VIRNETX EXHIBIT 2005
`Apple v. VirnetX
`Trial IPR2015-00866
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`

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`Case 6:11—cv—00018-LED Document 307
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`Filed 08/01/12 Page 2 of 13 Page|D #: 9039
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`This Court has recently construed all but one of the terms at issue. See l/irnetX, Inc. v.
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`Cisco Systems, Iricn, No. 6:10—cv—417 (E.D. Tex. Apr. 25, 2012) (“Cisco”). Further, many of
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`those terms were construed by this Court in a previous case that involved the ‘135 Patent. See
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`VirnerX, Inc. v. Microsofi‘ Corp, 2009 US. Dist. LEXIS 65667, No. 6:07cv80 (E.D. Tex. Ju.ly
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`30, 2009) (“Microsoft”). Thus, this is the third time this Court has considered many of the terms
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`at issue. Given the recent opinion construing most of these terms, the Court hereby incorporates
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`the entirety of the reasoning therein. See Cisco, No. 6:10—cv—4l'/' (E.D. Tex. Apr. 25, 2012). The
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`opinion below addresses new arguments and new terms presented by the parties.
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`APPLICABLE LAW
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude?” Pl’1llllpS v. AWH Corp, 415 F.3d 1303,
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`1312 (Fed. Cir. 2005) (en banc) (quoting lrmova/Pure Water Inc. v. Safari Water Filtrarion S)/.S‘.,
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`Inc, 381 F.3d 1111, 1115 (Fed. Cir. 2004)). In claim construction, courts examine the patent’s
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`intrinsic evidence to define the patented invention’s scope. See id; CR. Bard, Incyv. US
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`Surgical Corp, 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs, Inc. v. Covad
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`Commons Group, Inc, 262 F.3d 1258, 1267 (Fed. Cir. 2001). This intrinsic evidence includes
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`the claims themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at
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`1314; CR. Bord, 1110., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed
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`meaning as understood by one of ordinary skill in the art at the time of the invention in the
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`context of the entire patent. Phillips, 415 F.3d at 1312#13; Alloc, Inc. v. Ir.!t’l Trade Comm ’r.:,
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`342 F.3d 1361, 1368 (Fed. Cir. 2003).
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`The claims themselves provide substantial guidance in determining the meaning of
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`particular claim terms. Phillips, 415 F.3d at 1314. First, a ter1n’s context in the asserted claim
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`can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the
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`Case 6:11—cv—00O18-LED Document 30?
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`Filed 08/01/12 Page 3 of 13 Page|D #: 9040
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`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
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`Differences among the claim terms can also assist in understanding a term’s meaning. Ia’. For
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`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
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`the independent claim does not include the limitation. Id. at 1314-15.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.” Ia‘.
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`(quoting Mbrkman v. Wcstview Instmmenrs, Inc, 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).
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`“[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed ter1n.”’ Id. (quoting Wtronics
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`Corp. v. Ccnceptrcnic, Inc, 90 F.3d 1576, 1582 (Fed. Cir. 1996)); see also Teleflex, Inc. v.
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`Ficcsa N. Am. Corp, 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may
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`define his own terms, give a claim term a different meaning than the term would otherwise
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`possess, or disclaim or disavow the claim scope. Philfips, 415 F.3d at 1316. In these situations,
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`the inventor’s iexicography governs. Ia’. Also, the specification may resolve ambiguous claim
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`terms “where the ordinary and accustomed meaning of the words used in the claims lack
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`sufficient clarity to permit the scope of the claim to be ascertained from the words alone.”
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`Teleflex, Inc, 299 F.3d at 1325. Bu, “‘[a]lthough the specification may aid the court
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`in
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`interpreting the meaning of disputed claim language, particular embodiments and examples
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`appearing in the specification will not generally be read into the claims. Comark Comma ’ns,
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`Inc. v. Harris Corp, 156 F.3d 1182, 1187 (Fed. Cir. E998) (quoting Constant v. Advanced
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`Micr0—Devices, Inc, 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323.
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`The prosecution history is another tool to supply the proper context for claim construction
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`because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics,
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`Page 3 of 13
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`Case 6:‘l1—cv—00018-LED Document 307
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`Filed 08/O1f12 Page 4 of 13 Page|D #: 9041
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`Inc, v. Lzfescan, Inc, 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the Specification,
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`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
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`in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317
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`(quoting CR. Bard, Inc, 388 F.3d at 862). Technical dictionaries and treatises may help a court
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`understand the underlying technology and the manner in which one skilled in the art might use
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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
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`testimony may aid a court in understanding the underlying technology and determining the
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`particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
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`assertions as to a term’s definition is entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`LEVEL OF ORDINARY SKILL IN THE ART
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`The parties agree that a person of ordinary skill in the art would have a master’s degree in
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`computer science or computer engineering and approximately two years of experience in
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`computer networking and computer network security.
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`CLAIM TERMS
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`Virtual private network
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`ViI‘I16tX proposes “a network of computers which privately and directly communicate
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`with each other by encrypting traffic on insecure communication paths between the computers.”
`Defendants propose “a network of computers which privately and directly communicate with
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`each other by encrypting traffic on insecure communication paths between the computers to
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`accomplish both data security and anonymity, and in which a computer is able to address
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`Case 6:11-cv-00018-LED Document 307'
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`Filed 0801/12 Page 5 of 13 Page|D #1 9042
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`additionai computers over the network without additional setup.” In Cisco, the Court construed
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`this term as “a network of computers which privately and directly communicate with each other
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`by encrypting traffic on insecure communication paths between the computers where the
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`communication is both secure and anonymous.”
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`The Court’s Cisco analysis has already addressed the parties’ arguments relating to the
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`“secure and anonymous” limitation. See Cisco, slip op. at 5. Here, Defendants seek the additional
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`limitation “and in which additional computers can be addressed over the network without
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`additional setup.” During reexamination of the ‘135 Patent, VirnetX argued that the Aventail
`reference did not disclose a VPN for three reasons. See Docket No. l65 attach. S, at 5-6. The
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`first of these arguments was that “Aventail has not been shown to demonstrate that computers
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`connected via the Aventail system are able to communicate with each other as though they were
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`on the same network.” 10.’. at 5. Thereafter, VirnetX provides an example of a situation permitted
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`by a VPN but not by Aventail. In the example, VirnetX explained that two computers (A and B)
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`on a public network that each established independent VPN connections to a private network
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`(containing computers X and Y) would have the ability to communicate with each other over the
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`VPN. However, the same public computers employing the Aventail system would be unable to
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`communicate with each other over the established Aventail (SOCKS) connections.
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`Defendants seek to impose the “without additional setup” limitation based on the
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`following statement lifted from VirnetX’s two paragraph example: “then A would nevertheless
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`be able to ad.dress data to B, X, and Y without additional setup.” Id. at 6. However, the example
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`was provided to illustrate how multiple computers connected via Aventail were not able to
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`“communicate with each other as though they were on the same network.” Id. at S. This feature
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`of the VPN is captured with the “directly” limitation discussed in both Cisco and Microsofi.
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`Case 6:1 1—cv—0OO‘l8—LED Document 307
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`Filed O8/01:’12 Page 6 of 13 Page!D #: 9043
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`Further,
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`it
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`is unclear wha
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`“without additional setup” means. Accordingly,
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`the “without
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`additional setup” limitation should not be included in the construction for “virtual private
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`network” because it is aheady captured in the “directly” limitation.
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`The Court construes “virtual private network” as “a network of computers which
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`privately and directly communicate with each other by encrypting traffic on insecure paths
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`between the computers where the communication is both secure and anonymous.”
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`virtual private link
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`VirnetX proposes “a communication link that permits computers to privately and directly
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`communicate with each other by encrypting traffic on insecure communication paths between the
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`computers." Defendants propose “a network of computers which privately and directly
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`communicate with each other by encrypting traffic on insecure communication paths between the
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`computers to accomplish both data security and anonymity, and in which each computer is able
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`to address additional computers without additional setup.” In Cisco, the Court construed this
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`term as “a virtual private network as previously defined.”
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`Defendants’ proposal tracks their proposal for “virtual private network,” which has been
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`addressed. For the same reasons stated in Cisco, the Court construes “virtual private link” as “a
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`virtual private network as previously defined.”
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`secure communication link
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`VirnetX proposes “a direct communication link that provides data security.” Mite] and
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`Siemens propose “a direct communication link that provides data security by encrypting data on
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`insecure communications paths, and in which a computer is able to address additional computers
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`over the communication link without additional setup.” Avaya proposes that the term be
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`construed the same as “virtual private network.” In Cisco, the Court initially construed the term
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`as “a direct communication link that provides data security”; however, the Cisco parties later
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`Case 6:11-cv-00018-LED Document 307
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`agreed to the following construction: “a direct communication link that provides data security
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`through encryption.”
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`Avaya advances essentially the same arguments addressed in Cisco where the defendants
`proposed a construction of “virtual private network communication link.” Mitel and Siemens
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`agree that data security is provided through encryption. ln Cisco, VirnetX ultimately agreed that
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`data security is provided through encryption. Thus,
`applicable in the instant case.
`I
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`the “through encryption” limitation is
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`For
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`these reasons
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`and those discussed in Cisco,
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`the Court construes “secure
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`communication link” as “a direct communication link that provides data security through
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`encryption.”
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`domain name service
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`VirnetX proposes “a lookup service that returns an IP address for a requested domain
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`name,” adopting the Court’s previous construction of this term in Microsoft. Defendants propose
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`to append “to the requester” to VirnetX°s proposed construction, which the Court did in Cisco.
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`For the same reasons discussed in Cisco, the Court construes “domain name service” as
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`“a lookup service that returns an IP address for a requested domain name to the requester.”
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`domain name
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`VirnetX proposes the same construction adopted by the Court in Microsofi and Cisco: “:1
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`name corresponding to an IP address.” Mitel and Siemens propose “a hierarchical sequence of
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`character segments separated by periods.” Avaya proposes “a hierarchical sequence of character
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`segments, separated by periods and arranged in decreasing order of specificity, that resolves to
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`an IP address.”
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`For the same reasons stated in Microsofi‘ and Cisco, the Court construes “domain name”
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`as “a name corresponding to an IP address.”
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`Case 8:11-CV-OO018—LED Document 307
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`Filed 08."01/12 Page 8 of '13 PagelD #: 9045
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`DNS proxy server
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`VirnetX proposes “a computer or program that responds to a domain name inquiry in
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`place of a DNS.” Defendants propose “a computer or program that responds to a DNS request in
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`place of a DNS, and prevents destination servers from determining the identity of the entity
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`sending the DNS request.” VirnetX’s proposal and the first portion of Defendants’ proposal
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`reflect the construction adopted by this Court in Ii/Iicrosofi. Here, as in Cisco, the dispute is
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`whether a DNS proxy server “prevents destination servers from determining the identity of the
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`entity sending the domain name inquiry.” In Cisco, the Court construed the term as “a computer
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`or program that responds to a domain name inquiry in place of a DNS.”
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`C For the reasons stated in Microsoft and Cisco, the Court construes “DNS proxy server” as
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`“a computer or program that responds to a domain name inquiry in place of a DNS.”
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`domain name service system
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`VimetX proposes that no construction is necessary, but alternatively proposes “a
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`computer system that includes a domain name service (DNS).” Defendants propose “a DNS that
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`is capable of differentiating between, and responding to, both standard and secure top~level
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`domain names.” In Cisco, this Court determined that no construction was necessary.
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`For the same reasons stated in Cisco, the Court finds that “domain name service system”
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`does not require construction.
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`Web site
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`VirnetX proposes “a computer associated with a domain name and that can communicate
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`in a network.” Defendants propose “one or more related web pages at a location on the World
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`Wide Web.” These two proposals mirror the proposals made in Microsofi‘ and Cisco. In both
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`cases, the Court adopted Defendants’ proposal.
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`Case 6:11-cv-0O018—LED Document 307
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`Filed 08/01/12 Page 9 of 13 PagelD #: 9046
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`For the same reasons stated in Microsoft and Cisco, the Court construes “web site” as
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`“one or more related web pages at a location on the World Wide Web.”
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`secure web site
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`VirnetX proposes “a computer (target computer) associated with a domain name and that
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`can communicate in a virtual private network.” Defendants propose “a web site that requires
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`authorization for access and that can communicate in a VPN.” In Cisco, the Court construed this
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`term as “a web site that requires authorization for access and that can communicate in a VPN.”
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`For the same reasons stated in Cisco, the Court construes “secure web site” as “a web site
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`that requires authorization for access and that can communicate in a VPN.”
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`secure target web site
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`VirnetX proposes “a computer (target computer) associated with a domain name and that
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`can communicate in a virtual private network.” Defendants propose “the secure web site on the
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`target computer.” In Cfsco,
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`the Court construed this term as “a web site that requires
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`authorization for access and that can communicate in a VPN.”
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`For the same reasons stated in Cisco, the Court construes “secure target web site” as “a
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`secure web site on the target computer.”
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`target computer
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`VirnetX argues that no construction is necessary, but alternatively proposes “a computer
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`with which the client computer seeks to comrnunicate.” Defendants propose “the ultimate
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`destination computer with which the client computer seeks to communicate.” In Cisco, the Court
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`determined that no construction was necessary.
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`For the same reasons stated in Cisco, the Court finds that “target computer” does not
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`require construction.
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`Case 6:‘! 1—CV—0O018-LED Document 307
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`Filed 08/01/12 Page 10 of 13 Page|D #: 9047
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`between [A] and [B]
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`V_irnetX argues that no construction is necessary, and Defendants propose “extending
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`from [A] to [B].”1 In Cisco, the Court construed this term as “extending from [A] to [B].” For the
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`same reasons stated in Cisco, the Court construes “between [A] and [B]” as “extending from [A]
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`to [B].”
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`an indication that the domain name service system supports establishing a secure
`communication link
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`VirnetX argues that this term does not require construction. Defendants propose “a
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`message or signal
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`that
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`informs the user that
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`the domain name service system supports
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`establishing a secure communication link.” In Cisco, the Court determined that no construction
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`was necessary.
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`The Cisco defendants argued that the indication must be visual to the user. The Court
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`rejected that argument, explaining that it was an attempt to import a limitation from a preferred
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`embodiment. See Crisco, slip op. at 2'/#28. The Defendants here argue that the indication must be
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`to the user. Defendants again rely on the “one—click” systems discussed in the ‘S04 Patent and
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`Figures 33 and 34. See ‘504 Patent col. 49:6~l2. However, the specification reveals a system
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`where “the secure link is automatically established as a default setting at boot—up of the computer
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`(i.e., no click)?’ Id. col. 49:l0—l2. Thus, the indication may be provided to the computer directly
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`(e.g., via configuration files) as opposed to the user. The claims themselves do not limit whether
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`the indication is made to the user or the user’s computer. Defendants’ proposed construction
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`improperly limits the claims to a preferred embodiment.
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`This term is readily understandable and does not require construction.
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`L The parties present the terms as: (1) “between '[a/the] first location and [a/the} second location"; and (2) “between a
`client computer and target computer." However, the terms may be collapsed to “between [A] and [B]"‘ without
`affecting Defendants’ proposed constructions.
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`Case 6:11-CV-00018-LED Document 307'
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`Filed O8/01f12 Page 11 of 13 Page|D #: 9048
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`indicate/indicating in response to the query whether the domain name service system
`supports establishing a secure communication link
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`VirnetX argues that
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`this term does not
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`require construction. Defendants propose
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`“inform/informing the user in response to the query whether the domain name service system
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`supports establishing a secure communication link.” The issue a11d arguments regarding this term
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`are identical to those raised for the previous term. For the same reasons stated regarding the
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`previous term, this term does not require construction.
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`query
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`VirnetX proposes that this term does not require construction. Defendants propose “a
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`request for information from a database.” Defendants argue that query must be construed
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`because it has both a lay and technical meaning. Defendants’ proposed construction adopts the
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`technical meaning and seeks to limit queries to database queries. VirnetX argues that this
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`limitation is not supported by the specification or claims. VirnetX further argues that the
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`meaning of query is clear from the context of its use in the claims.
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`Claim 1 of the ‘S04 Patent claims a “domain name service system configured. . .to
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`receive a query for a network address .
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`.
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`. .” ‘S04 Patent col. 55:51-54. Further, claim 1 makes no
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`mention of a database. However, other claims in the ‘S04 Patent do specifically reference
`databases. See, e.g., ‘S04 Patent Claims 20 & 21. Thus, there is no indication that the query of
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`claim 1 should be limited to a database query as requested by Defendants. Query, as used in the
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`claims of the patents—in—suit, is readily understood and is not limited to the technical meaning
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`employed in the database context. Defendants’ attempt to limit the queries to database queries is
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`not supported by the claims.
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`Accordingly, this term does not require construction.
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`Case 6:'H—ov~D0018~LED Document 307
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`Fiied O8/01112 Page 12 of 13 F’ageED #: 9049
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`CONCLUSION
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`For the foregoing reasons, the Court interprets the claim language in this case in the
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`manner set forth above. For ease of reference, the Court’s claim interpretations are set forth in a
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`tabie in Appendix A.
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`So ORDERED and SIGNED this 1st day of August, 2012.
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`
`
`LEONARD DAVIS
`UNITED STATES DISTRICT JUDGE
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`Case 6:11-cv-00018-LED Document 307
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`Filed 08:’01/12 Page 13 of ‘E3 Page|D #: 9050
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`APPENDIX A
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`Court’s Construction
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`
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`Claim Term
`
`
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`virtual private network
`
`
`
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`a network of computers which privately and directly
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`communicate with each other by encrypting traffic on
`insecure paths between the computers where the
`communication is both secure and anonymous
`a virtual private network as previously defined
`a direct communication link that provides data
`security through encryption
`a lookup service that returns an IP address for a
`requested domain name to the requester
`a name corresponding to an IP add.ress
`a computer or program that responds to a -domain
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`name inquiry in __n lace of a DNS
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`
`
`No construction necessary
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`one or more related web pages at a location on the
`World Wide Web
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`
`
`
`
`
`
`virtual private link
`secure communication link
`
`domain name service
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`domain name
`DNS proxy server
`
`
`
`
`domain name service system
`web site
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`secure web site
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`a web site that requires authorization for access and
`that can communicate in a VPN
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`secure target web site
`a secure web site on the target computer
`target computer
`No construction necessary
`extendin from [A] to [B]
`between [A] and [B]
`an indication that
`No construction necessary
`
`
`
`
`
`the domain name
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`
`
`
`
`service system supports establishing a
`secure communication link
`
`
`
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`indicate/indicating in response to the No construction necessary
`query whether the domain name service
`system supports establishing a secure
`
`communication link
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`No construction necessary
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`
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`Page 13 of13
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