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-CV-562 DF
`
`________________________________________
`
`________________________________________
`
`PARALLEL NETWORKS LLC
`
`Plaintiff
`
`PRICELINE.COM INC et al
`
`Defendants
`
`CIVIL ACTION NO 208-CV-45 DF
`
`ORDER
`
`Before the Court is Plaintiffs Motion for Clarification of Markinan Order Dkt No
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`232.1 Also before the Court are Defendants response Plaintiffs reply and Defendants sur
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`reply Dkt Nos 241 243 and 245 respectively Having considered the briefing and all relevant
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`papers and pleadings the Court finds that Plaintiffs motion should be DENIED but that the
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`Courts construction of the term dispatching should be CLARIFIED as set forth herein
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`All references to docket entries are as docketed in Civil Action No 207-CV-562 unless otherwise
`indicated This order should be read to also address Civil Action No 208-CV-45 Dkt No 209
`
`Petitioner IBM – Ex. 1033, p. 1
`
`

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`BACKGROUND
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`Plaintiff alleges infringement of United States Patents No 5894554 the 554 Patent
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`and 6415335 the 335 Patent collectively the patents-in-suit The 335 Patent
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`is
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`divisional of the 554 Patent and the patents-in-suit
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`share
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`common specification The 554
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`Patent
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`is titled System for Managing Dynamic Web Page Generation Requests by Intercepting
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`Request at Web Server and Routing to Page Server Thereby Releasing Web Server to Process
`
`Other Requests
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`The 335 Patent
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`is titled System and Method for Managing Dynamic Web
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`Page Generation Requests
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`The Court entered
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`Claim Construction Order on August 24 2009
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`construing dispatching to mean sending the request to
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`selected page server based on
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`information static or dynamic maintained about page servers Dkt No 221 at 18 The parties
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`dispute the meaning of this construction as discussed below Claim of the 554 Patent
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`recites
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`emphasis added
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`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
`
`Claim 11 of the 554 Patent
`
`recites emphasis added
`
`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
`
`Petitioner IBM – Ex. 1033, p. 2
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`

`
`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 emphasis added
`
`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
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`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
`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
`
`Petitioner IBM – Ex. 1033, p. 3
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`

`
`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
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`recites emphasis added
`
`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
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`device to
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`dispatcher
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`and
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`dispatching said request to said page server
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`II THE PARTIES POSITIONS
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`Plaintiff argues that Defendants misread the Courts claim construction because
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`Defendants see it
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`this Courts construction means that the dispatcher of the patents could base its
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`dispatching decision solely on static information thus invalidating the patents in light of their
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`view of the prior art Dkt No 232 at
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`Plaintiff argues that use of the word maintains
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`indicates that the dispatcher must be capable of using dynamic information because dynamic
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`information is maintained whereas static information is merely stored Id at 4-6 Plaintiff
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`submits that any construction of
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`that would limit
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`the dispatcher to operating based
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`solely on one type of information or the other
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`or dynamic would be improper Id at
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`Plaintiff argues that this Courts explanation of the types of information utilized in dispatching
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`can only mean one thing
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`potential dispatcher
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`cannot select
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`page server based upon
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`either dynamic information or static information as the case may be then it
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`is no dispatcher at
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`all
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`Id at 10 Plaintiff requests no further construction but request that the Court make clear
`
`that
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`dispatcher must have the capability of dispatching based on either static or dynamic
`
`information Id at 11
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`Defendants respond that the Courts order and its underlying reasoning are clear
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`Petitioner IBM – Ex. 1033, p. 4
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`

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`dispatching must be based on some information whether static or dynamic and does not require
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`any capability of dispatching based on dynamic information Dkt No 241 at
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`Defendants
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`emphasize that the purported invention is the offloading of requests from web servers to page
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`servers which can be accomplished by forwarding the request to any page server Id at
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`Defendants also submit that the Court properly found that the purported invention does not even
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`require the use of multiple page servers and
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`there are not multiple servers to which
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`request could be dispatched there is no need for dynamic information concerning that server or
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`the load on the server Id at
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`Defendants conclude that Plaintiffs motion for clarification is
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`really motion for reconsideration because Plaintiff cannot
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`reasonably believe that the Court
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`intended to require that
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`dispatcher be capable of using dynamic information in the selection
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`process Id at
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`Defendants also argue claim differentiation with respect to Claim 29 of the
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`335 Patent as they did in their original claim construction briefing Id at
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`Claim 29 recites
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`dispatching
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`based on said dynamic information Id
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`Plaintiff replies that it
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`is not seeking reconsideration but rather seeks simply to put to
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`rest Defendants unsupported arguments about
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`the Courts construction of dispatching Dkt
`
`No 243 at
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`Plaintiffs reply essentially reiterates its opening arguments as to Defendants
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`response See Dkt No 243 Plaintiff again emphasizes the patents use of maintains Id at
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`2-4 In response to Defendants claim differentiation argument Plaintiff points out that Claim 29
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`is an independent claim Id at
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`In sur-reply Defendants emphasize Plaintiffs statement in its reply that
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`single
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`page server scenario Defendants envision is one of the very situations in which
`
`dispatcher
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`capable of utilizing static or dynamic information would select
`
`the page server based only on
`
`Petitioner IBM – Ex. 1033, p. 5
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`

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`static information Dkt No 245 at Dkt No 243 at
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`Defendants urge that the capability to
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`add more page servers and use dynamic information might be disclosed in the specification
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`is not claimed Dkt No 245 at
`
`it
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`Defendants summarize that if the claims cover
`
`the
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`use of
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`single page server it makes no sense to require the step of dispatching to require the
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`ability to use dynamic information Id
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`III DISCUSSION
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`The Court construed dispatching to mean sending the request to
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`selected page server
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`based on information static or dynamic maintained about page servers Dkt No 221 at 18
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`emphasis added The phrase static or dynamic is disjunctive meaning that sending the
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`request to
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`selected page server could be based on static information based on dynamic
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`information or based on both static and dynamic information Any of these options could meet
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`the dispatching limitation For example if dispatching is based on static information only
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`the dispatcher need not also be capable of using dynamic information for the dispatching
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`limitation to be met The Court therefore REJECTS Plaintiffs proposal
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`that the Court make
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`clear that
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`dispatcher must have the capability of dispatching based on either static or dynamic
`
`information Dkt No 232 at 11
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`Plaintiffs arguments about
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`the use of maintain in the specification does not affect this
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`result First the Court has already concluded that dispatching should not be limited to sending
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`based on dynamic information alone See Dkt No 221 at 17-18 Second Plaintiff has not
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`shown that the patentee used
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`special definition of the words maintain or maintaining to
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`refer only to dynamic information See Phillips
`
`AWH Corp 415 F.3d 1303 1316 Fed Cir
`
`2005
`
`Petitioner IBM – Ex. 1033, p. 6
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`

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`Finally Plaintiffs reliance on embodiments with multiple page servers also fails The
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`Court has already concluded that nothing in the claims or the specification requires multiple
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`page servers to which
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`request can be dispatched and there may be only one page server in
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`some embodiments Id at 18 internal quotation marks omitted Plaintiff has not shown that
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`this or any other finding of the Court in its Claim Construction Order should be disturbed Thus
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`embodiments in the written description with multiple page servers should generally not be read
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`to limit the scope of the claims
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`Plaintiffs motion for clarification should be DENIED because the Court rejects the
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`clarification proposed by Plaintiff
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`The Court should nonetheless CLARIFY its claim
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`construction to formally resolve the parties dispute by expressly REJECTING Plaintiffs
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`argument
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`that the claimed dispatcher must be capable of dispatching based on either static or
`
`dynamic information
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`IV CONCLUSION
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`Plaintiffs Motion for Clarification of Markinan Order Civil Action No 207-cv-562
`
`Dkt No 232 Civil Action No 208-cv-45 Dkt No 209 is hereby DENIED
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`The Court hereby CLARIFIES its claim construction to expressly REJECT Plaintiffs
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`argument
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`that the claimed dispatcher must be capable of dispatching based on either static or
`
`dynamic information
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`IT IS SO ORDERED
`SIGNED this 10th day of May 2010
`
`DAVID FOLSOM
`UNITED STATES DISTRICT JUDGE
`
`Petitioner IBM – Ex. 1033, p. 7