throbber
Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 1 of 38 PageID #: 6158
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`VimetX Inc. and Science Applications International
`Corporation,
`
`Plaintiffs,
`
`v'
`
`Civil Case No. 6:1 1-cv-00018—LED
`
`Mitel Networks Corporation, Mitel Networks, Inc.,
`Siemens Enterprise Communications GmbH & Co.
`KG, Siemens Enterprise Communications, Inc.,
`and Avaya Inc.
`
`Defendants.
`
`
`
`DEFENDANTS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`Page 1 of 38
`
`VIRNETX EXHIBIT 2031
`
`Mangrove V. VirnetX
`Trial |PR2015—01046
`
`
`
`
`
`
`
`
`
`VIRNETX EXHIBIT 2031
`Mangrove v. VirnetX
`Trial IPR2015-01046
`
`Page 1 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 2 of 38 PageID #: 6159
`
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION .................................................................................................................. 1
`
`II. LEGAL STANDARDS .......................................................................................................... 2
`
`III.
`
`PATENTS-IN-SUIT ............................................................................................................ 2
`
`IV.
`
`LEVEL OF ORDINARY SKILL IN THE ART ................................................................. 2
`
`V. DISPUTED CLAIM CONSTRUCTIONS ............................................................................. 3
`
`A.
`
`Disputes Concerning Types of Communication Links .................................................... 3
`
`1.
`
`2.
`
`3.
`
`―Virtual private network‖ ............................................................................................. 3
`
`―Virtual private link‖ .................................................................................................... 9
`
`―Secure communication link‖ ..................................................................................... 10
`
`B.
`
`The ―Indicate‖ / ―Indicating‖ / ―Indication‖ Disputes ................................................... 14
`
`―An indication that the domain name service system supports establishing a secure
`1.
`communication link‖ ............................................................................................................. 14
`
`―Indicate/indicating in response to the query whether the domain name service
`2.
`system supports establishing a secure communication link‖ ................................................ 15
`
`Disputes Concerning Domain Name, Domain Name Service, Secure Domain Name,
`C.
`and Query .................................................................................................................................. 18
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`―Domain name‖ .......................................................................................................... 18
`
`―Query‖ ....................................................................................................................... 23
`
`―Domain Name Service (DNS)‖................................................................................. 24
`
`―DNS proxy server‖ .................................................................................................... 25
`
`―Domain Name Service System‖ ............................................................................... 25
`
`D.
`
`Disputes Concerning Web Site, Secure Web Site, Secure Web Computer, etc. ............ 26
`
`1.
`
`2.
`
`3.
`
`―Web site‖ ................................................................................................................... 26
`
`―Secure web site‖ ........................................................................................................ 27
`
`―Secure target web site‖ ............................................................................................. 28
`
`
`
`Page 2 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 3 of 38 PageID #: 6160
`
`4.
`
`―Target computer‖ ...................................................................................................... 28
`
`E.
`
`The ―Between‖ Disputes ................................................................................................ 29
`
`1.
`
`2.
`
`―Between [a/the] first location and [a/the] second location‖ ...................................... 29
`
`―Between a client computer and target computer‖ ..................................................... 29
`
`VI. CONCLUSION .................................................................................................................. 29
`
`
`
`
`
`Page 3 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 4 of 38 PageID #: 6161
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Agilent Techs., Inc. v. Affymetrix, Inc.,
`567 F.3d 1366 (Fed. Cir. 2009)................................................................................................19
`
`Amazon.com, Inc. v. Barnesandnoble.com, Inc.,
`239 F.3d 1343 (Fed. Cir. 2001)..................................................................................................6
`
`Becton, Dickinson and Co. v. Tyco Healthcare Group, LP,
`616 F.3d 1249 (Fed. Cir. 2010)................................................................................................19
`
`Bicon, Inc. v. Straumann Co.,
`441 F.3d 945 (Fed. Cir. 2006)............................................................................................19, 20
`
`CCS Fitness, Inc. v. Brunswick Corp.,
`288 F.3d 1359 (Fed. Cir. 2002)................................................................................................22
`
`In re Am. Acad. Of Sci. Tech Ctr.,
`367 F.3d 1359 (Fed. Cir. 2004)................................................................................................27
`
`In re Swanson,
`540 F.3d 1368 (Fed. Cir. 2008)................................................................................................27
`
`Micro Intern. Ltd. v. Beyond Innovation Tech. Co., Ltd.,
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................23
`
`Nystrom v. Trex Co., Inc.,
`424 F.3d 1136 (Fed. Cir. 2005)..................................................................................................9
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................................23
`
`Takeda Pharm. Co., Ltd. v. Handa Pharms.,
`LLC, 2012 WL 1243109 (N.D. Cal. Apr. 11, 2012) ................................................................23
`
`Thorner v. Sony Comp. Entertainment America LLC,
`669 F.3d 1362 (Fed. Cir. 2012)................................................................................................22
`
`Verizon Servs. Corp. v. Vonage Holdings Corp.,
`503 F.3d 1295 (Fed.Cir.2007)..................................................................................................17
`
`OTHER AUTHORITIES
`
`Alan Freedman, Computer Desktop Encyclopedia (9th ed, 2001) ................................................24
`
`Dick Pountain, The New Penguin Dictionary of Computing (2001) .............................................24
`
`
`
`Page 4 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 5 of 38 PageID #: 6162
`
`Dictionary of the Internet (2001) ...................................................................................................23
`
`McGraw- Hill Dictionary of Scientific and Technical Terms (6th ed. 2003) ................................23
`
`Phillip A. Laplante, Dictionary of Computer Science, Engineering, and Technology
`(2001) .......................................................................................................................................24
`
`S.M.H. Collin, Dictionary of Personal Computing and the Internet (3d ed, 2000) ......................24
`
`
`
`
`
`
`
`Page 5 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 6 of 38 PageID #: 6163
`
`I.
`
`INTRODUCTION
`
`Recognizing that the Court has already ruled on many of the disputed claim terms of the
`
`‘135, ‘504, and ‘211 Patents in the Microsoft and Cisco Cases, Defendants have focused their
`
`responsive brief on a discrete set of issues not previously before the Court. First, since the Cisco
`
`Markman hearing, VirnetX has submitted hundreds of pages of argument and expert declarations
`
`to the Patent Office in connection with reexaminations of the ‘135, ‘504, and ‘211 Patents, in an
`
`attempt to distinguish the patents from prior art (each and every claim of all three patents
`
`currently stands rejected). These statements made to distinguish prior art during reexamination
`
`must also bind VirnetX in this litigation.
`
`Second, Defendants request the Court make explicit its conclusion in the Cisco case that
`
`the claims of the ‘504 and ‘211 Patents require an indication to the user. Although the Court
`
`agreed with Cisco Defendants on that point, the Court concluded their proposed construction was
`
`too narrow because it required a visible indication to the user, whereas it would also be possible
`
`to inform the user with an audible indication. Defendants in this case have not limited the
`
`indication to any particular form, whether visible, audible, or otherwise. The critical conclusion
`
`is one the Court has already reached—that the indication is presented to the user.
`
`Finally, for a limited number of other claim terms, Defendants have proposed a different
`
`construction from the Cisco Defendants that more succinctly focuses the parties‘ dispute in a
`
`way the Court has not previously considered, while staying faithful to the claim language,
`
`specification, and prosecution history. Throughout, Defendants have sought to avoid
`
`unnecessary repetition of argument the Court has already considered in the Microsoft and Cisco
`
`Cases and, accordingly, also incorporate by reference the arguments from those briefs that apply
`
`to the claim terms at issue here.
`
`1
`
`Page 6 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 7 of 38 PageID #: 6164
`
`II. LEGAL STANDARDS
`
`This Court is familiar with the pertinent claim construction principles. For convenience,
`
`Defendants cite to relevant authority in the body of the brief.
`
`III. PATENTS-IN-SUIT
`
`The Court is familiar with the three Patents-in-Suit from the Cisco Case.1 All three
`
`patents are closely related. The ‘504 and ‘211 Patents are based on a continuation-in-part to the
`
`‗135 Patent, adding new material to the specification, most notably a section titled ―One-Click
`
`Secure On-Line Communications and Secure Domain Name Service‖ and related Figures 34 and
`
`35. The Patents-in-Suit have all been subject to reexamination. The Patent Office granted
`
`Microsoft‘s request for inter partes reexamination of the ‘135 Patent, but confirmed the claims
`
`after Microsoft settled with VirnetX and withdrew from the reexamination. Since that time, the
`
`Patent Office has initiated new reexaminations of the ‘135, ‘504, and ‘211 Patents and has issued
`
`Office Actions rejecting each and every claim of all three patents as invalid over the prior art.
`
`VirnetX has responded to the Office Actions, but all three patents remain rejected.
`
`IV. LEVEL OF ORDINARY SKILL IN THE ART
`
`Defendants 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 such as electrical engineering,
`
`as well as about two years of experience in computer networking and in some aspect of security
`
`with respect to computer networks. Defendants also agree with VirnetX that such person would
`
`have actual experience with networking protocols as well as the security of those protocols.
`
`
`1
`All three Patents-in-Suit (the ‘135, ‘504, and ‘211 Patents) are asserted in the Cisco Case.
`However, the Cisco Case also includes other patents that are not asserted here, some of which are
`also related to the ‘135, ‘504 and ‘211 Patents.
`
`2
`
`Page 7 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 8 of 38 PageID #: 6165
`
`V. DISPUTED CLAIM CONSTRUCTIONS2
`
`A. Disputes Concerning Types of Communication Links
`
`1. “Virtual private network”
`VirnetX’s Proposed Construction
`
`Defendants’ Proposed Construction3
`
`a network of computers which privately
`and directly communicate with each other
`by
`encrypting
`traffic
`on
`insecure
`communication
`paths
`between
`the
`computers
`
`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 additional
`computers over
`the network without
`additional setup
`
`
`
`a. “In which a computer is able to address additional computers over the
`network without additional setup”
`
`Defendants agree with the Court‘s construction in the Cisco case and have adopted it
`
`insofar as it addressed issues presented in that action. However, Defendants wish to bring the
`
`Court‘s attention to statements VirnetX made during the ‘135 Patent reexamination that were not
`
`addressed in the Microsoft or Cisco briefing. These statements require the VPN to be a network
`
`―in which a computer is able to address additional computers over the network without
`
`additional setup.‖ VirnetX argued this distinction to the Patent Office to get the ‘135 Patent out
`
`of reexamination, and VirnetX must therefore be bound to this requirement for purposes of this
`
`
`2
`Defendants have agreed to drop ―DNS request‖ and ―authorized‖ from the list of terms
`requiring the Court‘s construction. Defendants further note that although ―generating from the
`client computer a Domain Name Service (DNS) request‖ was originally a disputed term, VirnetX
`has now agreed to the construction Defendants proposed and the Court reached in the Cisco
`Case. Defendants and VirnetX agree that ―automatically initiating the VPN‖ means ―initiating
`the VPN without involvement of a user.‖
`
`3
`Avaya has agreed to consolidate its position with Mitel and Siemens to narrow the issues
`for the Court.
`
`3
`
`Page 8 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 9 of 38 PageID #: 6166
`
`case.4 VirnetX also endorsed this requirement in the Microsoft Case, when it proposed that VPN
`
`should be construed as ―a network … which is capable of expanding to include additional
`
`computers and communication paths.‖ Microsoft Case, D.I. 194 (attached as Ex. 1) at 4-6
`
`(emphasis added). In view of VirnetX‘s prior statements to both the Patent Office and this
`
`Court, its current argument that there is ―simply no basis‖ for this requirement (D.I. 153 at 6)
`
`rings especially hollow.
`
`When reviewing the relevant prosecution history in connection with the Cisco case, the
`
`Court noted that VirnetX made three distinctions over the Aventail reference in reexamination.5
`
`The Court also observed that each distinction was ―independently present[ed] and discuss[ed]‖
`
`and that ―[e]ach of these reasons, alone, served to distinguish the claimed VPN from the Aventail
`
`reference.‖ Ex. 19 at 7. VirnetX‘s first distinction was that Aventail was not directed to a VPN
`
`because it did not disclose computers that ―communicate with each other as though they were on
`
`the same network.‖ Response to Office Action (attached as Ex. 2) at 5-7. VirnetX went on to
`
`explain this distinction:
`
`―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. Aventail
`discloses establishing point-to-point SOCKS connections between
`a client computer and a SOCKS server. Aventail does not disclose
`a VPN, where data can be addressed to one or more different
`computers across the network, regardless of the location of the
`computer.‖
`
`
`
`
`
`4
`These reexamination proceedings occurred after the Court entered its Claim Construction
`order in the Microsoft Case
`
`5
`The Court and the parties to the Cisco Case focused on the third distinction VirnetX drew
`between its claims and the Aventail reference, which gave rise to the ―directly‖ requirement in
`the construction of VPN.
`
`4
`
`Page 9 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 10 of 38 PageID #: 6167
`
`Id. at 5-6 (emphasis added). In other words, VirnetX argued that a VPN, as claimed in the ‘135
`
`Patent, requires something more than setting up a point-to-point connection between two
`
`computers. VirnetX further clarified that the additional computers in a VPN can be addressed
`
`―without additional setup”:
`
`For example, suppose two computers, A and B, reside on a public
`network. Id. at ¶ 21. Further, suppose two computers, X and Y,
`reside on a private network. Id. If A establishes a VPN
`
`connection with X and Y's network to address data to X, and B
`separately establishes a VPN connection with X and Y's network
`to address data to Y, then A would nevertheless be able to address
`data to B, X, and Y without additional set up. Id. This is true
`because A, B, X, and Y would all be a part of the same VPN.
`
`Id. (emphasis added). VirnetX specifically distinguished this from Aventail, which discloses two
`
`devices connected directly to one another with a point-to-point connection:
`
`In contrast, suppose, according to Aventail, which only discloses
`communications at the socket layer, A establishes a SOCKS
`connection with a SOCKS server for relaying data to X, and B
`separately establishes a SOCKS connection with the SOCKS
`server for relaying data to Y. Id. at ¶ 22. In this situation, not
`only would A be unable to address data to Y without establishing
`a separate SOCKS connection (i.e. a VPN according to the Office
`Action), but A would be unable to address data to B over a secure
`connection. Id. This is one example of how the cited portions of
`Aventail fail to disclose a VPN. Id.
`
`Id. at 6 (emphasis added). Therefore, a VPN is not a point-to-point connection between computers.
`
`Rather, a VPN would allow additional computers to be addressed over the network without
`
`additional setup.
`
`
`
`Either choosing to ignore or conveniently forget this history, VirnetX makes the blanket,
`
`unsupported statement that there ―is simply no basis‖ for this limitation. D.I. 153 at 6. Yet the
`
`basis is clear—VirnetX‘s own unequivocal representations to the Patent Office. VirnetX cannot
`
`escape the consequences of these statements when making its infringement allegations in this
`
`5
`
`Page 10 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 11 of 38 PageID #: 6168
`
`case. See Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001)
`
`(―A patent may not, like a ‗nose of wax‘ be twisted one way to avoid anticipation and another to
`
`find infringement.‖). In arguing that Aventail does not disclose a VPN, VirnetX has clearly
`
`defined ―virtual private networks‖ as networks within which a computer is able to address
`
`additional computers over the network without additional setup. This requirement is also
`
`consistent with VirnetX‘s position before this Court in the Microsoft Case.
`
`b. The Court’s construction in the Cisco Case
`
`Subject to incorporation of the ―additional computers‖ requirement, Defendants agree
`
`that the Court‘s construction in the Cisco Case was correct and request the Court adopt the same
`
`construction for the reasons discussed in the Microsoft briefing (Ex. 3 at 3-11 and Ex. 4 at 1-4),
`
`the Cisco briefing (Ex. 15 at 2-7) and the Court‘s Cisco Markman order (Ex. 19 at 5-8), which
`
`Defendants expressly incorporate by reference. For the Court‘s convenience, Defendants will
`
`not restate the entire analysis here. Nevertheless, because VirnetX devoted substantial argument
`
`to this term, Defendants will briefly summarize the supporting arguments below.
`
`i. Secure and anonymous
`
`The Court in the Microsoft and Cisco Cases correctly ruled that a VPN requires that the
`
`communications are both secure and anonymous.6 Ex. 19 at 5, 31; Ex. 5 at 8-9. VirnetX now
`
`
`6
` Although the Court‘s reached this conclusion in the Microsoft Case, the Court‘s
`construction did not expressly incorporate those requirements. Microsoft Case, D.I. 246
`(Attached as Ex. 5) at 8-9. As explained in detail by the Cisco Defendants, this resulted in added
`complications at trial where the parties had to rely on cross-examination to convey these
`requirements to the jury, which in turn complicated the trial and increased the risk of jury
`confusion. Ex. 15 at 3-4. To avoid similar complications a second time in the Cisco Case, the
`Court explicitly included the ―secure and anonymous‖ language in its most recent construction of
`VPN. See Cisco Case, D.I. 266, (attached as Ex. R) at 5. These requirements should be
`expressly included in the construction of VPN in this case for the reasons previously addressed
`by the Court.
`
`6
`
`Page 11 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 12 of 38 PageID #: 6169
`
`argues a VPN does not require anonymity. D.I. 153 at 4-6. Not only is this argument contrary to
`
`the Court‘s rulings, it also contradicts the position VirnetX previously took in the Microsoft
`
`Case.7 There, VirnetX conceded a VPN must achieve both data security and anonymity.8
`
`The intrinsic evidence supports the Court‘s conclusion that a VPN as claimed in the ‘135
`
`Patent provides both security and anonymity. First, the Background of the Invention states that
`
`the invention addresses ―two security issues . . . called data security and anonymity.‖ Ex. A
`
`(‘135 Patent) at 1:35-36 (emphasis added). The ‘135 Patent also specifically explains that
`
`anonymity involves ―prevent[ing] an eavesdropper from discovering that terminal 100 is in
`
`communication with terminal 110.‖ Id. at 1:26-27. Further, the specification repeatedly equates
`
`the word ―private‖ in ―virtual private network‖ with ―anonymity,‖ explaining that ―[a]nonymity
`
`would thus be an issue, for example, for companies that want to keep their market research
`
`interests private.‖ Id. at 1:32-33 (emphasis added). And the remainder of the specification
`
`describes ways to solve the dual security issues of data security and 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 Court previously recognized in
`
`
`7
`
`See Microsoft Case, D.I. 391 (attached as Ex. 6) at 88:18-89:17, 155:8-15; Microsoft
`Case, D.I. 392 (attached as Ex. 7) at 64:1-71:12, 85:19-89:1, 93:10-15; Microsoft Case, D.I. 393
`(attached as Ex. 8) at 42:1-43:11, 62:20-65:15; Microsoft Case, D.I. 395 (attached as Ex. 9) at
`100:12-101:25, 105:1-9; Microsoft Case, D.I. 396 (attached as Ex. 10) 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. 11) at 56:3-
`59:8; Microsoft Case, D.I. 398 (attached as Ex. 12) at 136:12-137:16.
`
`8
` After issuance of the Court‘s claim construction order, Microsoft moved to have the ―data
`security and anonymity‖ language incorporated in the Court‘s construction of VPN. Microsoft
`Case, D.I. 247. Neither Microsoft nor VirnetX disputed that a virtual private network requires
`anonymity when the Court considered the issue at the pretrial conference in that case. Microsoft
`Case, D.I. 339 (attached as Ex. 14) at 6:16-14:16. Indeed, VirnetX even assured the Court that
`its expert would not contest that ―private‖ requires both anonymity and security.‖ Id. at 12:20-
`13:2. Microsoft ultimately agreed to rely on cross examination of VirnetX‘s expert witnesses,
`rather than expressly incorporating the requirements into the construction, to convey that
`requirement at trial. Id. at 14:2-4.
`
`7
`
`Page 12 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 13 of 38 PageID #: 6170
`
`the Microsoft Case, because the Detailed Description of the Invention section refers back to the
`
`anonymity features disclosed earlier in the specification, the term VPN requires anonymity
`
`wherever it appears.
`
`VirnetX‘s opening brief rehashes—for a third time—a long-settled dispute from the
`
`Microsoft case about the ―purpose‖ of encapsulation. D.I. 153 at 5-6. As was true in the Cisco
`
`Case, this discussion has no bearing here for several reasons. First, encapsulation is only one of
`
`the methods the ‘135 Patent teaches for achieving anonymity. See Ex. A (‘135 Patent) at 7:49-58
`
`(describing alternate method of accomplishing anonymity by having the destination field of the
`
`IP header point to an intermediary router instead of the ultimate destination). In fact, the Court
`
`expressly acknowledged in the Microsoft Case that anonymity can be achieved with techniques
`
`other than tunneling (encapsulation). Ex. 5 at 9-10. VirnetX‘s recitation of its arguments from
`
`the Microsoft and Cisco Cases should again be rejected.
`
`ii. Directly
`
`
`
`The Court in the Cisco Case correctly found that computers in a VPN communicate
`
`―directly‖ with one another. Ex. 19 at 6-7. VirnetX stated in its opening brief that it does not
`
`object to ―directly‖ subject to the caveat that it ―refers to direct addressability and (i) is not
`
`destroyed by routers, firewalls, and similar servers that participate in typical network
`
`communication, and (ii) does not require a direct, electromechanical connection.‖ D.I. 153 at 6.
`
`Defendants agree that ―directly‖ refers to ―direct addressability‖ as set forth in the Court‘s Cisco
`
`Markman Order and, thus, for efficiency, will not rehash all of the arguments on this point here.
`
`However, Defendants expressly incorporate by reference and preserve all arguments advanced
`
`by the Cisco Defendants regarding VirnetX‘s clear statements to the Patent Office that
`
`computers in a VPN communicate ―directly‖ with each other, and that without direct
`
`communications between the computers there is no VPN. Ex. 15 at 5-7. The Court properly
`
`8
`
`Page 13 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 14 of 38 PageID #: 6171
`
`included the ―directly‖ limitation in the construction of VPN in the Cisco Case because it was
`
`one of three separate distinctions VirnetX made to overcome Aventail during reexamination.
`
`2. “Virtual private link”
`VirnetX’s Proposed Construction
`
`that permits
`link
`a communication
`computers to privately communicate with
`each other by encrypting
`traffic on
`insecure communication paths between
`the computers
`
`
`
`Defendants’ Proposed Construction
`
`a virtual private network as previously
`defined9
`
`The Court in the Cisco Case agreed with Defendants‘ proposed construction. Ex. 19 at 8-
`
`10. In particular, the Court concluded it was appropriate to construe VPN and ―virtual private
`
`link‖ the same way because the ‘135 patent specification ―uses the term[s] . . . interchangeably.‖
`
`Ex. 19 at 9. Defendants expressly incorporate by reference and preserve all arguments advanced
`
`by the Cisco Defendants regarding this term. Among other reasons, the Court‘s analysis is
`
`supported by numerous examples of interchangeable usage throughout the specification10 and by
`
`applicable case law. E.g., Nystrom v. Trex Co., Inc., 424 F.3d 1136, 1143 (Fed. Cir. 2005)
`
`(―[D]ifferent terms or phrases in separate claims may be construed to cover the same subject
`
`matter where the written description and prosecution history indicate that such a reading of the
`
`terms or phrases is proper.‖).
`
`
`9
`Because Defendants‘ construction for ―virtual private link‖ mirrors their construction for
`―virtual private network,‖ Defendants will adopt the Court‘s construction from the Cisco case of
`―a virtual private network as previously defined‖ to maintain consistency.
`
`10
`For example, compare Ex. A (‘135 Patent) at 44:37-40 (―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. . . .‖), with id. at 45:10-13 (noting that the signaling server requests the transport
`server to create a hopping table for the purpose of ―creating a VPN with client 3103.‖), and id. at
`45:32-35 (―After a VPN has become inactive for a certain time period (e.g. one hour), the VPN
`can be automatically torn down by transport server 3102 or signaling server 3101.‖).
`
`9
`
`Page 14 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 15 of 38 PageID #: 6172
`
`VirnetX does not respond substantively to this analysis. VirnetX merely requests that the
`
`Court reject a proposed ―anonymous‖ or ―without additional setup‖ requirement for virtual
`
`private link ―for the reasons discussed above in [the VPN section of VirnetX‘s brief].‖ D.I. 153
`
`at 7 (emphasis added). But in referring to its VPN briefing, VirnetX appears to make
`
`Defendants‘ argument for them: VPN and virtual private link should be construed consistently.
`
`The Court should construe ―virtual private link‖ as ―a virtual private network as previously
`
`defined‖ for the same reasons it reached that conclusion in the Cisco Case.
`
`3. “Secure communication link”
`VirnetX’s Proposed Construction
`Defendants’ Proposed Construction
`
`a direct communication link that provides
`data security
`
`Mitel and Siemens:
`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:
`same construction as ―virtual private
`network‖
`
`
`
`a. Encryption
`
`In the Cisco Case, VirnetX argued the term ―secure communication link‖ requires
`
`encryption. The Court declined to reach that conclusion for two reasons: (i) because in stating
`
`security is ―usually‖ accomplished with encryption, the specification implies encryption is not
`
`the only means of achieving security, and (ii) because dependent claim 28 of the ‘504 Patent
`
`specifies that ―the secure communication link uses encryption.‖ Ex. 19 at 13. But after the
`
`Cisco Markman hearing, VirnetX expressly stated to the Patent Office in reexamination of the
`
`‘504 Patent that ―[o]ne of ordinary skill in the art would have understood a secure
`
`10
`
`Page 15 of 38
`
`

`
`Case 6:11-cv-00018-LED Document 165 Filed 06/11/12 Page 16 of 38 PageID #: 6173
`
`communication link to require encryption.‖ March 29, 2012 Resp. to Office Action (attached as
`
`Ex. 16) at 25. Defendants respectfully submit the presumptions the Court previously applied—
`
`that claims are not limited to a preferred embodiment, and that limitations in dependent claims
`
`should not be read into independent claims—must yield to the understanding of ―secure
`
`communication link‖ the patentee has clearly and expressly provided to the Patent Office in
`
`reexamination. Accordingly, the Court should adopt Defendants‘ requirement that the secure
`
`communication link provides data security ―by encrypting data.‖
`
`Defendants maintain that in addition to requiring encryption, the term ―secure
`
`communication link‖ requires (i) encrypting data ―on insecure communications paths‖ and (ii)
`
`the ability ―to address additional computers over the communication link without additional
`
`setup,‖ and (iii) ―direct‖ communications.11 These are similar to the requirements Defendants
`
`propose for VPN, and each is supported by the intrinsic evidence and VirnetX‘s own statements
`
`to the Patent Office.
`
`b. “Insecure communication paths”
`
`The fact that the link is providing data security on ―insecure communications paths‖ is
`
`supported by the inherent nature of the claimed invention. See, e.g., Ex. A (‘135 Patent) at 7:37-
`
`9:19. If the communication paths in question were already secure, there would of course be no
`
`need for a ―secure communication link‖ in the first place. For the same reasons this limitation
`
`was included in the construction of VPN, it should be included here in the construction of the
`
`term ―secure communication link.‖ Defendants incorporate the earlier briefing of the VPN term
`
`for this limitation.
`
`
`11
`Although Avaya proposes an alternative construction (i.e., that ―secure communication
`link‖ be construed the same as VPN), Avaya join

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket