IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`PARALLEL NETWORKS LLC
`
`Plaintiff
`
`NETFLIX INC et al
`
`Defendants
`
`CIVIL ACTION NO 207-C V-562 DF
`
`______________________________________________
`
`______________________________________________
`
`PARALLEL NETWORKS LLC
`
`Plaintiff
`
`PRICELINE.COM INC et al
`
`Defendants
`
`CIVIL ACTION NO 208-CV-45 DF
`
`CLAIM CONSTRUCTION ORDER
`
`Before the Court is Plaintiffs Opening Claim Construction Brief Dkt No 186.1 Also
`
`before the Court are Defendants Responsive Claim Construction Brief Plaintiffs Reply Claim
`
`Construction Brief and Defendants Sur-Reply Claim Construction Brief Dkt Nos 191 201
`
`and 209 respectively The Court held
`
`claim construction hearing on August 13 2009 Having
`
`considered the briefing oral arguments of counsel and all relevant papers and pleadings the
`
`Court construes the disputed claim terms as set forth herein
`
`All references to docket entries are as docketed in Civil Action No 207-CV-562 unless otherwise
`
`indicated
`
`Petitioner IBM – Ex. 1032, p. 1
`
`

`
`TABLE OF CONTENTS
`
`BACKGROUND
`
`II LEGAL PRINCIPLES OF CLAIM CONSTRUCTION
`
`III DISCUSSION
`
`Concurrently Processes
`
`Data Dynamically Retrieved
`
`Data Retrieved
`
`Dispatcher
`
`Dispatching
`
`Dynamically Generating
`
`Dynamic Web Page Generation Request
`
`HTTP-Compliant Device
`
`Intercepting
`
`Page Server
`
`Releasing
`
`Requests and Other Requests
`
`Routing
`
`Transferring
`
`Web Page and Page
`
`Web Server
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`IV CONCLUSION
`
`12
`
`13
`
`14
`
`18
`
`20
`
`21
`
`21
`
`29
`
`32
`
`35
`
`36
`
`40
`
`41
`
`45
`
`47
`
`Petitioner IBM – Ex. 1032, p. 2
`
`

`
`BACKGROUND
`
`Plaintiff alleges infringement of United States Patent Nos 5894554 the 554 Patent
`
`and 6415335 the 335 Patent collectively the patents-in-suit The 335 Patent
`
`is
`
`divisional of the 554 Patent and the patents-in-suit
`
`share
`
`common specification The 554
`
`Patent
`
`is titled System for Managing Dynamic Web Page Generation Requests by Intercepting
`
`Request at Web Server and Routing to Page Server Thereby Releasing Web Server to Process
`
`Other Requests
`
`The 335 Patent
`
`is titled System and Method for Managing Dynamic Web
`
`Page Generation Requests
`
`The Abstracts of both the 554 Patent and the 335 Patent state
`
`The present invention teaches method and apparatus for creating and managing
`custom Web sites Specifically one embodiment of the present invention claims
`dynamic Web page generation
`computer-implemented method for managing
`request to Web server the computer-implemented method comprising the steps
`of routing the request from the Web server to
`page server the page server
`receiving the request and releasing the Web server to process other requests
`processing the request
`the processing being performed by the page server
`concurrently with the Web server as the Web server processes the other requests
`and dynamically generating Web page in response to the request
`the Web page
`including data dynamically retrieved from one or more data sources
`
`The claims at issue for claim construction include Claims
`
`and 11 of the 554 Patent and
`
`Claims
`
`15 and 16 of the 335 Patent Claim of the 554 Patent recites
`
`dynamic Web page
`computer-implemented method for managing
`generation request to Web server said computer-implemented method
`comprising the steps of
`routing said request from said Web server to
`page server said page
`server receiving said request and releasing said Web server to process other
`requests wherein said routing step further includes the steps of intercepting said
`request at said Web server routing said request from said Web server to
`dispatcher and dispatching said request to said page server
`processing said request said processing being performed by said page
`server 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
`
`Petitioner IBM – Ex. 1032, p. 3
`
`

`
`Claim 11 of the 554 Patent recites
`
`machine readable medium having stored thereon data representing
`11
`sequences of instructions which when executed by
`computer system cause said
`computer system to perform the steps of
`dynamic Web page generation request from Web server to
`routing
`page server said page server receiving said request and releasing said Web server
`to process other requests wherein said routing step further includes the steps of
`intercepting said request at said Web server routing said request from said Web
`dispatcher and dispatching said request to said page server
`server to
`processing said request said processing being performed by said page
`server while said Web server concurrently processes said other requests and
`dynamically generating Web page said Web page including data
`retrieved from one or more data sources
`
`Claim of the 335 Patent recites
`
`dynamic Web page
`computer-implemented method for managing
`generation request to Web server said computer-implemented method
`comprising the steps of
`routing request from Web server to
`page server said page server
`receiving said request and releasing said Web server to process other requests
`wherein said routing step further includes the steps of
`intercepting said request at said Web server and routing said request to
`said page server
`processing said request said processing being performed by said page
`server 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
`
`Claim of the 335 Patent recites
`
`The computer-implemented method in claim wherein said step of routing
`said request includes the steps of
`routing said request from said Web server to
`dispatching said request to said page server
`
`dispatcher and
`
`Claim 15 of the 335 Patent recites
`
`15
`
`computer-implemented method comprising the steps of
`transferring request from an HTTP-compliant device to
`page server
`said page server receiving said request and releasing said HTTP-compliant
`device
`to process other requests wherein said transferring step further includes the steps
`
`Petitioner IBM – Ex. 1032, p. 4
`
`

`
`of
`
`intercepting said request at said HTTP-compliant device and transferring
`said request to said page server
`processing said request said processing being performed by said page
`server while said HTTP-compliant
`device concurrently processes said other
`requests and
`page in response to said request said page
`dynamically generating
`including data dynamically retrieved from one or more data sources
`
`Claim 16 of the 335 Patent recites
`
`16 The computer-implemented method in claim 15 wherein said step of
`transferring said request includes the steps of
`transferring said request from said HTTP-compliant
`
`device to
`
`dispatcher
`
`and
`
`dispatching said request to said page server
`
`The parties have submitted the following disputed terms which the Court has herein
`
`grouped and arranged in alphabetical order for convenience
`
`concurrently processes
`
`data dynamically retrieved
`
`data retrieved
`
`dispatcher
`
`dispatching
`
`dynamically generating
`
`dynamic web page generation request
`
`HTTP-compliant
`
`device
`
`intercepting 10 page server 11 releasing 12 requests and other
`
`requests 13 routing 14 transferring 15 Web page and page and 16 Web
`
`server See Dkt No 181 at Exs
`
`and
`
`At the claim construction hearing the Court provided the parties with preliminary
`
`constructions for the terms dispatching intercepting page server other requests
`
`routing and Web page See Courts Preliminary Constructions Dkt No 220 at Exhibit Of
`
`these the parties agreed to the Courts preliminary construction of other requests as discussed
`
`herein Also the Court provided the parties an opportunity to present
`
`live technical
`
`tutorial
`
`see Dkt No 207 but the parties elected to submit tutorial presentations on compact disc
`
`Petitioner IBM – Ex. 1032, p. 5
`
`

`
`II LEGAL PRINCIPLES OF CLAIM CONSTRUCTION
`
`determination of patent infringement involves two steps first
`
`the patent claims are
`
`construed and second the claims are compared to the allegedly infringing device Cybor Corp
`
`FAS Techs Inc 138 F.3d 1448 1455 Fed Cir 1998 en banc Claim construction is
`
`legal question for the courts Markinan
`
`Westview Instruments Inc 517 U.S 370 391 1996
`
`The legal principles of claim construction were reexamined by the Federal Circuit in Phillips
`
`Wil Corp 415 F.3d 1303 Fed Cir 2005 en banc The Federal Circuit in Phillips expressly
`
`reaffirmed the principles of claim construction as set forth in Markinan
`
`Westview Instruments
`
`Inc 52 F.3d 967 Fed Cir 1995 en banc affd 517 U.S 370 1996 Vitronics Corp
`
`Conceptronic
`
`Inc 90 F.3d 1576 Fed Cir 1996 and Innova/Pure Water Inc
`
`Safari Water
`
`Filtration Sys Inc 381 F.3d 1111 Fed Cir 2004
`
`The Court construes the disputed terms in accordance with the doctrines of claim
`
`construction that it has outlined here along with those it has enunciated in the past See Pioneer
`
`Corp
`
`Samsung SDI Co No 207-CV-170 Dkt No 94 at 2-8 E.D Tex Mar 10 2008
`
`III DISCUSSION
`
`Concurrently Processes
`
`This term appears in Claims
`
`and 11 of the 554 Patent Plaintiff proposes this term
`
`means processing
`
`dynamic web page generation request by said page server while said web
`
`server processes said other requests at the same time either interleaved or in parallel Dkt No
`
`181 Ex
`
`at
`
`Defendants propose this term means processing said request said processing
`
`being performed by said page server for an overlapping period of time while the Web server
`
`processes said other requests Id Ex
`
`at 11-12
`
`Petitioner IBM – Ex. 1032, p. 6
`
`

`
`The Parties Positions
`
`Plaintiff proposes that during one second multiple processes may each receive many
`
`fragments of processing time and
`
`processing would not strictly be overlapping but
`
`would occur at the same time as that phrase would be understood by
`
`person of ordinary skill
`
`in the art Dkt No 186 at 24 Plaintiff argues that this Court has previously rejected
`
`Defendants purported argument
`
`that processing of other requests occurs literally at the same
`
`time Id at 23-24
`
`Defendants acknowledge that the parties disagree whether this processing must be at
`
`the same time either interleaved or in parallel or for an overlapping period of time Dkt No
`
`191 at
`
`Defendants argue that the intrinsic record
`
`clearly calls for simultaneous processing
`
`by multiple servers and
`
`would be contrary to the stated goal of offloading requests to
`
`page servers to incorporate Plaintiffs interleaved concept
`
`Id at
`
`Similarly Defendants
`
`argue that Plaintiffs proposal should be rejected because insert the term interleaving into
`
`the construction would mean that web server could offload web page requests to
`
`page server
`
`running on the same processor
`
`Id at
`
`Plaintiff replies by citing earlier claim construction proceedings in the epicRealm2
`
`litigation in which this Court found there is not
`
`clear disavowal within the specification of the
`
`use of partitioned software architecture on
`
`single machine Dkt No 201 at
`
`citing
`
`8/15/2006 Report and Recommendation Ex Cl at 14 and 10/30/2006 Order Ex C2 Plaintiff
`
`Discussion of epicRealm refers to Civil Action Nos 507-CV-125 507-CV-126 and 507-CV-135 for
`jury trial on August 18-25 2008 Plaintiff epicRealm Licensing LP was the predecessor of
`which the Court held
`Plaintiff Parallel Networks LLC Civil Action Nos 507-CV-125 and 507-CV-126 were originally filed as Civil
`Action Nos 205-CV-163 and 205-CV-356 respectively before being transferred pursuant to the plaintiffs
`See Civil Action Nos 507-
`unopposed motions to transfer
`from the Marshall Division to the Texarkana Division
`CV-125 Dkt No 379 and Civil Action No 507-CV-126 Dkt No 354
`
`Petitioner IBM – Ex. 1032, p. 7
`
`

`
`argues that
`
`specification doesnt call for simultaneous processing by multiple machines it
`
`permits that processing to occur on
`
`single machine so long as that machine utilizes
`
`partitioned architecture that permits the offloading of processing
`
`Id at
`
`Plaintiff thus
`
`seeks adoption of the at the same time language in the Courts previous construction with
`
`clarification that this language includes both interleaved and parallel processing
`
`Id
`
`Discussion
`
`The Court previously considered concurrently processes during the epicRealm litigation
`
`as part of the phrase said processing being performed by said page server while said Web server
`
`concurrently processes said other requests which the Court construed to mean said processing
`
`being performed by said page server while said Web server processes said other requests at the
`
`same time Dkt No 186 Ex Cl at 18-20 The Court at that time rejected arguments that
`
`concurrently processes refers to processing literally at the same time because the
`
`specification uses the word concurrently with the word simultaneously and teaches that
`
`simultaneous processing can occur even where Web server and page server operations are
`
`executed on the same machine Id at 19 citing 554 Patent at 448-51 and 621-27 Moreover
`
`the patent also uses the word simultaneously with regard to prior art time-interleaved multi-
`
`threading techniques
`
`554 Patent at 448-51 Further because Web server and
`
`page server
`
`can run on
`
`single machine the term concurrently processes can include interleaved or parallel
`
`processing
`
`See Dkt No 186 Ex Cl at 12-14 see also IEEE Standard Dictionary of Electrical
`
`and Electronics Terms Sixth Edition Dkt No 186 at Ex D4 concurrent software defined
`
`as Pertaining to the occurrence of two or more activities within the same interval of time
`
`achieved either by interleaving the activities or by simultaneous execution Phillips 415 F.3d
`
`Petitioner IBM – Ex. 1032, p. 8
`
`

`
`at 1318 noting that dictionaries and especially technical dictionaries can be helpful
`
`evidence for claim interpretation
`
`The Court therefore adopts Plaintiffs proposal
`
`to construe concurrently processes to
`
`mean processing
`
`dynamic web page generation request by said page server while said
`
`Web server processes said other requests at the same time either interleaved or in
`
`parallel
`
`Data Dynamically Retrieved
`
`This term appears in Claim of the 554 Patent and Claim of the 335 Patent Plaintiff
`
`proposes this term means data retrieved in response to
`
`request Dkt No 181 Ex
`
`at
`
`and
`
`Defendants propose this term means data retrieved in response to
`
`request rather than
`
`data written to Web page prior to said request Dkt No 191 at 93
`
`The Parties Positions
`
`Plaintiff argues that
`
`Court should construe data dynamically retrieved the same
`
`way the parties agreed it should be construed in epicRealm Dkt No 186 at 27 citing Ex C6 at
`
`Defendants argue that
`
`means that the retrieval is occurring at the time it
`
`is
`
`needed rather than at
`
`predetermined or fixed time Dkt No 191 at
`
`Plaintiff replies that
`
`Defendants proposed construction would exclude an embodiment because cached pages can be
`
`retrieved Dkt No 201 at 10-11
`
`Defendants had proposed in their pre-hearing statement
`retrieved during runtime Dkt No 181 Ex
`
`at
`
`that
`
`the term data dynamically retrieved means
`
`Petitioner IBM – Ex. 1032, p. 9
`
`

`
`Discussion
`
`As to the claims Claim of the 554 Patent and Claim of the 335 Patent both recite
`
`dynamically generating Web page in response to said request said Web page including data
`
`dynamically retrieved from one or more data sources wherein said request refers for
`
`antecedent basis to
`
`dynamic Web page generation request The term data dynamically
`
`retrieved thus refers to retrieval
`
`that occurs in response to
`
`dynamic page generation request
`
`As to the specification dynamic content
`
`is introduced in the Description of Related
`
`Art
`
`The Common Gateway Interface CGI standard was developed to resolve the
`problem of allowing dynamic content to be included in Web pages CGI calls
`or procedures enable applications to generate dynamically created HTML output
`thus creating Web pages with dynamic content Once created these CGI
`applications do not have to be modified in order to retrieve new or dynamic
`data Instead when the Web page is invoked CGI calls or procedures are used
`to dynamically retrieve the necessary data and to generate Web page
`
`554 Patent at 146-56 emphasis added The specification also discloses that server 4042
`
`dynamically generates Web page in response to the Web client request and the dynamic Web
`
`page is then either transmitted back to requesting Web client 200 or stored on machine that is
`
`accessible to Web server 201 for later retrieval
`
`Id at 627-32 emphasis added The
`
`specification also uses the term dynamically in
`
`somewhat broader context
`
`all
`
`One embodiment of the claimed invention allows plug and play scalability As
`described above referring to FIG Dispatcher 402 maintains information about
`the Page servers configured to be serviced by 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 dynamically
`updated in Dispatcher 402
`
`554 Patent at 810-17 emphasis added These passages teach that the patents-in-suit use
`
`10
`
`Petitioner IBM – Ex. 1032, p. 10
`
`

`
`dynamic to refer to actions taken in response to something such as
`
`request But Defendants
`
`proposed addition of rather than data written to Web page prior to said request
`
`is potentially
`
`too limiting For example
`
`proper construction of data dynamically retrieved should not
`
`exclude situations where data is cached as disclosed in the specification
`
`embodiment of the present invention supports the caching of finished
`Web pages to optimize the performance of the data source being utilized This
`page caching feature illustrated in FIG as Page cache 414 allows the Web
`site administrator to optimize the performance of data sources by caching Web
`pages that are repeatedly accessed Once the Web page is cached subsequent
`requests or hits will utilize the cached Web page rather than re-accessing the
`data source This can radically improve the performance of the data source
`
`554 Patent at 666-78 emphasis added In such situations data that has been dynamically
`
`retrieved may be written to Web page prior to
`
`particular request seeking that data
`
`Defendants proposed construction would read out this preferred embodiment and is thus
`
`disfavored Vitronics 90 F.3d at 1584 Helmsderfer Bobrick Washroom Equip Inc 527 F.3d
`
`1379 1383 Fed Cir 2008 noting caution against
`
`interpreting
`
`claim term in way that
`
`excludes disclosed embodiments when that term has multiple ordinary meanings consistent with
`
`the intrinsic record citation omitted Oatey Co
`IPS Corp 514 F.3d 1271 1276 Fed Cir
`2008 We normally do not interpret claim terms in way that excludes embodiments disclosed
`
`in the specification citations omitted As to the word retrieved the specification uses this
`
`word to mean obtained and the Court here incorporates Plaintiffs proposal as to the term data
`
`retrieved discussed below See 554 Patent at 146-56 see also Oxford English Dictionary
`
`Second Edition 1989 retrieve
`
`..
`
`To obtain again stored information
`
`The Court therefore construes data dynamically retrieved to mean data obtained in
`
`response to
`
`dynamic page generation request
`
`11
`
`Petitioner IBM – Ex. 1032, p. 11
`
`

`
`Data Retrieved
`
`This term appears in Claim 11 of the 554 Patent Plaintiff proposes this term means
`
`data that has been obtained Dkt No 181 Ex
`
`data retrieved in response to
`
`request Id Ex
`
`at
`
`at
`
`The Parties Positions
`
`Defendants propose this term means
`
`Plaintiff submits that the context of data retrieved does not indicate whether
`
`request
`
`prompted the generation and retrieval Dkt No 186 at 28 Defendants argue that Plaintiffs
`
`construction interpose temporal element in this claim where time is no longer
`
`factor in
`
`either the use or presentation of data Dkt No 191 at
`
`Plaintiff replies that while other
`
`claims require specify
`
`dynamically generating Web page in response to said request
`
`claim 11 of the 554 merely requires dynamically generating Web page Dkt No 201 at 11
`
`Discussion
`
`Contrary to Defendants proposal neither the claims nor the specification require that
`
`data retrieved in Claim 11 of the 554 Patent must be retrieved in response to
`
`request To
`
`the contrary the absence of the word dynamically in this term suggests that data retrieved is
`
`more general term than data dynamically retrieved See e.g Helmsderfer 527
`
`.3
`
`at 1382
`
`different claim terms are presumed to have different meanings Dynamic concepts are
`
`addressed with regard to other disputed terms such as data dynamically retrieved and
`
`dynamically generating The Court otherwise construes the term data retrieved consistent
`
`with its construction of data dynamically retrieved The Court accordingly adopts Plaintiffs
`
`proposal
`
`to construe the term data retrieved to mean data that has been obtained
`
`12
`
`Petitioner IBM – Ex. 1032, p. 12
`
`

`
`Dispatcher
`
`This term appears in Claims
`
`and 11 of the 554 Patent and Claims
`
`and 16 of the 335
`
`Patent Plaintiff proposes this term means software or machine having software that
`
`performs the function of dispatching Dkt No 181 Ex
`
`at
`
`and
`
`Defendants propose this
`
`term means
`
`machine having software or software independent of the Web server that
`
`performs the function of dispatching Id Ex
`
`at
`
`The Parties Positions
`
`Plaintiff submits that
`
`parties agree that
`
`dispatcher performs the function of
`
`dispatching and that
`
`parties also agree that
`
`dispatcher or
`
`page server may take the
`
`form of just software or at least in the case of dispatcher
`
`machine having such software
`
`Dkt No 186 at
`
`Plaintiff argues that
`
`as the interceptor may be an independent
`
`module or simply an extension to Web server so may the dispatcher which receives requests
`
`from the interceptor take either form Id at 9-10 citations omitted
`
`Defendants respond that
`
`the claims require that the web server route
`
`request
`
`to the dispatcher
`
`they cannot be the same thing without rendering the language meaningless
`
`Dkt No 191 at 10 Defendants submit that
`
`both Web server and dispatcher run on the
`
`same machine the dispatcher must be independent and separate from the Web server because
`
`claims of the patents require the Web server to route requests to the dispatcher Id
`
`Defendants also argue that the interceptor and the dispatcher are not comparable elements of the
`
`claims Id
`
`Plaintiff replies that Defendants proposal would introduce superfluousness because
`
`claims already prescribe that the routing occurs from the web server to the dispatcher
`
`13
`
`Petitioner IBM – Ex. 1032, p. 13
`
`

`
`Dkt No 201 at 12
`
`Discussion
`
`The parties apparently dispute whether or not the dispatcher can be part of the Web server
`
`or part of software that includes the Web server The specification discloses that
`
`one
`
`embodiment of the invention Dispatcher 402 resides on
`
`different machine than Web server
`
`201 but Dispatcher 402 can however also reside on the same machine as the Web server
`
`554 at 58-9 and 520-21 The patents-in-suit
`
`thus teach that the dispatcher and the Web server
`
`can be on
`
`single machine Because the relevant claims recite routing said requestfrom said
`
`Web server to
`
`dispatcher emphasis added the claims contemplate that the dispatcher is
`
`distinct
`
`from the Web server This interpretation is consistent with the partitioned architecture
`
`articulated in the specification 554 Patent at 451-53 and 624-27
`
`The Court therefore construes dispatcher to mean
`
`machine having software
`
`independent of the Web server or software independent of the Web server that performs
`
`the function of dispatching
`
`Dispatching
`
`This term appears in Claims
`
`and 11 of the 554 Patent and Claims
`
`and 16 of the 335
`
`Patent Plaintiff proposes this term means examining request to make an informed selection
`
`of which page server should process the request based on dynamic information maintained about
`
`page servers the dynamic information indicating which page server can more efficiently process
`
`the request and sending the request to the selected page server Dkt No 181 Ex
`
`at
`
`and
`
`Defendants propose this term means
`
`dynamic Web page generation request to one
`
`14
`
`Petitioner IBM – Ex. 1032, p. 14
`
`

`
`selected page server out of multiple page servers Dkt No 191 at ii
`
`The Parties Positions
`
`Plaintiff submits examples from the specification of connection caching data
`
`caching and load balancing Dkt No 186 at 15-16 discussing 554 Patent at 551-59
`
`560-65 61-1 and 612-16 Plaintiff argues that the patents make clear that the dispatcher
`
`must make an informed selection based on dynamic information about
`
`the available page
`
`servers which is the very mechanism by which the invention achieved the efficiency that
`
`distinguished it from the prior art Id at 17
`
`Defendants respond that Plaintiff attempts to improperly import limitations from the
`
`specification
`
`and violates the doctrine of claim differentiation Dkt No 191 at 12
`
`Defendants identify Plaintiffs proposed language of more efficiently process the request
`
`examining request to make an informed selection and based on dynamic information as
`
`unsupported by the intrinsic evidence Id at 13-14 Defendants propose that
`
`the
`
`dispatcher comes to arrive at the selection of the page server
`
`is not
`
`limitation in the claims
`
`of the patents Id at 13 Defendants also argue claim differentiation with regard to Claim 29 of
`
`the 335 Patent and claims added or amended during reexamination which purportedly already
`
`include the additional
`
`limitations sought by Plaintiff or attempt to further narrow the
`
`dispatching step Id at 15
`
`Plaintiff replies that each embodiment describes
`
`page server examining request
`
`making an informed selection about which page server should process that request based on
`
`181 Ex
`
`Defendants had contended in their pre-hearing statement
`Defendants have evidently withdrawn that contention
`
`at
`
`that
`
`claim term is indefinite Dkt No
`
`15
`
`Petitioner IBM – Ex. 1032, p. 15
`
`

`
`dynamic information maintained about
`
`the page servers and sending the request to the page
`
`server that can more efficiently process it Dkt No 201 at 12 Plaintiff submits that the
`
`patentee chose to be his own lexicographer quoting Vitronics 90 F.3d 1576 and that
`
`Defendants proposed construction contradicts the consistent usage of dispatching in the
`
`specification Id at 12-13
`
`Discussion
`
`The term dispatching appears nowhere in the specification although the words
`
`dispatches and dispatched do appear in addition to Dispatcher 402 See 554 Patent at
`
`538-40 and 551-53 The Vitronics decision relied upon by Plaintiff
`
`states that
`
`patentee may
`
`choose to be his own lexicographer
`
`as long as the special definition of the term is clearly
`
`stated in the patent specfication or file history 90 F.3d at 1582 The specification provides no
`
`such clear statement and Plaintiff
`
`identifies no relevant
`
`file history so the Court declines to find
`
`that the patentee acted as lexicographer as to the meaning of dispatching Instead the
`
`specification describes operations of the Dispatcher 402 such as that Dispatcher 402 receives
`
`the intercepted request and then dispatches
`the request to one of number of Page servers 404
`1-n 554 Patent at 538-40 The specification also articulates purported advantages in the
`
`areas of performance security extensibility and scalability and describes connection caching
`
`page caching and load balancing Id at 649-825
`
`First the specification does not necessarily require that the dispatcher examin
`
`request before sending it
`
`to one of multiple page servers
`
`Instead load balancing for example
`
`can be effected by considering the load on various page servers Id at 821-25 see also id at
`
`612-19 The Court therefore rejects Plaintiffs proposed examining language
`
`16
`
`Petitioner IBM – Ex. 1032, p. 16
`
`

`
`Second the specification does not specify sending requests in accordance with which
`
`page server can more efficiently process the request as Plaintiff proposes As Defendants
`
`properly note the specification discloses an objective of improving efficiency of Web servers not
`
`page servers stating Current Web server architecture also does not allow the Web server to
`
`efficiently manage the Web page and process Web client requests and The claimed invention
`
`addresses this need by utilizing
`
`partitioned architecture
`
`Id at 24-7 and 451-53 The
`
`Court accordingly rejects Plaintiffs proposal
`
`in this regard
`
`Third regarding Plaintiffs proposal of including dynamic information maintained about
`
`page servers Defendants properly note that
`
`dispatcher can achieve
`
`purpose
`
`making the Web server more efficient by off-loading dynamic Web page requests by selecting
`
`any of the page servers and sending the request to that page server for processing Dkt No 191
`
`at 19 Defendants argument has merit because
`
`claimed invention is rooted in the
`
`partitioned architecture
`
`554 Patent at 451-53 Nonetheless the specification consistently
`
`discloses that Dispatcher 402 maintains
`
`variety of information regarding each Page server on
`
`the network and dispatches
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`requests based on this information and dispatching should be
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`construed in light of this consistent disclosure Id at 551-53 see Nystrom
`
`TREXCo Inc
`
`424 F.3d 1136 1143-46 Fed Cir 2005 affirming construction of board that included only
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`material made from wood cut from log in light of context
`
`maintained throughout
`
`the
`
`written description At minimum person of ordinary skill
`
`in the art would understand that
`
`the dispatcher must have information about
`
`the page servers existence and identities in order to
`
`dispatch the request to one of number of Page servers
`
`554 Patent at 538-40 Further
`
`example Dispatcher 402 retains dynamic information regarding the data sources that any
`
`17
`
`Petitioner IBM – Ex. 1032, p. 17
`
`

`
`given Page server can access Id at 554-56 But overall
`
`the specification does not necessarily
`
`limit such information to either static or dynamic information however so
`
`proper construction
`
`should include both types
`
`Finally nothing in the claims or the specification requires multiple page servers to
`
`which
`
`request can be dispatched as Defendants propose
`
`Instead the Scalability portion of
`
`the specification for example teaches that
`
`number of Page servers can
`
`be plugged
`
`into the configuration illustrated in FIG and the Page servers will be instantly activated as the
`
`information is dynamically updated in Dispatcher 402 554 Patent at 813-17 This use of any
`
`number of Page servers indicates that there may be only one page server in some embodiments
`
`Id Such embodiments would be consistent with enjoy the advantage of off-loading the
`
`processing of Web requests from the Web server machine Id at 527-28
`
`The Court therefore construes dispatching to mean sending the request
`
`to
`
`selected
`
`page server based on information static or dynamic maintained about page servers
`
`Dynamically Generating
`
`This term appears in Claims
`
`and 11 of the 554 Patent and Claims
`
`and 15 of the 335
`
`Patent Plaintiff proposes this term means creating in response to
`
`request Dkt No 181 Ex
`
`at
`
`and
`
`Defendants propose this term means creating in response to
`
`request rather than
`
`retrieving
`
`static or pre-existing Web page Dkt No 191 at 16
`
`The Parties Positions
`
`Plaintiff proposes construing this term in accordance with its plain meaning Dkt No
`
`Defendants had proposed in their pre-hearing statement
`during runtime Dkt No 181 Ex
`
`at
`
`that
`
`the term dynamically generating means
`
`18
`
`Petitioner IBM – Ex. 1032, p. 18
`
`

`
`186 at 29 Plaintiff argues that Defendants proposal adds
`
`temporal
`
`limitation that would
`
`appear
`
`to exclude forms of caching contemplated by and described in the specification Id
`
`Defendants respond that its proposed construction further clarifies that
`
`dynamic Web page is
`
`not
`
`static or pre-existing page e.g website homepage Dkt No 191 at 17 Instead
`
`Defendants argue
`
`each of the asserted claims the term dynamically generating appears in
`
`the context of generating Web page that includes data dynamically retrieved or data
`
`retrieved from one or more data sources as opposed to retrieving
`
`static Web page or pre
`
`existing Web page Id Plaintiff replies that
`
`specification clearly describes
`
`page
`
`caching embodiment and that excluding pre-existing pages would exclude an embodiment
`
`described in the specification Dkt No 201 at 10 citing Oatey 514 F.3d at 1276
`
`Discussion
`
`Here as with the term data dynamically retrieved discussed above
`
`proper
`
`construction of dynamically generating should not exclude situations where data is cached as
`
`disclosed in the specification 554 Patent at 666-78 For example re-accessing the data
`
`source can be avoided by caching Web pages that are repeatedly accessed Id at 74-7 Also
`
`Page server receives the request and produces an HTML document in processing block
`
`514 The Page server then responds to the dispatcher with notificati