Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
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`Page
`
`of 26 PagelD
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`1497
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`PARALLEL NETWORKS
`LICENSTh1G LLC
`
`Plaintiff
`
`INTERNATIONAL BUSINESS MACHINES
`CORPORATION
`
`Defendant
`
`PARALLEL NETWORKS
`LICENSTh1G LLC
`
`Plaintiff
`
`MICROSOFT CORPORATION
`
`Defendant
`
`C.A No 13-2072-SLR-SRF
`
`JURY TRIAL DEMANDED
`
`C.A No 13-02073-SLR-SRF
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF PARALLEL NETWORKS LICENSING LLCS
`OPENING MARKMAN BRIEF
`
`OF COUNSEL
`McKooL SMITH PC
`Douglas Cawley Pro Hac Vice
`Campbell Pro Hac Vice
`John
`Christopher Bovenkamp Pro Hac Vice
`Vorpahl Pro Hac Vice
`Angela
`Hansen Pro Hac Vice
`Eric
`Leah Bhimani Buratti Pro Hac Vice
`Avery Williams Pro Hac Vice
`300 Crescent Court Suite 1500
`Dallas TX 75201
`214 978-4940
`dcciwleyrnckoolsrnith corn
`jcampbell@mckoolsmith corn
`
`cbovenkarnprnckoolsrnith corn
`
`Dated November 14 2014
`
`YOUNG CONAWAY STARGATT
`TAYLOR LLP
`Poff No 3990
`Adam
`Squire No 4764
`Monte
`Rodney Square
`1000 North King Street
`Wilmington DE 19801
`302 571-6600
`apoffycst corn
`msquireycst corn
`
`ttorneys for Plaintiff Parallel Networks
`Licensing LLC
`
`Petitioner IBM – Ex. 1022, p. 1
`
`

`
`Case 113-cv-02073-SLR-SRF
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`TABLE OF CONTENTS
`
`iNTRODUCTION
`
`II
`
`STATEMENT OF FACTS
`
`Background of the Invention of the Patents-in-Suit
`
`The Invention
`
`The Claims
`
`Prior Litigations of the Patents-in-Suit
`
`Reexamination of the Patents-in-Suit
`
`III
`
`IV
`
`LEGAL STANDARD
`
`ARGUMENT
`Web Page
`Web Server
`
`Releasing
`
`Dispatching
`
`Dispatcher
`
`Machine readable medium
`
`CONCLUSION
`
`Pages
`
`10
`
`10
`
`12
`
`14
`
`16
`
`19
`
`20
`
`21
`
`Petitioner IBM – Ex. 1022, p. 2
`
`

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`Case 113-cv-02073-SLR-SRF
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`TABLE OF AUTHORITIES
`
`Cases
`
`EpicRealm Licensing LLC Autoflex Leasing Inc et at
`No 205-CV-163 E.D Tex 2005
`
`EPOS Techs Ltd
`Pegasus Techs Ltd
`766 F.3d 1338 Fed Cir 2014
`
`Stryker Corp
`Hill-Rom Servs
`755 F.3d 1367 Fed Cir 2014
`
`Liebel-Flarsheim Co Medrad Inc
`358 F.3d 898 Fed Cir 2004
`
`Lighting Ballast Control LLC Philips Elecs
`744 F.3d 1272 Fed Cir 2014
`
`Am Corp
`
`Markman
`Westview Instruments Inc
`52 F.3d 967 Fed Cir 1995 en bane affd 517 U.S 370 1996
`
`Nazomi Commc ns Inc
`Arm Holdings PLC
`403 F.3d 1364 Fed Cir 2005
`
`In re Nuilten
`500 F.3d 1346 Fed Cir 2007
`
`Oracle Corporation
`No 06-414-SLR
`
`Parallel Networks LLP
`Del 2006 Robinson
`
`Parallel Networks LLC Netfiix Inc et al
`No 207-CV-562 E.D Tex 2007 Texas II DI 221
`
`WH Corp
`Phillips
`415 F.3d 1303 Fed Cir 2005 en bane
`
`Pages
`
`passim
`
`12
`
`10
`
`14
`
`10
`
`20
`
`passim
`
`11
`
`Petitioner IBM – Ex. 1022, p. 3
`
`

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`INTRODUCTION
`
`Two patents are at
`
`issue in this case U.S Patent No 5894554 and U.S Patent No
`
`6415335
`
`Both patents have been construed three times including by this Court in Oracle
`
`Corporation
`
`Parallel Networks LLP No 06-414-SLR
`
`Del 2006 Robinson J. Both
`
`patents have been through
`
`jury trial concluding in
`
`verdict of infringement and validity See
`
`Declaration of Christopher Bovenkamp Bovenkamp Decl Ex 10 Verdict Form Both
`
`patents
`
`have
`
`been through
`
`lengthy
`
`reexamination
`
`before the PTO
`
`Nothing
`
`in the
`
`reexamination changed the scope of any term disputed in this case Parallel Networks proposes
`
`that the Court construe the patents-in-suit
`
`in the same manner it did in the Oracle case which is
`
`correct and largely consistent with the Eastern District of Texas courts constructions of the
`
`relevant claim terms in EpicRealm Licensing LLC
`
`Autoflex Leasing Inc et al No 205-CV-
`
`163 E.D Tex 2005 Texas
`
`Defendants
`
`on the other hand propose completely new
`
`constructions
`
`contrary to the intrinsic evidence
`
`There is no basis to depart
`
`from this Courts
`
`previous claim constructions
`
`so the Court should enter Parallel Networks constructions
`
`II
`
`STATEMENT OF FACTS
`
`Background of the Invention of the Patents-in-Suit
`
`The patents-in-suit disclose and claim improved methods and machine readable medium
`
`for managing the generation of dynamic Web pages Both patents share
`
`common specification
`
`and
`
`priority filing date of April 23 1996 Bovenkamp Decl Ex
`
`554 patent Bovenkamp
`
`Decl Ex
`
`335 patent The named inventors are Keith Lowery Andrew Levine and Ronald
`
`Howell The inventors conducted
`
`the work that
`
`led to filing the patent application beginning in
`
`courts construction of releasing See
`In the Oracle case the Court dismissed the Texas
`Bovenkamp Decl Ex DI 399 at
`competing construction adopted by the
`n.2
`Oracles proposed
`Texas court
`even describe
`adds
`cannot
`limitation that
`construction is simply confusing and adds unnecessary complexity to the phrase which is self
`evident when read in context Robinson J.
`
`Petitioner IBM – Ex. 1022, p. 4
`
`

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`mid-1995 and developed and released
`
`product originally called Virtuoso See Bovenkamp
`
`Decl Ex 11 EPIC00014O
`
`The Invention
`
`The patented invention can be understood in the context of the prior art and the prior art
`
`This prior art included the then-existing World Wide Web the
`
`to access information over
`
`the Web
`
`person would use Web client
`
`problems the patents solved
`Web In order
`computer running Web browser See Bovenkamp Decl Ex
`
`typically
`
`554 patent col
`
`11 24-32 The Web client would send
`
`request over the Web to the appropriate Web server
`
`The Web server upon receipt of the request processed
`
`the request and returned the requested
`
`information back to the Web client See Id col 111 31-37
`
`Initially most Web sites provided only static Web pages
`
`static Web page might
`
`include some text and some graphics much like
`
`page in
`
`book It was static in the sense that
`
`like
`
`page in
`
`book the information was set at the time of authorship Static Web pages were
`
`files stored on the Web server that remained the same until explicitly modified Declaration of
`
`Dr Mark Jones Jones Decl
`
`When
`
`static Web page is requested the Web server
`
`retrieves the specific file requested by the Web client and returns that
`
`file to the Web client
`
`without modifying the file Id
`
`As the Web developed Web sites began to provide dynamic Web pages i.e Web pages
`
`that are generated
`
`in response to
`
`specific request
`
`from the Web
`
`client only after
`
`they are
`
`requested
`
`Id
`
`In other words they were not static they could contain information that
`
`stock quote Id To this end the
`could change like the time of day weather information or
`prior art Common Gateway Interface CGI was developed to facilitate the generation of
`
`dynamic Web pages by Web server as were various tools that facilitated the use of the CGI
`
`Petitioner IBM – Ex. 1022, p. 5
`
`

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`See Bovenkamp Dee Ex
`
`554 patent at col
`
`47-67 The processing of dynamic Web
`
`pages is more resource-intensive
`
`than is the ease with static Web pages e.g dynamic Web
`
`pages require more processor time memory and/or other resources
`
`Jones Dee
`
`6-7 see also
`
`Bovenkamp Dee Ex
`
`554 patent co
`
`1-12
`
`As the demand for dynamic Web page requests increased Web servers began to suffer
`
`degradation of performance due to the heavy resource requirements of dynamic Web pages the
`
`degradation of performance incuded sower response time the faiure to provide the requested
`
`Web content or even the compete faiure crashing of the Web server
`
`Jones Dee
`
`The prior art attempted to sove these probems by adding hardware i.e more computers or
`
`routers on the Web server side to hande the increase in requests for dynamic Web pages Id
`
`This approach adding computer hardware was costy and cumbersome Id
`
`The patents-in-suit
`
`sove the probems associated with the management of dynamic Web
`
`pages using
`
`competey
`
`different approach
`
`from the prior art e.g CGI and reated
`
`deveopment
`
`toos An exampe of
`
`the architecture of an embodiment of
`
`the patented
`
`invention is shown in Figure of the patents-in-suit
`
`FIG0
`
`Petitioner IBM – Ex. 1022, p. 6
`
`

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`Bovenkamp Dee Ex
`
`554 patent Fig
`
`In the above architecture
`
`starting from the eft of
`
`the diagram the Web cient 200 which is
`
`computer
`
`running
`
`Web browser initiates the
`
`request for
`
`static or dynamic Web page and the request is sent over the Web to the Web server
`
`201 for processing
`
`Id co
`
`55-57
`
`The Web
`
`server may itsef process
`
`some of the
`
`requests and send Web pages back to the Web cient but according to the patent some requests
`
`are not handed by the Web server For those requests
`
`that wi not be processed
`
`the Web
`
`at
`
`server
`
`Interceptor 400 intercepts the request and routes it to the Dispatcher 402 Id at co
`
`58-60 see also Id co
`
`37-39
`
`In the above iustration three page servers are shown
`
`Id Fig
`
`However
`
`there
`
`coud be fewer than three or more than three page servers depending on the configuration of the
`
`Web site See Id co
`
`37-39 When the request
`
`is received at the Web server
`
`the Web
`
`server
`
`initiay has responsibiity for processing that
`
`request
`
`However when
`
`request
`
`is
`
`intercepted and routed from the Web
`
`server to
`
`page server
`
`the page server assumes the
`
`processing duties for the request
`
`In this way the Web
`
`server is reeased to perform other
`
`tasks See Id co
`
`8-19 co
`
`20-24
`
`Coming back to Figure
`
`above once
`
`request
`
`is intercepted it
`
`is sent to the dispatcher
`
`402 The function of the dispatcher
`
`is to seect
`
`page server that can efficienty process the
`
`request First the dispatcher examines the request to determine the subset of page servers that
`
`are capabe of processing the request See e.g Id co
`
`55-57
`
`Second the dispatcher
`
`makes an informed seection as to which page server in the subset shoud process the request
`
`based on dynamic information maintained about the page servers See e.g Id co
`
`51 to
`
`co
`
`19 Dynamic information is information reflecting the current state of the page servers
`
`such as what data sources
`
`page server currently has access to what
`
`information
`
`page server
`
`Petitioner IBM – Ex. 1022, p. 7
`
`

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`has cached or the number of requests
`
`page server is processing See e.g id The dispatcher
`
`increases
`
`the efficiency of processing Web page requests As disclosed in the patents-in-suit
`
`this type of load balancing of dynamic Web page requests can increase the performance for
`
`busy Web site Id col
`
`11 16-19
`
`The patented invention provides many advantages
`
`The patented invention improves the
`
`performance of Web site by allowing for dispatching and the subsequent
`
`routing to
`
`page
`
`server as discussed above
`
`Id see also Id col
`
`11 10-25 In addition the patented invention
`
`improves performance because
`
`it
`
`facilitates
`
`the scaling up of the Web
`
`site to handle more
`
`requests as the Web traffic grows
`
`Id col
`
`11 10-25 Scalability refers to the ability to
`
`increase the processing capability of Web site e.g to handle
`
`higher volume of requests in an
`
`efficient manner Id
`
`The Claims
`
`The patents-in-suit
`
`claim computer-implemented method for managing
`
`dynamic
`
`Web page generation request Bovenkamp Decl Ex
`
`554 patent Certificate of Correction
`
`claims 12 32 34 Bovenkamp Decl Ex
`
`335 patent Certificate of Correction claim 302 and
`
`machine readable medium that can be used by
`
`computer
`
`to manage dynamic Web page
`
`requests Bovenkamp Decl Ex
`
`554 patent Certificate of Correction claims 20 46 48
`
`Independent claims 12 and 20 of the 554 patent are representative of the claims at issue
`
`in the litigation Claim 12 reads
`
`12
`
`dynamic Web
`computer-implemented method for managing
`Web
`server said computer-implemented
`
`page generation request
`to
`method comprising the steps of
`
`Claim 43 of the 335 patent uses similar language and claims
`computer-implemented
`method
`releasing intercepting
`transferring receiving
`steps of
`comprising the
`selecting processing and dynamically generating Bovenkamp Decl Ex
`335 patent
`Certificate of Correction Claim 43
`
`Petitioner IBM – Ex. 1022, p. 8
`
`

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`routing said request from said Web server to
`selected page server said
`selected page server receiving said request and releasing said Web server
`to process other requests wherein said routing step further includes the
`steps of intercepting said request at said Web server routing said request
`from said Web server to
`dispatcher and dispatching by said dispatcher
`said request to said selected page server
`
`processing said request said processing being performed by said selected
`page server while said Web
`said other
`server concurrently
`requests and
`
`processes
`
`dynamically generating
`
`Web
`page by said selected
`page server
`said Web
`page including data dynamically
`to said request
`response
`retrieved from one or more data sources and
`
`in
`
`wherein dispatching includes
`to make
`selection of which page server should
`examining said request
`process said request from among
`plurality of page servers that can each
`generate said Web page requested by said request selecting one of said
`plurality of page servers to dynamically generate said Web page
`
`wherein
`
`regarding
`
`on examining dynamic
`selection is based
`information
`said
`load associated with each of said plurality of page servers and
`
`sending said request to said selected page server based on said examination
`
`Id Claim 12
`
`Claim 20 reads
`
`20
`
`machine
`
`readable medium having
`stored
`thereon
`instructions which when executed
`of
`representing
`sequences
`computer system cause said computer system to perform the steps of
`
`data
`
`by
`
`dynamic Web page generation request from Web server to
`routing
`selected page server said selected page server receiving said request and
`releasing said Web server to process other requests wherein said routing
`said request at said Web
`step further includes the steps of intercepting
`from said Web
`and
`server to
`routing said request
`dispatcher
`server
`dispatching by said dispatcher said request to said selected page server
`
`processing said request said processing being performed by said selected
`page server while said Web
`said other
`server concurrently
`requests and
`
`processes
`
`Petitioner IBM – Ex. 1022, p. 9
`
`

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`1506
`
`Web
`page by said selected
`page server
`dynamically generating
`Web page including data retrieved from one or more data sources and
`
`said
`
`wherein dispatching includes
`to make
`selection of which page server should
`examining said request
`process said request from among
`plurality of page servers that can each
`generate the Web page requested by said request selecting one of said
`plurality of page servers to dynamically generate said Web page
`
`wherein
`
`regarding
`
`on examining dynamic
`selection is based
`information
`said
`load associated with each of said plurality of page servers and
`
`request
`
`to said
`
`selected
`
`page
`
`server
`
`based
`
`on
`
`said
`
`sending
`examination
`
`said
`
`Id Claim 20
`
`Prior Litigations of the Patents-in-Suit
`
`Three courts including this Court in the Oracle case entered Markman orders construing
`
`the patents-in-suit As shown in the chart below each of the disputed terms except machine
`
`readable medium has been the subject of construction
`
`Claim term
`Web page
`
`Texas j3
`Web content
`
`Oracle4
`Web content
`
`Web server
`
`Releasing said Web
`server to process
`other requests
`
`displayable through
`Web browser
`software or machine
`
`displayable through
`Web browser
`software or machine
`
`having software that
`having software that
`receives Web page
`receives Web page
`requests and returns
`requests and returns
`Web pages in response Web pages in response
`to the requests
`to the requests
`freeing the Web server
`said page server
`to process other
`receiving said request
`and said page server
`requests
`performing an act
`separate from merely
`
`Texas ii
`document displayable
`by Web browser
`
`software or machine
`
`having software that
`receives Web page
`requests and returns
`Web pages in response
`to the requests
`after receiving the
`request or concurrent
`with receiving the
`
`request said page
`server performing an
`
`Texas DI 184 Bovenkamp Decl Ex
`Bovenkamp Decl Ex
`Texas DI 260
`Bovenkamp Decl Ex
`Bovenkamp Decl Ex Oracle DI 399 Bovenkamp Decl Ex Oracle DI 468
`Bovenkamp Decl Ex Parallel Networks LLC Netflix Inc etal No 207-CV-562 E.D
`Tex 2007 Texas II DI 221
`
`Texas DI 194
`
`Petitioner IBM – Ex. 1022, p. 10
`
`

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`Page 11 of 26 Page ID
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`1507
`
`receiving the request
`to free the Web server
`to process other
`requests
`
`Dispatching
`
`examining
`request to
`make an informed
`selection of which
`
`analyzing
`request to
`make an informed
`selection of which
`
`page server should
`process the request
`based on dynamic
`information
`
`maintained about page
`servers the dynamic
`information indicating
`which page server can
`more efficiently
`process the request
`and sending the
`request to the selected
`page server6
`Not construed
`
`page server should
`process the request
`based on
`variety of
`information regarding
`each page server and
`sending the request to
`the selected page
`server7
`
`software for
`
`determining which
`page server should be
`used to process
`dynamic web page
`generation request
`
`Dispatcher
`
`Machine readable
`medium
`
`Not construed
`
`Not construed
`
`act separate from
`merely receiving or
`processing the request
`to free the Web server
`to process new or pre
`existing requests by at
`least freeing
`processing resources of
`the Web server
`sending the request to
`selected page server
`based on information
`static or dynamic
`maintained about page
`servers
`
`machine having
`software independent
`of the Web server or
`software independent
`of the Web server that
`performs the function
`of dispatching
`Not construed
`
`Parallel Networks asks the Court to construe the claim terms as it did in the Oracle case
`
`agreed to the construction of the term dispatching Bovenkamp Decl
`The parties in Texas
`Texas DI 184 at 1-2
`Ex
`This Court clarified its construction of the term dispatching to explain that the variety of
`information need not be both static and dynamic but rather that
`variety of dynamic
`variety of both static and dynamic information about
`information about
`page server or
`page
`server may satisfy the claim Bovenkamp Deci Ex Oracle DI 468 at 2-3
`
`Petitioner IBM – Ex. 1022, p. 11
`
`

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`Case 113-cv-02073-SLR-SRF
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`Page 12 of 26 Page ID
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`1508
`
`Reexamination of the Patents-in-Suit
`
`The PTO examined each of the patents-in-suit The reexaminations of the patents-in-suit
`
`began in 2007 during the pendency of the Oracle case Parallel Networks
`
`submitted its first
`
`substantive response
`
`in the reexamination
`
`on September
`
`2008a few months before this
`
`Courts issuance of its Markman order on December
`
`2008 Parallel Networks relied in its
`
`response on the claim constructions
`
`entered
`
`in the Texas
`
`case
`
`Bovenkamp Decl Ex
`
`Office Action Response 9/2/2008
`
`at 59-60 Parallel Networks relied upon the Texas
`
`claim
`
`constructions
`
`throughout
`
`the
`
`reexamination of
`
`the patents-in-suit
`
`The PTO issued the
`
`reexamination certificates in 2012 Three claims in the 335 patent
`
`issued with
`
`scope identical
`
`to the original claims The remainder of the claims differ in scope from the original claims but
`
`none of these differences are the subject of any claim construction disputes
`
`III
`
`LEGAL STANDARD
`
`Claim construction
`
`is an issue of
`
`law for courts to decide Markman
`
`Westview
`
`Instruments Inc 52 F.3d 967 970-71 Fed Cir 1995 en banc affd 517 U.S 370 1996
`
`When construing disputed claim terms the court should look first
`
`to the intrinsic record of the
`
`patent
`
`including the claims and the specification to determine the meaning of words in the
`
`claims Nazomi Commc ns Inc
`
`Arm Holdings PLC 403 F.3d 1364 1368 Fed Cir 2005
`
`It is
`
`bedrock principle of patent
`
`law that the claims of
`
`patent define the invention to which
`
`the patentee is entitled the right to exclude Phillips
`
`AWH Corp 415 F.3d 1303 1312 Fed
`
`Cir 2005 en banc internal citations omitted Claim terms are generally given their plain
`
`and ordinary meanings to one of skill
`
`in the art when read in the context of the specification and
`
`prosecution history Hill-Rom Servs
`
`Stryker Corp 755 F.3d 1367 1371 Fed Cir 2014
`
`citing Phillips 415 F.3d at 1313 While we read claims in view of the specification of which
`
`Petitioner IBM – Ex. 1022, p. 12
`
`

`
`Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
`
`Page 13 of 26 Page ID
`
`1509
`
`they are
`
`part we do not read limitations from the embodiments in the specification into the
`
`claims Id citing Liebel-Flarsheim Co Medrad Inc 358 F.3d 898 904 Fed Cir 2004
`
`deviate from the plain and ordinary meaning of
`
`claim term to one of skill
`
`in the art the
`
`patentee must with some language indicate
`
`clear intent to do so in the patent
`
`Id at 1373
`
`The Court already construed all but one disputed term of the patents-in-suit While the
`
`Courts prior construction
`
`is not binding the only event
`
`that occurred since the Courts
`
`construction is the reexamination of the patents-in-suit Nothing in the reexamination altered the
`
`scope of any term before the Court
`
`In fact Parallel Networks explicitly relied upon the Texas
`
`courts claim construction during the reexamination See e.g Bovenkamp Decl Ex Office
`
`Action Response
`
`9/2/2008
`
`at 59-60 The Texas
`
`courts claim construction of the relevant
`
`terms is consistent with this Courts constructions
`
`See Bovenkamp Decl Ex
`
`Texas DI
`
`194 Bovenkamp Decl Ex
`
`Texas DI 260 Bovenkamp Decl Ex Oracle DI 399
`
`Adoption of this Courts prior constructions would promote uniformity in the interpretation of
`
`patent scope See Lighting Ballast Control LLC Philips Elecs
`
`Am Corp 744 F.3d 1272
`
`1280 1286 Fed Cir 2014 noting the importance of uniformity in construing patent claims
`
`IV ARGUMENT
`
`Web Page
`
`Claim term
`
`Web page
`
`Parallel Networks
`Construction
`Web content displayable
`through Web browser
`
`Defendants Proposal
`
`document on the World
`Wide Web
`
`The dispute between the parties is whether Web page is Web content displayable
`
`through Web browser as proposed by Parallel Networks or
`
`document on the World Wide
`
`Web as proposed by Defendants
`
`Parallel Networks proposed construction of Web page is
`
`the same construction entered by this Court in the Oracle case and the Eastern District Court of
`
`10
`
`Petitioner IBM – Ex. 1022, p. 13
`
`

`
`Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
`
`Page 14 of 26 Page ID
`
`1510
`
`Texas in the Texas
`
`case Bovenkamp Dee Ex Oracle DI 399 at
`
`Bovenkamp Dee
`
`Ex
`
`Texas DI 194 at
`
`Bovenkamp Dee Ex
`
`Texas DI 260 at 1-2 Parae
`
`Networks construction is aso consistent with the construction entered by the Eastern District
`
`Court of Texas in Parallel Networks LLC
`
`2007 Texas Ii
`
`See Bovenkamp Dee Ex
`
`Netflix Inc et al No 207-CV-562 ED Tex
`Texas II DI 221 at 43 Defendants
`
`proposa is contrary to each of these courts caim constructions
`
`Caim 12 of
`
`the 554 patent uses the term Web page in the foowing context
`
`dynamicay generating
`
`Web page by said seected page server in response to said request
`
`said Web
`
`page
`
`incuding data dynamicay retrieved from one or more data sources
`
`Bovenkamp Dee Ex
`
`554 patent Certificate of Correction Caim 128 The other caims in
`
`which the term Web page appears use the term in the same context
`
`From the anguage of
`
`caim 12 Web page is dynamicay generated
`
`in response to
`
`request and incudes data
`
`dynamically retrieved from one or more data sources
`
`Id The specification shows that
`
`the
`
`caimed Web page is the content being dynamicay put together on the fly by the page server for
`
`utimate dispay through
`
`browser Id 554 patent co
`
`20-32
`
`In contrast Defendants
`
`proposed construction
`
`requires that
`
`the Web
`
`page be
`
`preexisting
`
`document
`
`on the Word Wide Web
`
`Defendants
`
`proposa
`
`is contrary to the
`
`requirement
`
`in eaim 12 that the Web page be generated in response to
`
`request and ineude
`
`data dynamieay retrieved from data source
`
`See Bovenkamp Dee Ex
`
`554 patent
`
`The origina eaims of the 554 patent used the term Web page in
`identiea
`substantivey
`said Web
`Web
`manner dynamieay generating
`page in response
`page
`to said request
`ineuding data dynamieay retrieved from one or more sources See Bovenkamp Dee Ex
`554 patent eo
`9-11 The eaim as issued out of reexamination makes expieit what
`aready impieit in the origina eaimthat
`is what dynamieay
`the seeeted page server
`generates the Web page See id eo
`6-7 requiring said processing being performed by
`said page server
`
`is
`
`11
`
`Petitioner IBM – Ex. 1022, p. 14
`
`

`
`Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
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`Page 15 of 26 Page ID
`
`1511
`
`Certificate of Correction Claim 12 Defendants
`
`proposal
`
`is contrary to the specifications
`
`description of
`
`the preferred embodiment which contemplates
`
`server dynamically
`
`generat Web page in response to the Web client request
`
`Id 554 patent col
`
`11 40-48
`
`col
`
`11 27-31
`
`Defendants
`
`proposal
`
`is improper because
`
`construction that excludes
`
`preferred embodiment
`
`is rarely if ever correct EPOS Techs Ltd
`
`Pegasus Techs Ltd 766
`
`F.3d 1338 1347 Fed Cir 2014 holding that
`
`the district courts construction is incorrect
`
`because it
`
`reads out preferred embodiments
`
`There is no basis to depart from the Courts previous construction
`
`The claim term Web
`
`page should be construed to mean Web content displayable through Web browser
`
`Web Server
`
`Claim term
`
`Web server
`
`Parallel Networks
`Construction
`software or machine having
`software that receives Web
`page requests and returns Web
`pages in response to the
`requests
`
`______________________________
`
`______________________________
`
`Defendants Proposal
`
`software or machine having
`software that receives Web
`page requests generates or
`locates Web pages and
`returns Web pages in response
`to the requests
`
`The parties agree that
`
`the claimed Web server
`
`is software or
`
`machine having
`
`software that receives Web page requests
`
`and returns Web pages in response to the requests
`
`The three district courts to have considered the issue also agree that the claimed Web server
`
`is
`
`best defined as software or machine having software that receives Web page requests and
`
`returns Web pages in response to the requests Bovenkamp Decl Ex
`
`Texas DI 194 at
`
`16 Bovenkamp Decl Ex
`
`Texas DI 260 at 1-2 Bovenkamp Decl Ex Oracle DI 399
`
`at
`
`Bovenkamp Decl Ex
`
`Texas II DI 221 at 47 For this case Defendants erroneously
`
`propose an additional
`
`limitation that
`
`the Web
`
`server necessarily generates
`
`or locates Web
`
`pages The plain language of the claims and specification show that the claimed Web server
`
`12
`
`Petitioner IBM – Ex. 1022, p. 15
`
`

`
`Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
`
`Page 16 of 26 Page ID
`
`1512
`
`does not need to generate or locate Web pages as such functionality is performed primarily by
`
`the claimed page servers
`
`See generally Bovenkamp Decl Ex
`
`554 patent Certificate of
`
`Correction Id 554 patent col 611 27-32 col
`
`11 39-5
`
`Each independent claim of the patents-in-suit
`
`includes
`
`limitation that requires routing
`
`the dynamic Web page generation request from the Web server to the page server for processing
`
`See e.g Bovenkamp Decl Ex
`
`554 patent Certificate of Correction Claim 12 Bovenkamp
`
`Decl Ex
`
`335 patent Certificate of Correction Claim 30 It
`
`is the page server not the Web
`
`server that processes the request and dynamically generates Web page See e.g Bovenkamp
`
`Decl Ex
`
`554 patent Claim 12 said processing being performed by said selected page
`
`server Bovenkamp Decl Ex
`
`335 patent Claim 30 said processing being performed by
`
`said selected page server
`
`The specification teaches the same thing Figure
`
`for example
`
`illustrates the processing of Web browser
`
`request
`
`according to one embodiment of the
`
`invention Bovenkamp Decl Ex
`
`554 patent col
`
`11 49-5
`
`The request is intercepted at
`
`the Web server Id col
`
`11 0-32 handed off to the page server that then produces an HTML
`
`document
`
`id col
`
`11 39-41 and the result
`
`is ultimately returned by the Web server to the
`
`requesting client Id col
`
`11 47-49 In this embodiment all Web page generation occurs at the
`
`page server The patent specification explains that the dispatcher dispatches the request to
`
`page
`
`server and the page server processes the request and retrieves the data from an appropriate data
`
`source
`
`Id col
`
`11 41-43 The patent specification further explains that
`
`server
`
`4022 dynamically generates
`
`Web page in response to the Web client request
`
`Id col
`
`11
`
`27-28
`
`Defendants
`
`proposed construction would
`
`improperly transform the Web
`
`server
`
`identified in Figure
`
`and described elsewhere in the specification into
`
`page server
`
`13
`
`Petitioner IBM – Ex. 1022, p. 16
`
`

`
`Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
`
`Page 17 of 26 Page ID
`
`1513
`
`Further Defendants
`
`additional
`
`limitation that the Web server necessarily generates or
`
`locates Web pages is improper because it violates the doctrine of claim differentiationthe
`
`presumption that independent claims which are broader than claims that depend from them do
`
`not
`
`require
`
`limitation found specifically
`
`in
`
`dependent
`
`claim Liebel-Flarsheim Co
`
`Medrad Inc 358 F.3d 898 910 Fed Cir 2004 In the 554 patent
`
`the concept of the Web
`
`server generating or locating Web pages is recited in dependent
`
`claims 24 and 38 which require
`
`determination that other requests should be processed by said Web server
`
`limitation not
`
`found in independent claims 12 or 20 See e.g Bovenkamp Decl Ex
`
`554 patent Claims
`
`24 38 Importing the limitation that requests should be processed by said Web server into the
`
`independent claims would therefore violate the doctrine of claim differentiation and should be
`
`rejected
`
`See Liebel-Flarsheim Co 358 F.3d at 910
`
`There is no basis to depart from the Courts previous construction
`
`The claim term Web
`
`server should be construed to mean software or machine having software that receives Web
`
`page requests and returns Web pages in response to the requests
`
`Releasing
`
`Claim term
`
`Releasing said Web server to
`process other requests
`
`Parallel Networks
`Construction
`freeing the Web server to
`process other requests
`
`Defendants Proposal
`
`freeing the Web server to
`resume processing other
`
`requests
`
`The primary dispute between the parties is whether releasing said Web server to process
`
`other requests requires only freeing the Web server to process other requests as proposed by
`
`Parallel Networks
`
`and previously
`
`found by this Court or freeing the Web server to resume
`
`processing other
`
`requests as urged by Defendants
`
`Parallel Networks
`
`construction
`
`of
`
`14
`
`Petitioner IBM – Ex. 1022, p. 17
`
`

`
`Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
`
`Page 18 of 26 Page ID
`
`1514
`
`releasing is the same construction entered by this Court in the Oracle case See Bovenkamp
`
`Decl Ex
`
`Oracle DI 399 at 1-2
`
`The phrase releasing said Web server to process other requests is used in the following
`
`context
`
`in the claims routing said request from said Web server to
`
`selected page server said
`
`selected
`
`page server receiving said request and releasing said Web
`
`server
`
`to process other
`
`requests Bovenkamp Decl Ex
`
`554 patent Certificate of Correction Claim 12 see also
`
`Bovenkamp Decl Ex
`
`335 patent Certificate of Correction Claim 30 routing
`
`request from
`
`Web
`
`server to
`
`selected
`
`one of
`
`plurality of page servers
`
`said selected page server
`
`receiving said request and releasing said Web server to process other requests To one of
`
`ordinary skill
`
`in the art the releasing claim limitation indicates that the Web server is freed to
`
`perform other tasks when the request
`
`is routed from the Web server to the page server
`
`The
`
`specification teaches that the receipt of the request by the page server frees the Web server to
`
`process other requests arriving at the Web server While Page server 4042 is processing the
`
`request Web Server executable 201E can concurrently
`
`process other Web
`
`client requests
`
`Bovenkamp Decl Ex
`
`554 patent col
`
`11 21-24
`
`Defendants proposal that releasing frees the Web server to resume processing other
`
`requests requires that the Web server stop cease or suspend the processing of requests while it
`
`waits for the page server to act Nothing of the sort is suggested by the claims or specification of
`
`the patents-in-suit
`
`To the contrary the patent specification explains that the page server and
`
`Web server are operating at the same time This partitioned architecture thus allows both Page
`
`server 4042 and Web server executable 20 1E to simultaneously
`
`process different requests
`
`thus increasing the efficiency of the Web site Id col
`
`11 25-28
`
`15
`
`Petitioner IBM – Ex. 1022, p. 18
`
`

`
`Case 113-cv-02073-SLR-SRF
`
`Document 78 Filed 11/14/14
`
`Page 19 of 26 Page ID
`
`1515
`
`There is no basis to depart
`
`from the Courts previous construction
`
`The claim phrase
`
`releasing said Web server to process other requests should be construed to me