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`IN THE UNITED STATES DISTRICT COURT
`FOR fliE DISTRICT OF DELAWARE
`
`ORACLE CORPORATION and
`ORACLE U.S.A
`
`Plaintiffs/Counterclaim Defendants
`
`PARALLEL NETWORKS LLC
`
`DefendantlCounterclaim Plaintiff
`
`C.A No 06-414-SLR
`
`JURY TRIAL DEMANDED
`
`PUBLIC VERSION
`
`PARALLEL NETWORKS MEMORANUM IN SUPPORT OF ITS
`MOTION FOR RECONSIDERATION
`
`CORROON LLP
`
`Richard
`
`Horwitz 2246
`Moore 3983
`David
`POTTER ANDEkSON
`Hercules Plaza 6th Floor
`Market Street
`1313
`Wilmington DE 19899
`Tel 302 984-6000
`Lborwlt@potierafldersotcom
`dmoore@potteranderson.cm
`
`Attorneys for Defendant/Counterclaim
`Plaintiff Parallel Networks LLC
`
`OF COUNSEL
`
`Harry
`George
`Aaron
`
`Patrick
`David
`
`Roper
`Busy
`Barlow
`
`Patras
`
`Bennett
`
`Paul
`
`Margolis
`Bradford
`Benjamin
`
`Johnson
`Emily
`BLOCK LLP
`JENNER
`Wabash Avenue
`330
`Chicago IL 60611-7603
`Tel 312 923-8305
`
`Dated December 18 2008
`31393 Oracle
`R96092
`Public Version Dated December 22 2008
`
`Petitioner IBM – Ex. 1028, p. 1
`
`

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`TABLE OF CONTENTS
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`INTRODUCTION AND SUMMARY OF ARGUMENT
`
`II
`
`ARGUMENT
`
`Standard of Review
`
`Parallel Networks Provided Record Evidence That The Accused Oracle
`Products Meet The Releasing Limitation As Construed By The Court
`
`The Court Misapprehended
`
`the Scope of the Web Server
`
`rme Court Misapprehended the Record
`
`There Js Substantial Evidence of Releasing Under
`
`the Delegation
`
`Theory
`
`There Is Substantial Evidence of Releasing Under
`Theory
`
`the ACK
`
`CONCLUSION
`
`11
`
`14
`
`17
`
`Petitioner IBM – Ex. 1028, p. 2
`
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`13
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`TABLE OF AUTHORITIES
`
`Cases
`
`Bell Commc ns Researck
`Inc
`55 F.3d 615 Fed Cir 1995
`
`Vitalink Commc ns Corp
`
`Brambles USA Inc
`Blocker
`Supp 1239 Ii DeL 1990
`735
`
`Veob Networks Inc
`Jo Group Inc
`No C06-03926 HRL 2008 WL 4065872 N.D CaL Aug 27 2008
`
`Advanced Cardiovascular Sys Inc
`Medironic Vascular Inc
`C.A No 98-80-SLR 2005 WL 388592
`Del Feb
`2005
`
`Microprocessor Enhancement Corp
`520 F.3d 1367 Fed Cit 2008
`
`Texas Instruments Inc
`
`Netmotion Wireless Inc
`Padcom Inc
`C.A No 03-983-SLR 2006 WL 566122
`
`Del Mar
`
`2006
`
`Smart Techs Inc
`Poly Vision Corp
`Supp 2d 1042 W.D Mich 2007
`501
`
`Pepsi Bottling Group Inc
`Tillman
`C.A.No 04-1314-SLR 2008 WL 1987262
`
`Del May
`
`2008
`
`Rules
`
`D.Del.LR7.1.5
`
`ii
`
`Petitioner IBM – Ex. 1028, p. 3
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`INTRODUCTION AND SUMMARY OF ARGUMENT
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`Mindful of the stringent standard applicable to motion for reconsideration Defendant
`
`Parallel Networks LLC Parallel Networks respectfully moves this Court to reconsider
`
`its
`
`decision granting Oracles motion for summary judgment on nonirrftingement based on the
`
`releasing limitation D.I 400 ST Opinion.1 In granting summary judgment the Court held
`
`that Parallel Networks failed to present material evidence that when
`
`particular OHS instance
`
`child process2 or Web Cache fiber forwards
`
`rcquest
`
`that particular OHS instance or Web
`
`Cache fiber is freed to process another request ST Opinion at 1-24 In so ruling the Court
`
`misapprebcnded Parallel Networks infringement position and the evidence supporting it
`
`Parallel Networks position is not based on the freeing of the particular OHS instance or
`
`Web Cache fiber that forwards
`
`request but rather on the freeing of the accused Web server
`
`including other OHS instances or fibers within the Web server to process other requests The
`
`Court did not explain why it
`
`focused on only the particular fiber or instance that forwards
`
`request rather than on the accused Web server as whole To reach its ruling the Court must
`
`either have
`
`implicitly defined the Web server to consist of only the particular OHS instance
`
`or Web Cache fiber or
`
`concluded there was no evidence concerning the release of other OHS
`
`instances or Web Cache fibers within the Web server
`
`In either case the Court misapprehended
`
`the record Understood properly the record as well as the Courts own conclusions show that
`
`the accused Web Server includes all of the fibers/instances
`
`collectively along with their parent
`
`processes And once that is understood there is no basis for summary judgment
`
`for evidence in
`
`Parallel Networks will be submitting an electronic brief and exhibits within five days
`As described below child processes is more accurate term for what the Court and Oracle
`refer to as instances but because the Court has used instances Parallel Networks will here
`use both terms interchangeably
`
`Petitioner IBM – Ex. 1028, p. 4
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`the record shows that through both delegation to
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`page server and transmission of an ACK
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`message Oracles products free processor
`
`time and memory freeing the accused Web server as
`
`whole including all child and parent processes to process other requests
`
`IL
`
`ARGUMENT
`
`Standard of Review
`
`This Court recently reiterated that while courts are reluctant
`
`to reconsider nilings one
`
`reason
`
`court should amend its judgment is if reconsideration is necessary to correct
`
`clear
`
`error of law or fact or to prevent manifest injustice Tillman
`
`Pepsi Bottling Group Inc C.A
`
`No 04-1314-SLit 2008 WL 1987262 at
`
`Del May
`
`2008 granting in part motion for
`
`reconsideration
`
`Reargument may be appropriate where the Court has patently misunderstood
`
`party or has made
`
`decision outside the adversarial issues presented to the Court by the
`
`parties or has made an error not of reasoning but of apprehension Brambles USA Inc
`
`Blocker 735
`
`Supp 1239 1241 QJ Del 1990 see also Padcom Inc
`
`Netmotion Wireless7
`
`Inc C.A No 03-983-SLit 2006 WL 566122 at
`
`Del Mar
`
`2006 granting motion for
`
`reconsideration because the Court misapprehended
`
`material issue of fact due to review of an
`
`incorrect exhibit Medtronic Vascular Inc
`
`Advanced Cardiovascular Sys Inc C.A No 98.
`
`80-SLR 2005 WL 388592 at
`
`DeL Feb
`
`2005 granting in part motion for
`
`reconsideration because there was material issue of fact relating to infringement such that
`
`summary judgment was not appropriate
`
`Del Lit 71.5
`
`13
`
`Parallel Networks Provided Record Evideuce That The Accused Oracle
`Products Meet The Releasing Limitation As Construed By The Court
`
`This Court should reconsider
`
`its summary judgment decision because it was predicated
`
`on misapprehension that for the releasing limitation to be met the page server must release
`
`the individual Web Cache fiber or OHS child process instance that handled the specific Web
`
`Petitioner IBM – Ex. 1028, p. 5
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`page request The Court ignored evidence that Oracles products freed the accused Web server
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`as whole including the other child processes or fibers within the Web server to process Web
`
`page requests by freeing processor and memory resources for their use.3
`
`The Court concluded that the releasing limitation is not met because Dr Clarks analysis
`
`of the source code shows that
`
`particular Web Cache fiber or OHS child process is not released
`
`by the page server but rather waits to process another
`
`request until after the page server has
`
`processed the request SJ Opinion at 21-24 Relying on Dr Clarks analysis the Court
`
`explained that when an OHS child process instance forwards
`
`request the OHS instance is
`
`unavailable to process another request Id at 23 emphasis added see also id at 24 Parallel
`
`Networks cites no evidence suggesting that the freeing of resources equates to the freeing of an
`
`OHS instance to process additional requests emphasis added.4 The Court then concluded that
`
`Dr Finkel did not present sufficiently detailed evidence to contradict
`
`that proposition Id
`
`Dr Finicel and Parallel Networks were not attempting to show that each individual Web
`
`Cache fiber or OHS child process is released by the page server Rather the accused Web server
`
`as whole including all the child processes/fibers
`
`and parent processes is released As Dr
`
`Finicel explained the accused Web server is freed because resources specifically processor time
`
`its infringement case Parallel Networks submitted two declarations of its expert
`To support
`Dr David Finkel Oracle technical documents and deposition testimony of Oracle witnesses Dr
`Finicels Second Declaration ELI 273274276277 and 280 included over 350 pages of claim
`charts that in turn referenced 25 Oracle technical documents and deposition testimony of six
`Oracle witnesses ln reaching his infringement opinions Dr Finkel reviewed at
`least 69 Oracle
`technical documents deposition testimony of at least fifteen Oracle witnesses and portions of
`Oracles source code ILl 327 Ex
`at 1-5 In addition separate and apart from
`Appendix
`Dr Finicels declarations Parallel Networks cited to at least 25 Oracle technical documents and
`deposition testimony of at least nine Oracle witnesses in its briefs D.L 224 225 226 227 278
`279
`
`that the Courts Opinion requires that the Web server be freed
`explained infra to the extent
`to process additional requests it contradicts the Courts claim construction which required
`emphasis added
`only that the Web server be freed to process other requests Ill
`399 at
`
`Petitioner IBM – Ex. 1028, p. 6
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`and memory are made available to the Web server to process other requests using other fibers or
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`OHS child processes D.I 228 Finkel DecL ffl 17-20 IlL 273 Second Finkel Deci 11 8-11
`
`25-29 e.g Lx at 3-7 Lx
`
`at 3-6 Lx at 4-7 Lx
`
`at 4-7 Lx at 3-7 Lx at 3-7 If that
`
`processor time and memory were not released other fibers and OHS child processes that are part
`
`of the accused Web server would have to await processing time and memory necessary to
`
`process their assigned requests Id
`
`In denying
`
`simIlar nothnfringement summary judgment motion the Texas Court in
`
`EpicRealm Licensing LLC Various Inc concluded that releasing can occur within the
`
`meaning of the patent when resources are released in this manner thereby enabling the Web
`
`server to process other requests D.I 324 Lx 36 at 7-11 The Texas Court allowed the jury to
`decide whether the transmission of TCP acknowledgement ACK the same sort of ACK at
`
`issue her met the releasing limitation D.L 272 Lx A89 at 7-10 The jury found that it did5
`
`D.I 324 Lx 38 By contrast in this case the Court did not address the evidence that releasing
`
`of resources enables the Web server to process other requests either because it
`
`misapprehended the scope of the Web server or
`
`misapprehended the evidence in the record
`
`Once Web server is defined properly and the record evidence understood correctly it
`
`is evident
`
`that Parallel Networks presented sufficient evidence to survive summary judgment
`
`The Court Misapprehezided the Scope of the Web Server
`
`The Courts
`
`construction and the record evidence show that Web server
`
`encompasses more than an individual child process or fiber The Courts construction of Web
`
`server issued the same day as the sunnnary judgment ruling held that the Web server is
`
`the Texas Courts releasing construction was narrower than this Courts construction
`and because the TCP implementation by the operating systems
`at 27-2 Lx
`D.L 202 Lx
`is the same this Court erred in finding that ACKs cannot meet this Courts broader releasing
`construction as matter of law
`
`Petitioner IBM – Ex. 1028, p. 7
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`or machine having software that receives Web page requests and returns Web
`
`pages in response to the requests D.I 399 at
`
`Indeed the Court recognized that the accused
`
`Web server includes
`
`collection of child processes or fibers SJ Opinion at 24 n.15 And the
`
`record evidence shows that the accused Web server is even broader than
`
`collection of child
`
`processes or fibers See e.g 0.1 226 Ex 19 at 2-1 to 2-5 D.1 270 Clark fled in 0pp 11 32-
`
`34 It also includes
`
`parent Focess id As shown below both the OHS child processes and
`
`Web Cache fibers are created or started by other processes within the Oracle FITTP Server and
`
`Web Cache respectively
`
`Jn addition both the OHS child processes and Web Cache fibers must
`
`compete for common resources on the machines on which they run the machine having
`software including processor central processing unit or CPU tme and memory
`
`Dr Finkel cited to among other things an Oracle technical document Oracle
`
`Application Server Og Concepts lOg 9.0.4 March 2Q04 which graphically depicts the
`
`architecture of Oracle HTTP Server
`
`Petitioner IBM – Ex. 1028, p. 8
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`DI 226 Ex 19 at 2-4 Fig 2-2 Oracles diagram shows that OHS is comprised of many
`
`processes including
`
`parent process child processes instances and watchdog process.6
`
`Although only three OHS child processes are shown in this figure
`
`REDACTED
`
`Oracles documentation explains what the parent process does
`
`startup the Web
`
`server parent process loads the entire configuration
`
`and spawns
`
`preconfigured number of
`
`child processes 111 226 Ex 19 at 2-3 It
`
`is fundamental that the OHS child processes like
`
`any process running on
`
`computer must compete for use of the common processing resources
`
`to the remainder of the figure in accordance with Parallel Networks
`give context
`infringement proofs for the Accused Oracle Application Server in addition to the Web server
`page server OC4J and
`data source
`this figure illustrates the dispatcher mod_oc4j
`database
`
`Petitioner IBM – Ex. 1028, p. 9
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`on the machine on which they run such as processor
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`time and memory Di 278 Ft
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`Clark Dep at 22819-2293 Thus
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`collection of processes including the parent and child
`
`processes rather than just one individual child process is encompassed within what Parallel
`
`Networks accused
`
`as the Web server of the Accused Oracle Application Server Products and
`
`Database Products See e.g D.J 228 Finkel Decl
`
`15 Di 226 Ex 19 at 2-3 to 2-5 Di 275
`
`at 13 Parallel Networks infñngement proof shows that the Web server is OHS not
`
`single
`
`OHS process within OHS. Oracle did not contest this explanation of the Web server See
`
`e.g D.L 217 Clark Dccl
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`95 COHS is the Web server component of Oracle Application
`
`Server.
`
`SimilarlyWeb Cache is more than an individual
`
`fiber or even
`
`collection of fibers
`
`Web Cache is
`
`single program and contains several threads Dr Clarks fibers which are
`
`created and managed by the Web Cache program just as the OHS parent process creates and
`
`manages the individual OHS child processes Di 270 Clark Dccl in Opp
`
`32-34 Indeed
`
`REDACTED
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`Similar to the OHS child processes as explained above it
`
`is fundamental
`
`that the Web Cache fibers like any process running on
`
`computer must also compete for use of
`
`the common processing resources on the machine on which they run such as processor
`
`time and
`
`memory D.I 278 Ex
`
`Clark Dep at 22819-2293 The collection of fibers as well as
`
`the software code that creates and manages them rather than just one particular fiber is
`
`encompassed within what Parallel Networks contended is the Web server of the Accused Oracle
`
`Web Cache Products See e.g D.1 228 Finkel Dccl
`
`31 Di 275 at 24 Parallel Networks
`
`infringement proof shows that the Web Server is Web Cache not
`
`single back-end fiber.
`
`Oracle did not refute that definition of Web server See e.g Di 217 Clark Dccl
`
`51 Web
`
`Petitioner IBM – Ex. 1028, p. 10
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`Cache receives the Web Clients request
`
`for content..
`
`returns the requested content
`
`to
`
`the Web Client
`
`One portion of the Courts decision suggests that the Court recognized that the Web
`
`server
`
`is not limited to
`
`single fiber or instance The Court stated that Parallel Networks cites
`
`nothing in the record to suggest
`
`that either Web Cache or OHS functions as Web server in
`
`any form other than
`
`collection of fibers or instances respectively Defendant
`
`thus fails to
`
`support
`
`its argument
`
`that Web Cache and OHS can themselves be released independent of their
`
`fibers or instances SJ Opinion at 24 n.15 As we have seen record evidence shows the
`
`accused Web server is more than
`
`collection of fibers or instances See e.g D.J 226 Ex 19 at
`
`2-1 to 2-5 D.J 270 Clark Decl
`
`in Opp
`
`32-34 More importantly the Courts
`
`acknowledgment
`
`that the accused Web server includes at least the collection of fibers or
`
`instances means summary judgment
`
`is not appropriate if there is evidence that any of those fibers
`
`or instances is released Jn other words even if Web Cache and OHS could not be released
`
`independent of their fibers or instances it would not follow that the particular fiber or instance
`
`from which
`
`request
`
`is transmitted must be released But that
`
`is the only evidence the Court
`
`considered
`
`The Court Misappreheuded the Record
`
`If the Courts decision was predicated on the view that there was no evidence of releasing
`
`in this record even under
`
`proper understanding of Web server that is also based on
`
`misapprehension The Courts evaluation of the record evidence as reflected in the summazy
`
`judgment decision focused on Dr Clarks evaluation of the source code concerning whether
`
`there is release of the individual Web Cache fiber or OHS child process from which
`
`request is
`
`routed and the notion that Dr Finkel did not refute that interpretation of the source code SJ
`
`Opinion at 1-25 Parallel Networks
`
`contention was not based on
`
`different understanding of
`
`Petitioner IBM – Ex. 1028, p. 11
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`the source code Rather Parallel Networks infringement contention was that the accused Web
`
`server as whole is released through release of the other fibers or child processes within the
`
`accused Web server The Court did not discuss the evidence on that issue
`
`Parallel Networks showed that when OHS instances or Web Cache fibers
`
`delegate
`
`requests to the page server and
`
`receive ACKs other OHS instances or Web Cache fibers are
`
`released to process requests because processor
`
`time and other resources are freed for their use
`
`D.L 228 Finkel Decl 11 17-20 D.L 273 Second Finkel DecL fl 8-11 25-29 and e.g Ex
`
`at
`
`3-6 Ex
`
`at 3-6 Ex at 4-7 Ex
`
`at 4-7 Ex
`
`at 3-7 Ex
`
`at 3-7
`
`REDACTED
`
`when the processor
`
`is executing
`
`instructions for one child process or fiber the other child processes or fibers must wait their
`
`9-10
`
`liii
`
`turn to have the processor execute instructions for them D.L 273 Second Finkel Decl
`
`25-26 This is fundamental
`
`to the way computers work.7 Thus under Parallel Networks
`
`example Di 275 at 11-12 if OHS child process
`
`is using
`
`processor to process Request
`
`computer program is composed of thousands to millions of instructions which are stored in
`computers random access memory RAM Microprocessors implement programs by
`performing the operations specified by the instructions To execute an instruction
`microprocessor must perform series of tasks and each task is completed on
`fixed time
`interval defined by the system clocka clock cycle Microprocessor Enhancement Corp
`Texas Instruments Inc 520 F.3d 1367 1369 Fed Cir 2008 Modem computers implement
`computer is performing several tasks at once even
`multitasking which is the appearance that
`Smart Techs Inc
`time FolyVision Corp
`though the processor can only execute one task at
`Supp 2d 1042 1059 WD Mich 2007 in multitasking the CPU switches from one
`501
`it gives the appearance of executing all of the processes at the
`process to another so quickly that
`same time Id Similarly OHS and Oracle Web Cache are computer programs that are run on
`implementing multitasking
`processor
`
`REDACTED
`
`Where child processes/fthers compete for time on
`given point in time
`child process can use the processor at
`
`common processor only one
`
`Petitioner IBM – Ex. 1028, p. 12
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`OHS child process must necessarily wait for child process
`
`to relinquish the processor before
`
`child process
`
`can use the processor to process Request B.8
`
`As discussed further below Oracles products prevent additional processing of Request
`
`once the page server releases the Web server thus enabling child process
`
`to use the processor
`
`Under
`
`the delegation theory Oracles page servers whether
`
`for OHS or Web Cache enable
`
`child process
`
`to relinquish the processor and thus allow other processes e.g child process
`
`to use the processor
`
`to process other requests e.g Request
`
`Under the ACK theory the
`
`receipt of the ACK by either OHS or Web Cache prevents the use of extra processing resources
`
`to process Request
`
`enabling those resources to process other requests e.g Request
`
`The patent itself makes clear that such
`
`freeing of processor and other resources to
`
`enable other fibers or OHS instances to process other requests constitutes releasing within the
`
`meaning of the patent as the Texas Court found D.I 32.4 Ex 36 at 7-11 The patent explains
`
`that one significant disadvantage of prior art multi-threaded servers that use
`
`single processor
`
`is
`
`that they slow down as resources are eaten up by multiple requests Although these
`
`server machines may be running multi-threaded operating systems that allow transactions to
`
`be processed by independent
`
`threads all
`
`the threads are nevertheless on
`
`single machine
`
`sharing processor DI 225 Ex
`
`554 Patent at eol 441-45 emphasis added The
`
`patent further explains that
`
`numerous requests are being simultaneously processed by
`
`multiple threads on
`
`single machine the Web server can slow down significantly and become
`
`highly inefficient because the threads will still have to be handled by the processor on the Web
`
`sewer machine Id at col 448-51 emphasis added The patent recognizes that one way to
`
`overcome this problem is by placing
`
`page server on
`
`second processor which then leaves the
`
`REDACTED
`
`10
`
`Petitioner IBM – Ex. 1028, p. 13
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`Web server at the first processor free to continue servicing client requests
`
`while the
`
`request
`
`is processed off-I jne at the second machine.9
`
`Parallel Networks presented substantial evidence that Oracles products free the Web
`
`server to continuE servicing client requests in precisely that sense both by delegating requests to
`
`page servers and through the use of ACKs The Court failed to examine this evidence because it
`
`focused instead on the effect on particular fibers or instances
`
`There Is Substantial Evidence of Releasing Under the Delegation
`Theory
`
`When OHS child process
`
`routes Request
`
`to
`
`page server on
`
`separate machine
`
`REDACTED
`
`01 279 Ex 21 at 5-2 0.1 225 Lx II at 1-2 Lx 13 at 1-2 0.1 226
`
`Lx 18 at ORCL01050230 0.1 227 Lx 24 at 1-2 it delegates responsibility for processing
`
`Request
`
`to the page server Child process
`
`no longer requires the use of the processor and
`
`can relinquish it to child process
`
`to process Request
`
`Because both child process
`
`and
`
`child process
`
`are part of the same OHS the OHS as whole now has resources free to process
`
`at
`
`By referencing the release of the Web server to continue servicing client requests the patent
`the Web server must be released to process
`fatally undennines another Oracle argument
`that
`new requests rather than already pending requests something that is nowhere stated in the claim
`The Court properly rejected that argument when it construed releasing said Web server to
`the Web server to process other requests 0.1 399
`process other requests to mean
`emphasis original despite Oracles more restrictive interpretation argued on sunutiary
`judgment D.I 205 at 15-27 The Texas Court similarly determined that other requests
`should include both new and pre-existing requests and that freeing the web server to process
`other requests should not be limited to freeing the web server so that it may handle other
`requests that would not otherwise be handled but should also include freeing the server so that it
`freeing the web server
`to processing resources
`can process other pre-existing requestst
`Di 324 Lx 36 at 10 emphasis added Finally the distinction between new and additional
`basis for summary judgment given Dr Finkels doctrine of equivalents
`requests could not be
`opinion The Court concluded that Parallel Networks argument for infringement under the
`doctrine of equivalents rests entirely on one paragraph in Finkels second declaration ST
`Opinion at n.7 That is incorrect Dr Finkel articulated his doctrine of equivalents releasing
`opinion throughout his over 350 pages of claim charts attached to his second declaration Di
`at 6-7 49-50 69-70 Lx
`27 Lx
`50 66 Lx
`273 Second Finkel DecL Lx at
`at 6-7 28
`29 Lx
`at 6-7 47-48 67 Lx
`
`at
`
`11
`
`at 6-
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`Petitioner IBM – Ex. 1028, p. 14
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`other requests such as Request
`
`even though child process
`
`is not freed to process an
`
`additional request Dr Finite explained
`
`OHS is released to process other requests e.g the other requests
`request to page
`it currently is processing when it routes
`server .. When OHS routes
`page server e.g
`request to
`0C4J OHS is designed so that it no longer is obligated to expend
`dynamic Web page in response
`additional
`resources to generate
`OHS is freed because it can now use the
`to the request Thus
`additional resources to process other requests aheady received
`by OHS
`
`D.I 273 Second Finkel Dee
`
`emphasis added
`
`Dr Firikel further explained that after offloading the request
`
`to the page server the Web
`
`server does not continue to process the request and instead processes the other requests at the
`
`Web server Id Lx at
`
`47 64 see also id Lx
`
`at
`
`25 Lx
`
`at
`
`47 67 Lx
`
`at
`
`26 Lx
`
`at
`
`45 64 Lx
`
`at 25 Dr Flake provided
`
`similar explanation for Web Cache
`
`Id 25-26 He also provided
`
`non-technical
`
`analogy explaining that when an employer
`
`accepts work from client the employer is assigned the task duty or obligation to do the work
`
`for that client However
`
`the employer is freed to do work for other clients when the employer
`
`assigns the work to an employee III 228 Finkel Dccl
`
`18 see also DI 273 Second Flake
`
`Decl Lx at
`
`47-48 64 Lx at 4-5 25 Ex
`
`at
`
`4767 Lx at 426 Lx at
`
`45 64
`
`Lx
`
`at 25
`
`Neither Oracle nor Dr Clark disagreed that delegation frees processor
`
`time on the Web
`
`server that can then be used to process other requests D.I 316 at 16 D.I 270 Clark Decl
`
`in
`
`Opp
`
`52-74 102-25 157-59 In its reply brief Oracle did not even discuss fibers or
`
`instances much less respond to Parallel Networks delegation theory of releasing DI 316 at
`
`12
`
`Petitioner IBM – Ex. 1028, p. 15
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`1610 And Dr Clark stated that he does not perceive there to be any factual dispute between
`Dr Finkel and me over how OHS actually operates Di 270 Clark Decl
`
`in Opp 104
`
`Indeed Dr Clarks analysis supports Dr Finkels conclusions
`
`REDACTED
`
`Oracle did not nen raise releasing at the sunitnary judgment hearing And in its reply on
`releasing Oracle relied only on the Texas Courts rejection of implicit releasing as conflating
`the releasing and processing limitations Di 316 at 16 Not only is implicit releasing
`different than delegation Di 324 at 12 but the Texas Courts decision was based on its
`for releasing which is narrower and requires that the page server perform an
`claim construction
`act separate from merely receiving the request to free the Web server to process other
`construction rejected by this Court D.L 202 Ex at 27-29 Ex D.I 399 at
`requests
`REDACTED
`
`ii
`
`could be blocked or put on hold pending the arrival of the necessary data
`allowing other processes to utilize the CPU As the arrival of the requested data would generate
`timely return to execution Computer
`an interrupt blocked processes could be guaranteed
`last visited Dec 18 2008
`multitasldng http//en.wikipedia.org/wiki/Computer_multitazking
`courtesy copy to be submitted with electronic brief and exhibits per note
`It is proper for
`computer term lo Group Inc
`to take judicial notice of Wikipedia entry explaining
`court
`Veoh Networks Inc No C06-03926 HRL 2008 WL 4065872 at 21 n8 ND Cal Aug 27
`2008 taking judicial notice of Wildpedia entry for the definition of9P address
`
`13
`
`Petitioner IBM – Ex. 1028, p. 16
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`The Court did not discuss any of that evidence instead finding no releasing because Dr
`
`Clark said that when an OHS child process instance forwards
`
`request the OHS instance is
`
`unavailable to process another request SJ Opinion at 23 emphasis added But as we have
`
`seen that conclusion rests either on misapprehension that the Web server
`
`is limited to the
`
`particular instance or misapprehension of Parallel Networks
`
`evidence which demonstrates the
`
`ability of other OHS child processes instances to process requests
`
`There Is Substantial Evidence of Releasing Under
`
`the ACE Theory
`
`Parallel Networks showed that processing resources are released in
`
`second way to meet
`
`the releasing limitation Under
`
`the ACK theory the receipt of
`
`reliable network protocol
`
`acknowledgement e.g TCP ACK frees OHS to process other requests See D.I 228 Finkel
`
`Deci 7ft 19-20 Di 273 Second Finkel Decl
`
`11 e.g Ex
`
`at 3-6 Ex.
`
`at 3-6 Ex
`
`at 4-
`
`Ex
`
`at 4-7 As Dr Finkel explained
`
`page server e.g 0C41
`request is sent from OHS to
`reliable network protocol
`the page server server sends back
`to OHS signifying that it has received the
`acknowledgment
`If OHS does not receive this acknowledgment
`then it will
`request
`be forced to continue expending resources either resending the
`request to the page server or it will have to process the request
`itselfLe generate and return response to the request
`
`Ill 273 Second Finkel Decl
`
`11 emphasis added The same is true with respect
`
`to Web
`
`Cache See D.J 228 Finkel Decl IJ 19-20 Di 273 Second Finkel Dccl 1125 27 e.g Ex
`
`at 3-7 Ex
`
`at 3-7 Dr Finkel again used the employer/employee analogy to illustrate his point
`
`Di 228 Finkel Dccl 20
`
`The Court rejected that theory explaining that one OHS instance receiving an ACK
`
`message cannot free another OHS instance to process other requests SJ Opinion at 22 The
`
`Court reached that decision based on its conclusion that what
`
`is freed is TCP buffer memory
`
`which is unique to
`
`particular OHS child process Id But the Court ignored the evidence that
`
`14
`
`Petitioner IBM – Ex. 1028, p. 17
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`an ACK also frees other processing resources including processor time which is why Dr
`
`Finkels declaration concerned resources generally and was not focused on buffer memory See
`
`Di 228 Finkel Dccl 1J 39-20 Di 273 Second Finkel DecL 11
`
`11 25 27 e.g Lx
`
`at 3-6
`
`Lx at 3-6 Lx at 4-7 Lx
`
`at 4-7 Lx
`
`at 3-7 Lx at 3713
`
`Dr Clark acknowledged that Dr Finlcel was correct
`
`that processor
`
`time is freed He
`
`stated tat if
`
`the Web Server does not receive an ACK then the Web server through its
`
`operating system will
`
`resend
`
`request Di 217 Clark Dccl 75
`
`REDACTED
`
`Di 278 Lx
`
`Clark Dep at 2204-7 22017-22122 And Oracle conceded
`
`that the freed processor time can be allocated to any other software program running on the
`
`server D.L 316 at 18
`
`REDACTED
`
`at
`
`at
`
`13 Dr Firikels testimony about ACKs is based on his expertise as well as his review of various
`technical documents Di 272 Lx A89 at 8-9 Di 273 Second Finkel Dccl Lx at
`48 64
`27 Lx at
`46 65 Lx
`48 68 Lx at
`25 Lx at
`Lx
`26 all citing to
`Tanenbaum AS Computer Networks Fourth Edition Prentice-Hall PTR Upper Saddle River
`NJ 2003 and did not require specific review of Oracle source code because ACKs are
`implemented by the operating system and are not specific to Oracle software D.I 217 Clark
`Dccl 1167 75 The Texas Court found that Parallel Networks and Dr Finkels ACK theory
`genuine issue of material fact on sumnmaryjudgmenL
`was factually supported and created
`Di 272 Lx A89 at 8-10 denying summary judgment of noninfringement premised on
`that ACK theory could not meet releasing limitation
`argument
`14Dr Clarks response to Dr Finkel
`focuses on TCP buffer memory declaring that any effect on
`TCP memory buffer is irrelevant Di 270 Clark Decl
`in Opp 1170-71 116-17 but Dr Clark
`misleadingly equates Dr Finkels discussion of processor
`resources with an argument about the
`TCP buffer
`
`REDACTED
`
`15
`
`Petitioner IBM – Ex. 1028, p. 18
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`

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`Filed 12/22/08
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`Page 19 of 21 PagelD
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`Oracle attempted to avoid the inexorable result of this concession by arguing that there is
`
`no evidence that the resources are necessarily allocated to the Web servers proc