Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 1 of 28
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ADVANCED MEDIA NETWORKS, LLC,
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`Plaintiff,
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`Case No. 1:10-cv-00194-KBF
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`v.
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`INMARSAT INC., INMARSAT GLOBAL
`LIMITED, STRATOS MOBILE NETWORKS
`INC., STRATOS MOBILE NETWORKS,
`L.L.C., STRATOS OFFSHORE SERVICES
`COMPANY, STRATOS COMMUNICATIONS
`INC., SEGOVIA INC., AND VIZADA, INC.,
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`Defendants.
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`ADVANCED MEDIA NETWORKS LLC’S OPENING CLAIM
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`CONSTRUCTION BRIEF
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`ADVANCED MEDIA Exhibit 2029, pg. 001
`VIASAT v. ADVANCED MEDIA
`IPR2016-00628/629
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 2 of 28
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`TABLE OF CONTENTS
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`I. PRELIMINARY STATEMENT ............................................................................................. 1
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`II.
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`FACTUAL BACKGROUND .............................................................................................. 1
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`1. Parties ................................................................................................................................... 1
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`2. The Nature of the Proceeding .............................................................................................. 2
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`3. Overview of the ‘074 and ‘777 Patents................................................................................ 2
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`4. Overview of the ‘074 and ‘777 Patent Prosecution and Re-examinations .......................... 4
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`III. OVERVIEW OF THE PARTIES CLAIM CONSTRUCTION POSITIONS ..................... 7
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`IV.
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`STANDARD OF REVIEW GOVERNING CLAIM CONSTRUCTION........................... 8
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`V.
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`TERMS FOR CONSTRUCTION FOR THE ‘074 AND ‘777 PATENTS ....................... 10
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`1. “ethernet packet switching protocol ” ................................................................................ 10
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`2. “single nomadic transmission/reception point” ................................................................. 14
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`3. “transfer information as a single nomadic transmission/reception point between the
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`microwave communications system and the wireless LAN using an ethernet packet switching
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`protocol” ................................................................................................................................... 16
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`4. “Wireless LAN” ................................................................................................................. 18
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`5. “Redundant” ....................................................................................................................... 20
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`6. “mobile hub” ...................................................................................................................... 21
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`7. “omni-directional antenna” ................................................................................................ 23
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`VI. CONCLUSION .................................................................................................................. 23
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`ii
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`ADVANCED MEDIA Exhibit 2029, pg. 002
`VIASAT v. ADVANCED MEDIA
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 3 of 28
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`TABLE OF AUTHORITIES
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`
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`Cases
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`Honeywell Int’l, Inc. v. Universal Avionics Systems Corp.,
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`493 F.3d 1358, 1361 (Fed. Cir. 2007)........................................................................................... 10
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`Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1384 (Fed. Cir. 1986) ................ 9
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`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
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`381 F.3d 1111, 1116 (Fed. Cir. 2004)............................................................................................. 8
`
`Lindemann Maschinenfabrik v. American Hoist and Derrick, 730 F.2d 1452 (Fed. Cir.1984) ..... 9
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`Markman v. Westview Instruments, Inc., 517 U.S. 370, 389-90 (1996) ................................... 8, 10
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`Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995) ............................... 10
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`On-Line Tech v. Bodenseewerk Perkin-Elmer, 386 F.3d 1133, 1139 (Fed. Cir. 2004) ................ 10
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`Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) ............................................ 8, 9, 10
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`Purdue Pharma L.P. v. Endo Pharms., Inc., 438 F.3d 1123, 1136 (Fed. Cir. 2006) ..................... 9
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`U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997).................................. 8
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`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). ................................ 9
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`Zircon Corp. v. Stanley Black & Decker, Inc., 452 Fed. Appx. 966, 972 (Fed. Cir. 2011)............ 8
`
`iii
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`ADVANCED MEDIA Exhibit 2029, pg. 003
`VIASAT v. ADVANCED MEDIA
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 4 of 28
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`I.
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`PRELIMINARY STATEMENT
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`Plaintiff Advanced Media Networks, LLC (“AMN”) respectfully submits this opening
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`memorandum in support of AMN’s claim constructions for the disputed claim terms from the
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`asserted claims of U.S. Patent Nos. 5,960,074 (the “‘074 Patent,” Exhibit A) and 6,445,777 (the
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`“‘777 Patent,” Exhibit B) (collectively, the “Patents”), and respectfully directs the Court’s
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`attention to the Amended Joint Claim Construction and Prehearing Statement (Docket No. 104)
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`(“JCC Statement”), which details Plaintiff’s proposed constructions for the disputed terms at its
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`Exhibits A and B.
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`II.
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`FACTUAL BACKGROUND
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`1. Parties
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`AMN is a California-based company established in 2003 as a successor to NeTune
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`Communications, Inc., the original assignee of the Patents, which itself was founded by one of
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`the inventors of the Patents, Curtis Clark, to, among other things, exploit the technology covered
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`by the Patents. AMN offers a broad range of services including designing, installing and
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`integrating high quality videoconferencing and visual communication systems and services for
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`businesses or organizations. AMN’s services also include the design and implementation of a
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`wireless network at a remote location, supported by a satellite system. Such a system has been
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`used by the motion picture industry for such popular productions as certain of the Harry Potter
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`series of films, BlackHawk Down and Spiderman.
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`Vizada, Inc. (“Vizada” or “Defendant”) is a corporation organized and existing under the
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`laws of Delaware, with headquarters in Rockville, Maryland. Vizada offers mobile and fixed
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`connectivity services from multiple satellite network operators through a network of 400 service
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`provider partners. Vizada works with satellite network operators, including, and perhaps
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`1
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`ADVANCED MEDIA Exhibit 2029, pg. 004
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 5 of 28
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`foremost, Inmarsat Global Limited (“Inmarsat Global”). Indeed, Vizada is an authorized reseller
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`of products and services offered by Inmarsat Global and its affiliates, including the accused
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`products and services in the present action, namely Broadband Global Area Network (BGAN)
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`and SwiftBoadband products and services.1 These accused products and services provide
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`wireless broadband services through use of a mobile terminal connected to the Inmarsat Global
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`satellite service.
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`2. The Nature of the Proceeding
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`AMN filed its complaint on or about January 11, 2010. The action was stayed on July
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`27, 2010 pending reexamination of the Patents, which was subsequently lifted on November 22,
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`2011 after reexamination of the Patents successfully concluded on November 15, 2011. The
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`parties exchanged terms from the asserted patents they contend require interpretation on April 5,
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`2012 and exchanged the proposed construction of those terms on April 9, 2012. Following the
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`settlement and dismissal of the case as to all other defendants, Vizada narrowed the terms that
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`require construction and amended several of its proposed constructions of the remaining terms.
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`The parties submit herewith seven (7) terms from the Patents as requiring construction.
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`3. Overview of the ‘074 and ‘777 Patents
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`The ‘074 and ‘777 Patents are directed towards a network that includes a mobile hub that
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`connects a communication subsystem, such as a satellite, microwave, or other wide area
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`communication system, to a wireless local area network (“LAN”). ‘074 Patent, Col. 2, ll. 40-44;
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`‘777 Patent, Col. 2, ll. 53-64. The mobile hub serves to transfer information between the
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`communication subsystem and the wireless LAN so that users can, among other things, gain
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`access to a wide area network (such as the Internet) from a moveable device while at a remote
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`1 Inmarsat Global along with its affiliates who were named as defendants in the present action for offering these
`accused products and services have all been dismissed from the present action pursuant to settlement with AMN.
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`2
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`ADVANCED MEDIA Exhibit 2029, pg. 005
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 6 of 28
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`land location or while on a vehicle such as a truck or airplane. ‘074 Patent, Col 2, ll. 44-48; ‘777
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`Patent, Col. 2, ll. 60-64.
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`In one embodiment, as shown in Figure 1 from the ‘074 Patent reproduced below, a
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`microwave communication system, having multiple relay stations or hubs, such as exemplary
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`hubs 101 and 102, equipped with microwave antennas (101A and 102A) that are configured to
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`communicate with one or more mobile hub stations, such as mobile hub 103. ‘074 Patent, Col.
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`3, ll. 40-48, Col. 4, ll. 53-55. The mobile unit (103) in turn supports a wireless LAN (104),
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`linking the wireless LAN (104) to the microwave communications subsystem. ‘074 Patent, Col.
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`3, ll. 49-50, Col. 4, ll. 46-52. The wireless LAN (104) can be a wireless ethernet LAN
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`connecting multiple remote personal computers. ‘074 Patent, Col. 4, ll. 33-35.
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`In another embodiment, as shown in Figure 1 from the ‘777 Patent reproduced below, a
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`satellite communication subsystem allows transmission and reception of data with one or more
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`mobile units, such as mobile unit (103). ‘777 Patent, Col. 3, l. 65 – Col. 4, l. 3. The satellite
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`3
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`ADVANCED MEDIA Exhibit 2029, pg. 006
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`transfers information using a satellite transponder or a fixed terrestrial microwave radio transfers information using a satellite transponder or a fixed terrestrial microwave radio transfers information using a satellite transponder or a fixed terrestrial microwave radio in
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`accordance with an ethernet packet switching protocol. thernet packet switching protocol. ‘777 Patent, Col. 3, ll. 1-4.
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`The mobile unit (103) in turn supports thein turn supports the wireless LAN, linking the wireless LAN to the e wireless LAN to the
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`satellite communications subsystemsatellite communications subsystem. ‘777 Patent, Col. 4, ll. 4-9. The wireless LAN can be aThe wireless LAN can be a
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`wireless ethernet LAN connecting multiple remote personal computers or devicesthernet LAN connecting multiple remote personal computers or devicesthernet LAN connecting multiple remote personal computers or devices 104. ‘777
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`Patent, Col, 4, ll. 9-12. Each mobile unit (103) Each mobile unit (103) can include a server (103A), which), which is used to
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`coordinate communication with a satellite transmission/reception system. coordinate communication with a satellite transmission/reception system. ‘777 Patent, Col. 4, ll. ‘777 Patent, Col. 4, ll.
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`31-35. The server updates the server back at the network operations center and operates in The server updates the server back at the network operations center and operates in The server updates the server back at the network operations center and operates in
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`synchronization with the network operation center. the network operation center. ‘777 Patent, Col. 4, ll. 35-37. 37.
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`4. Overview of the ‘074
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`074 and ‘777 Patent Prosecution and Re-examinationexaminations
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`The ‘074 Patent was filed on September 23, 1996The ‘074 Patent was filed on September 23, 1996. In an Office Action issuedissued October 8,
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`1997 the claimed were rejected as obvious under 35 U.S.C. 103(a). In a response to the Office n a response to the Office
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`Action filed April 13, 1998, the applicant the applicant claimed that the prior art did not disclose a mobile hub claimed that the prior art did not disclose a mobile hub
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`being used in a nomadic fashion to transfer communications between being used in a nomadic fashion to transfer communications between a digital microwave digital microwave
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`communication system and a wireless LAN.nication system and a wireless LAN. The applicant argued that a relay station that argued that a relay station that
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`4
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`ADVANCED MEDIA Exhibit 2029, pg. 007
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`provides communication between a wireless LAN and digital microwave in a nomadic fashion
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`was not indicated. The applicant also contended that information may be transferred between a
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`digital microwave and a wireless LAN using an internet packet switching protocol, thereby
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`enabling information to be transferred throughout the system using an ethernet packet switching
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`protocol, such as the TCP/IP protocol, and that further claims disclose the transfer of broadband
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`information, which was not disclosed in the prior art. See April 13, 1998 Amendment in the
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`United States Patent and Trademark Office for Application Serial No. 08/718,848, attached
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`hereto as Exhibit C at pp. 7-8. A Notice of Allowance was issued on June 29, 1998, and the ‘074
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`Patent issued on September 28, 1999.
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`The ‘777 Patent was filed on December 21, 1998 as a Continuation-in-Part of the ‘074
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`Patent. In an Office Action issued September 17, 2001, the claims were rejected as obvious
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`under 103(a). In a response to the Office Action filed February 1, 2002, the applicants argued
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`that the prior art did not disclose a mobile nomadic transmission/reception unit for
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`communicating between a satellite communication subsystem and a wireless LAN using an
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`ethernet packet switching protocol, and that the prior art only discussed a uni-directional data
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`dissemination system, not the bi-directional communication system of the ‘777 Patent. See,
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`February 1, 2001 Response to Office Action in the United States Patent and Trademark Office
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`for Application Serial No. 09/217,682, attached hereto as Exhibit D at pp. 2-3. A Notice of
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`Allowance was issued on April 24, 2002, and the ‘777 Patent issued on September 3, 2002.
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`Ex parte Re-examinations of both the Patents were requested on May 11, 2010. In the
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`first set of Re-examination Office Actions, dated February 10, 2011, all claims were rejected as
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`either anticipated by or obvious over the cited prior art, namely (i) Randy H. Katz, Adaptation
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`and Mobility in Wireless Information Systems, IEEE Personal Communications, First Quarter
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`ADVANCED MEDIA Exhibit 2029, pg. 008
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 9 of 28
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`(1994), (“Katz”) (ii) Field Manual 100-16, entitled Army Operational Support, published by the
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`Department of the Army in Washington, D.C. on May 31, 1995 (FM 100-16) and (iii) T. Nassif,
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`“Supporting the Fleet: Taking Workflow to the Waterfront” Thesis, submitted in partial
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`fulfillment of the requirements for the degree of Master of Science in Information Technology
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`Management from the Naval Postgraduate School, Monterey, CA, published August 17, 1995
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`(“Nassif”). See, February 10, 2011 Office Action in Ex Parte Reexamination in the United
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`States Patent and Trademark Office for US Patent No. 5,960,074, attached hereto as Exhibit E at
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`pp. 4, 9 and 18; February 10, 2011 Office Action in Ex Parte Reexamination in the United States
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`Patent and Trademark Office for US Patent No. 6,445,777, attached hereto as Exhibit F at pp. 4,
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`10 and 15.
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`In response, AMN argued that the Katz reference (i) failed to serve as enabling prior art
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`as the disclosure of Katz failed to teach how the disparate technologies disclosed therein would
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`be incorporated into a single system and (ii) failed to teach or suggest, among other things, the
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`claimed elements of “mobile hub,” “a mobile hub configured to transfer broadband information
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`as a single nomadic transmission/reception point”, “ethernet packet switching protocol,” and
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`“broadband information.” AMN also added new dependent claims 41-122 to the ‘074 Patent and
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`claims 29-104 to the ‘777 Patent. See, April 11, 2011 Response to Office Action in Ex Parte
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`Reexamination in the United States Patent and Trademark Office for US Patent No. 5,960,074,
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`attached hereto as Exhibit G at pp. 24-42; April 11, 2011 Response to Office Action in Ex Parte
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`Reexamination in the United States Patent and Trademark Office for US Patent No. 6,445,777
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`attached hereto as Exhibit H at pp. 21-39.
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`In a second set of reexamination Office Actions, dated June 15, 2011, the previous
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`rejections were withdrawn and all claims were rejected under new grounds, in view of one of
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`ADVANCED MEDIA Exhibit 2029, pg. 009
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 10 of 28
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`two sets of combined prior art references: M. Normoyle and R. Nunan, “A Tactical Deployable
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`Wireless Multimedia LAN,” Proceedings of IEEE MILCOM 1993, pp. 502-506 (“Normoyle”)
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`combined with either Nassif or FM 100-16. See, June 15, 2011 Office Action in Ex Parte
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`Reexamination in the United States Patent and Trademark Office for US Patent No. 5,960,074,
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`attached hereto as Exhibit I at p. 4; June 5, 2011 Response to Office Action in Ex Parte
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`Reexamination in the United States Patent and Trademark Office for US Patent No. 6,445,777
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`attached hereto as Exhibit J at p. 4.
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`In response, AMN argued that the combination of Normoyle with either Nassif or FM
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`100-16 failed to teach or suggest use of an “ethernet packet switching protocol” to transfer
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`information as claimed AMN also argued the primary reference, Nassif and FM 100-16 each
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`failed to teach or suggest the claim elements directed to mobility as recited in the independent
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`claims. See, August 15, 2011 Response to Office Action in Ex Parte Reexamination in the
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`United States Patent and Trademark Office for US Patent No. 5,960,074, attached hereto as
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`Exhibit K at pp. 24-38; August 15, 2011 Response to Office Action in Ex Parte Reexamination
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`in the United States Patent and Trademark Office for US Patent No. 6,445,777 attached hereto as
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`Exhibit L at pp. 20-34.
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`A Certificate of Re-examination was issued on November 22, 2011.
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`III. OVERVIEW OF THE PARTIES CLAIM CONSTRUCTION POSITIONS
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`As discussed below, AMN’s constructions provide a clear and understandable
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`interpretation of the claims as one of ordinary skill in the art would have understood the terms at
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`the time of invention in view of the Patent claims themselves, the Patent specifications, and
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`commonly accepted and ordinary interpretations of known words and phrases. In contrast,
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`ADVANCED MEDIA Exhibit 2029, pg. 0010
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 11 of 28
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`Defendant’s constructions are often technically incorrect, ambiguous and unhelpful, and
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`endeavor to limit the claims to single embodiments described in the specifications.
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`Accordingly, AMN’s constructions should be adopted as the Order of this Court.
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`IV.
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`STANDARD OF REVIEW GOVERNING CLAIM CONSTRUCTION
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`The Court construes the scope and meaning of disputed claim terms as a matter of law.
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`Markman v. Westview Instruments, Inc., 517 U.S. 370, 389-90 (1996). The Court, need not
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`construe all claim terms, but only those terms whose meaning is both disputed and material, and
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`then only if the construction would clarify the subject matter. See U.S. Surgical Corp. v. Ethicon,
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`Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (holding that the purpose of claim construction is to
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`clarify the material, disputed terms of the patent).
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`Patents are presumed to be written for persons skilled in the field of the invention.
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`Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005). For that reason, the proper
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`construction of a disputed term requires the Court to interpret the claim term as it would have
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`been understood by a skilled artisan at the time of the invention. Zircon Corp. v. Stanley Black
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`& Decker, Inc., 452 Fed. Appx. 966, 972 (Fed. Cir. 2011) citing Innova/Pure Water, Inc. v.
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`Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004). To determine a term’s
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`proper meaning, “a court looks to those sources available to the public that show what a person
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`of ordinary skill in the art would have understood disputed claim language to mean,” including
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`“the words of the claims themselves, the remainder of the specification, the prosecution history,
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`and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms,
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`and the state of the art.” Phillips, 415 F.3d at 1314 (quoting Innova). Additionally, an inventor
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`is not required to fully define those terms that are “well known” in the art, and reliance on
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`commonly understood meanings of common terms is preferred over verbose descriptions of
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`8
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`ADVANCED MEDIA Exhibit 2029, pg. 0011
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 12 of 28
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`common technologies. See e.g., Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367,
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`1384 (Fed. Cir. 1986) (“a patent need not teach, and preferably omits, what is well known in the
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`art”) (citing Lindemann Maschinenfabrik v. American Hoist and Derrick, 730 F.2d 1452 (Fed.
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`Cir.1984).
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`The components of the intrinsic evidence form a natural hierarchy of interpretive guides.
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`The claims themselves form the first tier of the hierarchy, and “provide substantial guidance as to
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`the meaning of particular claim terms” through context and by relation to other claims. Id. at
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`1314-15. The remainder of the patent, the specification, forms the second tier of the hierarchy:
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`“[T]he specification is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.” Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The third and lowest tier of intrinsic
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`evidence is the prosecution history, which is a record of proceedings between the PTO and the
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`patentee during the application process. The prosecution history however “often lacks the clarity
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`of the specification and thus is less useful for claim construction purposes.” Phillips, 415 F.3d at
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`1317. Indeed, to limit a claim term based on the prosecution history, the doctrine of prosecution
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`disclaimer requires that the patentee have made “a clear and unmistakable disavowal of scope
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`during prosecution . . . This may occur, for example, when the patentee explicitly characterizes
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`an aspect of his invention in a specific manner to overcome prior art.” Purdue Pharma L.P. v.
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`Endo Pharms., Inc., 438 F.3d 1123, 1136 (Fed. Cir. 2006)
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`Importantly, claims should not be interpreted by importing limitations from the
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`specification into the claims. Phillips, 415 F.3d at 1323. Similarly, claims may not be
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`construed as being limited to the described embodiments absent a clear definition of a claim term
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`ADVANCED MEDIA Exhibit 2029, pg. 0012
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 13 of 28
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`or a clear disclaimer or disavowal of claim scope. Id. at 1323; see also Honeywell Int’l, Inc. v.
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`Universal Avionics Systems Corp., 493 F.3d 1358, 1361 (Fed. Cir. 2007).
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`Aside from the intrinsic record, extrinsic evidence is permissible, and may include
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`“expert and inventor testimony, dictionaries, and learned treatises.” Markman v. Westview
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`Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996). Extrinsic
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`evidence is less significant than the intrinsic record, Phillips at 1317–18, and in any event it
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`“cannot be used to alter a claim construction dictated by a proper analysis of the intrinsic
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`evidence.” On-Line Tech v. Bodenseewerk Perkin-Elmer, 386 F.3d 1133, 1139 (Fed. Cir. 2004).
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`V. TERMS FOR CONSTRUCTION FOR THE ‘074 AND ‘777 PATENTS
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`
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`Plaintiff AMN presents its proposed constructions and arguments in support as follows.
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`1. “ethernet packet switching protocol ”
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`The term “ethernet packet switching protocol” is recited in independent claims 1 and 28
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`of the ‘074 Patent and independent claims 1 and 13 of the ‘777 Patent.2 AMN’s proposed
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`construction of the term is “a protocol for communication between devices over a network via a
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`shared transmission medium in which data to be transmitted is divided into formatted packets for
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`individual transmission and subsequent reassembly at the intended destination.” Defendant’s
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`proposed construction is “a communication protocol compatible with the IEEE 802.3 standard in
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`which data to be transmitted is divided into formatted packets for individual transmission and
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`subsequent reassembly at the intended destination.” For at least the reasons set forth below,
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`AMN respectfully submits that its construction is the correct one and should be adopted by the
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`Court.
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`2 The term appears in other claims but for the convenience of the Court only claims which have been asserted by
`AMN in the present action are mentioned herein.
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 14 of 28
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`Grammatically, the phrase “ethernet packet switching protocol” contains two adjectives -
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`- “ethernet” and “packet switching” -- modifying the noun “protocol.” As can be seen by
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`reviewing the proposed constructions, the parties have reached agreement that the “packet
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`switching” portion of the phrase is to be construed as “data to be transmitted is divided into
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`formatted packets for individual transmission and subsequent reassembly at the intended
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`destination.” The term “packet switching” would have been understood this way at the time of
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`filing. See Newton’s Telecom Dictionary (7th Ed. 1994)(“Newton’s”) (defining “packet
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`switching” as “sending data in packets through a network to some remote location. The data to
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`be sent is subdivided into individual packets of data, each packet having a unique identification
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`and each packet carrying its own destination address . . . The packet ID lets the data be
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`reassembled . . .”), attached hereto as Exhibit M; Random House Webster’s Computer & Internet
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`Dictionary (3rd Ed. 1999)(“Random House C&I”)(defining “packet switching” as “refers to
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`protocols in which messages are divided into packets before they are sent . . . Once all packets
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`forming a message arrive at the destination, they are recompiled into the original message.”),
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`attached hereto as Exhibit N.
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`The parties, however, disagree as to the proper construction for the term “ethernet”
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`within the phrase being construed. Consistent with the Patents, AMN’s construction focuses on
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`explaining that the term “ethernet” refers to a type of network technology -- one that connects
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`devices over a shared transmission medium -- and that the claimed packet-switching protocol is
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`one which would be useable over such a network. In contrast, Defendant’s proposed
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`construction contradicts the Patents and their specifications and confuses the issue by
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`incorporating reference to a technical standard into the construction; one not familiar to a jury
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`and, indeed, one not mentioned in the Patents themselves.
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`11
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`ADVANCED MEDIA Exhibit 2029, pg. 0014
`VIASAT v. ADVANCED MEDIA
`IPR2016-00628/629
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 15 of 28
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`The term “ethernet” as used in the Patents refers to a network architecture that allows for
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`“communication between devices over a shared transmission medium” utilizing a packet
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`switching protocol as claimed. This key aspect of ethernet technology is frequently encountered
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`in dictionaries and literature contemporaneous with the time of invention and illustrates the
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`common consensus among those of ordinary skill in the art of what constitutes an “ethernet”
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`network and what sets ethernet networks apart from other network architectures. See Microsoft
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`Encyclopedia of Networking (2nd Ed. 2002) (“Microsoft”) at pp. 441–443, attached hereto as
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`Exhibit O; Newton’s at pp. 411–412, attached hereto as Exhibit P. Indeed, at the time of filing of
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`the ‘074 Patent, ethernet networks had been in existence for nearly 20 years and various IEEE
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`standards relating to ethernet networks had been published, see Random House C&I (describing
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`ethernet being developed in 1976), attached hereto as Exhibit Q.
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`The specifications of the Patents refer to “the ethernet packet-switching protocol” in a
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`manner that encompassed protocols useable on ethernet networks as commonly known in the art
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`at the time of invention. See e.g. ‘074 Patent, col. 2, ll. 49-53; ‘777 Patent, Col. 3, ll. 3-5
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`(providing examples of ethernet packet switching protocols including TCP/IP “used on the
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`World Wide Web”). As explained in the Patents, the use of this protocol in the context of the
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`inventive system provides for the “integration [of] wireless LAN ethernet technology with digital
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`microwave relay stations,” thereby providing “broadband, high speed wireless connections
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`between locations and fixed sites.” ‘074 Patent, col. 3, ll. 24-28 (emphasis added). If anything,
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`it is clear from the Patents that the term “ethernet packet-switching protocol” was not intended to
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`be limited to a single protocol, but rather to encompass a wide range of different protocols used
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`on the web and on the Internet generally, some of which are governed by standards. See, e.g.
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`‘074 Patent, col. 3, ll. 1-10.
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`12
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`ADVANCED MEDIA Exhibit 2029, pg. 0015
`VIASAT v. ADVANCED MEDIA
`IPR2016-00628/629
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`Case 1:10-cv-00194-KBF Document 105 Filed 06/04/12 Page 16 of 28
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`By contrast, Defendant attempts to limit the term “ethernet packet-switching protocol” to
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`a protocol that is compatible with a single IEEE standard: IEEE 802.3. First, it should be noted
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`that this specific standard is not referenced by number in either of the Patents. Instead, examples
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`of ethernet packet-switching protocols provided in the ‘074 Patent specification include IEEE
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`802.10 and TCP/IP. ‘074 Patent, Col. 2, ll. 48–55. The ‘074 Patent also provides a non-
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`exhaustive list of alternative, packet switched protocols that may be used. ‘074 Patent, Col. 3, ll.
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`1–10. Additionally, the ‘777 Patent provides as examples of an ethernet packet switching
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`protocol “the IEE 802 series of protocols or any proprietary protocols the TCP/IP protocol used
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`on the World Wide Web.” ‘777 Patent, Col. 3. ll. 1-6. In no case do the Patents identify IEEE
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`802.3 as the standard for an Ethernet protocol.
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`Aside from being inconsistent with the Patents, Defendant’s incorporation of the 802.3
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`standard unnecessarily complicates the ordinary meaning of the term. The current IEEE 802.3
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`standard contains five sections and nearly 3,000 pages of material, and refers to a series of 802.3
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`“sub” standards (e.g., 802.3a, 802.3b, 802.3c, etc.).3 By pointing the jury to these standards, is
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`the jury expected to review these standards to determine if there is infringement? At best,
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`Defendant’s proposed construction specifying this standard does little more to clarify for a juror
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`what the term means than if the word “ethernet” itself was used in the construction – in either
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`case, the jury will need to rely on expert opinion to determine infringement. Compounding this
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`problem is that the Defendant’s construction refers to a protocol that is compatible with this
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`standard, adding a further ambiguity to be resolved as to when one protocol is compatible with
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`another. In contrast, AMN’s construction, in conjunctions with examples from the