Case 207-cv-00562-DF
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`Document 186 Filed 05/15/09
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`Page
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`of 36 PagelD
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`1951
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`II THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`PARALLEL NETWORKS LLC
`
`Plaintiff
`
`NETFLIX INC
`SKYMALL INC
`SONS INC
`JOHN WILEY
`ETRADE FINANCIAL CORPORATION
`and
`THE FINISH LINE INC
`
`Defendants
`
`PARALLEL NETWORKS LLC
`
`Plaintiff
`
`PRICEL1NE.COM INC
`ORBITZ LLC
`WALGREEN CO
`OFFICEMAX INC
`SHIJTTERFLY Th4C
`SAKS INC and
`CLARK WAMBERG LLC
`
`Defendants
`
`Civil Action No 207-cv-562-DF
`
`JURY TRIAL DEMANDED
`
`Civil Action No 208-cv-45-DF
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF PARALLEL NETWORKSS OPENING CLAIM CONSTRUCTION BRIEF
`
`943455v1/O 10736
`
`Petitioner IBM – Ex. 1031, p. 1
`
`

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`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES
`
`INTRODUCTION
`
`BACKGROUND
`
`LEGAL STANDARDS
`
`II
`
`III
`
`Claim Construction
`
`Indefiniteness
`
`IV
`
`THE PROPER CONSTRUCTION OF THE DISPUTED TERMS
`
`Terms Concerning Building Blocks of the Invention
`
`Web Server
`
`Dispatcher and Page Server
`
`HTTP-Compliant Device
`
`Terms Concerning Events Occurring in the Invention
`
`Intercepting
`
`Dispatching
`
`Transferring and Routing
`
`Releasing
`
`Defendants
`
`allegation of indefiniteness
`
`Effect of releasing on pre-existing requests and processing
`resources
`
`Defendants proposed limitation of an act separate from
`merely receiving or processing the request to free the Web
`server
`
`Concurrently Processes
`
`Terms Concerning Items Acted Upon in the Invention
`
`Web Page and Page
`
`943455v1/O 10736
`
`iv
`
`10
`
`11
`
`11
`
`15
`
`17
`
`20
`
`20
`
`20
`
`21
`
`23
`
`24
`
`24
`
`Petitioner IBM – Ex. 1031, p. 2
`
`

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`Requests and Other Requests
`
`Data Dynamically Retrieved and Data Retrieved
`
`Dynamic Web Page Generation Request and Dynamically
`Generating
`
`CONCLUSION
`
`26
`
`27
`
`29
`
`30
`
`943455v1/O 10736
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`Petitioner IBM – Ex. 1031, p. 3
`
`

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`Case 207-cv-00562-DF
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`1954
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`CASES
`
`TABLE OF AUTHORITIES
`
`Bancorp Servs L.L.C
`
`HartfordLfe Ins Co 359 F.3d 1367 Fed Cir 2004
`
`epicRealm Licensing LLC AutoFlex Leasing Inc et at Case No
`07-cv- 125 Order
`Adopting Report and Recommendation Regarding Claim Construction Docket No
`260 ED Tex Oct 30 2006 Exhibit C2
`epicReatm Licensing LLC AutoFtex Leasing Inc et at Case No
`Docket No 686 E.D Tex Aug
`2008 Exhibit C3
`
`07-cv- 125 Order
`10 21 22
`
`epicReatm Licensing LLC AutoFtex Leasing Inc et at Case No
`07-cv- 125 Report
`and Recommendation Regarding Claim Construction Docket No 194 E.D Tex
`169 11 12 15 1823242526
`Aug 152006ExhibitCl
`
`Finisar Corp DirecTV Group Inc 523 F.3d 1323 Fed Cir 2008
`
`IntervetAm Inc
`
`Kee-Vet Lab Inc 887 F.2d 1050 Fed Cir 1989
`
`Markinan
`
`Westview Instruments Inc 52 F.3d 967 Fed Cir 1995 en banc
`
`Am Vaccine Inc
`
`Am CyanamidCo
`
`F.3d 1571 Fed Cir 1993
`
`02 Micro Intl Ltd
`
`Beyond Innovation Tech Co Ltd 521 F.3d 1351 Fed Cir 2008
`
`Omega Engg Inc
`
`RaytekCorp 334F.3d 1314 Fed Cir 2003
`
`12
`
`13
`
`Parattet Networks LLP Case No
`06-cv-414 Memorandum
`Oracte Corp et at
`Order Docket No 399
`Del Dec 42008 Exhibit C4
`
`162225
`
`Phillips
`
`AWH Corp 415 F.3d 1303 Fed Cir 2005 en banc
`
`Renishaw PLC Marposs SocietaperAzioni 158 F.3d 1243 Fed Cir 1998
`
`Ultra-Tex Surfaces Inc Hitt Bros Chem Co 204 F.3d 1360 Fed Cir 2000
`
`Vitronics Corp
`
`Conceptronic
`
`Inc 90 F.3d 1576 Fed Cir 1996
`
`Youngv Lumenis Inc 492 F.3d 1336 Fed Cir 2007
`
`943455v1/O 10736
`
`Petitioner IBM – Ex. 1031, p. 4
`
`

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`INTRODUCTION
`
`The two patents in suit cover
`
`technology that manages dynamic web page generation
`
`requests Both patents relate back to an original application filed in 1996 The 554 patent U.S
`
`Patent No 5894554 was granted pursuant
`
`to that application while the 335 patent U.S
`
`Patent No 6415335 was
`
`divisional of that application
`
`The patents
`
`share
`
`common
`
`specification
`
`These patents and the meaning of their claim terms are not strangers to the Markman
`
`process
`
`In the epicRealm case brought by Parallel Networkss predecessor this Court issued
`
`multiple claim construction orders concerning the patents
`
`The first order adopted Magistrate
`
`Judge Cravens Report and Recommendation Regarding Claim Construction.2 The second order
`
`addressed additional
`
`issues concerning the construction of page server and releasing.3 Some
`
`of the claim terms were also construed by Judge Robinson in the District of Delaware where
`
`Parallel Networks is the defendant in
`
`declaratory judgment action filed by Oracle Corporation.4
`
`Parallel Networkss constructions generally adhere to those adopted by this Court and the
`
`District of Delaware
`
`By contrast
`
`defendants
`
`proposed constructions attempt
`
`to introduce
`
`as Exhibit Bi 554 and Exhibit B2 335 For simplicity
`The patents in suit are attached
`specification citations herein are to the 554 patent
`
`AutoFlex Leasing Inc et at Case No 507-cv-125 Report and
`epicRealm Licensing LLC
`Recommendation Regarding Claim Construction Docket No 194 E.D Tex Aug 15 2006
`as Exhibit Cl see
`Craven Mag
`and
`also Order Adopting Report
`attached
`Recommendation Regarding Claim Construction Docket No 260 E.D Tex Oct 30 2006
`Folsom attached as Exhibit C2
`
`epicRealm Licensing LLC
`Docket No 686 E.D Tex Aug
`
`AutoFlex Leasing Inc et al Case No 507-cv-125 Order
`2008 Folsom attached as Exhibit C3
`
`Parallel Networks LLP Case No
`06-cv-414 Memorandum Order
`Oracle Corp et al
`attached as Exhibit C4
`Docket No 399
`Del Dec
`2008 Robinson
`
`943455v1/010736
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`Petitioner IBM – Ex. 1031, p. 5
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`

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`complex confusing and unsupported limitations into the claim terms many of which have been
`
`expressly rejected in the prior cases
`
`As for defendants
`
`brand new proposed limitations the
`
`accused infringers in prior cases presumably considered them too far-fetched even to propose
`
`The Court should therefore adopt
`
`the straightforward constructions Parallel Networks provides
`
`II
`
`BACKGROUND
`
`The patents
`
`in suit
`
`relate to managing dynamic web
`
`page generation requests
`
`dynamic page involves content
`
`that is generated
`
`and assembled in response to
`
`request Such
`
`content
`
`can be based on information in
`
`database the date or time who is requesting the page
`
`or other variables In contrast static pages often consist merely of files that may be delivered
`
`to their requester without generating content
`
`Because dynamic page generation can consume
`
`substantial computer time and resources and because many websites may receive large numbers
`
`of requests for dynamic content having technology that efficiently manages such requests is not
`
`only useful but
`
`in many instances crucial
`
`The inventors of these patents understood the limitations of web technology when they
`
`filed their original application in 1996 As they noted
`
`Web server architecture
`
`does not allow the Web
`
`server to efficiently manage the Web
`
`page and process Web client
`
`requests 554
`
`247 Their invention overcame these limitations and improved efficiency
`
`by utilizing
`
`partitioned architecture to facilitate the creation and management of custom Web
`
`sites and servers 554
`
`45253
`
`Claim of the 554 patent
`
`illustrates what
`
`the invention covers among other things
`
`dynamic Web page generation
`computer-implemented method for managing
`request to Web server said computer-implemented method comprising the steps
`of
`
`from said Web server
`page server said page server
`to
`routing said request
`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
`
`943455v1/O 10736
`
`Petitioner IBM – Ex. 1031, p. 6
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`

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`said Web server routing said request from said Web server to
`dispatching said request to said page server
`
`dispatcher
`
`and
`
`said processing being performed by said page server
`processing said request
`while said Web server concurrently processes said other requests and
`
`dynamically generating Web page in response to said request said Web page
`including data dynamically retrieved from one or more data sources
`
`The claimed architecture allows the offloading of some request processing from the Web
`
`server
`
`to page servers As illustrated in the embodiment shown in Figure
`
`of the patents as
`
`the Web server receives
`
`requests an interceptor
`
`intercepts the handling of the request
`
`The
`
`interceptor
`
`then communicates with dispatcher to which it sends the request
`
`According to Figure
`
`the next steps require the dispatcher to determine the appropriate
`
`page server to handle each request The dispatcher has available to it dynamic information about
`
`each page server such as which page servers can handle the request block 508for example
`
`some page servers may not have access to
`
`necessary data source and thus may be unable to
`
`handle
`
`particular request 554
`
`55456and which page server
`
`is processing fewest
`
`requests block 510 Based at
`
`least on such informationand optionally factoring in other
`
`information suggested
`
`by the patents
`
`see 554
`
`560619the dispatcher
`
`selects
`
`the
`
`appropriate page server and sends
`
`request
`
`there for processing block 512
`
`The page server receiving the request
`
`then processes it and dynamically generates
`
`the
`
`requested page In the meantime the Web server is able to process other requests or as the case
`
`may be to receive requests that are also intercepted and ultimately dispatched to
`
`page server
`
`The dynamically generated pages are then sent to the web client
`
`that made the original request.5
`
`in suit Parallel Networks
`For additional background on the patents
`it filed in the epicRealm litigation
`technology tutorial
`
`refers the Court to the
`
`943455v1/010736
`
`Petitioner IBM – Ex. 1031, p. 7
`
`

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`III
`
`LEGAL STANDARDS
`
`Claim Construction
`
`The purpose of claim construction is to determin the meaning and scope of the patent
`
`claims asserted to be infringed Markman
`
`Westview Instruments Inc 52 F.3d 967 976 Fed
`
`Cir 1995 en banc affd 517 U.S 370 1996 Claim construction is matter of law Id at
`
`9707
`
`Intrinsic evidencethe patent claim language specification and prosecution history
`
`considered in this order of importanceis the primary source of guidance as to the meaning of
`
`the claim terms See Vitronics Corp
`
`Conceptronic
`
`Inc 90 F.3d 1576 158283 Fed Cir
`
`1996 But the claim construction inquiry
`
`begins and ends in all cases with the actual words
`
`of the claim Renishaw PLC Marposs Societaper Azioni 158 F.3d 1243 1248 Fed Cir
`
`1998 citations omitted
`
`Generally this
`
`court gives claim terms their ordinary and customary meanings
`
`according to the customary understanding of an artisan of ordinary skill
`
`at
`
`the time of
`
`the
`
`invention Finisar Corp
`
`DirecTV Group Inc 523 F.3d 1323 1328 Fed Cir 2008 The
`
`construction that stays true to the claim language and most naturally aligns with the patents
`
`description of the invention will be in the end the correct construction Phillips AWH Corp
`
`415 F.3d 1303 1316 Fed Cir 2005 en banc citation omitted
`
`The Federal Circuit has
`
`consistently adhered to the proposition that courts cannot alter what
`
`the patentee has chosen to
`
`claim as his invention that limitations appearing in the specification will not be read into claims
`
`and that
`
`interpreting what
`
`is meant by
`
`word
`
`claim is not to be confused with adding an
`
`extraneous limitation appearing in the specification which is improper
`
`Intervet Am Inc
`
`Kee-Vet Lab Inc 887 F.2d 1050 1053 Fed Cir 1989 internal quotation marks omitted
`
`Indefiniteness
`
`To overcome the statutory presumption that patent claims are valid
`
`defendant must
`
`943455v1/010736
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`Petitioner IBM – Ex. 1031, p. 8
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`

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`prove allegations of invalidity including indefiniteness by clear and convincing evidence
`
`See
`
`Ultra-Tex Surfaces
`
`Inc
`
`Hill Bros Chem Co 204 F.3d 1360
`
`1367 Fed Cir 2000
`
`Evidence of indefiniteness must show that one of ordinary skill would not understand what
`
`is
`
`included within the claims
`
`Am Vaccine Inc
`
`Am CyanamidCo
`
`F.3d 1571 1579 Fed
`
`Cir 1993 To be indefinite the claim must be insolubly ambiguous See Bancorp Servs
`
`L.L.C HartfordLfe Ins Co 359 F.3d 1367 1371 Fed Cir 2004 emphasis added Claims
`
`are indefinite only if reasonable efforts at claim construction prove futile and close questions of
`
`indefiniteness
`
`in litigation involving issued patents
`
`are properly resolved in favor of
`
`the
`
`patentee
`
`Id internal quotation marks omitted
`
`claim term is not indefinite if
`
`it can be
`
`given any reasonable meaning Young
`
`Lumenis Inc 492 F.3d 1336 1346 Fed Cir 2007
`
`internal quotation marks omitted
`
`Parallel Networks
`
`has demonstrated below
`
`reasonable construction for each of the
`
`disputed terms The terms therefore are not indefinite
`
`Because defendants bear the burden of
`
`proving indefiniteness by clear and convincing evidence Parallel Networks will defer detailed
`
`discussion about whether specific terms are indefinite until after defendants
`
`have attempted to
`
`meet their evidentiary burden
`
`IV
`
`THE PROPER CONSTRUCTION OF THE DISPUTED TERMS
`
`To simplify matters for the Court Parallel Networks
`
`has grouped the disputed claim
`
`language to be construed
`
`chart of the disputed language in alphabetical order submitted as
`
`Exhibit Al shows each sides proposed constructions
`
`For the Courts convenience Parallel
`
`Networks has also submitted as Exhibit A2 chart showing the extrinsic evidence identified by
`
`each side based on the attachments to the Joint Claim Construction and Prehearing Statement
`
`943455v1/010736
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`Petitioner IBM – Ex. 1031, p. 9
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`

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`1960
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`Terms Concerning Building Blocks of the Invention
`
`Web Server
`
`Claim Language
`Web server
`
`Parallel Networkss Construction
`
`Defendants Construction
`
`software or machine having
`software that receives Web page
`requests and returns Web pages in
`response to the requests
`
`Software or machine having
`software that receives Web page
`requests generates and returns
`Web pages in response to certain
`such requests
`
`The parties agree that Web server
`
`is software or machine having software that
`
`receives Web
`
`page requests although they differ on what
`
`the Web
`
`server does with the
`
`requests Parallel Networks asks the Court to construe the term the same way it did in epicRealm
`
`and to recognize that Web server returns Web pages in response to the requests Ex Cl at
`
`16 Defendants by contrast
`
`also wish to attach the task of generating Web pages to the Web
`
`serverand then only in response to certain requests
`
`The intrinsic evidence
`
`supports the Courts prior less restrictive understanding of the
`
`Web servers two-part role as simply receiving and returning Figure
`
`which illustrates
`
`typical prior art Web server environment 554
`
`24344 shows Web server 202 in two-way
`
`communication with Web client 200that
`
`is receiving and responding to requests.7 Figure
`
`which illustrates an embodiment of the invention 554
`
`24748 shows the Web client 200
`
`similarly in two-way communication with the Web
`
`server 202 receiving and responding to
`
`Judge Robinson also adopted this construction Ex C4 at
`
`Figure
`
`in the form of
`flow diagram 554
`which illustrates the same environment
`24546 also shows this The figure indicates that the Web server locates document block
`transmitted back to requesting Web browser block
`310 followed by the document
`transmitted to appropriate Web server block 304
`312 in response to
`request
`
`943455v1/O 10736
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`Petitioner IBM – Ex. 1031, p. 10
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`

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`1961
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`requests.8 Even the extrinsic evidence defendants cite supports this more narrow reading of the
`
`claim For example defendants
`
`cite
`
`dictionary definition of Web server as
`
`computer
`
`that delivers serves up Web pages ECF Docket No 18 1-3 at 16
`
`Defendants
`
`proposed construction attempts to add two inappropriate limitations First
`
`defendants would require that the Web server also generate Web pages This is inconsistent with
`
`the use of Web server
`
`in the patents which make no assumption about whether the Web server
`
`itself generates pages Indeed as shown in Figure
`
`which illustrates the processing of Web
`
`browser request
`
`according to one embodiment of the invention 554
`
`24952 the patents
`
`contemplate embodiments in which the Web server does not generate pages In that figure the
`
`Web server receives the URL request and an interceptor
`
`then intercepts the handling of the
`
`request in processing block 504 554
`
`83032 An appropriate Page server then produces
`
`an HT1VIIL document
`
`in processing block 514 554
`
`83941 and the Web server then sends
`
`the new HTML document
`
`to the requesting client
`
`in processing block 522 554
`
`84749 In
`
`this embodiment all page generation occurs at page servers
`
`The Web server
`
`referred to in
`
`Figure
`
`thus wouldnt be Web server as construed by defendantswhich
`
`establishes that
`
`defendants construction is wrong
`
`Second defendants would require that Web servers generate and return Web pages only
`
`in response to certain such requests for Web pages This proposal
`
`fails to state which requests
`
`which illustrates the processing of Web browser
`flow
`in the
`of
`Figure
`request
`also shows this The figure shows that the Web server sends new
`2495
`diagram 554
`the Web server receives URL request block
`HTML document
`to client block 522 after
`502
`
`Unless otherwise noted ECF docket numbers refer to the docket
`in case number 207-cv-562
`The joint
`filing at docket number
`181 is the same as the filing at docket number 162 in case
`number 208-cv-45 The extrinsic evidence cited by the parties is also reflected in Exhibit A2
`
`943455v1/010736
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`-7
`
`Petitioner IBM – Ex. 1031, p. 11
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`

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`1962
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`are and are not
`
`to be generated
`
`and returned by Web server
`
`The limitation can serve no
`
`purpose other than to inject ambiguity into the term The patents make no reference to certain
`
`requests and none of
`
`the extrinsic evidence
`
`defendants cite discusses certain requests or
`
`suggests that Web server must generate responses to some requests and fail
`
`to do so for others
`
`Accordingly
`
`the Court should reject defendants
`
`proposal
`
`and adopt Parallel Networkss
`
`construction
`
`Dispatcher and Page Server
`
`Claim Language
`
`dispatcher
`
`page server
`
`Parallel Networkss Construction
`
`Defendants construction
`
`software or machine having
`software that performs the function
`of dispatching
`
`page-generating software or
`machine having page-generating
`software that generates
`dynamic
`Web page
`
`machine having software or
`software independent of the Web
`server that performs the function
`of dispatching
`Page generating application
`software separate from the Web
`server and separate from the
`operating system that generates
`dynamic Web page
`
`The parties agree that
`
`dispatcher performs the function of dispatching where
`
`dispatching is construed separately and that
`
`page server generates
`
`dynamic Web page
`
`The parties also agree that each may take the form of just software or at
`
`least in the case of
`
`dispatcher
`
`machine having such software
`
`Like
`
`dispatcher and like Web server however
`
`page server can also take the form
`
`of either software or machine having such software The claim language is indifferent as to
`
`what form the page server takes
`
`The claims refer only to what
`
`the page server doessuch as
`
`10 On May 13 2009 shortly before the deadline for this brief defendants
`gave notice of their
`to add
`the
`further limitation to their proposed construction of this term to require that
`intent
`data source to generate the Web page
`page generating software communicates directly with
`This new limitation added at the eleventh hour finds no support
`in the claims or specification
`
`943455v1/010736
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`Petitioner IBM – Ex. 1031, p. 12
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`

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`Page 13 of 36 PagelD
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`1963
`
`receiving said request and processing said request 554 claim
`
`Claim of the 554 patent
`
`even requires
`
`page server having
`
`processing means emphasis added separate from
`
`second computer system that receives the request and dispatches
`
`it
`
`to the page server Thus the
`
`patents
`
`contemplate that page servers may be implemented
`
`as machines containing
`
`page-
`
`generating
`
`software
`
`Moreover
`
`the extrinsic evidence
`
`cited by defendants
`
`supports the
`
`construction of page server as limited by its function rather
`
`than its form The Microsoft
`
`Computer Dictionary for example defines
`
`server as
`
`computer or program that responds
`
`to commands from client ECF Docket No 18 1-3 at 11 emphasis added
`
`Likewise the
`
`IEEE dictionary allows
`
`server
`
`to be
`
`device or computer
`
`Id see also Ex D3 at 612
`
`IBM dictionary describing server as
`
`functional unit Consistent with the constructions of
`
`Web server
`
`and dispatcher
`
`the construction of page server
`
`should not be limited to
`
`software but should include software or machine having software
`
`In addition while the parties generally agree on the tasks
`
`dispatcher and page server
`
`each performs and that each may take the form of software defendants
`
`attempt
`
`to introduce
`
`unsupported limitations into these terms First defendants would require that
`
`dispatcher
`
`if
`
`in
`
`the form of software be independent of
`
`the Web
`
`server
`
`It
`
`is
`
`far from clear what
`
`independent means Moreover the specification states that the Dispatcher 402 can however
`
`also reside on the same machine as the Web server
`
`554
`
`52021 Just as the interceptor
`
`In the epicRealm litigation the Court construed
`page server to be page-generating software
`dynamic Web page Ex Cl at 14
`In that case however whether
`that generates
`page
`server also could be
`computer having software as opposed to software only was not before the
`Id at 12 noting that the Plaintiff agreed to the use of page generating software in
`Court
`processing system as previous proposed by the Plaintiff
`place of the term
`Parallel
`Networks merely asks the Court to revise its previous definition of page server to be consistent
`with the manner in which the Court earlier construed Web serveras software or machine
`having software
`
`943455v1/010736
`
`Petitioner IBM – Ex. 1031, p. 13
`
`

`
`Case 207-cv-00562-DF
`
`Document 186 Filed 05/15/09
`
`Page 14 of 36 PagelD
`
`1964
`
`may be an independent module 554
`
`52 or simply an extension to Web server 554
`
`46162 so may the dispatcher which receives requests from the interceptor take either form
`
`With regard to page server defendants would require that
`
`it be application software
`
`that is separate from the operating system This Court already considered the same argument
`
`in epicRealm and decline to limit page server to exclude operating system software from
`
`the construction Ex C3 at
`
`Indeed to exclude software necessary
`
`to carry out
`
`the page
`
`servers functionality would be contrary to the specification To generate
`
`dynamic Web page
`
`and process
`
`request
`
`the software within the page server must
`
`include operating system code
`
`that allows access to among other
`
`things the central processing unit memory and network
`
`functions Limiting the page server to application softwarea term that
`
`itself would need
`
`constructionand taking away the operating system software from the page server would
`
`disable the page servers ability
`
`to generate
`
`dynamic Web page
`
`Nothing
`
`in the claims
`
`suggests such
`
`limitation Indeed some claims require the page server to have
`
`processing
`
`means e.g 554 claim
`
`which means the page server could be
`
`computer including an
`
`operating system as part of it Moreover
`
`person having ordinary skill
`
`in the art would
`
`understand that
`
`page server could include operating system code
`
`This is shown by among
`
`other things extrinsic evidence
`
`defendants
`
`cite allowing
`
`server to be
`
`computer ECF
`
`Docket No 181-3 at 11 This assumes the presence of an operating system in that form of page
`
`HTTP-Compliant Device
`
`Parallel Networkss Construction
`
`Defendants Construction
`
`device that is compliant with the
`communication protocol known as
`HyperText Transport Protocol
`HTTP
`
`device running software that
`implements the communication
`protocol known as HTTP
`
`server
`
`Claim Language
`HTTP-compliant
`device
`
`943455v1/010736
`
`Petitioner IBM – Ex. 1031, p. 14
`
`

`
`Case 207-cv-00562-DF
`
`Document 186 Filed 05/15/09
`
`Page 15 of 36 PagelD
`
`1965
`
`Parallel Networks asks the Court to construe HTTP-compliant device the same way it
`
`did in epicRealm Ex Cl at 18 This construction is supported by the intrinsic evidence
`
`The
`
`specification
`
`defines HTTP as
`
`communications
`
`protocol known as HyperText Transport
`
`Protocol HTTP 554
`
`12526 Necessarily therefore an HTTP-compliant device is
`
`device that is compliant with HyperText Transport Protocol
`
`Defendants would require the HTTP-compliant device to run software that implements
`
`HTTP But
`
`device can comply with
`
`protocol without
`
`running software for example the
`
`protocol could be hard-wired and thus implemented as hardware only or the protocol could be
`
`implemented as firmware Nothing in the patents requires the limitation that defendants suggest
`
`The Court should adhere to its earlier construction of this term
`
`Terms Concerning Events Occurring in the Invention
`
`claim
`
`Language
`
`intercepting
`
`Intercepting
`
`Parallel Networkss
`Construction
`
`intercepting said request at
`said Web server means
`intercepting the handling of
`request at Web server
`
`intercepting said request at
`said HTTP-compliant
`device means intercepting
`the handling of
`request at
`said HTTP-compliant
`device
`
`____________
`
`___________________________
`
`Defendants Construction
`
`______________________________________________
`This claim term is indefinite Alternatively this
`term should be construed as Performing the
`request without
`examining
`following steps
`reading configuration data that contains the request
`i.e the Multipurpose Internet Mail Extensions
`MIME type or URL path prefix in order to
`determining based on
`activate gateway software
`page server should
`such examination that
`dynamic Web page in response to
`generate
`dynamic Web page generation request and
`diverting the handling of the dynamic Web page
`generation request away from the Web server
`instead of permitting the Web server to generate
`dynamic Web page in response to
`dynamic Web
`page generation request.2
`
`12 On May 14 2009 the day before the deadline for this brief defendants
`gave notice of their
`construction of this term Because the proposed construction
`more concise
`intent
`to offer
`shown here suffers from the same flaws as the new proposal but is better delineated into sets of
`continued on following page
`
`943455v1/O 10736
`
`11
`
`Petitioner IBM – Ex. 1031, p. 15
`
`

`
`Case 207-cv-00562-DF
`
`Document 186 Filed 05/15/09
`
`Page 16 of 36 PagelD
`
`1966
`
`As the Court previously noted in the epicRealm litigation
`
`Court is not convinced
`
`that the term intercepting needs construction itself Ex Cl at 24 Rather intercepting is
`
`more appropriately defined in the context
`
`in which it appears
`
`More helpful would be to construe the entire intercepting phrase intercepting
`said request at said Web server claims
`and 11 of the 554 Patent and
`intercepting said request at said HTTP-compliant device claim 15 of the 554
`as intercepting the handling
`The specification describes the Interceptor
`Patent
`request Col 831-32 To conform with the description provided within the
`of
`specification the phrase intercepting said request at said Web server claims
`and 11 of the 554 Patent means at least intercepting the handling of
`request
`said request at said HTTP
`Web
`server
`and the phrase
`intercepting
`at
`compliant device means at least intercepting the handling of
`request at
`HTTP-compliant device
`
`said
`
`Id Parallel Networks agrees that those phrases are the appropriate units for construction and that
`
`they should be construed in accordance with the specification
`
`as the Court did in epicRealm.3
`
`Defendants ask the Court to read numerous limitations grouped into three sets into the
`
`claims Defendants proposed construction is incorrect confusing unsupported and inconsistent
`
`with the claim language
`
`With the first
`
`set of limitationsa examining
`
`request without reading configuration
`
`data that contains the request i.e the Multipurpose Internet Mail Extensions MIME type or
`
`URL path prefix in order
`
`to activate
`
`gateway softwaredefendants
`
`attempt
`
`to define
`
`limitations for purposes of discussion this brief addresses defendants original proposal The
`to their new functionally similar proposal
`arguments herein apply equally however
`
`13 The Court does not need to construe intercepting as
`stand-alone term because its meaning
`Beyond Innovation Tech Co Ltd 521 F.3d 1351
`is clear Even under 02 Micro Intl Ltd
`1362 Fed Cir 2008
`it has more than one ordinary
`term only needs construction if
`meaning or when reliance on
`terms ordinary meaning does not resolve the parties dispute
`Defendants have offered no evidence
`the meaning of
`intercepting is unclear
`to suggest
`Rather defendants propose that numerous limitations be read into the claims
`The Court may
`rej ect these limitations without providing
`separate definition of intercepting
`
`943455v1/010736
`
`Petitioner IBM – Ex. 1031, p. 16
`
`

`
`Case 207-cv-00562-DF
`
`Document 186 Filed 05/15/09
`
`Page 17 of 36 PagelD
`
`1967
`
`intercepting by what does not occur
`
`as opposed to what does
`
`The proper construction of this
`
`term however
`
`should only be concerned with what actually
`
`constitutes
`
`intercepting
`
`Defendants apparently wish to define intercepting to render non-infringing any interceptor
`
`that
`
`goes beyond what
`
`the claims require But nothing in the claim language forbids an interceptor
`
`from doing more than the bare minimum of intercepting
`
`In support of these limitations defendants cite the Leaf patent which the patentees
`
`distinguished
`
`during the examination.4 But
`
`in doing so the patentees never suggested that
`
`intercepting should be construed in terms of what does not occur
`
`The patentees
`
`argued
`
`successfully
`
`that Leaf does not
`
`teach or suggest
`
`intercepting said request Ex D2 at
`
`because merely routing
`
`request from web server to the transaction gateway does not involve
`
`interception Id at 10 emphasis added In short the patentees argued that
`
`certain act in Leaf
`
`was
`
`insufficient
`
`to amount
`
`to intercepting not even
`
`that
`
`its
`
`absence was necessary
`
`Defendants would turn the logic of
`
`the patentees
`
`argument on its head by requiring that
`
`intercepting exclude any act performed in Leaf
`
`Such logic makes no sense
`
`Defendants
`
`cannot point
`
`to any clear and unambiguous disavowal of claim scope here by the patentees as
`
`they would be required to do in support of their proposed limitation Omega Eng
`
`Inc
`
`RaytekCorp 334F.3d 1314 132526 Fed Cir 2003
`
`In addition to being improper this first set of limitations is also confusing Defendants
`
`proposed construction
`
`equates configuration
`
`data with the Multipurpose Internet Mail
`
`Extensions MIIVIIE type or URL path prefix None of these terms are used in the patents and
`
`each would require further construction to be understood by the jury Moreover
`
`the proposal
`
`U.S Patent No 5754772 attached as Exhibit Dl 335 File History Response
`attached as Exhibit D2
`Action dated May 23 2001 at
`
`to Office
`
`943455v1/010736
`
`Petitioner IBM – Ex. 1031, p. 17
`
`

`
`Case 207-cv-00562-DF
`
`Document 186 Filed 05/15/09
`
`Page 18 of 36 PagelD
`
`1968
`
`conflates terms that are different When the Leaf patent uses the term configuration data e.g
`
`Ex Dl
`
`1019 it
`
`is referring to configuration information that is preestablished with the Web
`
`Server Id
`
`101011 Such configuration
`
`information has nothing to do with makes up
`
`Web page request such as the MI1VIE type essentially
`
`file extension indicating the type of data
`
`requested such as HTML plain text or JPEG image file see Ex Dl
`
`94954 6263 or the
`
`URL path prefix similar to the folder location see Ex Dl
`
`94354 In short even if some
`
`limitation on what does not occur during intercepting were warranted which is not the case the
`
`limitations defendants propose are nonsensical
`
`The second set of limitationsb determining based on such examination that
`
`page
`
`server should generate
`
`dynamic Web page in response to
`
`dynamic Web page generation
`
`requestappears to be an attempt
`
`to restrict
`
`the meaning of intercepting to one specific
`
`embodiment
`
`In particular defendants would require that intercepting occur pp for dynamic
`
`Web page generation requests Nothing in the patents suggests such
`
`restriction
`
`The third set of
`
`limitationsc diverting the handling of
`
`the dynamic Web
`
`page
`
`generation request away from the Web server instead of permitting the Web server to generate
`
`dynamic Web page in response to
`
`