Case3:14-cv-01197-WHO Document73 Filed03/02/15 Page1 of 17
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 14-cv-01197-WHO
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`CLAIM CONSTRUCTION ORDER
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`Re: Dkt. No. 58
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`SOPHOS, INC.,
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`Defendant.
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`INTRODUCTION
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`Plaintiff Finjan, Inc. alleges that defendant Sophos, Inc. has infringed eight of its patents
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`relating to antivirus software. The parties have requested that I construe five claim terms or
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`elements in four of the patents at issue: the 8,677,494 patent, the 7,613,926 patent, the 7,613,918
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`patent, and the 6,154,844 patent. Based on the parties’ briefs and oral argument of counsel, I
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`construe the disputed terms as set forth below.
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`LEGAL STANDARD
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`Claim construction is required only when there is a disagreement as to the meaning or
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`scope of technical terms and words of art, which the court must resolve in order to determine the
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`issues before it. Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1360 (Fed. Cir. 2004). When
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`the parties raise a dispute regarding the proper scope of patent claims, the court and not the jury
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`must resolve that dispute. Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir.
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`1995) (en banc), aff’d 517 U.S. 370 (1996) (holding that claim construction is a matter of law).
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`Terms of a claim are generally given their ordinary and customary meaning. O2 Micro
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`Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008). “In some cases,
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`the ordinary meaning of claim language . . . may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted meaning
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`of commonly understood words.” Id. at 1360. Words that are not technical terms of art may not
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`need construction at all. Brown v. 3M, 265 F.3d 1349, 1352 (Fed. Cir. 2001). “In such
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`circumstances, general purpose dictionaries may be helpful.” Phillips v. AWH Corp., 415 F.3d
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`1303, 1314 (Fed. Cir. 2005).
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`The “ordinary and customary meaning” is “the meaning a term would have to a person of
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`ordinary skill in the art after reviewing the intrinsic record at the time of the invention.” O2
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`Micro, 521 F.3d at 1360. This includes “not only in the context of the particular claim in which
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`the disputed term appears, but in the context of the entire patent, including the specification.”
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`Phillips, 415 F.3d at 1313. Intrinsic evidence “is the most significant source of the legally
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`operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d
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`1576, 1582 (Fed. Cir. 1996).
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` “However, in many cases, the meaning of a claim term as understood by persons of skill
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`in the art is not readily apparent.” O2 Micro, 521 F.3d at 1360. Courts look to “sources available
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`to the public that show what a person of skill in the art would have understood disputed claim
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`language to mean.” Phillips, 415 F.3d at 1314 (internal citations and quotations omitted). In
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`addition to the particular claim and the rest of the patent, these sources include “the prosecution
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`history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical
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`terms, and the state of the art.” Id. However, extrinsic evidence should be considered only after
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`consideration of intrinsic evidence, as it is less reliable and persuasive than intrinsic evidence.
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`Vitrionics, 90 F.3d at 1582-84. In addition, “[c]ases about patent validity are authoritative on the
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`issue of claim construction.” Markman, 52 F.3d at 996 n.7.
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`Courts depart from the “ordinary and customary meaning” of a term in two circumstances.
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`Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). First, the
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`court will disregard the ordinary and customary meaning of a term where “a patentee sets out a
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`definition and acts as his own lexicographer.” Id. Second, the court will alter its interpretation of
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`a term “when the patentee disavows the full scope of a claim term either in the specification or
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`during prosecution.” Id. Embodiments from the specification generally should not be imported
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`into the claims in order to limit the claims. Toshiba Corp. v. Imation Corp., 681 F.3d 1358, 1369
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`Case3:14-cv-01197-WHO Document73 Filed03/02/15 Page3 of 17
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`(Fed. Cir. 2012).
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`DISCUSSION
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`In addition to the claims discussed, the parties also initially disputed the construction of the
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`terms “security context” in the ’918 patent, “certificate creator” in the ’580 patent, and “protocol
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`appender” in the ’580 patent. The parties now agree that “certificate creator” and “protocol
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`appender” do not require construction, see Dkt. No. 60 at 17, and that “security context” should be
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`construed as “an environment in which a software application is run, which may limit resources
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`that the application is permitted to access or operations that the application is permitted to
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`perform.” See id. at 14; Dkt. No. 62 at 14. I discuss the remaining terms at issue in turn.
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`I. CONSTRUCTION OF TERMS IN THE ’926 AND ’494 PATENTS
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`The ’494 and the ’926 patents are largely identical, as ’494 is a continuation of ’926. See
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`’494 patent at 1:7-15 (Dkt. No. 58-9). The ’494 patent provides for “malicious mobile code
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`runtime monitoring system and methods” and the ’926 patent protects a “method and system for
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`protecting a computer and a network from hostile Downloadables.” Id. at 1; ’926 patent 1 (Dkt.
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`No. 58-5). Both patents provide “[p]rotection systems and methods [] for protecting one or more
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`personal computers (“PCs”) and/or other intermittently or persistently network accessible devices
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`or processes from undesirable or otherwise malicious operations . . .” ’494 patent at 1; ’926 patent
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`1.
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`A. “Database” (’926 patent, claim 22;’494 patent, claims 1, 10)
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`Finjan’s proposed
`construction
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`Sophos’s proposed
`construction
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`A collection of interrelated
`data organized according to a
`database schema to serve one
`or more applications
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`No construction necessary
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`Court’s construction
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`A collection of interrelated
`data organized according to a
`database schema to serve one
`or more applications
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`Finjan contends that its proposed construction is in line with the plain and ordinary
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`meaning of the term “database.” It takes its language from the IBM Dictionary of Computing,
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`which defines “database” in identical terms as “[a] collection of interrelated data organized
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`according to a database schema to serve one or more applications.” See Dkt. No. 58 at 10.
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`Sophos contends that no construction of the term “database” is necessary. Dkt. No. 60 at
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`2. It asserts that the ’926 and ’494 patents did not define the term or give it any special meaning.
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`Id. As an alternative construction, Sophos also cites to the definition of “database” in the IEEE
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`Standard Dictionary of Electrical and Electronic Terms as the plain and ordinary meaning of the
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`term: “a collection of logically related data stored together in one or more computerized files.” Id.
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`at 3; Tr. 5 (Dkt. No. 72).
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`The parties do not appear to seriously dispute the definition of the term “database.”
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`Although Finjan’s definition of the term is slightly broader than that of Sophos, requiring that the
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`information in a database “serve one or more applications,” both parties agree upon the basic
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`definition. Compare Dkt. No. 58 at 10 (Finjan’s definition of “database” as taken from the IBM
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`Dictionary of Computing), with Dkt. No. 60 at 3 (Sophos’s contention that “database” connotes a
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`“structured way to store data in a computer” (emphasis added)). During oral argument, counsel
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`for Sophos indicated that it accepted the definition “a collection of interrelated data structures,”
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`which was “almost identical” to Sophos’s proposed alternative construction. Tr. 15. Sophos also
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`proposed an alternative construction, taken from the IEEE Standard Dictionary of Electrical and
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`Electronic Terms, of “a collection of logically related data stored together in one or more
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`computerized files.” Dkt. No. 60 at 3.
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`Ultimately, the parties’ disagreement centers on whether “database” includes “simple files,
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`such as a log file.” Dkt No. 58 at 10. While Sophos contends that a log file is included within the
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`definition of database, Finjan claims that it is not. According to Finjan, a log file is unstructured
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`collection of data on a computer. Id. at 11. Sophos argues that a log file, such as the “events log”
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`described in the patent, is a collection of logically related data stored together and thus a database.
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`Dkt. No. 60 at 3.
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`The term “database” should be construed because the parties dispute the categorization of
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`“log file” as a “database,” and because the term is sufficiently technical in the context of this
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`patent that a construction would aid the jury. Moreover, although at least one court has declined
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`to construe the term “database,” see MOAEC, Inc. v. Pandora Media, Inc., No. 07-CV-654-BBC,
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`2008 WL 4500704, at *6 (W.D. Wis. Sept. 30, 2008) (“I conclude that the term “database” . . .
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`does not need construction because its plain and ordinary meaning is easily discernible from the
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`claim language”), many courts have chosen to construe the term. See, e.g., Select Retrieval LLC v.
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`Amerimark Direct LLC, No. 1:11-CV-00812-RGA, 2014 WL 1092387, at *1 (D. Del. Mar. 14,
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`2014) (rejecting argument that “database” need not be construed); see also Transcenic, Inc. v.
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`Google Inc., 7 F. Supp. 3d 405, 411 (D. Del. 2013); Clear With Computers, LLC v. Hyundai
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`Motor Am., Inc., No. 6:09 CV 479, 2011 WL 43454, at *6 (E.D. Tex. Jan. 5, 2011); Timeline, Inc.
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`v. Proclarity Corp., No. C05-1013JLR, 2006 WL 6143242, at *11 (W.D. Wash. June 29, 2006);
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`Soverain Software LLC v. Amazon.com, Inc., No. 6:04-CV-14, 2005 WL 6225276, at *10 (E.D.
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`Tex. Apr. 7, 2005).
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`The specifications of the ’494 and ’926 patents are identical. Neither patent defines the
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`term “database,” and there is no evidence that Finjan “disavow[ed] the full scope of a claim term
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`either in the specification or during prosecution.” Thorner, 669 F.3d at 1365. Thus, the plain and
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`ordinary meaning to a person skilled in the art should prevail.
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`The claims at issue refer to a “database” of “Downloadable security profiles indexed
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`according to Downloadable IDs.” ’926 patent at 22:26-28. A database manager uses the database
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`to retrieve security profile data for an incoming Downloadable. Id. at 22:25-28. This language
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`supports Finjan’s definition of the term “database.” The database indexes information according
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`to a database schema (Downloadable IDs) and serves an application (a database manager) in the
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`antivirus process.
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`The specification mentions a “database” twice. First, it refers to a “protected destination
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`set, such as a protected destinations list, array, database, etc.” where received information is sent.
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`Id. at 9:54-55 (emphasis added).1 Second, it mentions “[a]ny suitable explicit or referencing list,
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`database or other storage structure(s) or storage structure configuration(s)” that “can [] be utilized
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`1 Although Sophos asserts that the ’926 specification compares a database to a “list or array,”
`indicating that it should be understood broadly enough to encompass simple files such as a log
`file, see Dkt. No. 60 at 3, I find this argument unpersuasive. The fact that a database is listed
`along with more simple files does not mean that the database includes or is equated with these
`types of files. In fact, one could argue that this list serves to further differentiate a database from
`simpler files. Because this argument goes either way, the first reference to “database” in the ’926
`patent does not provide significant guidance.
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`to implement a suitable user/device based protection scheme . . . or other desired protection
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`schema.” Id. at 16:51-55 (emphasis added). These references indicate that a database is used as
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`an information source that serves protection engines when they inspect Downloadables.
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`The ’780 patent, of which the ’494 and ’926 patents are continuations, reflects the same
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`understanding of database in its reference to a “security database.” It states that: “[t]he security
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`program 255 operates in conjunction with the security database [], which includes security
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`policies [], known Downloadables [], known Certificates []and Downloadable Security Profile
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`(DSP) data []corresponding to the known Downloadables.” ’780 patent at 4:23-27 (Dkt. No. 58-
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`3) (emphasis added). Essentially, the security database stores “security information for
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`determining whether a received Downloadable is to be deemed suspicious.” Id. at 3:57-59. The
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`‘780 patent also refers to an “event log,” stating that it “includes determination results for each
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`Downloadable examined and runtime indications of the internal network security system.” Id. at
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`3:62-64. Later on, the patent refers several times to the event log as storing status reports for
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`subsequent review. Id. at 4:22-9:27.
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`The patent’s language and context supports Finjan’s definition of a database. The
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`specifications illustrate that a “database” serves applications, a characteristic that is not included in
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`Sophos’s definition. The fact that a database assists applications also undermines Sophos’s
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`argument that a log file is a database, because a log file is more properly understood as a passive
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`record, instead of a storage device that interacts with an application. The ’780 patent also
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`differentiates between log files and “databases” by referring to them separately.
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`In addition, Finjan’s expert, Nenad Medvidovic, states that a person of ordinary skill in the
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`art would understand “database” to mean “a collection of interrelated data organized according to
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`a database schema to serve one or more applications.” Dkt. No. 58-12 at 13. Medvidovic further
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`states that “[a] person would understand a simple log file is not a database because it is not
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`structured like a database . . . A database, on the other hand, is a structured software component
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`that allows user and other software components to store and retrieve data in an efficient manner.”
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`Id. Sophos does not present a competing expert opinion. Medvidovic’s definition appears
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`reasonable when compared to the language of the patent and the definitions from computing
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`dictionaries such as the IBM Dictionary of Computing and the IEEE Standard Dictionary of
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`Electrical and Electronics Terms.
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`The practical import of adopting the IEEE definition or the IBM definition cited by the
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`parties is largely the same, as both definitions appear to exclude “log files.” The IBM definition
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`requires that a database have a given structure or that it serve one or more applications. The IEEE
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`definition requires that the data be “logically related” or accessible by users or programs via a
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`database management system. By contrast, a log file records information independently of any
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`logic. Similarly, a log file is not used by applications in performing functions, but is reviewed by
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`a user or other program. As suggested by the language of the patents, the term “database” is not
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`broad enough to include a log file.
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`I am persuaded by Finjan’s assertion that “[t]he claim language of the asserted patents all
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`relate to the storage of data within the database in the context of the security profile or the
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`downloadable security profile. The system actively uses these security profiles to detect malware
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`and manage the system, not just for archival storage.” Dkt. No. 58 at 11 (citations omitted).
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`Therefore, I find that a log file does not qualify as a database in the context of this patent. Because
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`Finjan’s definition appears to reflect both the context of the patent as well as a well-accepted
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`definition of the term, I adopt Finjan’s construction of “database.”
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`II. CONSTRUCTION OF TERMS IN THE ’918 PATENT
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`The ’918 patent describes a “system and method for enforcing a security context on a
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`Downloadable.” ’918 patent at 1 (Dkt. No. 58-4). It provides a method for computer security,
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`including receiving a Downloadable, deriving a security profile for it, and processing it in
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`accordance with a security context. Id.
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`A. “CODE-C” (’918 patent, claims 12, 22)
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`Finjan’s proposed
`construction
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`Sophos’s proposed
`construction
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`Court’s construction
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`Combined code
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`Combined code created at the
`gateway computer
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`Combined code
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`As Finjan points out, “CODE-C is a term coined by Finjan for the ’918 Patent and has no
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`readily understood meaning outside the context of the ’918 Patent and claims.” Dkt. No. 58 at 8.
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`Sophos seeks to limit the term as imposing a requirement that CODE-C be created at the gateway
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`computer. Alternatively, Sophos states that it could “accept a construction with appropriately
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`limiting language that is in accord with the intrinsic record, i.e., ‘CODE-C means combined code
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`not created by the client computer.’” Dkt. No. 60 at 14. In support of its position, it argues that:
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`(i) the purpose of the technology depends upon preventing viruses from entering a computer
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`network to begin with, and that the process cannot take place on a client computer; (ii) the patent
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`does not require that security software be installed on a client computer; and (iii) “every disclosed
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`embodiment requires CODE-C . . . be created at a gateway computer,” thus expressing an
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`intention to limit the claim scope. Id. at 11-13.
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`Sophos’s first argument regarding the purpose of the technology misstates the language of
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`the patent. In describing the creation of CODE-C, the patent abstract does not mention a gateway
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`computer. ’918 patent at 1. Although it anticipates a computer network as opposed to a single
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`computer, it does not strictly require that the patent be executed on a network of multiple
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`computers.
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`Second, Sophos refers to the statement in the patent that “[t]he present invention has
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`several advantages, including . . . [that] [t]he present invention does not require installation of
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`security software on a client computer.” Id. at 11:12-19. But this language does not exclude the
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`possibility of installation on a client computer, and the fact that a patent may have a certain
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`advantage in one area does not require the Court to limit its application to that area.
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`Sophos’s third argument, that the patent’s description expresses an intent to limit the scope
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`of “CODE-C” to gateway and/or non-client computers, relies upon the principle “[c]laims must be
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`read in view of the specification, of which they are a part.” SciMed Life Sys., Inc. v. Advanced
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`Cardiovascular Sys., Inc., 242 F.3d 1337, 1340 (Fed. Cir. 2001) (internal citations and quotations
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`omitted). In this case, the embodiments of the patent involve CODE-C being created at a
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`computer separate from the destination or client computer – at a “gateway computer.” By this
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`logic, the specification may limit the scope of the term “CODE-C.”
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`At the same time, there is a competing construction principle that provides that “it is
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`axiomatic that without more the court will not limit claim terms to a preferred embodiment
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`described in the specification.” SanDisk Corp. v. Memorex Products, Inc., 415 F.3d 1278, 1286
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`(Fed. Cir. 2005). When examining the embodiments in the patent specification, it becomes clear
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`that this case is more akin to cases where courts have declined to limit a patent claim to its
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`embodiment than to the cases cited by Sophos, which find that patent descriptions and
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`embodiments may limit a claim. In Sophos’s cases, the specification did not leave room for other
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`embodiments of the invention or otherwise disavowed a broader construction of the term at issue.
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`For example, in Toro Co. v. White Consolidated Industries, Inc., the court stated that “[t]he claim
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`word . . . is not construed in a lexicographic vacuum, but in the context of the specification and
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`drawings.” 199 F.3d 1295, 1301 (Fed. Cir. 1999). It noted that the specification at issue did “not
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`describe an invention broader than this description [of the claim term]. . . Nowhere in the
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`specification, including its twenty-one drawings, is the [broader definition of the term adopted].”
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`Id.; see also Wang Labs., Inc. v. Am. Online, Inc., 197 F.3d 1377, 1383 (Fed. Cir. 1999).
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`In this case, the patent repeatedly refers to a “preferred embodiment” and states that:
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`[T]he invention has been described with reference to specific
`exemplary embodiments thereof . . . various modifications and
`changes may be made to the specific exemplary embodiments
`without departing from the broader spirit and scope of the invention
`as set forth in the appended claims. Accordingly, the specification
`and drawings are to be regarded in an illustrative rather than a
`restrictive sense.
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`’918 patent at 11:39-46. The patent description does not contemplate only computer networks
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`with a gateway computer. There is also no compelling indication that the patent description
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`disavows the construction of the term “CODE-C” as it is defined in the claim. For these reasons, I
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`disagree with Sophos’s argument that the patent exhibits a “clear intention to limit the claim
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`scope.” Dkt. No. 60 at 13.
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`In addition, the patentee may act as his own lexicographer. See Thorner, 669 F.3d at 1365.
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`Claim 12 and the patent specification explicitly define CODE-C as “combined code.” Claim 22
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`describes CODE-C as executable code consisting of “(i) wrapper executable code (“CODE-B”),
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`(ii) potentially malicious executable code (“CODE-A”), and (iii) information about a computer
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`account for CODE-A . . . .” ’918 patent at 13:42-45. These definitions do not require that CODE-
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`C be created at a gateway computer.
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`The language of the claims undermines Sophos’s limitation of the term “CODE-C.” Claim
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`22 states that CODE-C is “download[ed], by a computer . . .” Id. at 13:41. Although the patent
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`drafter could have specified that this computer was a gateway computer or a non-client computer,
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`as it did in Claim 12, it did not. See id. at 12:32 (referring to “[a] computer security system for a
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`gateway computer.”).2
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`For these reasons, the patent language supports Finjan’s and not Sophos’s construction of
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`the term “CODE-C.” Nothing about the definition or discussion of CODE-C itself indicates that
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`CODE-C cannot be created on the client computer. I adopt Finjan’s construction in accordance
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`with both the specification and the patent’s own definition of the term.
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`III. MEANS-PLUS-FUNCTION TERMS IN THE ’844 PATENT
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`If a claim uses the word “means,” courts apply a presumption that a means-function
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`analysis under section 112 ¶ 6, now 112(f), applies. Cross Med. Products, Inc. v. Medtronic
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`Sofamor Danek, Inc., 424 F.3d 1293, 1303 (Fed. Cir. 2005). In this case, neither party disputes
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`that section 112(f) applies. See Dkt. No. 58 at 12-13; Dkt. No. 60 at 9. 35 U.S.C. § 112(f) states
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`that: “[a]n element in a claim for a combination may be expressed as a means or step for
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`performing a specified function without the recital of structure, material, or acts in support thereof,
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`and such claim shall be construed to cover the corresponding structure, material, or acts described
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`in the specification and equivalents thereof.” 35 U.S.C.A. § 112(f).
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`Claim construction of a means-plus-function limitation includes two steps. “First, the
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`court must determine the claimed function.” Applied Med. Res. Corp. v. U.S. Surgical Corp., 448
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`F.3d 1324, 1332 (Fed. Cir. 2006) (internal citations and quotations omitted). “The second step in
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`the analysis is to look to the specification and identify the corresponding structure for that
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`function. Under this second step, structure disclosed in the specification is ‘corresponding’
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`structure only if the specification or prosecution history clearly links or associates that structure to
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`2 During oral argument, Sophos argued for the first time that the patent’s prosecution history
`evinced an intent to limit CODE-C’s creation to a non-client computer. Tr. 7-9. But the cited
`language discusses a part of the claim that is distinct from the term CODE-C, and Sophos’s last-
`minute argument does not alter my construction.
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`the function recited in the claim.” Med. Instrumentation & Diagnostics Corp. v. Elekta AB, 344
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`F.3d 1205, 1210 (Fed. Cir. 2003) (internal citations and quotations omitted). “The duty of a
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`patentee to clearly link or associate structure with the claimed function is the quid pro quo for
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`allowing the patentee to express the claim in terms of function under section 112, paragraph 6.”
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`Id. at 1211.
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`Section 112(f) “was intended to permit the use of means expressions in patent claims”
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`without requiring the patentee to recite all possible structures that could be used as means in the
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`claimed apparatus.” O.I. Corp. v. Tekmar Co., 115 F.3d 1576, 1583 (Fed. Cir. 1997). However,
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`“[t]he price that must be paid for use of that convenience is limitation of the claim to the means
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`specified in the written description and equivalents thereof.” Id. If the specification does not
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`sufficiently identify the structure that corresponds to the function, then the claim fails for
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`indefiniteness. Med. Instrumentation & Diagnostics Corp., 344 F.3d at 1211. “The requirement
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`that the claims particularly point[] out and distinctly claim[] the invention is met when a person
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`experienced in the field of the invention would understand the scope of the subject matter that is
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`patented when the claim is read in conjunction with the rest of the specification.” Id. (internal
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`citations and quotations omitted).
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`The Federal Circuit has further stated that “[i]n cases involving a computer-implemented
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`invention in which the inventor has invoked means-plus-function claiming, this court has
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`consistently required that the structure disclosed in the specification be more than simply a general
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`purpose computer or microprocessor.” Aristocrat Technologies Australia Pty Ltd. v. Int’l Game
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`Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). If the structure involves a computer or a
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`microprocessor, the patent must disclose the algorithm that differentiates the microprocessor from
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`others. Id. However, the algorithm need not always be “highly detailed.” Id. at 1338; see also
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`Ergo Licensing, LLC v. CareFusion 303, Inc., 673 F.3d 1361, 1364 (Fed. Cir. 2012).
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`The ’844 patent provides a “system and method for attaching a Downloadable security
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`profile to a Downloadable.” ’844 patent at 1 (Dkt. No. 58-2). Claim 43 has three limitations that
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`are means-plus-function limitations: (i) “means for receiving a Downloadable;” (ii) “means for
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`generating a first Downloadable security profile that identifies suspicious code in the received
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`Downloadable;” and (iii) “means for generating a first Downloadable security profile that
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`identifies suspicious code in the received Downloadable.”
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`A. “Means for receiving a Downloadable” (’844 patent, claim 43)
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`Finjan’s proposed
`construction
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`Sophos’s proposed
`construction
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`Court’s construction
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`Function: receiving a
`Downloadable
`Structure: Downloadable file
`interceptor
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`Indefinite
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`Function: receiving a
`Downloadable
`Structure: Downloadable file
`interceptor
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`The parties do not dispute that the claimed function is “receiving a Downloadable.”
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`Instead, the issue relates to the corresponding structure that performs the function. In its briefs,
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`Sophos argued that “means for receiving a Downloadable” is indefinite. See Dkt. No. 60 at 8. It
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`contended that Finjan’s proposed structure, a Downloadable file interceptor, is a general purpose
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`microprocessor “programmed to perform an algorithm to ‘receiv[e] a downloadable.’” Id. at 6.
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`Sophos asserted that the patent does not disclose any algorithm used by the Downloadable file
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`interceptor to perform its function.
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`At the Markman hearing, Sophos conceded for the first time that there was a structure
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`corresponding to “means for receiving a Downloadable.” Tr. 21. However, it did not agree that
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`that structure was a “Downloadable file interceptor.” Id. Sophos’s new argument during the
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`hearing was inappropriate. Sophos itself acknowledged that waiver would apply if it “chang[ed]
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`the scope of [its] argument” instead of simply “citing additional evidence.” Id. at 19. At the
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`hearing, it apparently abandoned the argument it made in its briefs in favor of an entirely new
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`argument. I will not consider these arguments. See Fujitsu Ltd. V. Belkin Int’l, Inc., No. 10-CV-
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`0392-LHK, 2012 WL 368574, at *6 (N.D. Cal. Feb. 3, 2012 (“Ordinarily, the Court would find
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`that any arguments not made in the claim construction briefing have been waived and may not be
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`raised for the first time at the Markman hearing.”). However, I note that Sophos’s new argument
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`is unpersuasive because the structure for “means for receiving a Downloadable” is unambiguous:
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`the Downloadable file interceptor.
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`The claim refers to the “means for receiving a Downloadable” as part of an “inspector
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`Case3:14-cv-01197-WHO