Case 6:? ’1—CV~0O0‘l 8—LED Documeni 337
`
`Flied €l8f0‘l/12
`
`Page 1 of 13 Pageifi #: 9038
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIWSION
`
`vs.
`
`BQTEL NETWORKS CORP, et al.,
`
`Defendants.
`
`f4O'J€oO'NJ.0'x’?3&&Itl6'-‘e<D'J6O'2W’J¢v‘I09¢50'J@J
`
`CASE NO. 6:1}-CV-18
`
`MTEMORANBUM 0i’INION AND ORDER
`
`This Memorandum Opinion consérues the disputed claim temps in US. Fatorit Nos.
`
`6,502,135 (“the ‘I35 Patent” , 7,413,534 (“the ‘S04 Paterzt”), and 7,921,211 (“the ‘2l I Patent”).
`
`BACKGROUND
`
`Vimetx Inc.
`
`(“Virnetx”) asserts the three patents-in-suit against Mite} Networks
`
`Corporafion; Mimi Networks, Inc. (collcctlvaiy “Mit¢l”); Siemens Enterprise Commtznications
`
`GIHBH & Co. KG; Siemens Enterprise Communications, Inc. (collectively “Siemcns”); and
`
`Avaya inc.
`
`(“Avaya"‘) (collectively “Dcfendar:t3”). The ‘I35 ?atent discloses a method. of
`
`transparently creating a Virizml private network {“VPN”) between a client computer and a target
`
`computer. The ‘$04 and ‘211 Patents disclose a secure domain name s-crvioc.
`
`The patents-inosuif are all mlatoé; Application Ncs. CF9!'$O4,'?83 (“the ‘783 Application”) is
`
`an ancestor application for ovary patent-in-suit. The ‘$.33 Patent issued on December 31, 2362.,
`
`from the ‘783 Application. The ‘$04 Patent issued from a continuation of a continuation—iz1-part
`
`fifth: ‘733 Application. Finally, the ‘Eli ?‘a¥:ent is a continaaiion of the application that resulted
`
`in the ‘S04 patent.
`
`Page i o?13
`
`VIRNETX EXHIBIT 2005
`Apple v. VirnetX
`Trial IPR2015-00870
`
`

`
`Case 6:11—cv—00018-LED Document 307
`
`Filed 08/01/12 Page 2 of 13 Page|D #: 9039
`
`This Court has recently construed all but one of the terms at issue. See l/irnetX, Inc. v.
`
`Cisco Systems, Iricn, No. 6:10—cv—417 (E.D. Tex. Apr. 25, 2012) (“Cisco”). Further, many of
`
`those terms were construed by this Court in a previous case that involved the ‘135 Patent. See
`
`VirnerX, Inc. v. Microsofi‘ Corp, 2009 US. Dist. LEXIS 65667, No. 6:07cv80 (E.D. Tex. Ju.ly
`
`30, 2009) (“Microsoft”). Thus, this is the third time this Court has considered many of the terms
`
`at issue. Given the recent opinion construing most of these terms, the Court hereby incorporates
`
`the entirety of the reasoning therein. See Cisco, No. 6:10—cv—4l'/' (E.D. Tex. Apr. 25, 2012). The
`
`opinion below addresses new arguments and new terms presented by the parties.
`
`APPLICABLE LAW
`
`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
`
`to which the patentee is entitled the right to exclude?” Pl’1llllpS v. AWH Corp, 415 F.3d 1303,
`
`1312 (Fed. Cir. 2005) (en banc) (quoting lrmova/Pure Water Inc. v. Safari Water Filtrarion S)/.S‘.,
`
`Inc, 381 F.3d 1111, 1115 (Fed. Cir. 2004)). In claim construction, courts examine the patent’s
`
`intrinsic evidence to define the patented invention’s scope. See id; CR. Bard, Incyv. US
`
`Surgical Corp, 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs, Inc. v. Covad
`
`Commons Group, Inc, 262 F.3d 1258, 1267 (Fed. Cir. 2001). This intrinsic evidence includes
`
`the claims themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at
`
`1314; CR. Bord, 1110., 388 F.3d at 861. Courts give claim terms their ordinary and accustomed
`
`meaning as understood by one of ordinary skill in the art at the time of the invention in the
`
`context of the entire patent. Phillips, 415 F.3d at 1312#13; Alloc, Inc. v. Ir.!t’l Trade Comm ’r.:,
`
`342 F.3d 1361, 1368 (Fed. Cir. 2003).
`
`The claims themselves provide substantial guidance in determining the meaning of
`
`particular claim terms. Phillips, 415 F.3d at 1314. First, a ter1n’s context in the asserted claim
`
`can be very instructive. Id. Other asserted or unasserted claims can also aid in determining the
`
`Page 2 of 13
`
`

`
`Case 6:11—cv—00O18-LED Document 30?
`
`Filed 08/01/12 Page 3 of 13 Page|D #: 9040
`
`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
`
`Differences among the claim terms can also assist in understanding a term’s meaning. Ia’. For
`
`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
`
`the independent claim does not include the limitation. Id. at 1314-15.
`
`“[C]laims ‘must be read in view of the specification, of which they are a part.” Ia‘.
`
`(quoting Mbrkman v. Wcstview Instmmenrs, Inc, 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).
`
`“[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is
`
`dispositive; it is the single best guide to the meaning of a disputed ter1n.”’ Id. (quoting Wtronics
`
`Corp. v. Ccnceptrcnic, Inc, 90 F.3d 1576, 1582 (Fed. Cir. 1996)); see also Teleflex, Inc. v.
`
`Ficcsa N. Am. Corp, 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may
`
`define his own terms, give a claim term a different meaning than the term would otherwise
`
`possess, or disclaim or disavow the claim scope. Philfips, 415 F.3d at 1316. In these situations,
`
`the inventor’s iexicography governs. Ia’. Also, the specification may resolve ambiguous claim
`
`terms “where the ordinary and accustomed meaning of the words used in the claims lack
`
`sufficient clarity to permit the scope of the claim to be ascertained from the words alone.”
`
`Teleflex, Inc, 299 F.3d at 1325. Bu, “‘[a]lthough the specification may aid the court
`
`in
`
`interpreting the meaning of disputed claim language, particular embodiments and examples
`777
`appearing in the specification will not generally be read into the claims. Comark Comma ’ns,
`
`Inc. v. Harris Corp, 156 F.3d 1182, 1187 (Fed. Cir. E998) (quoting Constant v. Advanced
`
`Micr0—Devices, Inc, 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323.
`
`The prosecution history is another tool to supply the proper context for claim construction
`
`because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics,
`
`Page 3 of 13
`
`

`
`Case 6:‘l1—cv—00018-LED Document 307
`
`Filed 08/O1f12 Page 4 of 13 Page|D #: 9041
`
`Inc, v. Lzfescan, Inc, 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the Specification,
`
`a patent applicant may define a term in prosecuting a patent”).
`
`Although extrinsic evidence can be useful, it is ‘‘‘less significant than the intrinsic record
`
`in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317
`
`(quoting CR. Bard, Inc, 388 F.3d at 862). Technical dictionaries and treatises may help a court
`
`understand the underlying technology and the manner in which one skilled in the art might use
`
`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
`
`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert
`
`testimony may aid a court in understanding the underlying technology and determining the
`
`particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
`
`assertions as to a term’s definition is entirely unhelpful to a court. Id. Generally, extrinsic
`
`evidence is “less reliable than the patent and its prosecution history in determining how to read
`
`claim terms.” Id.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`
`The parties agree that a person of ordinary skill in the art would have a master’s degree in
`
`computer science or computer engineering and approximately two years of experience in
`
`computer networking and computer network security.
`
`CLAIM TERMS
`
`Virtual private network
`
`ViI‘I16tX proposes “a network of computers which privately and directly communicate
`
`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
`
`each other by encrypting traffic on insecure communication paths between the computers to
`
`accomplish both data security and anonymity, and in which a computer is able to address
`
`Page 4 of 13
`
`

`
`Case 6:11-cv-00018-LED Document 307'
`
`Filed 0801/12 Page 5 of 13 Page|D #1 9042
`
`additionai computers over the network without additional setup.” In Cisco, the Court construed
`
`this term as “a network of computers which privately and directly communicate with each other
`
`by encrypting traffic on insecure communication paths between the computers where the
`
`communication is both secure and anonymous.”
`
`The Court’s Cisco analysis has already addressed the parties’ arguments relating to the
`
`“secure and anonymous” limitation. See Cisco, slip op. at 5. Here, Defendants seek the additional
`
`limitation “and in which additional computers can be addressed over the network without
`
`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
`
`first of these arguments was that “Aventail has not been shown to demonstrate that computers
`
`connected via the Aventail system are able to communicate with each other as though they were
`
`on the same network.” 10.’. at 5. Thereafter, VirnetX provides an example of a situation permitted
`
`by a VPN but not by Aventail. In the example, VirnetX explained that two computers (A and B)
`
`on a public network that each established independent VPN connections to a private network
`
`(containing computers X and Y) would have the ability to communicate with each other over the
`
`VPN. However, the same public computers employing the Aventail system would be unable to
`
`communicate with each other over the established Aventail (SOCKS) connections.
`
`Defendants seek to impose the “without additional setup” limitation based on the
`
`following statement lifted from VirnetX’s two paragraph example: “then A would nevertheless
`
`be able to ad.dress data to B, X, and Y without additional setup.” Id. at 6. However, the example
`
`was provided to illustrate how multiple computers connected via Aventail were not able to
`
`“communicate with each other as though they were on the same network.” Id. at S. This feature
`
`of the VPN is captured with the “directly” limitation discussed in both Cisco and Microsofi.
`
`Page 5 of 13
`
`

`
`Case 6:1 1—cv—0OO‘l8—LED Document 307
`
`Filed O8/01:’12 Page 6 of 13 Page!D #: 9043
`
`Further,
`
`it
`
`is unclear wha
`
`“without additional setup” means. Accordingly,
`
`the “without
`
`additional setup” limitation should not be included in the construction for “virtual private
`
`network” because it is aheady captured in the “directly” limitation.
`
`The Court construes “virtual private network” as “a network of computers which
`
`privately and directly communicate with each other by encrypting traffic on insecure paths
`
`between the computers where the communication is both secure and anonymous.”
`
`virtual private link
`
`VirnetX proposes “a communication link that permits computers to privately and directly
`
`communicate 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 each other by encrypting traffic on insecure communication paths between the
`
`computers to accomplish both data security and anonymity, and in which each computer is able
`
`to address additional computers without additional setup.” In Cisco, the Court construed this
`
`term as “a virtual private network as previously defined.”
`
`Defendants’ proposal tracks their proposal for “virtual private network,” which has been
`
`addressed. For the same reasons stated in Cisco, the Court construes “virtual private link” as “a
`
`virtual private network as previously defined.”
`
`secure communication link
`
`VirnetX proposes “a direct communication link that provides data security.” Mite] and
`
`Siemens propose “a direct communication link that provides data security by encrypting data on
`
`insecure communications paths, and in which a computer is able to address additional computers
`
`over the communication link without additional setup.” Avaya proposes that the term be
`
`construed the same as “virtual private network.” In Cisco, the Court initially construed the term
`
`as “a direct communication link that provides data security”; however, the Cisco parties later
`
`Page 6 of 13
`
`

`
`Case 6:11-cv-00018-LED Document 307
`
`Filed O8/O1.’12 Page 7 of 13 Page|D #: 9044
`
`agreed to the following construction: “a direct communication link that provides data security
`
`through encryption.”
`
`Avaya advances essentially the same arguments addressed in Cisco where the defendants
`proposed a construction of “virtual private network communication link.” Mitel and Siemens
`
`agree that data security is provided through encryption. ln Cisco, VirnetX ultimately agreed that
`
`data security is provided through encryption. Thus,
`applicable in the instant case.
`I
`
`the “through encryption” limitation is
`
`For
`
`these reasons
`
`and those discussed in Cisco,
`
`the Court construes “secure
`
`communication link” as “a direct communication link that provides data security through
`
`encryption.”
`
`domain name service
`
`VirnetX proposes “a lookup service that returns an IP address for a requested domain
`
`name,” adopting the Court’s previous construction of this term in Microsoft. Defendants propose
`
`to append “to the requester” to VirnetX°s proposed construction, which the Court did in Cisco.
`
`For the same reasons discussed in Cisco, the Court construes “domain name service” as
`
`“a lookup service that returns an IP address for a requested domain name to the requester.”
`
`domain name
`
`VirnetX proposes the same construction adopted by the Court in Microsofi and Cisco: “:1
`
`name corresponding to an IP address.” Mitel and Siemens propose “a hierarchical sequence of
`
`character segments separated by periods.” Avaya proposes “a hierarchical sequence of character
`
`segments, separated by periods and arranged in decreasing order of specificity, that resolves to
`
`an IP address.”
`
`For the same reasons stated in Microsofi‘ and Cisco, the Court construes “domain name”
`
`as “a name corresponding to an IP address.”
`
`Page 7 of 13
`
`

`
`Case 8:11-CV-OO018—LED Document 307
`
`Filed 08."01/12 Page 8 of '13 PagelD #: 9045
`
`DNS proxy server
`
`VirnetX proposes “a computer or program that responds to a domain name inquiry in
`
`place of a DNS.” Defendants propose “a computer or program that responds to a DNS request in
`
`place of a DNS, and prevents destination servers from determining the identity of the entity
`
`sending the DNS request.” VirnetX’s proposal and the first portion of Defendants’ proposal
`
`reflect the construction adopted by this Court in Ii/Iicrosofi. Here, as in Cisco, the dispute is
`
`whether a DNS proxy server “prevents destination servers from determining the identity of the
`
`entity sending the domain name inquiry.” In Cisco, the Court construed the term as “a computer
`
`or program that responds to a domain name inquiry in place of a DNS.”
`
`C For the reasons stated in Microsoft and Cisco, the Court construes “DNS proxy server” as
`
`“a computer or program that responds to a domain name inquiry in place of a DNS.”
`
`domain name service system
`
`VimetX proposes that no construction is necessary, but alternatively proposes “a
`
`computer system that includes a domain name service (DNS).” Defendants propose “a DNS that
`
`is capable of differentiating between, and responding to, both standard and secure top~level
`
`domain names.” In Cisco, this Court determined that no construction was necessary.
`
`For the same reasons stated in Cisco, the Court finds that “domain name service system”
`
`does not require construction.
`
`Web site
`
`VirnetX proposes “a computer associated with a domain name and that can communicate
`
`in a network.” Defendants propose “one or more related web pages at a location on the World
`
`Wide Web.” These two proposals mirror the proposals made in Microsofi‘ and Cisco. In both
`
`cases, the Court adopted Defendants’ proposal.
`
`Page 8 of 13
`
`

`
`Case 6:11-cv-0O018—LED Document 307
`
`Filed 08/01/12 Page 9 of 13 PagelD #: 9046
`
`For the same reasons stated in Microsoft and Cisco, the Court construes “web site” as
`
`“one or more related web pages at a location on the World Wide Web.”
`
`secure web site
`
`VirnetX proposes “a computer (target computer) associated with a domain name and that
`
`can communicate in a virtual private network.” Defendants propose “a web site that requires
`
`authorization for access and that can communicate in a VPN.” In Cisco, the Court construed this
`
`term as “a web site that requires authorization for access and that can communicate in a VPN.”
`
`For the same reasons stated in Cisco, the Court construes “secure web site” as “a web site
`
`that requires authorization for access and that can communicate in a VPN.”
`
`secure target web site
`
`VirnetX proposes “a computer (target computer) associated with a domain name and that
`
`can communicate in a virtual private network.” Defendants propose “the secure web site on the
`
`target computer.” In Cfsco,
`
`the Court construed this term as “a web site that requires
`
`authorization for access and that can communicate in a VPN.”
`
`For the same reasons stated in Cisco, the Court construes “secure target web site” as “a
`
`secure web site on the target computer.”
`
`target computer
`
`VirnetX argues that no construction is necessary, but alternatively proposes “a computer
`
`with which the client computer seeks to comrnunicate.” Defendants propose “the ultimate
`
`destination computer with which the client computer seeks to communicate.” In Cisco, the Court
`
`determined that no construction was necessary.
`
`For the same reasons stated in Cisco, the Court finds that “target computer” does not
`
`require construction.
`
`Page 9 of 13
`
`

`
`Case 6:‘! 1—CV—0O018-LED Document 307
`
`Filed 08/01/12 Page 10 of 13 Page|D #: 9047
`
`between [A] and [B]
`
`V_irnetX argues that no construction is necessary, and Defendants propose “extending
`
`from [A] to [B].”1 In Cisco, the Court construed this term as “extending from [A] to [B].” For the
`
`same reasons stated in Cisco, the Court construes “between [A] and [B]” as “extending from [A]
`
`to [B].”
`
`an indication that the domain name service system supports establishing a secure
`communication link
`
`VirnetX argues that this term does not require construction. Defendants propose “a
`
`message or signal
`
`that
`
`informs the user that
`
`the domain name service system supports
`
`establishing a secure communication link.” In Cisco, the Court determined that no construction
`
`was necessary.
`
`The Cisco defendants argued that the indication must be visual to the user. The Court
`
`rejected that argument, explaining that it was an attempt to import a limitation from a preferred
`
`embodiment. See Crisco, slip op. at 2'/#28. The Defendants here argue that the indication must be
`
`to the user. Defendants again rely on the “one—click” systems discussed in the ‘S04 Patent and
`
`Figures 33 and 34. See ‘504 Patent col. 49:6~l2. However, the specification reveals a system
`
`where “the secure link is automatically established as a default setting at boot—up of the computer
`
`(i.e., no click)?’ Id. col. 49:l0—l2. Thus, the indication may be provided to the computer directly
`
`(e.g., via configuration files) as opposed to the user. The claims themselves do not limit whether
`
`the indication is made to the user or the user’s computer. Defendants’ proposed construction
`
`improperly limits the claims to a preferred embodiment.
`
`This term is readily understandable and does not require construction.
`
`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.
`
`Page 10 of 13
`
`l0
`
`

`
`Case 6:11-CV-00018-LED Document 307'
`
`Filed O8/01f12 Page 11 of 13 Page|D #: 9048
`
`indicate/indicating in response to the query whether the domain name service system
`supports establishing a secure communication link
`
`VirnetX argues that
`
`this term does not
`
`require construction. Defendants propose
`
`“inform/informing the user in response to the query whether the domain name service system
`
`supports establishing a secure communication link.” The issue a11d arguments regarding this term
`
`are identical to those raised for the previous term. For the same reasons stated regarding the
`
`previous term, this term does not require construction.
`
`query
`
`VirnetX proposes that this term does not require construction. Defendants propose “a
`
`request for information from a database.” Defendants argue that query must be construed
`
`because it has both a lay and technical meaning. Defendants’ proposed construction adopts the
`
`technical meaning and seeks to limit queries to database queries. VirnetX argues that this
`
`limitation is not supported by the specification or claims. VirnetX further argues that the
`
`meaning of query is clear from the context of its use in the claims.
`
`Claim 1 of the ‘S04 Patent claims a “domain name service system configured. . .to
`
`receive a query for a network address .
`
`.
`
`. .” ‘S04 Patent col. 55:51-54. Further, claim 1 makes no
`
`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
`
`claim 1 should be limited to a database query as requested by Defendants. Query, as used in the
`
`claims of the patents—in—suit, is readily understood and is not limited to the technical meaning
`
`employed in the database context. Defendants’ attempt to limit the queries to database queries is
`
`not supported by the claims.
`
`Accordingly, this term does not require construction.
`
`Page 11 of 13
`
`ll
`
`

`
`Case 6:'H—ov~D0018~LED Document 307
`
`Fiied O8/01112 Page 12 of 13 F’ageED #: 9049
`
`CONCLUSION
`
`For the foregoing reasons, the Court interprets the claim language in this case in the
`
`manner set forth above. For ease of reference, the Court’s claim interpretations are set forth in a
`
`tabie in Appendix A.
`
`So ORDERED and SIGNED this 1st day of August, 2012.
`
`
`
`LEONARD DAVIS
`UNITED STATES DISTRICT JUDGE
`
`Page 12 of 13
`
`

`
`Case 6:11-cv-00018-LED Document 307
`
`Filed 08:’01/12 Page 13 of ‘E3 Page|D #: 9050
`
`APPENDIX A
`
`Court’s Construction
`
`
`
`Claim Term
`
`
`
`virtual private network
`
`
`
`
`a network of computers which privately and directly
`
`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
`
`name inquiry in __n lace of a DNS
`
`
`
`No construction necessary
`
`one or more related web pages at a location on the
`World Wide Web
`
`
`
`
`
`
`
`virtual private link
`secure communication link
`
`domain name service
`
`domain name
`DNS proxy server
`
`
`
`
`domain name service system
`web site
`
`secure web site
`
`a web site that requires authorization for access and
`that can communicate in a VPN
`
`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
`
`
`
`
`
`service system supports establishing a
`secure communication link
`
`
`
`
`indicate/indicating in response to the No construction necessary
`query whether the domain name service
`system supports establishing a secure
`
`communication link
`
`No construction necessary
`
`
`
`
`Page 13 of13
`
`13