Case 106-cv-00414-SLR
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`of 30 PagelD
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`10941
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`IN THE UNITED STATES DISTRICT COURT
`FOR TUE DISTRICT OF DELAWARE
`
`ORACLE CORPORATION and
`ORACLE U.S.A INC
`
`Plaintiffs/Counterclaim Defendants
`
`EPICREALM LICENSING LP
`
`DefendantiCounterclaim Plaintiff
`
`CA No 06-414-SLR
`
`JURY TRIAL DEMANDED
`
`PUBLIC VERSION
`
`EPICREALMS CLAIM CONSTRUCTION RESPONSE BRIEF
`
`Horwitz 2246
`Richard
`Moore 3983
`David
`POTTER ANDERSON
`Hercules Plaza 6th Floor
`1313
`Market Street
`Wilmington DE 19899
`Tel 302 984-6000
`rhorwitz@potteranderson.com
`
`CORROON LLP
`
`dmoore@pofteranderson.com
`
`Attorneys for Defendant/Counterclaim
`Plaintiff epicRealm Licensing LP
`
`OF COUNSEL
`
`Harry
`
`George
`Aaron
`
`Roper
`Bosy
`Barlow
`
`Patrick
`
`Patras
`
`David
`
`Bennett
`
`Paul
`
`Margolis
`Benjamin Bradford
`Johnson
`Emily
`BLOCK
`JENNER
`Wabash Avenue
`330
`Chicago IL 60611-7603
`Tel 312 923-8305
`
`2008
`Dated September
`Public Version Dated September 12 2008
`881282
`31393 Oracle
`
`Petitioner IBM – Ex. 1025, p. 1
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`

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`Case 106-cv-00414-SLR
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`TABLE OF CONTENTS
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`NATURE AND STAGE OF THE PROCEEDiNGS
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`II SUMMARY OF THE ARGUMENT
`
`111 STATEMENT OF FACTS
`
`IV ARGUMENT
`
`Construction of the Claim Terms in Issue Not Containing Means-Plus-Function
`
`Limitations
`
`The Dispatching Limitations
`
`Dispatching
`
`Dispatcher
`
`Intercepting Terms
`
`The term intercepting
`
`The Releasing Limitation
`
`HTTP-compliant device
`
`Web server
`
`Page server
`
`Request
`
`Web page
`
`Construction of Means-Plus-Function
`
`Limitations
`
`Means for generating said request
`
`Means for receiving said request from said first computer
`
`Page server processing means
`
`Additional Claim Limitations That Need No Construction
`
`CONCLUSION
`
`.1
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`11
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`12
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`16
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`19
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`19
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`20
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`21
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`22
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`23
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`23
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`24
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`24
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`24
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`26
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`Petitioner IBM – Ex. 1025, p. 2
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`TABLE OF AUTHORiTIES
`
`Cases
`
`Inc Wal-Mart Stores inc
`Golight
`355 F.3d 1327 Fed Cir 2004
`
`Lockheed Martin Corp
`Space Systeins/Loral
`324 F.3d 1308 Fed Cir 2003
`
`Inc
`
`Beyond innovation Tech Co Ltd
`02 Micro Intl Ltd
`521 F.3d 1351 Fed Cir 2008
`
`WH Corp
`Phillips
`415 F.3d 1303 Fed Cir 2005
`
`Vitronics Corp
`Conceptronic
`90 F.3d 1576 Fed Cir 1996
`
`Inc
`
`Other Authorities
`
`AMERICAN HERITAGE DiCTIONARY 1473 4th ed 2000
`
`OXFORD ENGLISH DICTIONARY ONLINE
`
`http//dictionary.oed.com/cgi/entry/50201
`
`936guery_typewordgueyworthTe1ease
`
`MERRIAM-WEBSTER
`
`ONLINE DICTIONARY
`
`httr//www.merriam-webster.eomldictionarv/release
`
`23
`
`23
`
`25
`
`10 22 23
`
`1120
`
`17
`
`17
`
`17
`
`11
`
`Petitioner IBM – Ex. 1025, p. 3
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`EpicRealm Licensing L.P epicRealm hereby responds to Oracle Corporations
`
`Opening Claim Construction Brief Oracle Brief D.I 203 As shown below epicRealms
`
`claim constructions should be adopted by this Court and Oracles constructions should be
`
`rejected
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`Oracles statement with respect
`
`to the nature and stage of the proceedings is erroneous in
`
`two respects
`
`The first error is Oracles misstatement concerning the status of the two actions pending
`
`in the Texas District Court involving the same patents at issue here Parallel Networks LLC
`
`Various Inc et al Case No 507-cv-l35 and Parallel Networks LLC and epicRealm
`
`Licensing LP
`
`Franklin Covey Co et al Case No 507-cv-126 The first action was tried to
`
`ajury during the week beginning August 18 the jury returned
`
`verdict
`
`in favor of Parallel
`
`Networks finding the patents in suit valid and infringed Exh 10 Jury Verdict The Franklin
`
`Covey et all action has not yet been scheduled for trial
`
`Oracles second erroneous assertion concerns Oracles meritless attempt
`
`to block Parallel
`
`Networkss motion to substitute it as the real party in interest
`
`in this action Oracles latest
`
`attempt
`
`to prop up its empty argument
`
`is in its assertion that epicRealms motion to substitute
`
`Parallel Networks LLC was denied by the Texas Court D.I 203 at n.4 That assertion is
`
`flatly wrong Rather just the opposite is true epicRealms motion to substitute Parallel
`
`Networks as the real party in interest was granted by the Texas Court See Exh 11 Texas Trial
`
`Tr at 41-6 138-10
`
`similar motionone that should be granted by this Court-is pending
`
`in this action D.I 60
`
`Judge Folsom granted the motion to substitute immediately before trial began in an Oral Order
`on August 18 2008 The cited trial
`testimony shows that the jury was instructed that Parallel
`
`Petitioner IBM – Ex. 1025, p. 4
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`II
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`SUMMARY OF THE ARGUMENT
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`For the reasons set forth in epicRealms opening claim construction brief and as further
`
`discussed herein epicRealms proposed claim construction should be adopted by the Court
`
`Oracles proposed constructions do not follow the well-settled claim construction law and are not
`
`supported by the intrinsic evidence On the other hand epicRealms proposed constructions
`
`follow the pertinent claim construction law and are supported by the intrinsic evidence and
`
`where appropriate are consistent with the plain meaning of the claim terms
`
`Ill
`
`STATEMENT OF FACTS
`
`Oracles statement of facts is replete with inaccuracies and raises many issues that are not
`
`relevant
`
`to the claim construction issues For example Oracle raises the issue of commercial
`
`success issues relating to the several transactions involving epicRealm and the patented
`
`technology over the years and issues related to the Chen report Oracles arguments directed
`
`to these issues are irrelevant and have nothing to do with the issue of claim construction Oracle
`
`offers these irrelevant arguments in an attempt
`
`to gloss over the fact that Oracle can muster no
`
`intrinsic or extrinsic evidence to support its proposed claim constructions
`
`For completeness epicRealm will briefly respond to Oracles several misstatements of
`
`the facts
`
`The first
`
`is Oracles baseless attempt
`
`to assert that the invention of the patents in suit
`
`have been an epic-flop in the marketplace
`
`111 203 at 2-4 The issue of commercial success
`
`is of course irrelevant
`
`to the issue of claim construction and Oracle offers no reason to believe
`
`that the issue of commercial success has any bearing on the issue of claim construction In
`
`Networks LLC was the sole plaintiff
`dismissed from the case
`
`in the case and that epickealm Licensing LP was
`
`Petitioner IBM – Ex. 1025, p. 5
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`addition to being wrong on the law Oracle is wrong on the facts The evidence of record
`
`establishes that the patented invention has been an overwhelming commercial success.2
`
`Secondly Oracles contention that the transactions involving epicRealm and its related
`
`entities have some relevance to the issue of claim construction should also be rejected
`
`These
`
`transactions have no legal relevance to the issue of claim construction Oracle points to no
`
`reason to believe that the transactions are admissible as relevant or probative to any issue in this
`
`action and certainly they have nothing at all
`
`to do with the issue of claim construction
`
`Third Oracle attempts to rely on the PTOs non-final action in the reexamination
`
`proceedings in support of its claim construction argument This argument has no merit Oracle
`
`points to nothing in those reexamination proceedings that have any bearing on the claim
`
`construction issues before this Court For example in an attempt
`
`to bolster its reliance on the
`
`reexamination proceedings Oracle cites to the Clausnitzer reference in its brief but points to
`
`no reason that the Clausnitzer reference has anything to do with claim construction D.I 203
`
`at 8-10
`
`Fourth Oracles attempt
`
`to gain something from the Chen report on the issue of claim
`
`construction is more Oracle nonsense On the law Oracle offers no argument
`
`that Chens report
`
`has any bearing on the issue of claim construction
`
`2See epicRealms Memorandum in Opposition to Oracles Motion for Summary Judgment of
`Invalidity D.I 281 at 37-40
`See epicRealms Memorandum in Opposition to Oracles Motion for Partial Summary
`Judgment of No Willful Infringement D.I 261 at 10-16
`
`Petitioner IBM – Ex. 1025, p. 6
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`Finally Oracles contention that Oracle did not participate in the Texas actions is another
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`Oracle misstatement As shown by epicRealm Oracles attempt
`
`to evade the consequences of its
`
`complicity in the Texas action by asserting that it did not act in concert with those defendants is
`
`erroneous See Di 261 at 26
`
`attended and participated in the epicRealm
`
`Various action that was recently tried where the
`
`jury returned
`
`verdictfinding infringement and the patents in suit validin favor of
`
`In addition Oracle and its attorneys
`
`epicRealm
`
`IV ARGUMENT
`
`Construction of the Claim Terms in Issue
`Not Containing Means-Plus-Function Limitations
`
`EpicRealm asks the Court to accept
`
`its proposed construction of the disputed claim terms
`
`as discussed below For the Courts convenience epicRealm begins each argument on claim
`
`construction with
`
`recitation of epicRealms and Oracles proposed construction for each claim
`
`term grouped together by similar claim terms
`
`The Dispatching Limitations
`
`Oracle disagrees with epicRealm proposed construction of the term dispatching yet
`
`offers no good reason for its disagreement
`
`In reality based on the admission of its own expert
`
`Petitioner IBM – Ex. 1025, p. 7
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`witness Oracle fundamentally concedes that epicRealm proposed cTaim construction for the
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`term dispatching is the correct claim construction
`
`That admission resolves the issue before
`
`the Court on the proper construction of the dispatching term With respect
`
`to the claim term
`
`dispatcher its meaning is clear as Oracle itself
`
`freely admits Accordingly no separate
`
`construction is necessary for the term dispatcher
`
`Dispatching
`
`to make an informed selection of
`examining request
`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 server
`
`analyzing request to make an informed selection of
`which page server should process the request and
`sending the request to that page server
`
`The term dispatching appears in all of the asserted claims The Texas Court adopted
`
`the construction of the term dispatching as agreed upon by all eleven parties in the Texas
`
`litigation at the time of the Texas Courts claim construction order That construction is the
`
`same construction that is proposed here by epicRealm Di 202 Exh
`Reconmiendation at 27 That construction is supported by Oracles own expert witness Dr
`
`Report and
`
`Paul Clark Clark who agreed to epicRealms construction
`
`On the construction of dispatching most issues are not in dispute Thus the parties are
`
`in agreement with the key aspects of how the term dispatching should be construed For the
`
`purposes of showing what
`
`is agreed to and what is not epicRealms proposed construction can
`
`be parsed as follows
`
`examining request to make an informed selection of which
`page server should process the request
`
`For the Courts convenience where possible epicRealm is citing to its appendices that were
`filed with its opening claim construction brief D.I 201 and D.I 202
`
`Petitioner IBM – Ex. 1025, p. 8
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`ii based on dynamic information maintained about page servers
`the dynamic information indicating which page server can more
`efficiently process the request
`
`iii
`
`and sending the request to the selected page server
`
`As shown in epicRealm opening brief Oracle does not dispute items
`
`or iii
`
`Oracle freely
`
`admits that with respect to
`
`and iii
`
`there is no dispute between the parties D.J 203 at 31
`
`The only dispute offered by Oracle is directed to the following language in epicRealm
`
`proposed construction namely .. based on dynamic information maintained about page server
`
`the dynamic information indicating which page server can more efficiently process the request
`
`Id Oracles attempt
`
`to create
`
`dispute with respect to ii
`
`is completely undermined by the
`
`admission of Oracles own expert witness and also by the undisputed intrinsic evidence
`
`Oracles expert Clark conceded in his deposition that epicRealms construction of the
`
`term dispatching is the correct construction and really is no different from Oracles proposed
`
`construction
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`Petitioner IBM – Ex. 1025, p. 9
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`admissions by Clark this Court should adopt epicRealms proposed construction for the term
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`dispatching This construction is fully supported by Oracles admission by the admission
`
`Oracles expert witness and by the intrinsic evidence as discussed in epicRealms opening brief
`
`Based on those clear
`
`LXI 200 at 16-20
`
`Oracle contends
`
`that epicRealm construction is improper in that cpicRealm according
`
`to Oracle is attempting to read limitations from the specification into the claims D.J 203 at
`
`31 That is not true Rather epicRealm simply asks that the term dispatching be construed in
`
`the light of the intrinsic evidence This construction is supported by the clear and undisputed
`
`disclosures in the intrinsic evidence D.I 200 at 16-20 In one example in the specification
`
`the dynamic information includes the number of requests being processed by each page server
`
`Petitioner IBM – Ex. 1025, p. 10
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`See DI 201 Exh
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`554 patent at col
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`11 12-19 In this example the dispatcher that
`
`performs the dispatching function makes an informed selection by considering dynamic
`
`information maintained about the page servers dynamic information that reveals which page
`
`server is least busy and therefore can more efficiently process the request This load balancing
`
`feature is additionally described in the specification under the title scalability with explicit
`
`reference to information that is dynamically updated
`
`As described above referring to FIG Dispatcher 402 maintains
`the Page servers configured to be serviced by
`information about all
`Dispatcher 402 Any number of Page servers can thus be
`plugged into the configuration illustrated in FIG and the Page
`servers will be instantly activated as the information is
`dynamkally updated in Dispatcher 402 The Web site
`administrator can thus manage the overhead of each Page server
`and modify each Page servers load as necessary to improve
`In this manner each Page server will cooperate with
`performance
`other Page servers within multi-server environment Dispatcher
`402 can examine the load on each Page server and route new
`requests according to each Page servers available resources This
`load-balancing across multiple Page servers can significantly
`increase Web sites performance
`
`Id at col
`
`II 11-24 emphasis added Plainly the clear explicit language of the specification
`
`supports epicRealm not Oracle One skilled in the art would appreciate that this dynamic
`
`information is of nature that can only be determined during runtime execution
`
`during the
`
`time when the software is being operated by the user D.I 228 at
`
`Other examples of
`
`dynamic information are disclosed in the specification as further discussed in epicRealm
`
`opening brief D.I 200 at 17-19 see also D.I 201 Exh
`
`554 patent at col
`
`11 61-65
`
`col
`
`11 4-10 The prosecution history also supports epicRealm The dispatcher maintains
`
`variety of information regarding each page server on the network and dispatches the requests
`
`based on this information. Dl 201 Exh at EP1C000266
`
`Petitioner IBM – Ex. 1025, p. 11
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`Finally Oracle gains nothing from claim 29 of the 335 patent or in its citation to
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`Phillips Di 203 at 14 Claim 29 is not at issue here for the simple reason that this claim is
`
`narrowly directed to maintaining certain specific type of dynamic information namely
`
`maintaining dynamic information regarding data sources
`
`given page server may access...
`
`Di 201 Exh
`
`335 patent at col 10 11 63-64 The claims in issue recite the broader term
`
`dispatching that embraces wider variety of possible types of dynamic information as
`
`discussed above beyond the narrower type of dynamic information recited in claim 29 Thus on
`
`the facts the rule of claim differentiation simply does not apply for the undisputed reason that
`
`the usage of the terms relied on with respect to claim 29 is wholly different from the claim terms
`
`at issue here As such claim 29 does not illuminate the meaning of the same term in other
`
`claims as Phillips requires before any claim differentiation argument can even be considered
`
`Phillips
`
`WHCorp 415 F.3d 1303 1314 Fed Cir 2005
`
`Dispatcher
`
`no proposed construction
`
`software program for detennining which page server
`dynamic web page
`should be used to process
`
`generation request
`
`The term dispatcher does not require construction and should simply be given its
`
`ordinary meaning Put simply
`
`dispatcher is nothing more than software that performs the
`
`dispatching limitation Oracle concedes this point when it admits that
`
`dispatcher is the
`
`software component
`
`that performs the act of dispatching... D.I 203 at 27
`
`Oracles attempt to gain something from its dictionary definition argument on
`
`dispatcher is frivolous On this issue Oracle asserts
`
`Ic defined in The American Heritage Dictionary
`dispatcher
`3d Ed 1996 as
`separate software program or routine that
`controls the order in which input and output devices obtain access
`
`Petitioner IBM – Ex. 1025, p. 12
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`to the processing system Dispatching is defined as The act of
`specific destination
`sending off as to
`
`Id at 28
`
`18 quotation marks omitted emphasis added Even Oracle does not argue that the
`
`term dispatcher should be construed as that term is defined in The American Heritage
`
`Dictionary 3d Ed 1996 Even worse the dictionary citation relied on by Oracle is falseit
`
`does not state what Oracle says it does See Di 214 Oracle Brief Appendix A13 The
`
`definition cited by Oracle says nothing at all about
`
`separate software program Rather
`
`the
`
`dictionary definition relied on by Oracle states that
`
`dispatcher is
`
`routine that controls the
`
`order in which input and output devices obtain access to the processing system definition that
`
`has nothing to do with the use of the term dispatcher as used in the intrinsic evidence in the
`
`patented invention See id Oracles reliance on this extrinsic evidence is admittedly improper
`
`As Oracle concedes citing Phillips
`
`However extrinsic evidence is viewed as less reliable than the
`patent and its file history in construing claims Id at 1318
`Undue reliance on extrinsic evidence poses the risk that it will be
`used to change the meaning of claims in derogation of the
`indisputable public records consisting of the claims the
`specification and the prosecution history thereby undermining the
`public notice function of patents Id at 1319 citations omitted
`
`DL 203 at 15 cUing Phillips 415 F.3d at 131849 Nothing could be more improper than
`
`relying on dictionary definitions that simply do not exist
`
`Finally Oracles proposed construction of dispatcher runs afoul of the rule that this
`
`Court should not read limitations from the specification into the claims Oracles contention that
`
`dispatcher is on
`
`separate machine and runs on
`
`separate processor than the web server
`
`executable software program is clearly in violation of that rule Id at 29 First the above
`
`cited language does not appear
`
`in Oracles proposed claim construction for dispatcher and
`
`Oracles argument should be rejected for that reason alone Second if Oracles proposed
`
`10
`
`Petitioner IBM – Ex. 1025, p. 13
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`language were to apply to the dispatcher term the asserted claims would not read on
`
`preferred embodiment disclosed in the specification where the entire invention is implemented as
`
`single software module
`
`The preferred embodiment of the present invention is implemented
`software module which may be executed on
`computer
`as
`conventional manner
`system such as computer system 100 in
`
`Di 201 Exh
`
`554 patent at col
`
`11 54-57 col
`
`65-col
`
`describing computer
`
`system 100 as
`
`single machine having
`
`single processor As the Federal Circuit held and as
`
`Oracle agrees any construction that would not read on the preferred embodiment
`
`is almost
`
`always incorrect Vitronics Corp
`
`Conceptronic
`
`Inc 90 F.3d 1576 1583-84 Fed Cir 1996
`
`Intercepting Terms
`
`The term intercepting appears in several similar contexts and for that reason
`
`epicRealm discusses these uses of the intercepting terms together The Texas Court adopted
`
`the same construction as epicRealm proposes here D.I 202 Exh
`
`Report and
`
`Recommendation at 20-25 The term intercepting appears in all of the asserted claims in the
`
`following contexts as listed below
`
`intercepting said request at said
`Web server
`
`intercepting the handling of
`at Web serve
`
`request
`
`intercepting said request at said
`HTTP-coinpliant device
`
`intercepting the handling of
`request
`said HflP-compliant device
`
`at
`
`request at the Web server
`receiving
`machine and diverting the request
`before tbe Web server executable can
`process the request
`
`receiving request at the HTTP
`compliant device and diverting the
`request before the HTTP-compliant
`device executable canprocess
`the
`
`To be clear on this issue the Texas Court did not construe the term second computer system
`Separately the addition of the term at least although apparently part of the Texas Courts
`claim construction does not alter the meaning of the term intercepting Thus the term
`in epicRealm view means the same thing as at least
`intercepting the handling of
`request
`request and epicRealm has therefore deleted at least from its
`intercepting the handling of
`construction of intercepting said request at said HTTP-compliant device to simplify this issue
`
`11
`
`Petitioner IBM – Ex. 1025, p. 14
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`request
`
`intercepting said request at said
`second computer system
`
`No separate construction required this
`term has the same meaning as
`intercepting said request at said Web
`serve
`
`request at the second
`receiving
`computer system and diverting the
`request before the second computer
`system executable can process the
`request
`
`The term interceptor also appears in claim 10 of the 554 patent
`
`The parties proposal with
`
`respect to the construction of the term interceptor
`
`is
`
`no proposed construction
`
`software component
`
`that performs intercepting
`
`Plainly just as in the case of the term dispatcher the interceptor performs the intercepting
`
`functionality and therefore needs no additional construction
`
`In all
`
`three contexts set forth above the term intercepting has the same meaning
`
`lEpicRealm asks the Court to construe the first
`
`two above uses of the term intercepting
`
`Because the first use of the term recites intercepting said request at said Web server and the
`
`second term recites intercepting said request at said HTTP-compliant device epicRealm
`
`proposes two constructions as listed above The third usage of the term intercepting does not
`
`require any separate construction because the use of the term intercepting in intercepting said
`
`request at said second computer system has the same meaning as provided in the construction of
`
`the term intercepting said request at said Web server See D.I 200 at 24-25 And as stated
`
`above the term interceptor needs no construction
`
`The term intercepting
`
`The term intercepting appears in all
`
`the asserted claims The Court should construe the
`
`term intercepting in accordance with its ordinary meaning and in light of the intrinsic
`
`evidence
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`In the patented invention the intercepting functionality is simply one that
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`12
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`Petitioner IBM – Ex. 1025, p. 15
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`determines that
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`page server rather than the Web server will process the request For example
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`the interceptor can send
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`request for
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`dynamic Web page to the dispatcher D.I 201 Bxh
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`554 patent at col
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`11 58-60
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`EpicRealrns construction is supported by the intrinsic evidence including the
`
`descriptions of specific embodiments disclosed in the specification such as Step 504 of Figure
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`iNaEHM4DLnGOFREQUEj
`FIGURE
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`Id at Fig portions omitted Thus epicRealms proposed construction exactly tracks the
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`explicit language in the intrinsic evidence the interceptor
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`intercepts the handling of the
`
`request Id In the context of describing Figure
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`the specification confirms that after the Web
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`server receives the request the interceptor
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`then intercepts the handling of the request Id at
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`col
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`11 29-31 Again epicRealms proposed construction exactly tracks the explicit language
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`of the specification with respect to the intercepting functionality With reference to Figure
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`the
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`specification states that
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`of Web server executable 201E processing the URL request
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`however Interceptor 400 intercepts the request and routes it to Dispatcher 402 Id at col
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`11 58-60 Once again epicRealms proposed construction closely tracks the explicit language in
`
`the specification that describes the intercepting functionality EpicRealm construction is also
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`supported by the prosecution history the interceptor
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`intercepts the request and routes the
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`request to the dispatcher. D.I 201 Exh
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`at EP1C000266 For these reasons the
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`intercepting functionality should be construed as epicRealm proposes
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`Oracles proposed construction should be rejected Oracle asks the Court to read the
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`following limitation into the claims diverting the request before the
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`server HTTP
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`compliant device or second computer system can process the request emphasis added
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`The term diverting appears nowhere in the intrinsic evidence nowhere in the claims the
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`13
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`specification or the prosecution history As
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`consequence nothing in the intrinsic or extrinsic
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`evidence supports Oracles diverting claim construction theory Oracles erroneous
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`construction was not even accepted by Oracles expert witness Dr Michael Shamos Dr
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`Shamos explicitly stated that epicRealm construction is correct and Oracles construction is
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`incorrect
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`have my own understanding of what intercepted is
`So
`think that its okay if the web server looks at the request long
`enough to determine that it shouldnt handle that
`like that
`think its going to be six of one half
`Oracle doesnt like that
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`dozen of the other
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`Exh 13 June 30 2008 Shamos Dep at 2139-15
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`Another
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`limitation that Oracle apparently asks to have read into the claims is some ill-
`
`defined construction that requires that some examination be made in the intercepting
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`thnctionality that makes
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`distinction between requests for static Web pages as distinguished
`
`from dynamic Web pages D.I 203 at 24-25 First the above limitation should be rejected as
`
`not even appearing in Oracles proposed construction of the term intercepting It should be
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`rejected for the additional
`
`reason that Oracles expert Shamos explicitly rejected it
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`Is that operation intercepting under your interpretation of
`that term
`
`Of course Intercepting does not require
`made between static and dynamic pages
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`distinction to be
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`Exh 14 July
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`2008 Shamos Dep at 12725-1283 In addition Oracles argument
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`for this
`
`new construction of intercepting is factually incorrect because Web server cannot
`
`determine whether
`
`request that is to be routed to
`
`page server is for dynamic content
`
`the
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`Web server can only determine whether it can satisfy
`
`request itself or that
`
`page server
`
`should process the request and return either dynamic or static content Exh 18 3d Finkel DecI
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`at
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`Finally to the extent Oracle argues for this new construction of intercepting it should
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`be rejected as contrary to the well settled law prohibiting reading limitations into the claims and
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`to Oracles own experts sworn testimony
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`Oracles attempt
`
`to rely on
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`dictionary definition of intercepting should be rejected
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`D.1 203 at 23 15 Whatever the plain meaning of the term intercepting in
`
`context entirely
`
`divorced from the computer software field can have no bearing on what the term means to one
`
`skilled in the art taking into account
`
`the intrinsic evidence and the patented technology This
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`again illustrates the pitfalls that can occur as Oracle freely admits through the improper reliance
`
`on extrinsic out of context dictionary definitions
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`Id at 15 Oracle similarly gains nothing
`
`from the back and forth arguments that took place in the Texas litigation on this issue Id at 25-
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`26 At the end of the day the Texas Court reviewed the intrinsic evidence and accepted the
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`construction proposed here by epicRealm as the proper construction of intercepting not the
`
`construction proposed here by Oracle
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`Finally Oracle relies on statements that appear in the prosecution history of the 335
`
`patent
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`in support of its intercepting theory Di 203 Oracle Brief at 24-25 cUing A4 at
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`EP1C000497-98 This argument should be rejected for the same reason it was rejected by the
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`Texas District Court D.I 202 Exb
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`Report and Recommendation at 22 The reason is
`
`apparent
`
`the pages relied on in the prosecution history do not support Oracles proposed
`
`construction
`
`The prosecution history simply supports the unremarkable position that the Leaf
`
`reference discussed in the cited pages of prosecution history does not disclose intercepting
`
`Id D.1 202 Exh
`
`at EP1C000497-98 Nothing there even remotely suggests that the term
`
`intercepting has the diverting meaning as Oracle would have it
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`IS
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`Petitioner IBM – Ex. 1025, p. 18
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`The Releasing Limitation
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`EpicRealms proposed construction of the releasing term should be adopted by the
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`Court That term appears in several similar contexts in all of the claims in issue The competing
`
`claim construction proposals are
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`freeing
`
`said page server receiving said request and said page
`server performing an act separate from merely receiving
`the request to free the Web server to process other
`requests
`
`This Court should construe the term releasing as meaning freeing in accordance with its
`
`clear ordinary meaning in light of the intrinsic evidence In addition epicRealms proposed
`
`construction is supported by the plain meaning of the term releasing In support of its
`
`proffered claim construction Oracle relies heavily on the Texas Courts construction but the
`
`flaws in that construction are evidenced by its admitted problems and ambiguity After the
`
`Texas Court decided the construction of releasing the parties were befuddled as to the
`
`meaning of the construction of releasing and briefed the issue numerous times To that end
`
`the Texas Court issued several clarifications of its construction of releasing in an attempt
`
`to aid
`
`the parties as to the specific products that were accused of infringing in the Texas litigation with
`
`respect to the trial
`
`that was held beginning August 18.6 Exh 15 August
`
`2008 Order at 7-14
`
`Exh 16 August 17 2008 Order at 9-10 During trial
`
`the Texas Court again offered to clarify
`
`its releasing construction Exh 11 Texas Trial Tr at 16425-1656 All of this confusion
`
`and ambiguity can be avoided by adopting epicRealms far clearer construction of the term
`
`Various Inc et al Case No
`Ultimately the jury concluded in the Parallel Networks LLC
`returned August 23 2008 that the releasing limitation as construed
`S07-cv-135 case in verdict
`by the Texas Court was infringed by the accused products Exh 10 Jury Verdict Form
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`16
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`releasing as meaning freeing That construction is the only construction consistent with the
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`ordinary meaning and the intrinsic evidence and with the plain meaning of the term
`
`As shown in epicRealms opening brief the term releasing is used in the context of
`
`releasing the Web server to process other requests... DJ 201 Exh
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`554 patent at col
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`11 25-26 The phrase releasing the Web server to process other requests.. has
`
`straightforward and s