Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 1 of 23 PageID# 5225
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Richmond Division
`
`LIMELIGHT NETWORKS, INC.,
`Plaintiff,
`
`v.
`
`Civil Action No. 3:15-cv-720-JAG
`
`XO COMMUNICATIONS, LLC
`and AKAMAI TECHNOLOGIES INC.
`Defendants.
`
`ORDER
`
`This matter comes before the Court pursuant to Markman v. Westview Instruments, Inc.,
`
`52 F.3d 967 (Fed. Cir. 1995) (en bane), aff'd, 517 U.S. 370 (1996), to construe terms in ten
`
`disputed patents in this case. The plaintiff, Limelight Networks, Inc. ("Limelight") and the
`
`defendant Akamai Technologies, Inc. ("Akamai") contest the construction of thirty-five terms in
`
`the opposing party's patents.
`
`Phillips v. A WH Corp. and its progeny set forth the principles of claim construction. 415
`
`F.3d 1303 (Fed. Cir. 2005). A district court must give the words the ordinary and customary
`
`meaning they would have to a person of ordinary skill in the art. See id. at 131 7. "[T]he person
`
`of ordinary skill in the art is deemed to read the claim term not only in the context of the
`
`particular claim in which the disputed term appears, but in the context of the entire patent,
`
`including the specification." Id. at 1313.
`
`The claim language itself stands at the top of the source hierarchy, followed by other
`
`intrinsic evidence-the written description and prosecution history. See id. at 1324. Further,
`
`"the specification 'is always highly relevant to the claim construction analysis. Usually, it is
`
`dispositive; it is the single best guide to the meaning of a disputed term."' Id. at 1315 (quoting
`
`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). In addition, "the
`
`1
`
`Petitioner Limelight - LN1009
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 2 of 23 PageID# 5226
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`prosecution history can often inform the meaning of the claim language by demonstrating how
`
`the in ventor understood the invention and whether the inventor li mited the invention in the
`
`course of prosecution, making the claim scope narrower than it wou ld otherwise be:· Id. at I 3 I 7
`
`(citing Vitronics Corp., 90 F.3d at I 582- 83).
`
`After considering intrinsic evidence, the Court may look to extrinsic evidence, including
`
`inventor testimony, dictionaries, and learned treatises. Ex trinsic evidence, however, cannot
`
`contradict the intrinsic record. See id. at I 3 I 7.
`
`I. Terms Over Which the Parties Disagree
`
`1. Limelight Patent No. 7,715,324 ('324 Patent)
`
`TERM 1
`
`Disputed Term Limelight's Proposed
`Construction
`"a sequence of
`cha racters that
`identifies a requested
`source, such as all or
`part of a URL"
`
`" uniform
`resource
`indicator"
`
`Akamai's Proposed
`Construction
`" Information in a
`r eq uest's Uniform
`Resource Lo cato r
`(' URL'), such as all or
`pa rt of a URL"
`
`Court's Definition
`
`" a sequence of
`characters tha t
`identifies a
`requested source,
`such as all or part of
`a URL"
`
`TERM2
`
`" protocol
`attribute
`selector"
`
`"a software process that " a software process
`"a softwa re process
`can analyze a first
`that can analyze
`that can analyze each
`each request to
`r equest over a first
`request to select
`connection and a
`select protocol
`prntocol attributes to
`second request over a
`attributes to be used
`be used to deliver
`second connection to
`to deliver requested
`requested content"
`select protocol
`content"
`(Interpreting "each
`request" to mean both attributes to be used to
`the first request over
`deliver requested
`each new connection
`content"
`but also as multiple
`requests within the
`same connection."
`
`2
`
`2
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 3 of 23 PageID# 5227
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`For Term 1, the '324 Patent uses "uniform resource indicator" and "uniform resource
`
`identifier" interchangeably. The specification says in Column 7, Lines 21-24 (7:21-24), that
`
`HTTP utilizes URLs as well as "Uniform Resource Identifiers (URis) to identify information.
`
`URLs are used in the primary embodiment. Other embodiments use URis .... " This is the only
`
`mention in the patent of a uniform resource identifier, and it clearly indicates that other
`
`embodiments will use uniform resource identifiers.
`
`In order to read this portion of the
`
`specification consistently with the remainder of the patent, the term uniform resource indicator,
`
`as used in the patent, must be synonymous with uniform resource identifier. Akamai does not
`
`argue that the proffered definition is incorrect for a uniform resource identifier, and the Court
`
`finds that it is consistent with the claim and the specification.
`
`With reference to Term 2, the Court must construe claims "so as to be consistent with the
`
`specification, of which they are a part." Phillips, 415 F.3d at 1315 (citing Merck & Co. v. Teva
`
`Pharms. USA, Inc., 347 F.3d 1367, 1371 (Fed. Cir. 2003)). The claim language of the '324
`
`Patent itself does not explicitly limit a second request over a first connection, while the
`
`specification teaches that the server is capable of modifying "parameters on a connection-by-
`
`connection and even a request-by-request basis," and describes the process as "R2/C l." ('324
`
`Patent, 21: 1-17.) This ability is reiterated at Column 22, Lines 8-11. 1 The claim terms do not
`
`prohibit such a communication, and the specification language shows that the patent can
`
`(although is not required to, as argued by Akamai) receive multiple requests over the same
`
`connection.
`
`1 "As previously noted, the process can be repeated for each new request (e.g. R2/C I) and/or
`reach new connection (e.g. Rl/C2) as determined by the data source 750 or caching function."
`('324 Patent, 22:8-11.)
`
`3
`
`3
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 4 of 23 PageID# 5228
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`2. Limelight Patent No. 8,750, 155 (' 155 Patent)
`
`T ERM 3
`
`Disputed Term I Limelight's Proposed
`Construction
`" the data source
`listens for th e
`duration of a
`connection for a
`request"
`
`"the data sou rec
`is configured to
`monitor a first
`conn ection for a
`requ es t"
`
`Pla in meanin g; if
`constru ction
`req uired, th en "a
`request for co ntent,
`which can include an
`HTTP GET
`statement and other
`information"
`
`T ERM4
`
`"a request for
`content" I " a
`requ es t"
`
`TERM S
`
`" using
`information
`from the
`requ est" I
`" based on the
`requ es t"
`
`Akamai's Proposed
`Construction
`" th e data source
`monito rs a first
`conn ection for a
`request"
`
`Court's Definition
`
`"the data so urce is
`configured to
`monito r a first
`co nnection for one
`or more requ ests"
`
`"a request for content,
`such as a HTTP GET
`request"
`
`Plain meaning
`
`Plain meaning; if
`" using/based on
`construction is
`info rmation directly
`required, then " using acquired from the
`information derived
`r·equcst"
`from or
`associated with th e
`request"
`
`Pla in meaning
`
`TERM6
`
`Pla in meaning
`
`" parameters
`relate I rela ting
`to utiliza tion of
`ava ilable
`processing or
`memory
`capab ilities of
`pa rt or all of a
`system
`supportin g the
`first co nnection"
`
`" parameters are
`mcasurcmen t(s) of
`actual processing or
`memory of an end user
`or oth er server ma king
`the first co nnection"
`
`" pa ram eters relate I
`relating to
`utilization of
`ava ila ble processing
`or memory
`capabilities of par t
`or all of a system
`supporting the fi rst
`conn ection, but not
`those relate/relatin g
`to link capacity or
`the size or type of
`content"
`
`4
`
`4
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 5 of 23 PageID# 5229
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`The system contemplates the ability to receive multiple requests over one connection.
`
`The Court construes Term 3 consistent with that embodiment. As demonstrated in Fig. 2A of
`
`both the '324 and the '155 Patent, the patents relate to and concern the same server system
`
`described at illustration 206 in the patents.
`
`In construing Term 4, both parties agree that the '155 Patent describes a system that can
`
`request content other than an HTTP GET request, and agree that the specification includes other
`
`embodiments that should be included in the claim construction. The only issue is how to define
`
`the term appropriately. Akamai takes issue with Limelight's proposed definition, arguing that
`
`the phrase "and other information" is ambiguous, but Akamai's suggested addition of "such as
`
`an HTTP GET request" is unnecessary given the various kinds of content that can be requested
`
`in the specification. The plain meaning of "request for content" accurately defines the term.
`
`Giving Term 5 its plain meaning avoids improper limitation of the claim. While Akamai
`
`seeks to limit the term to only using information "directly acquired" from the request, the claim
`
`language itself leaves open the possibility of using the information that may be associated with
`
`the request but not contained within it. "The usage of a term in one claim can often illuminate
`
`the meaning of the same term in other claims." Phillips, 415 F.3d at 1314. In the '155 Patent,
`
`Claim 13 uses the language "based on" information, and the specification describes a process
`
`that can use information "derived from" the request. Taking the broader language from other
`
`claims in light of the specification, the patent contemplates other types of information, such as
`
`metadata, that the system can use that may not be contained directly within the request yet
`
`nonetheless is associated with it.
`
`The Patent Office limited Term 6 by deleting the phrase "link capacity, and/or a size or
`
`type of the content." (Dk. No. 92, Ex. P.) The prosecution history is intrinsic evidence available
`
`5
`
`5
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 6 of 23 PageID# 5230
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`to the Court; this deletion demonstrates that the examiner, due to prior art, limited the patent such
`
`that the system could not utilize parameters related to link capacity and/or a size or type of the
`
`content. The Court's constructi on reflects that prosecuti on. See Phillips, 4 15 F.3d at 13 17
`
`("Nonethel ess, the prosecution history can often inform the meaning of the claim language by
`
`demonstrating how the inventor understood the invention and whether the inventor lim ited the
`
`invention in the course of prosecution, mak ing the claim scope narrower than it would otherwise
`
`be.")
`
`3. Limelight Patent No. 8,683,002 ('002 Patent)
`
`Disputed
`Term
`TERM7
`
`"the parent
`server"
`
`TERMS
`
`"a cache
`hierarchy"
`
`Limelight's Proposed
`Construction
`Plain meaning; if
`construction necessary,
`then "an edge server
`higher than the first
`edge server in a cache
`hierarchy"
`
`Plain meaning; if
`construction necessary,
`then "an arrangement
`of two or more levels of
`servers"
`
`Akamai's Proposed
`Construction
`" the particular parent
`server defined by the
`Uniform Resource
`Identifier"
`
`Court's Definition
`
`Plain meanin g
`
`"the particular ancestor Plain meaning
`servers defined by the
`Uniform Resource
`Iden tifier"
`
`As previously stated, the Court mu st construe clai m term s consistently with the language
`
`in the specification, which is the single best guide to a disputed term's meaning. See Merck &
`
`Co., 347 F.3d at 137 1; Phillips, 4 15 F.3d al 1315. For Terms 7 and 8, the patent' s specification
`
`shows that in one embodiment, a server look ing fo r content can look to the URI to determine the
`
`parent server and the cache hierarchy. The patent also says that " where there is no ancestor
`
`cache for a URI, each server has a default hierarchy to find ancestor caches." ('002 Patent, 4:42-
`
`6
`
`6
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 7 of 23 PageID# 5231
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`46.) Akama i's proposal undul y limits the terms because it excludes an embodiment clearl y
`
`demonstrated in the specifi cati on. See Rambus, Inc. v. Rea, 73 1 F.3d 1248, 1253 (Fed. Cir.
`
`20 13); Oatey Co. v. JPS Corp., 5 14 F.3d 1271 , 1277 (Fed. Cir. 2008) ("/\ t leas[t] where claims
`
`can reasonably [be] interpreted to include a specifi c embodiment, it is incorrect to construe the
`
`claims to exclude that embodim ent, absent probati ve evidence on the contrary.").
`
`4. Limelight Patent No. 8,856,263 (' 263 Patent)
`
`Limelight's Proposed
`Construction
`"identifies/ identifying,
`based at least in part on
`parsing the first web
`page, a second web
`page that performance
`of a predictive analysis
`indicates is likely to be
`requested"
`
`Akamai's Proposed
`Construction
`" identifies/identifying a
`second web page, based
`at least in pa rt on
`parsing the first web
`page and performing a
`predictive analysis to
`deduce that the second
`web page is likely to be
`rcq u cs tcd"
`
`Court's Definition
`
`" identifies/
`identifying, based at
`least in part on
`parsing the first web
`page, a second '"cb
`page that a
`predictive analysis
`indicates is likely to
`be requested"
`
`Disputed
`Term
`TERM9
`
`" identifies/
`identify ing,
`based at least
`partially on
`parsing the
`first
`web page, a
`second web
`page, wherein
`the second
`web page is
`likely to
`be requested"
`
`Term 9 describes a process by whi ch an acce leration server works to get requested data
`
`to an end-user. Essenti all y, the process identifies what a user will li kely request nex t. Tt does
`
`this by a step that reli es '·at least partiall y on parsing the fi rst web page: · ("263 Patent, 14: 13-
`
`17.) The parties disagree whether the pred ictive analysis must occur co ntemporaneously with
`
`the accelerati on server reaching the fi rst page or whether it can occur beforehand. The patent
`
`specifi cation says that a pre-fetching technique may '·be implemented in whole or in part by one
`
`or more plugins" in which "the inventions herein arc integrated into the web site during its
`
`7
`
`7
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 8 of 23 PageID# 5232
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`development." This language leaves open the possibility that the predicti ve analysis could occur
`
`prior to the end-user accessing the website and that a website developer could alter the analysis
`
`over time. The specifica ti on does not limit this possibi li ty, and the term .. at least in part by
`
`parsing" keeps open the ability of the invention to incorporate other methods or pre-fetching.
`
`Under Oatey Co., 514 F.3d at 1277, this reasonable embodiment should not be excluded given
`
`that Limelight has produced no probative evidence to support its exclusion.
`
`5. Limelight Patent No. 9,015,348 ('348 Patent)
`
`Disputed
`Term
`TERM 10
`
`"dynamically
`updatc/updati
`ng a process
`by which the
`one or more
`acceleration
`techniques a rc
`selected based
`on the
`metrics"
`
`TERM J 1
`
`"intermediate
`server"
`
`Court's Definition
`
`Plain meaning
`
`Limelight's Proposed
`Construction
`"update/updating a
`process to select
`acceleration techniques
`(and not simply update
`or alter the acceleration
`techniques) based on
`the metrics"
`
`Akamai's Proposed
`Construction
`"automatically
`update/updating a
`process to select
`acceleration techniques
`(and not simply update
`or alter the acceleration
`techniques) based on
`the metrics as the
`content requests arc
`received"
`
`No construction
`necessary. If
`construed: "server for
`identifying and/or
`implementing content
`acceleration
`techniques"
`
`"server, distinct
`"hardware or software
`from the edge server
`distinct from the edge
`although potentially
`server through which
`traffic is routed prior to physically
`reaching the edge
`integrated, for
`identifying and/or
`server"
`implementing
`content acceleration
`techniques and
`communicating with
`edge servers"
`
`8
`
`8
`
`

`
`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 9 of 23 PageID# 5233
`
`TERM 12
`
`"acceleration
`techniques"
`
`No construction
`necessary.
`If construed:
`"techniques for
`accelerating delivery of
`content"
`
`Plain meaning
`
`"techniques of
`optimizing delivery of
`content being requested
`that modify the content,
`such as data
`compression, but not
`mere updates or
`adjustments within a
`technique or techniques
`that do not modify the
`content itself'
`
`The plain language for Term 10 comports with the language in the specification and does
`
`not need construction. Indeed, the summary of the invention illustrates that the "processor may
`
`be further configured to dynamically update a process by which one or more acceleration
`
`techniques are selected based on the metrics, and use the updated process to select acceleration
`
`techniques for subsequent requests associated with similar attributes." ('348 Patent, 2:25-29.)
`
`The specification even says that the invention seeks to fix the static process of updating
`
`acceleration techniques, which could lead to obsolete techniques. ('348 Patent, 11 :58-64.) The
`
`process thus describes a "dynamic" updating process that can happen on a periodic basis to allow
`
`updates as frequently as they are needed. Nowhere does the specification indicate that this
`
`process must be "automatic" as proffered by Akamai; instead the specification teaches only that
`
`"[i]n some embodiments, the attributes may be automatically determined based on the content
`
`request." An exemplary embodiment is not a limitation on the claim. See Phillips, 415 F.3d at
`
`1323 (reasoning that a court must "avoid the danger of reading limitations from the specification
`
`into the claim").
`
`The specification explains in detail the intermediate server referred to in Term 11. The
`
`intermediate server may be physically integrated with the edge servers, but it serves a different
`
`9
`
`9
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 10 of 23 PageID# 5234
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`function as shown by the fact that the intermediate server can communicate with the edge
`
`servers. ('348 Patent, 8:39-40; 13:8-16). The claim language reads consistent with this view,
`
`where it describes "an intermediate server that accelerates access to the content stored in a
`
`plurality of edge servers."
`
`('348 Patent, 24:9-10.) The edge servers and the intermediate
`
`servers, then, play different roles and are at least functionally distinct.
`
`Term 12 does not need further construction by the Court. Although Akamai proposes a
`
`definition that is limited to those techniques which modify the content itself, this limitation is
`
`inappropriate. The Patent Examiner limited the patent to require selection of one or more
`
`acceleration techniques that modify content, but this does not change the definition of the term
`
`"acceleration techniques." Further, the claim language already includes the language sought by
`
`Akamai, where it states that the processor is configured to "select one or more acceleration
`
`techniques from the plurality of acceleration techniques, wherein . . . the one or more
`
`acceleration techniques modify the content."2 ('348 Patent, 24:25-30; 26:6-13.)
`
`6. Limelight Patent No. 8,615,577('577 Patent)
`
`Akamai contends that 11 terms within the '577 Patent are indefinite and that the patent
`
`should be invalidated. 35 U.S.C. § 282 establishes a presumption of validity for patents and
`
`places the burden of establishing invalidity on the party asserting such a claim. ("A patent shall
`
`be presumed valid .... The burden of establishing in-validity of a patent or any claim thereof
`
`shall rest on the party asserting such invalidity."). Furthermore, a party asserting an invalidity
`
`defense must prove its claim with clear and convincing evidence. Microsoft Corp. v. 141 Ltd.
`
`P'ship, 564 U.S. 91, 95 (2011).
`
`2 It seems that Akamai actually seeks construction of the term "modify," but the parties have not
`provided the Court information about how they would like to clarify that term.
`
`10
`
`10
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 11 of 23 PageID# 5235
`
`The Court will make a determination of definiteness at the summary judgment stage to
`
`allow the parties to develop more evidence on this issue. See Sofamor Danek Grp., Inc. v.
`
`DePuy-Motech, Inc. , 74 F.J d 12 16, 122 1 (Fed. Cir. 1996) ("Markman does not obligate the trial
`
`judge to conclusively interpret claims at an earl y stage in a case. A trial court may exercise its
`
`discretion to interpret the claims at a time when the parties have presented a Cull picture of the
`
`claimed invention and prior art.").
`
`Disputed
`Term
`TERM 13
`
`"rcsou rec"
`
`TERM 14
`
`"policy
`reconciliation
`service" I
`("PRS")
`
`TERM 15
`
`"policy
`manager"
`
`Limelight's Proposed
`Construction
`Not indefinite.
`"hardware and/or
`software that can
`process a content
`object"
`Not indefinite. No
`construction necessary.
`If construed:
`"software and/or
`hardware service that
`maintains and
`processes policies as is
`further describ ed in the
`claims"
`
`Not indefinite. No
`construction necessary.
`If construed: "software
`and/or hardware that
`manages policies as set
`forth in the claims."
`
`TERM 16
`
`"policy store"
`
`Not indefinite. No
`construction necessa ry.
`If construed: "a place
`where policies arc
`stored."
`
`Akamai's Proposed
`Construction
`Indefinite.
`
`Court's Definition
`
`To be decided at
`summary judgment.
`
`Indefinite.
`
`To be dec ided at
`summary judgment.
`
`Indefinite.
`
`To be decided at
`summary judgment.
`
`Indefinite.
`
`To be decided at
`summary judgment.
`
`11
`
`11
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 12 of 23 PageID# 5236
`
`TERM 17
`
`"mutator"
`
`Not indefinite.
`"command to perform
`processing on an
`object"
`
`TERM 18
`
`"disposition
`parameter"
`
`Not indefinite. No
`construction necessary.
`If construed:
`"parameter in the
`policy to determine
`which resources can be
`used."
`
`TERM 19
`
`Not indefinite. No
`construction necessary.
`If construed: "part of a
`"applicability
`parameter" I
`policy to determine
`"applicability whether the policy
`applied to a content
`criteria"
`object."
`
`Indefinite.
`
`To be decided at
`summary judgment.
`
`Indefinite.
`
`To be decided at
`summary judgment.
`
`Indefinite.
`
`To be decided at
`summary judgment.
`
`TERM20
`
`"metadata"
`
`Not indefinite. "data
`that describes other
`data."
`
`Indefinite.
`
`To be decided at
`summary judgment.
`
`Term 21
`
`Not indefinite. "Label."
`
`Indefinite.
`
`To be decided at
`summary judgment.
`
`"ta2"
`
`12
`
`12
`
`

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`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 13 of 23 PageID# 5237
`
`7. Akamai Patent No. 7,693,959 ('959 Patent)
`
`Disputed
`Term
`TERM22
`
`Limelight's Proposed
`Construction
`"A domain name
`service (ONS)
`"a CON name manipulated by a
`service"
`content delivery
`network (CDN) service
`provider to resolve a
`ONS query to one of the
`CON content servers
`that is near the
`requesting user, and
`includes two levels of
`domain name service:
`(1) a top-level domain
`name service to
`determine the user's
`location in the network
`in order to identify a
`given (2) low-level
`domain name service to
`respond to the user's
`ONS query"
`
`Court's Definition
`
`Akamai's Proposed
`Construction
`"a domain name ser·vice "A domain name
`service (ONS)
`(ONS) controlled by a
`content de livery
`controlled by a
`network (CON)
`content delivery
`network (CON)
`provider"
`provider that
`includes two levels
`of domain name
`service: (1) a top-
`level domain name
`service to determine
`the user's location
`in the network in
`order to identify a
`given (2) low-level
`domain name
`service to respond to
`the user's ONS
`query"
`
`TERl\123
`
`"CON name
`server(s)"
`
`"a ONS server
`"DNS scrvcr(s) that arc
`"a ONS server within
`the CON name service." controlled by a content within the CON
`delivery network (CON) name service"
`provider"
`
`Plain meaning
`
`" based on where the
`CON name service
`determines the first
`and second ONS
`queries originate
`from "
`
`TERM24
`
`"based on where the
`CON name service
`" based on
`determines the first and
`where the first second DNS queries
`and second
`originate from"
`ONS queries
`originate"/" ba
`scd on where
`the respective
`first and
`second ONS
`queries
`originate"
`
`13
`
`13
`
`

`
`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 14 of 23 PageID# 5238
`
`The meaning of Term 22 has been limited by prior litigation before the District of
`
`Massachusetts and the Federal Circuit. The prior cases interpreted the language within Patent
`
`Number 6,553,413 ('413 Patent), of which the '959 Patent acknowledges that it is a continuation.
`
`Both prior courts determined that although the functionality of Akamai's top- and lower-level
`
`servers may be combined into a single-level ONS, the process carried out by the single-level
`
`DNS must nonetheless follow that of the multi-level ONS described in the patent. 3 The courts
`
`determined that the invention in the '413 Patent had to use a ONS lookup method for "selecting"
`
`an appropriate host server, which required a top-level DNS server to locate a low-level ONS
`
`server. Akamai argues that the '959 Patent does not involve the CDN name service "selecting"
`
`a name server and that the limitations from the prior litigation should not be construed here. This
`
`argument is unavailing. The '959 Patent claims a process where the CDN name service
`
`"responds" to DNS queries "by" a CDN name server.4 Without deciding whether the prior
`
`District of Massachusetts and Federal Circuit's interpretations of the '413 Patent bind this
`
`Court's interpretation of the '959 Patent, the logical underpinnings from those cases lead to the
`
`same conclusion that the '959 Patent's CON name service must occur, at least in process, using a
`
`two-level ONS system. The '959 Patent states that:
`
`To locate the appropriate hosting servers to use, the top-level DNS server
`determines the user's location in the network to identify a given low-level
`ONS server to respond to the request for the embedded object. The top-
`
`3 See Akamai Tech., Inc. v. Limelight Networks, 494 F. Supp. 2d 34, 41 (D. Mass. 2007) ("Thus,
`the specification supports language claiming a single-level DNS system, but with the
`requirement that it accomplish the same steps as the described embodiment. For example, in the
`described embodiment, the top-level ONS server selects a low-level name server and
`""re]direct[s] the user to a ... low-level DNS[ ] server that is close-by [the user]."'); Akamai
`Tech., Inc. v. Limelight Networks, 628 F.3d 1311, 1330 (Fed. Cir 2010) (citation omitted).
`4 Claim 34 of the '959 Patent describes a process in which a CON name service first receives a
`first and second DNS query at the CDN name service, and then "retum[s], by the CDN name
`service, a response to each of the first and second DNS queries, where a response to the first
`DNS query is provided by a first CDN name server .... " ('959 Patent, 19: 12-35.)
`
`14
`
`14
`
`

`
`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 15 of 23 PageID# 5239
`
`level DNS server then redirects the request to the identified low-level
`DNS server that, in tum, resolves the request into an IP address for the
`given hosting server that serves the object back to the client.
`
`('959 Patent, 3:41-47.) This is the only specification language that discusses how the DNS
`
`server responds to requests, and the process utilizes a multi-level system. The system can, as
`
`specified in the patent, combine the functionality of this process into a single DNS level, but as
`
`found by the District of Massachusetts, it must "accomplish the same steps as the described
`
`embodiment." Further, the patent specification does not limit the name service to resolve a
`
`query to a content server near the requesting user. The patent specification indicates a preference
`
`for such a process ('959 Patent, 2:55-60; 3:20-25; 4:26-30), but this preference does not limit the
`
`claim. Oatey Co. v. JPS Corp., 514 F.3d 1271, 1277 (Fed. Cir. 2008).
`
`Having defined Term 22 above, Term 23 need only be defined in reference to the service
`
`that the CDN name server performs.
`
`A heavy presumption weighs in favor of a claim term's ordinary meaning. See Elbex
`
`Video, Ltd. v. Sensormatic Elecs. Corp., 508 F.3d 1366, 1371 (Fed. Cir. 2007). The process
`
`described in Term 24 occurs entirely within the CON as described in Claims 1, 34, and 58. The
`
`plain language of the claims shows that only the CON name server takes any steps in the process,
`
`demonstrating that only the ONS name server could determine the origination of the DNS.
`
`Akamai has not asserted, nor has this Court found, another area of the specification which says
`
`what portion of the invention determines where the queries originate. The language of the
`
`claims, then, demonstrates that the CON name service undertakes this determination.
`
`15
`
`15
`
`

`
`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 16 of 23 PageID# 5240
`
`Court's Definition
`
`Plain meaning
`
`8. Akamai Patent No. 8,122,102 ('102 Patent)
`
`Disputed
`Term
`TERM 25
`
`Limelight's Proposed
`Akamai's Proposed
`Construction
`Construction
`"a domain name service Plain mea ning
`(DNS) manipulated by
`a content delivery
`"domain
`name service" network (CON) service
`provider to resolve a
`DNS query to one of the
`CDN content servers
`that is near the
`requesting user, and
`includes two levels of
`domain name service:
`(1) a top-level domain
`name service to
`determine the user's
`locatio n in the network
`in order to identify a
`given (2) low-level
`domain name service to
`respond to the user's
`DNS query"
`
`TERM26
`
`"origin
`server"
`
`"a content provider's
`web server on a CON,
`which is the location of
`the original copy of the
`object."
`
`"the location of the
`original copy of the
`object"
`
`"a content
`provider's web
`server on a CDN,
`which is the location
`of the original copy
`of the ob ject"
`
`The ' 102 patent is not limited by the other Akamai patents which operate over a two-
`
`level DNS. Limelight's proposed construction importing limitations from those patents is
`
`therefore unduly limiting. The specification incorporates the ' 703 Patent by reference as an
`
`example of a CDN DNS, but neither the claims nor the specification imply a limitation by this
`
`reference.
`
`(' 102 Patent, 45-54.) Instead, this patent demonstrates the ability to function over
`
`16
`
`16
`
`

`
`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 17 of 23 PageID# 5241
`
`even a single-level DNS, making no reference in the claims or specifications to any process that
`
`requires or envisions any set number of levels.
`
`Reading the claim in light of the specification reveals the proper definition of Term 26.
`
`The claim says that the origin server is "authoritative" for a piece of content, which suggests, but
`
`does not require, that the origin server is associated with the content provider who places
`
`information into the CDN. (' 102 Patent, 22:29-32.) The specification also describes the origin
`
`server as a source of last resort when the CDN seeks content in response to an end-user's
`
`request: "When the requested object is not available from the identified server, the object may be
`
`retrieved from another CDN server or, failing that, from the origin server." (' 102 Patent, 2:7-
`
`10.) Again, this suggests that the origin server is affiliated with the content provider.
`
`Importantly, the second paragraph of the patent notes that "the item is served to the client [end(cid:173)
`
`user] quickly from the time it would take to fetch it from the content provider origin server."
`
`(' 102 Patent, 2:24-26.) (emphasis added) The use of origin server in the specification only
`
`contemplates a content provider's server. Phillips, 415 F.3d at ("[M]uch of the time, upon
`
`reading the specification [in context] it will become clear whether the patentee is setting out
`
`specific examples of the invention to accomplish those goals, or whether the patentee instead
`
`intends for the claims and the embodiments in the specification to be strictly coextensive.");
`
`Alloc, Inc. v. ITC, 342 F.3d 1361, 1370 (Fed. Cir. 2003) ("[W]here the specification makes clear
`
`at various points that the claimed invention is narrower than the claim language might imply, it is
`
`entirely permissible and proper to limit the claims.") The specification in the '102 Patent
`
`describes a "surrogate origin server" which acts "authoritatively on behalf of the CP [content
`
`provider] origin servers."
`
`(' 102 Patent, 4:45-49.) Defining the surrogate origin server in
`
`reference to the "default" content provider's origin server further strengthens the reading that the
`
`17
`
`17
`
`

`
`Case 3:15-cv-00720-JAG Document 179 Filed 09/02/16 Page 18 of 23 PageID# 5242
`
`patent onl y contemplates a content provider's server as an origin server. See Phillips, 415 F.3d
`
`1303 at 1323 (recognizing the fine line between reading a claim in light of the specificati on and
`
`reading a limitati on into the claim from the specificati on).
`
`9. Akamai Patent No. 6,820