEEE Press). This dictionary definition describes a network that has attributes of a private network
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`but runs on a public network. The dictionary definition further states that encryption may be used
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`to achieve privacy. The Court’s construction is in line with this definition. All pertinent aspects of
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`the Court‘s construction are explicitly found in the dictionary definition except for “insecure
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`corninunication paths," which simply corresponds to the dictionary detinitioifs reference to “a public
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`network.” Thus, the Court’s Construction is in accord with the dictionary definition.
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`Also,
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`the ‘ 135 patent refers to the “FreeSfWAN" project in the specification. The
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`specification explains that the “FreeS/WAN” project is developing a conventional scheme that
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`provides secure virtual private networks over the Luternet. Col. 37:50-58. The “FreeSfWAN”
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`project defines “virtual private network” as “a network which can safelybe used as ifit were private,
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`even though some ofits connnunication uses insecure connections. All traffic on those connections
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`is encrypted.” “FreeS/WAN” Glossary 24-25, Pl. Br. (Docket No. 194) EX. 6. The Court’s
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`Construction is consistent with this definitio:1.3
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`3The Court‘s construction largely adopts VimetX’s proposal. However, this construction excludes
`V'i.metX‘s proposed language regarding the ability of a virtual private network t.o expand. Virnetx proposes this
`language to account for the possibiiity of including additional computers and communication paths in a virtual
`private network. Plfs Br. 6. The Court’s construction does not limit a “virtual private networl-L" to any particular
`number of computers or communication paths. Thus, VirnetX“s proposed language is superfluous. Accordingly, the
`Court’s construction accounts for the possibility of additional computers or communication paths.
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`Microsoft contends that the “EreeSfWAN” glossary is not an explicit definition of “virtual
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`private networlt” and thus is not persuasive. Microsoft argues that the ‘B5 patent’s reference to the
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`“PreeS /WAN” project is made only to describe the prior art and not to define “virtual private
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`network.” However, the specification explains that the “FreeS/WAN" project has been developing
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`an implementation of one conventional scheme that provides secure virtual private networks over
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`the Internet. Col. 37:50-58. Also, the applicant disclosed the “FreeS/WAN” project as prior art.
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`See Deffs Br. (Docl(etNo. 201} Exs. M—0. While these references to the “FreeS/WAN” pro} ect do
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`not explicitly define “virtual private network," they at least point to extrinsic evidence that can be
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`considered in construing “virtual privatenetwork.” Thus, the Court may considerthe “Free 8/WAN”
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`project/glossary as extrinsic evidence for constiuing “virtual private network.”
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`Microsoft aiso contends that even if the “FreeS/WAN” glossary offers an acceptable
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`definition for “virtual private network,” portions of the “FreeS/WAN" glossary definition show that
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`VirnetX’s proposed construction is overly broad. Microsoft cites the portion of the °‘FreeS/WAN”
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`glossary definition for “virtuai private networks” that states “ESEC [Internet Protocot Security] is
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`not the only technique available for building VPNS, but it is the only method defined by RFCs
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`[Request for Comments, Internet documentswsome of which are informative while others are
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`standards] and supported by many vendors. VPNs [virtual private networks] are by no means the
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`only thing you can do with IPSEC, but they may be the most important appiication for many users.”
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`Def.°s Br. (Docket No. 201) at 10; “FreeS/WAN” Glossary 25, Pl. Br. (Docket No. 194) EX. 6.
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`Microsoft points out that IPSEC is the only method defined by RFCs and supported by many
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`vendors. Microsoft argues that this narrow language shows thatthe “FreeS/WAN” glossary does not
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`identity Secure Sockets Layer (“SSL") or Transport Layer Security (“TLS") as methods for building
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`“virtual private networks.” Microsoft then argues that VirnetX’s proposed construction is overly
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`broad because it allows for a network using SSL and TLS. However, Microsoft’s cited excerpt is
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`an ancillary portion of the “virtual private network" definition and is set apart in a different
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`paragraph from the primary portion of the definition. See ‘”FreeS/WAN" Glossary 24-25, Pi. Br.
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`(Docket No. 194} Ex. 6. Also, Microsoft selectively asserts that IPSEC is the only method defined
`by RFCs and supported by many vendors and ignores that its cited excerpt states that “IPSECT is not
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`the only technique available for building VPNS.” Thus, Microsoffis cited excerpt does not support
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`that t11e “Frees!WAN” glossary restricts “virtual private network” to IPSEC.
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`Microsoft also contends that Vii-netX’s proposed construction suggests that the “virtual
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`private networ
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`achieves oniy data security when it should include both data security and
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`anonymity. Microsoft is correct that “private" in “virtual private networks" means both data security
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`and anonymity. The specification supports this interpretation. The Background of the Invention
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`section states “[a] tremendous variety of methods have been proposed and iinpleniented to provide
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`security and anonyinity for cornmunications over the Internet.” Col. 1:15»1 7. This section further
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`describes data security as being “irninune to eavesdropping” and states “[d]ata security is usually
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`tackled using some form of data encryption” and anonyinity as “preventing[ing] an eavesdropper
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`from discovering that terminal 100 is in conzununicatioii with terminal 110.” Coi. 1:23-25, 38-39,
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`27-28. This ianguage suggests that the claimed invention will achieve both data security and
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`anonymity because it prefaces the Detailed Description of the Invention section, which describes a
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`method of creating a virtual private network.
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`Indeed, the descriptions of the invention later indicate that “private” in “virtual private
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`networ ” rneans data security and anonymity. The Detaiied Description of the Invention, Further
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`Extensions section describes a mode of the invention as being able to “reduce the amount of
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`overhead involved in checking for vaiid frames” while allowing “ll” addresses .
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`.
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`. [to] still be hopped
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`as before for secure cornrnunication within the VPN.” Col. 23:20—25 {emphasis added). The
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`“anonyniity” feature of a VPN can be handled by the Tnnneled Agile Routing Protocol (“TARP”),
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`which executes “address hopping.” See Col. 2: 66-3: 17; see Col. 5:49-64. Thus, the language “still
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`be hopped.” indicates that the modifications of the invention retain the anonymity feature of the
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`“virtual private network.”4 Accordingly, the Court co nstrues “virtual private networic” as requiring
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`both data security and anonymity.
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`Finally, Microsoft contends that “virtual private network“ requires ll’ tunneling. Microsoft
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`argues that the intrinsic evidence shows that TARP and IPSEC are two ways ofobtaj ning anonymity
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`in a virtual private network. Microsoft then argues that tunneling is required to achieve anonymity
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`when TARP, IPSEC, or any other means is employed to achieve anonyrnity. The Court first and
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`foremost considers the intrinsic evidence. The claims do not assert “tunneling” as a limitation nor
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`has Microsoft pointed to any type of lirnitation in the specification. Microsoft’s citations to the
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`Background of the Invention section only state explanations ofhow TARP works and does not use
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`any limiting language. See Col. 315-18, l9~20, 5860. Furthermore, Microsoft’s citation to the
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`Detaiied Description of the Invention, Further Extensions section only refers to a preferred
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`implementation of the virtual private network, stating “The VPN is preferably implemented using
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`. compromises the anonymity
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`4WhiJe the specification states that this mode of the invention “[o}f course .
`of the VPNs," this only means that those outside the VPN can discover the VPN and does not mean that the
`anonymity ofthe users within the VPN is compromised. This is clear from the example that follows the
`“compromising anonymity of the VPN" statement: “{i.e., an outsider can easily tell What traffic belongs in which
`VPN, though he cannot r.-orre:’are it to a specific niacliiire/pers0r1).” Col. 23:25-2.8 (emphasis added). Thus, the
`specification is consistent with construing a "virtual private network" as achieving both data security and anonymity.
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`the IP address ‘hopping’ features of the basic invention described above, such that the true identity
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`of the two nodes cannot be determined even if packets during the connnunication are intercepted."
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`Col. 38 :2—6. Again, this excerpt does not include any iitniting language and in fact expressly uses
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`the non—lirniting language “preferably.” Accordingly, “virtual private network” is not limited to IP
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`tunneling, and the Court construes “virtual private network" as “a network of computers which
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`privately communicate with each other by encrypting traffic on insecure communication paths
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`between the computers.”
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`“transparently creating [creates] a virtual private network”
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`The ‘135 patent, claims 1 and 10 containthe phrase “transparently creating [creates] avirtuai
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`private network." The parties dispute whether “transparently creating a virtual private network” in
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`the preamble is limiting and whether “transparently” refers to not involving a user or not involving
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`the client and target computers in creating a virtual private network. VirnetX contends that this
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`phrase means “a user need not be involved in creating a virtual private network.” Microsoft
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`contends that the phrase does not require construction and altematively that the phrase means
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`“creating a vi_rtual private network (VPN) Without the client or target coinputer involved in
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`requesting such creation."
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`“Transpare11tiy creating a virtual private network” in the preamble is not a limitation because
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`‘_‘transparently" does not aid meaning to claims 1 and 10. “A preamble limits the invention if it
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`recites essential structure or steps, or if it is ‘necessary to give life, meaning, and vitality‘ to the
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`claim. Conversely, a prearnbie is not limiting ‘where a patentee defines a structurally complete
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`invention in the claim body and uses the preamble only to state a purpose or intended use for the
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`invention?” Catalina Mlctg. Int'l, Inc. v. Coolsavingscom, Inc, 289 F.3d 801, 808 (Fed. Cir. 2002)
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`(citations omitted}.
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`If a prearnble “is reasonably susceptible to being construed to be niereiy
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`duplicative of tlie limitations in the body of the claim {and was not clearly added to overcome a
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`rejection), we do not construe it to be a separate limitation.” Symanzec Corp‘ v. Computer Assocs.
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`Int‘l, Inc, 522 F.3d 1279, l288v89 (Fed. Cir. 2008). “Transparent.ly” is merely descriptive of what
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`is found in steps (2) and (3) of claim 1. As discussed below, those steps require that a user is not
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`involved in creating a VPN. This requirement corresponds to the meaning of “transparently” as
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`described in the specification, which states that creating a VPN “is preferably performed
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`transparently to the user (i.e., the user need not be involved in creating the secure linl<).” Col. 39:28-
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`29. Thus, “transparently” is merely duplicative ofwhat is found in the body of claim 1. As a result,
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`the preamble is not a limitation. Accordingly, “trauspare11t1y" does not require construction.
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`“Domain Name Service”
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`The ‘ 135 patent, clairusil and 10 and the ‘180 patent, claims 1, 17‘, and 33 contain the term
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`“Domain Name Service” (“DNS”). VirnetX contends that “Domain Name Service” means “a
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`service that receives requests for computer network addresses corresponding to domain names, and
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`which provides responses.” Microsoft contends that “Domain Name Service” means “the
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`conventional Eookup service defined by the Internet Engineering Task Force (“lIETF"’) that returns
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`the LP address of a requested computer or host.” The parties dispute whether “Dornain Name
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`Service” is limited by the definition given in the lETF that defines Domain Name Service as the
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`conventional scheme or if it more broadly includes both conventional and modified Domain Name
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`Service that is described in the specification.
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`The specificatioifs description of DNS is consistent with construing DNS as “a lookup
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`service that returns an IP address for a requested domain name." The specification states
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`Conventional Domain Name Servers (fDNSs) provide a look-up function that returns
`the IE’ address of arequested computer or host. For example, when a computer user
`types in the web name “Yahoo.com,” the user’s web browser transmits a request to
`a DNS, which converts the name into a fourvpart IP address that is returned to the
`user‘s browser and then used by the browser to contact the destination web site.
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`Col. 37:22—29. According to this excerpt, a DNS “provides a lookwup function” and “returns the H’
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`address of a requested computer or host.” A “computer or host” includes domain names as
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`exemplified by the specification’s reference to “Yalioocom” and “destination web site” as “a
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`requested computer or host.” Accordingly, the Court constzues “DNS” as “a lookup service that
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`returns an IP address for a requested domain r1arr1e.”5
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`“domain name.”
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`The ‘BS patent, claims 1 and 10 and the ‘l80 patent, claims 1, 17, and 33 contain the term
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`“dornain name.” VirnetX contends that “domain name” means “a series of characters that
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`corresponds to an address of a computer or group of computers that is to be sent to a domain name
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`service (DNS).” Microsoft contends that “domainnanie” means “a hierarchical name for a computer
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`(such as WWW.utexas.edu) that the Domain Name Service converts into an IP address." The parties
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`dispute whether “domain name” can correspond to a group of computers or only a single computer,
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`whether “domain name” is a hierarchical name for a computer, whether “domain name” is limited
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`to web site names, and Whether “domain name" is limited to a computer name being converted into
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`an IP address.
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`The claims themselves describe “domain name.” Claim 1 states “a Domain Name Service
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`(DNS) request that requests an IP address corresponding to a domain name associatedwith the target
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`computer.” Col. 47:23-26. Also, claim 10 states “a DNS proxy server that receives a request from
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`5See below for the Court’s construction of‘”dcrnair1 name.”
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`the client computer to look up an IP address for a domain name.” Col. 4826-7. In both claim l and
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`claim ‘:0 an IP address corresponds to a domain name. Thus, the domain name corresponds to an
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`IP address. Accordingly, the Court construes “domain name” as “a name corresponding to an IP
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`address."
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`VimetX proposes that “domain name” corresponds to a group of computers (IP addresses)
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`or a single computer because ciaims 1 and 10 of the ‘l35 patent refer to IP address using the
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`indefinite article “an.” The Federal Circuit has stated,
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`An indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or
`more’ in open ended claims containing the transitionai phrase ‘cornpn'sing.”’ That
`“a” or “an” can mean “one or more" is best described as a rule, rather than merely as
`a presumption or even a convention. The exceptions to [the “indefinite article”] rule
`are extremely limited: at patentee must “evince { ] a clear intent” to limit “a” or “an”
`to “one." The subsequent use of definite articles “the” or “said” in a ciaiin to refer
`back to the same claim term does not change the general plural rule, but simply
`reinvokes that non—singular meaning. An exception to the general rule that “a” or
`“an" means more than one only arises where the language of the claims themselves,
`the specification, or the prosecution history necessitate a departure from the rule.
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`Baldwin Graphic Sysz, Inc, v. Siebert, Inc, 512 F.3d i338, 1342413 (Fed. Cir. 2008) {citations
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`omitted). Claims 1 and 10 of the ‘135 patent are open—ended construction claims using the word
`“cornprising” and use the indefinite a1ticie“an” to refer to “IP address." See Col. 47:20-26; see Col.
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`48 23-7. By the “one or more” rule, these claims aiiow for one or more IP addresses. Any subsequent
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`use of the definite article “the” to refer to “IP address" simply refers back to the previously used “IP
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`address” and thus reinvokes the non—singular meaning. See Col. 47:39-40; see Co}. 48:8. Microsoft
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`does not assert any evidence to show that an exception to the “one or more” rule exists. Thus, there
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`may be more than one IP address, and thus more than one computer, that corresponds with the
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`domain name. This would allow for a situation Where the IP address that corresponds to the domain
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`name is not the [P address of the target computer. See Col. 38:23 -42. Accordingly, “domain name”
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`can correspond to more than one computer.
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`Microsoft contends that the patents limit “domain name” to a hierarchical name for a
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`computer under traditional hierarchical DNS format. However, Microsoft relies largely on extrinsic
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`evidence—including expert testimony and Microsoft’s own technology tutorial——to support its
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`contentions, which does not carry great weight in light of the fact that claim language provides
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`guidance on the meaning of “domain name.” Also, where Microsoft uses intrinsic evidence for
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`support, Microsoft only refers to non—lirniting language from the specification. For instance,
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`Microsoft suggests that the examples used in the specification for domain names, which include
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`“Yai1oo.com" and “Target.co1n,” show that the patents use “domain naine” in its traditional
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`hierarchical DNS fonnat. Microsoft further suggests that “domain name” is limited to a traditional
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`hierarchical name because the patents do not provide a single example of “domain name” that is not
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`written in traditional hierarchical DNS fonnat. However, Microsoft argues only the presence and
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`absence of examples rather than any enforceable language of limitation. The specification’s
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`disclosure or omission of examples does not create limitations on claims. Accordingly, Microsoft
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`does not offer sufficient support for limiting “domain name” to a hierarchical name for a computer.
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`Microsoft also contends that the patents limit “domain name” to web site names. However,
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`no such limitation is found in the claims, and Microsoft merely references its arguments on
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`construing “web site” without showing how “domain name” is necessarily linked to web sitenames.
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`Accordingly, “domain name” is not limited to web site names.
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`Finally, Microsoft contends that “domain name” is limited to a computer name being
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`converted into an IP address. Microsoft supports this propo sed limitation by arguing that a “dotnairi
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`name" has the capacity to be converted by BN8 into an IP address and that the specification
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`emphasizes this point by describing that identical DNS requests may result in conventional domain
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`name resolution, “host unknown” error messages, or VPN initiation, depending not on Whether
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`something is a “domain name” but on what type of web Site was requested. However, Microsoft
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`incorrectly argues that a “capacity” to be converted by DNS into an IP address demonstrates a
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`required limitation. A mere capacity to perform an act does not make that act necessary. Thus,
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`Microsoft has not sufficiently supported limiting “domain name” to a computer name being
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`converted into an IP address. Accordingly, the Court construes “domain name” as “a name
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`corresponding to an 1? address.”
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`“web site”
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`The ‘I35 -patent, claims 1 and 10 contain the term “web site.” VirnetX contends that
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`construing “secure web site” as addressed below sufficiently addresses the meaning of “web site”
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`and that “Web site” does not require further construction. Alternatively, VirnetX contends that “web
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`site" means “a computer associated with a domain name and that can communicate in a network.”
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`Microsoft contends that “web site” means “one or more related web pages at a location on the World
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`Wide Web.” The parties dispute whether “web site” should be given a construction separate from
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`“secure web site” and whether “web site” is limited to web pages on the World Wide Web. T
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`VirnetX argues that “web site” should not be construed separately from “secure web site”
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`because the ‘ 135 patent claims never state “Web site” Without the preceding Word “secure.”
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`However, “secure" is separable from “web site” as a modifier of “web site.” The claims Show that
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`“secure” can be replaced by other modifiers to “web site.” Claims I and 10 of the ‘135 patent refer
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`to “web site” preceded by “non-secure” and “secure target.” Co}. 47:28, 30; C01. 48:10, 14. This
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`demonstrates that “web site” can be separated horn its modifier and thus is its own term separate
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`from “secure,” Thus, “web site" may be construed as its own claim term.
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`The Court adopts Microsoft’s construction and construes “web site” as “one or more related
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`web pages at a location on the World Wide Web.” The patent does not state a definition for “web
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`site.” However, the term itself is instructive. “Web site” on its face refers to a “web” Internet
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`resource, which is a Web page on the World Wide Web. The specification is consistent with
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`construing “web site” as a Web page on the World Wide Web. Examples of web sites in the
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`specification are “Yahoo.co1n" and “Target.corn.” Col. 3725,45. “Yahoo.corn" and “Target.com”
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`are wellvlcnowri web pages on the World Wide Web. See Yahoo! Home Page, www.Yahoo.corr1;
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`see Target Home Page, www. 'Earget.co1n. Also, the specification states that a “web browser” can
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`be used to access a “web site." Col. 39:48, 50-51, 55; C01. 40:1, 38.
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`It is well—known that a “web
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`browser” is used to navigate “Web pages” on the World Wide Web. Thus, the intrinsic evidence
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`supports Microsoft’s proposed construction.
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`Furthermore, extrinsic evidence supports Microsoft‘s construction. The World Wide Web
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`Consortium, an industry sta.nclards—serti11g organization for the World Wide Web, defined web site
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`as “[21] collection of interiinked Web pages, including a host page, residing at the same network
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`location.” Brian Lavoie 85 Henrik Frystyk Nielsen, Web Characterization Teminologji
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`<53:
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`Definitiozas Sheer, W3 C Working Draft {May 24, 1999) at 9, Deffs Resp. (Docket No. 201), Ex. X
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`{emphasis removed). This definition is consistent with industry dictionaries, which define a web site
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`as “A collection of logically connected Web pages managed as a single entity” and “A group of
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`HTML doc-umeiits and associated scripts supported by a Web server o