Case 6:10-cv-00417-LED Document 182 Filed 12/07/11 Page 1 of 37 PageID #: 4276
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`
`VirnetX Inc.,
`
`
`
`v.
`
`Cisco Systems, Inc., Apple Inc.,
`Aastra USA, Inc., Aastra Technologies Ltd.,
`NEC Corporation, and NEC Corporation of
`America,
`
`
`
`
`Civil Action No. 6:10-cv-00417-LED
`JURY TRIAL DEMANDED
`
`
`
`
`Plaintiff,
`
`Defendants. 
`
`DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
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`Page 1 of 37
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`VIRNETX EXHIBIT 2002
`Apple v. VirnetX
`Trial IPR2015-00867
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`

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`Case 6:10-cv-00417-LED Document 182 Filed 12/07/11 Page 2 of 37 PageID #: 4277
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`TABLE OF CONTENTS
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`I. 
`
`INTRODUCTION ..................................................................................................................1 
`
`II.  LEGAL STANDARDS ..........................................................................................................1 
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`III.  PATENTS-IN-SUIT ...............................................................................................................1 
`
`IV.  DISPUTED CLAIM CONSTRUCTIONS .............................................................................2 
`
`A.  Disputes Concerning Virtual Private Networks ............................................................. 2 
`
`1.  Virtual Private Network ......................................................................................... 2 
`
`2.  Virtual Private Link ............................................................................................... 7 
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`3.  Secure Server ......................................................................................................... 8 
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`4.  Secure Communication Link ............................................................................... 10 
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`B.  Disputes Relating to Domain Names ............................................................................ 11 
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`1.  Domain Name ...................................................................................................... 11 
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`2.  Domain Name Service ......................................................................................... 13 
`
`3.  Secure Domain Name Service ............................................................................. 14 
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`4.  Domain Name Service System ............................................................................ 16 
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`5.  DNS Proxy Server ............................................................................................... 17 
`
`C.  Disputes Concerning Indicating, Indications, and Indicate .......................................... 19 
`
`1.  An Indication That The Domain Name Service System Supports Establishing A
`Secure Communication Link ............................................................................... 19 
`
`D.  Disputes Concerning the Scope of Virtual Private Networks ...................................... 21 
`
`1.  “Between [A] and [B]” ........................................................................................ 21 
`
`2.  Target Computer .................................................................................................. 22 
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`E.  Disputes Relating to Websites ...................................................................................... 25 
`
`1.  Web Site ............................................................................................................... 25 
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`2.  Secure Web Computer ......................................................................................... 27 
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`F.  Disputes pertaining to the ‘759 Patent .......................................................................... 28 
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`1.  Cryptographic Information .................................................................................. 28 
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`2.  Enabling A Secure Communication Mode Of Communication .......................... 29 
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`G.  Dispute Regarding The “Generating” Limitation ......................................................... 30 
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`TABLE OF AUTHORITIES
`
`Cases 
`Am. Piledriving Equip. v. Geoquip, Inc.,
`637 F.3d 1324 (Fed. Cir. 2011) ............................................................................................... 7
`Ciena Corp. v. Nortel Networks Inc.,
`No. 2:05-CV-14, 2006 U.S. Dist. LEXIS 97450 (E.D. Tex. Apr. 25, 2006) ................... 17, 21
`Eon-Net LP v. Flagstar Bancorp,
`653 F.3d 1314 (Fed. Cir. 2011) ............................................................................................. 18
`Every Penny Counts, Inc. v. Am. Express Co.,
`563 F.3d 1378 (Fed. Cir. 2009) ............................................................................................... 4
`Golden Hour Data Sys. v. emsCharts, Inc.,
`614 F.3d 1367 (Fed. Cir. 2010) ............................................................................................. 18
`i4i Ltd. P’ship v. Microsoft Corp.,
`598 F.3d 831 (Fed. Cir. 2010) ............................................................................................... 24
`Lindemann Maschinenfabrik GMBH v. Am. Hoist & Derrick Co.,
`730 F.2d 1452 (Fed. Cir. 1984) ............................................................................................. 26
`Merck & Co., Inc. v. Teva Pharms. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005) ............................................................................................. 24
`Microsoft Corp. v. Multi-Tech. Sys.,
`357 F.3d 1340 (Fed. Cir. 2003) ............................................................................................. 17
`Momentus Golf, Inc. v. Swingrite Golf Corp.,
`187 F. App’x. 981 (Fed. Cir. 2006) ......................................................................................... 6
`Omega Eng'g., Inc. v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003) ............................................................................................. 10
`On Demand Mach. Corp. v. Ingram Indus.,
`442 F.3d 1331 (Fed. Cir. 2006) ............................................................................................. 30
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ............................................................................................. 12
`Seachange Int’l, Inc. v. C-COR Inc.,
`413 F.3d 1361 (Fed. Cir. 2005) ............................................................................................... 7
`Vivid Techs., Inc. v. Am. Science & Eng'g, Inc.,
`200 F.3d 795 (Fed. Cir. 1999) ................................................................................................. 7
`
`
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`iv
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`I.
`
`INTRODUCTION
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`To prevail at trial in its litigation against Microsoft, VirnetX relied on this Court’s
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`constructions of key language from the patents-in-suit—such as “virtual private network” and
`
`“secure domain name.” VirnetX then turned around and told the Patent Office that this Court’s
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`constructions were wrong. Specifically, in distinguishing prior art in subsequent reexamination
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`proceedings, VirnetX argued that the terms “virtual private network” and “secure domain name”
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`contain limitations found nowhere in this Court’s constructions.
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`Now VirnetX seeks to reverse course once again. While conceding that its reexamination
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`arguments require narrowing of this Court’s prior definition of “secure domain name,” VirnetX
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`asks this Court not only to disregard its reexamination arguments concerning “virtual private
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`network,” but also to revisit and broaden the construction of that language from the Microsoft
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`case. VirnetX should not be permitted to expand and contract the scope of the asserted claims to
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`suit whatever validity or infringement dispute it currently confronts. Defendants’ proposed
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`claim constructions avoid that result by applying settled claim construction principles to interpret
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`the asserted claims consistent with VirnetX’s statements to the Patent Office, both in the original
`
`applications and during subsequent reexamination proceedings.
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`II.
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`LEGAL STANDARDS
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`This Court is familiar with the pertinent claim construction principles. For convenience,
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`Defendants cite to relevant authority in the body of the brief.
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`III.
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`PATENTS-IN-SUIT
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`The six Patents-in-Suit are closely related. The specifications of the ‘135 and ‘151
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`Patents are substantively identical, as are the specifications of the ‘180, ‘759, ‘504, and ‘211
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`Patents.‘ The latter patents are based on a continuation-in—part to the ‘ 135 Patent, adding new
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`material to the specification, most notably a section titled “One-Click Secure On-Line
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`Communications and Secure Domain Name Service” and related Figures 34 and 35.
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`Several of the Patents-in-Suit have been subject to reexamination. The Patent Office
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`granted Microsofi’s request for interpartes reexamination of the ‘I35 and ‘I80 Patents, but
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`confirmed the claims after Microsoft settled with VirnetX and withdrew from the
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`reexaminations. Since that time, the Patent Office has initiated new reexaminations of the ‘ 135,
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`‘151, ‘ 180, and ‘759 Patents.
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`IV.
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`DISPUTED CLAINI CONSTRUCTIONS2
`
`A.
`
`Disputes Concerning Virtual Private Networks
`
`1.
`
`Virtual Private Network
`
`communication is both secure and anon n ous
`
`Virtual Private Network
`
`VirnetX’s Proposed Construction
`a network of computers which
`privately communicate with each
`other by encrypting traffic on
`insecure communication paths
`between the con uters
`
`Defendants’ Proposed Construction
`a network of computers which privately and
`directly communicate with each other by
`encrypting traffic on insecure communication
`paths between the computers where the
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`Proceedings that occurred afier this Court’s Claim Construction Order in the Microsofi
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`litigation warrant modification of the Court’s pervious construction of “virtual private networ ”
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`(1) to expressly reflect this Court’s prior ruling that communications in a “virtual private
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`networ ” are both secure and anonymous, and (2) to specify that the claimed network of
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`computers directly communicate with each other, as Vi1netX represented to the Patent Office in
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`subsequent reexamination proceedings.
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`1 Not all of the patents or claims from those patents are asserted against all of defendants. Each Defendant joins in
`this brief to the extent the disputed term appears in the patent claims asserted against that Defendant.
`2 The parties agree that a person of ordinary skill in the art would have a Master’s degree in computer science or
`computer engineering. or in a related field, as well as about two years of experience in computer networking and in
`some aspect of security with respect to computer networks. The parties also agree that such person would have
`actual experience with networking protocols as well as the security of those protocols.
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`

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`a)
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`Secure And Anonymous
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`This Court already decided that a virtual private network requires “both data security and
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`anonymity” (Microsoft case, D.I. 246 (attached as Ex. A) at 8-9) and expressly recognized that
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`the disclosed virtual private networks were designed to prevent eavesdroppers on insecure
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`networks from intercepting data and determining which computers were communicating, and
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`therefore must accomplish both data security and anonymity. Nevertheless, the Court’s prior
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`Order did not explicitly incorporate those requirements into the text of its construction.3
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`Defendants’ construction expresses these requirements so as to avoid jury confusion.
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`In the Microsoft case, Microsoft largely hinged its noninfringement case on the argument
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`that its accused products did not achieve anonymity. See e.g. Microsoft case, D.I. 393 (attached
`
`as Ex. D) at 62:20-65:15; Microsoft case, D.I. 396 (attached as Ex. F) at 19:4-32:6. Accordingly,
`
`both parties repeatedly referred to an element required by the prior Claim Construction Order but
`
`absent from the express definition of “virtual private network.” While no party disputed that a
`
`“virtual private network” must achieve data security and anonymity4, the parties had to rely on
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`cross examination to convey those requirements to the jury, thereby complicating the trial and
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`increasing the risk of jury confusion. Express incorporation of all of the requirements of a
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`virtual private network into the construction will remove ambiguity and ensure that claim
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`construction issues are not left to the jury. See Every Penny Counts, Inc. v. Am. Express Co., 563
`
`
`3 After the Court's claim construction order, Microsoft moved to have the “data security and anonymity” language
`incorporated in the Court’s construction of virtual private network. Microsoft case, D.I. 247. Neither party disputed
`that a virtual private network requires anonymity when the Court considered the issue at the pretrial conference.
`Microsoft case, D.I. 339 (attached as Ex. O) at 6:16-14:16. VirnetX went so far as to promise that its expert would
`not contradict that “private” requires both anonymity and security.” Id. at 12:20-13:2. Microsoft eventually agreed
`to rely on cross examination of VirnetX’s expert witnesses, instead of express incorporation into the construction, to
`convey that requirement to the jury. Id. at 14:2-4.
`4 See Microsoft case, D.I. 391 (attached as Ex. B) at 88:18-89:17, 155:8-15; Microsoft case, D.I. 392 (attached as
`Ex. C) at 64:1-71:12, 85:19-89:1, 93:10-15; Microsoft case, D.I. 393 (Ex. D) at 42:1-43:11, 62:20-65:15; Microsoft
`case, D.I. 395 (attached as Ex. E) at 100:12-101:25, 105:1-9; Microsoft case, D.I. 396 (Ex. F) at 19:5-32:6, 70:2-
`88:12, 98:22-109:19, 118:12-121:19, 126:8-18; Microsoft case, D.I. 397 (attached as Ex. G) at 56:3-59:8; Microsoft
`case, D.I. 398 (attached as Ex. H) at 136:12-137:16.
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`3
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`F.3d 1378, 1383 (Fed. Cir. 2009).
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`In its opening brief, VirnetX now argues—contrary to this Court’s ruling in the Microsoft
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`case—that a virtual private network does not require anonymity. But the intrinsic evidence
`
`shows otherwise. The Background of the Invention frames the patent as addressing “two
`
`security issues . . . called data security and anonymity.” ‘135 Patent (attached as Ex. 1) at 1:35-
`
`36 (emphasis added). It also explains that anonymity involves “prevent[ing] an eavesdropper
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`from discovering that terminal 100 is in communication with terminal 110.” Id. at 1:26-27. And
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`the specification consistently equates the word “private” in “virtual private network” with
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`“anonymity,” explaining that “[a]nonymity would thus be an issue, for example, for companies
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`that want to keep their market research interests private.” Id. at 1:32-33 (emphasis added). The
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`rest of the specification describes ways to solve the twin security issues of data security and
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`anonymity. Id. at 2:66-3:17, 19:66-20:3, 23:11-36, 37:40-49, 37:63-38:6, 39:29-33. As the
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`Court previously recognized, because the Detailed Description of the Invention section refers
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`back to the anonymity features disclosed earlier in the specification, the term VPN requires
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`anonymity wherever it appears. Ex. A at 8-9.
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`Ultimately, VirnetX’s claim construction brief simply rehashes a settled dispute from the
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`Microsoft case about the “purpose” of encapsulation. D.I. 173 at 5. That discussion is beside the
`
`point. For one thing, the aforementioned teachings of the patents-in-suit, which define a virtual
`
`private network as requiring “anonymity,” do not hinge on their use of encapsulation. Ex. 1 at
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`7:49-58 (describing how anonymity is accomplished by having the destination field of the IP
`
`header point to an intermediary router instead of the ultimate destination). Indeed, this Court’s
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`Claim Construction Order expressly acknowledges that techniques other than tunneling exist to
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`achieve anonymity. Ex. A at 9-10. Furthermore, to the extent that “encapsulation” plays a role
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`4
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`in anonymity, the virtual private network described and claimed by the patents-in-suit ensures
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`anonymity regardless of whether that result is the “purpose.” In any case, encapsulation can
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`serve several purposes depending on its implementation, including data security and anonymity.
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`Kelly Decl. at ¶ 5. VirnetX’s reiteration of its arguments from the Microsoft litigation should
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`again be rejected.
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`b)
`
`Directly
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`In reexamination proceedings following this Court’s Claim Construction Order in the
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`Microsoft case, VirnetX responded to office actions rejecting several claims of the ‘135 and ‘180
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`Patents in light of the “Aventail” reference. In particular, VirnetX argued that Aventail does not
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`“disclose a VPN because computers connected according to Aventail do not communicate
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`directly with each other.” ‘135 reexam (attached as Ex. I) at 5-7 (emphasis added); see also
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`‘180 reexam (attached as Ex. K) at 11-13. Defendants’ construction incorporates VirnetX’s clear
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`mandate to the Patent Office that computers in a “virtual private network” communicate directly
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`with each other, and that absent direct communication between the computers, there is no virtual
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`private network.
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`
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`VirnetX confirmed that a “virtual private network” requires direct communication
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`between computers by further distinguishing the Aventail reference from the claimed invention:
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`The [Aventail] client cannot open a connection with the target itself. . . . Instead,
`the client computer and target computer are deliberately separated by the
`intermediate SOCKS server.
`
`Ex. I at 7 (emphasis added); see also Ex. K at 13. VirnetX summarized Aventail by explaining
`
`that, unlike the claimed virtual private network, in Aventail, “[r]egardless of the number of
`
`servers or proxies between the client and target, at least one is required . . . .” Id. (referring to a
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`network diagram from the Aventail reference). Finally, VirnetX relied on expert testimony that
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`“Aventail has not been shown to disclose a VPN because computers connected according to
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`5
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`Aventail do not communicate directly with each other.” ‘135 reexam, Nieh declaration (attached
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`as Ex. J) at ¶ 26 (emphasis added); ‘180 reexam, Nieh declaration (attached as Ex. L) at ¶ 29.
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`VirnetX therefore repeatedly and clearly confirmed that “virtual private network”
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`communications must be direct.
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`Confronted with its own unambiguous statements to the Patent Office, VirnetX protests
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`that it “was not forced to overcome a reference by disclaiming a certain scope of VPN taught by
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`Aventail [but rather] overcame Aventail on the ground that Aventail did not teach a VPN at all.”
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`D.I. 173 at 7-8. This is a difference without a distinction. In arguing that Aventail does not
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`disclose a VPN, VirnetX clearly defines “virtual private networks” as requiring direct
`
`communications between communicating computers.
`
`Nor can VirnetX escape the consequences of its statements to the Patent Office by
`
`portraying them as a case of ambiguous disclaimer. The disclaimer case VirnetX cites,
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`Momentus Golf, Inc. v. Swingrite Golf Corp., 187 F. App’x. 981 (Fed. Cir. 2006), concerned an
`
`ambiguity not present here. There, the patentee argued to the Patent Office that “[a] hollow
`
`device having 10-25% club head weight cannot meet the requirement in applicant’s claims that
`
`the center of gravity of the trainer be substantially at the center of a solid round stock.” Id. at
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`983. The Federal Circuit found that statement to be ambiguous because it was unclear whether
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`the patent owner was disclaiming (1) devices that were both hollow and had 10-25% head
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`weight, or (2) devices that either were hollow or that had 10-25% head weight. Id. at 983-84.
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`Here, in contrast, VirnetX unequivocally argued that Aventail does not disclose a VPN
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`because it does not teach direct communication between computers. VirnetX also attempted to
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`distinguish Aventail on the same grounds in the reexamination of the ‘180 Patent. Ex K at 11-
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`6
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`13. VirnetX suggests that because it distinguished Aventail on additional independent grounds,5
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`there cannot be a clear disclaimer. But the case law makes it clear that “an applicant's argument
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`that a prior art reference is distinguishable on a particular ground can serve as a disclaimer of
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`claim scope even if the applicant distinguishes the reference on other grounds as well.” Am.
`
`Piledriving Equip. v. Geoquip, Inc., 637 F.3d 1324, 1336 (Fed. Cir. 2011). Furthermore, “[A]n
`
`applicant’s argument made during prosecution may lead to a disavowal of claim scope even if
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`the Examiner did not rely on the argument.” Seachange Inf’I, Inc. v. C-COR Inc., 413 F.3d
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`1361, 1374 (Fed. Cir. 2005). As such, the Court should construe virtual private network to
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`require direct communications.6
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`2.
`
`Virtual Private Link
`
`VirnetX’s Proposed Construction
`
`Defendants’ Proposed Construction
`
`between the co uters
`
`Virtual Private Link
`
`a communication link that permits
`computers to privately communicate
`with each other by encrypting trafic
`on insecure communication paths
`
`a link in a virtual private network
`
`a)
`
`Defendants’ Construction of Virtual Private Link
`
`Defendants agree that a “virtual private link,” as referenced in claim 13 of the ‘ 135
`
`Patent, is a link in a virtual private network.
`
`b)
`
`Aastra’s Construction of Virtual Private Link
`
`Defendant Aastra submits that a virtual private link (“VP ” is “a link in a virtual private
`
`5 During reexamination, VirnetX also argued that two additional reasons existed why Aventail did not disclose
`VPN. In particular, VirnetX argued that computers connected via the Aventail system are not able to communicate
`with each other as though they were on the same network, and that Aventail’s operation is incompatible with users
`transmitting data that is sensitive to network information. Ex. I at 5-7; see also Ex. K at 11-13. Defendants do not
`believe that these additional VPN requirements are relevant to the disputed issues in the current case and therefore
`have not included them in their proposed construction. See Vivid TecI1s., Inc. 1'. Am. Science & Eng’g, Inc. , 200 F.3d
`795. 803 (Fed. Cir. 1999) (“[O]nly those temrs need be construed that are in controversy. and only to the extent
`necessary to resolve the controversy”). However, should a dispute arise, Defendants reserve the right to seek
`further clarification from the Court or other appropriate remedies.
`6 VirnetX admits that it likewise narrowed the definition of “secure domain name service” during reexamination and
`that the Court’s prior construction of that term should be narrowed accordingly. See D.I. 173 at 17-18.
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`network that accomplishes data security and anonymity through the use of hop tables.”7 In
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`addition to requiring a VPL to have all the characteristics of a virtual private network, the
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`specification further dictates that hop tables must be used to create a VPL.
`
`When a packet is received from a known user, the signaling server activates a
`virtual private link (VPL) between the user and the transport server, where
`hopping tables are allocated and maintained. When the user logs onto the
`signaling server, the user's computer is provided with hop tables for
`communicating with the transport server, thus activating the VPL.
`
`Ex. 1 at 44:37-43 (emphasis added). The specification also explains how anonymity and security
`
`are accomplished through the use of hopping technology. See id. at 3: 10-17 and 3:39-42.
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`Accordingly, Aastra submits that a virtual private link is a link in a VPN that requires the use of
`
`hop tables.
`
`3.
`
`Secure Server
`
`Term
`
`VirnetX’s Proposed Construction
`
`Defendants’ Proposed Construction a server that requires authorization
`
`Secure Server
`
`unicate
`for access and that can co
`in a secure communication link
`
`.
`.
`.
`a server that requires authorization for access
`and co
`“memes m a
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`Defendants’ proposed construction recognizes that the word “secure” in the context of the
`
`patent refers to a server that communicates in a virtual private network. The specification plainly
`
`dictates that for a server to be “secure,” it must achieve both the data security and anonymity
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`requirements of a VPN:
`
`“It is desired for the communications [over the intemet] to be secure, that is,
`immune to eavesdropping. For example, terminal 100 may transmit secret
`infonnation to terminal 110 over the Internet 107. Also, it may be desired to
`prevent an eavesdropperfrom discovering that terminal 100 is in
`communication with terminal 110. .
`.
`. These two security issues may be called
`data security and anonymity.”
`
`‘ 151 Patent (attached as Ex. 2) at 1:34-48 (emphasis added); see also 19:43-48. Moreover, the
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`specification indicates that the secure server claimed in the ‘I51 Patent communicates in a virtual
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`7 Only Defendant Aastra advances this construction and argument.
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`

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`private network:
`
`“[A] specialized DNS server traps DNS requests and, if the request is from a
`special type of user (e.g., one for which secure communication services are
`defined), the server . . . automatically sets up a virtual private network . . . . .”
`
`Id. at 37:33-49 (emphasis added). Indeed, this Court previously cited the same portion of the
`
`‘135 Patent’s specification in concluding that a “secure web site” communicates in a virtual
`
`private network. Ex. A at 18 (citing ‘135 Patent at 37:63-38:13). Just as a “secure web site”
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`communicates in a “virtual private network,” so too does a “secure server” communicate in a
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`“virtual private network.”
`
`While the only mention of the precise phrase “secure server” in the ‘151 Patent occurs in
`
`the claims, the other related Patents-in-Suit dictate that a “secure server” is a server that
`
`communicates in a virtual private network. The specifications of the ‘504, ‘211, ‘180, and ‘759
`
`Patents all state that “software module 3309 accesses secure server 3320 through VPN
`
`communication link 3321,” ‘180 Patent (attached as Ex. 3) at 52:55-56 (emphasis added), and
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`that “[s]erver 3320 can only be accessed through a VPN communication link.” Id. at 52:29-30
`
`(emphasis added). The Patents distinguish “secure servers” from “non-secure servers” based on
`
`whether the server communicates in a VPN:
`
`computer 3301 can establish a VPN communication link 3323 with secure server
`computer 3320 through proxy computer 3315. Alternatively, computer 3301 can
`establish a non-VPN communication link 3324 to a non-secure website, such as
`non-secure server computer 3304.
`
`Id. at 53:20-25. Together, these passages explain that a secure server is a server dedicated to
`
`VPNs.
`
`
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`Defendants’ proposed construction also comports with this Court’s constructions of other
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`claim terms that use the word “secure.” The Court previously decided (and the parties agree)
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`that “secure computer network address” means “a network address that requires authorization for
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`access and is associated with a computer capable of virtual private network communications.”
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`Ex. A at 28. The parties also agree that the construction for “secure domain name,” by virtue of
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`incorporating the term “secure computer network address,” also communicates in a VPN. D.I.
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`175 Ex. A. Finally, although the parties disagree about the construction of the term “secure web
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`site,” both Defendants’ and VimetX’s proposed definitions specify that it “can communicate in a
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`virtual private network.” D.I. 175 Ex. B. Because the word “secure” in the context of servers
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`should be given the same meaning as in the context of related claim terms, Defendants’ proposal
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`should be adopted. Omega Eng'g., Inc. v. Raytek Corp, 334 F.3d 1314, 1334 (Fed. Cir. 2003)
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`(“[\V]e presume, unless otherwise compelled, that the same claim term in the same patent or
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`related patents carries the same construed meaning”).
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`4.
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`Secure Communication Link
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`virtual private network communication link
`
`VirnetX’s Proposed
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`Construction
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`Defendants’ Proposed Construction
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`_
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`Secure Communication Link
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`an encrypted communication link
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`Defendants’ proposed construction is taken verbatim from the definition provided in the
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`Summary of the Invention, which states that “[t]he secure communication link is a virtual
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`private network communication link over the computer network.” ‘504 Patent (attached as Ex.
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`5) at 6261-63 (emphasis added). The rest of the specification consistently defines secure
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`communication link in the same way. Thus, the Detailed Description of the Invention explains
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`when secure communication links are specified, all communication links will be VPN
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`communication links:
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`[w]hen software module 3309 is being installed or when the user is off-line, the
`user can optionally specify that all communication links established over
`computer network 3302 are secure communication links. Thus, anytime that a
`communication link is established, the link is a VPN link.”
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`Id. at 52:15-19 (emphasis added). Similarly, selecting a secure communication link enables a
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`10
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`Case 6:10-cv-00417-LED Document 182
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`Filed 12/07/11 Page 15 of 37 PagelD #: 4290
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`computer to establish a VPN communication link: “[a]dditionally, a user at computer 3301 can
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`optionally select a secure communication link through proxy computer 3315. Accordingly,
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`computer 3301 can establish a VPN communication link 3323 with secure server computer
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`3320 through proxy computer 3315.” Id. at 52:25-29 (emphasis added).8
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`In the Microsoft case, VirnetX actually conceded that a secure communication link is a
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`VPN communication link. See Microsoft case D.I. 194 (attached as Ex. M) at 31-32. VimetX
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`now reverses course by engaging in a tortured reading of the specification. But even the passage
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`VirnetX cites explains that a secure communication link is a VPN because it can securely access
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`a private network. D.I. 173 at 11-12 (citing ‘504 Patent at 50:21-53). VirnetX’s only purported
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`support for its construction of secure communication link is the specification’s discussion of
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`“data security.” See D.I. 173 at 10 (citing ‘504 at 1:55-56). The specification clearly
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`distinguishes “secure,” which encompasses data security and anonymity from “data security.”
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`Ex. 5 at 1:33-54. Therefore, VirnetX’s discussion of “data security”—a phrase that does not
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`appear in the disputed claim language—is not relevant to the construction of “secure
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`communication link.”9
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`B.
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`Disputes Relating to Domain Names
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`1.
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`Domain Name
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`Defendants’ Proposed Construction .
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`Domain Name
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`VirnetX’s Proposed Construction
`a name corresponding to an [P
`address
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`a hieml-Fhical sequence (if“iords in
`decreasing order of specificity that
`corres s nds to a numerical IP address
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`VirnetX’s proposed construction reads out the meaning of “domain.” Compare ‘I81
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`8 These descriptions are also consistt with the specification‘s use of the word “secure.” See Section IV.A.3.,
`supra. As this Court previous recognized, in the context of the patent, “’secure’ relates to registered users who have
`the ability to set up a virtual private network with a target node.” Ex. A at 18.
`9 In the Microsofl case. this Court declined to construe the term “secure communication link” because the claims of
`the ‘759 Patent explain “the secure communication link being a virtual private network.” Ex. A at 25. Here, the
`claim language of the ‘504 and ‘2ll Patents does not itself explain that the secure communication link is a virtual
`private network communication link.
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`11
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`Case 6:10-cv-00417-LED Document 182 Filed 12/07/11 Page 16 of 37 PageID #: 4291
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`Patent at claim 2 (attached as Ex. 7) (claiming a “secure name”), with ‘180 Patent at claim 1 (Ex.
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`3) (claiming a “secure domain name”).