Case 2:06-cv-00042-DF -CMC Document 309 Filed 11/21/11 Page 1 of 27 PageID #:
` 2941
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
` CIVIL ACTION NO. 2:06-CV-42
`
`§§§§§§§§§§§§§
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`DDR HOLDINGS, LLC,
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`Plaintiff,
`
`v.
`
`HOTELS.COM, LP, et al.,
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`Defendants.
`
`CLAIM CONSTRUCTION ORDER
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`Before the Court is Plaintiff’s Claim Construction Opening Brief. Dkt. No. 274. Also
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`before the Court are Defendants’ response and Plaintiff’s reply. Dkt. Nos. 281 & 292. The
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`Court held a claim construction hearing on November 17, 2011. See 11/17/2011 Minute Entry,
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`Dkt. No. 308. Having considered the briefing, oral arguments of counsel, and all relevant papers
`
`and pleadings, the Court construes the disputed claim terms as set forth herein.
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`1
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`DDR Holdings, LLC - Ex. 2015
`Shopify, Inc. v. DDR Holdings, LLC
`IPR2018-01011
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`

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`Case 2:06-cv-00042-DF -CMC Document 309 Filed 11/21/11 Page 2 of 27 PageID #:
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`TABLE OF CONTENTS
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`I. BACKGROUND .
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`II. LEGAL PRINCIPLES OF CLAIM CONSTRUCTION
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`III. DISCUSSION .
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` A. “link”
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` B. “capturing”
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` C. “look and feel description”
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` D. “third parties”
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`IV. CONCLUSION
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`I. BACKGROUND
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`Plaintiff asserts United States Patents No. 6,629,135 (“the ’135 Patent”), 6,993,572 (“the
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`’572 Patent”), and 7,818,399 (“the ’399 Patent”), which relate to Internet commerce. Dkt. No.
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`274 at Exs. A-C. The ’399 Patent is a continuation of the ’572 Patent, and the ’572 Patent is a
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`continuation of the ’135 Patent. Thus, the patents-in-suit all share a common written description.
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`References to the written description herein shall be to the ’135 Patent. Trial is set for October
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`2012. See 9/8/2011 Scheduling Order, Dkt. No. 268.
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`On December 19, 2006, the Court stayed the above-captioned case pending
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`reexamination of the ’135 Patent and the ’572 Patent. These patents emerged from
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`reexamination on July 20, 2010. See Ex Parte Reexamination Certificates, Dkt. No. 274, Ex. A
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`at 42-44 of 44 & Ex. B at 44-45 of 45. The ’399 Patent issued on October 19, 2010. See Dkt.
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`No. 274 at Ex. C.
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`The Abstract of the ’135 Patent states:
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`The present invention is directed to an e-commerce outsourcing system and
`method that provides hosts with transparent, context sensitive e-commerce
`supported pages. The look and feel of a target host is captured for future use. The
`look and feel is captured by receiving the identification of an example page on the
`target host, retrieving the page, identifying the look and feel elements of the
`identified page and storing the identified elements. The host is provided with links
`correlating the host with a link for inclusion within a page on the host website for
`serving to a visitor computer, wherein the provided link correlates the host
`website with a selected commerce object contextually related to material in the
`page. The commerce object can be a product, a product category or a dynamic
`selection indicator. Upon activation of the provided link, the visitor computer is
`served with an e-commerce supported page with the look and feel of the host
`website associated with the activated link and with content based upon the
`commerce object associated with the activated link. Where the commerce object is
`a dynamic selection indicator the content is selected at the time of activation based
`upon an analysis of the page containing the activated link.
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`The Abstract of the ’572 Patent states:
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`An e-commerce outsourcing system and method provides hosts with transparent,
`context-sensitive e-commerce supported pages. The look and feel of a target host
`is captured for future use. The host is provided with one or more links for
`inclusion within a page on the host website that correlates with a selected
`commerce object, which may be contextually related to material in the page. The
`commerce object can be a product, a product category, or a dynamic selection
`indicator. Upon activation of the provided link, a visitor computer is served with a
`page with the look and feel of the host website and with content based upon the
`associated commerce object. Where the commerce object is a dynamic selection
`indicator, the content is selected at the time of activation based upon an analysis
`of the page containing the activated link.
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`The Abstract of the ’399 Patent states:
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`An e-commerce outsourcing system and method provides hosts with transparent,
`context-sensitive e-commerce supported pages. A plurality of visually perceptible
`elements associated with and identifying a source of a host’s web page are stored
`in the form of data in a computer database for future use. The host includes one or
`more links within a page on the host website that correlate with a selected
`commerce object, which may be contextually related to material in the page. The
`commerce object can be a buying opportunity for a product of a third-party
`merchant, a product category containing a plurality of products of third-party
`merchants, or a dynamic selection indicator of a merchant’s product. A plurality
`of hosts may choose to link to the same commerce object. Upon activation of the
`link displayed by a particular host website, a visitor computer is served with a
`page displaying the visually perceptible elements associated with that specific
`host’s website and information associated with the commerce object correlated to
`the link. Where the commerce object is a dynamic selection indicator, the content
`is selected at the time of activation based upon an analysis of the page containing
`the activated link.
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`Plaintiff asserts: Claim 8 of the ’135 Patent; Claims 13, 17, 20, 21, and 23 of the ’572 Patent; and
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`Claims 1, 3, 7, and 19 of the ’399 Patent. The parties submit four disputed terms for
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`construction: (1) “link”; (2) “capturing”; (3) “look and feel description”; and (4) “third parties.”
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`The asserted claims are reproduced herein with the disputed terms italicized:
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`’135 Patent
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`8. An e-commerce outsourcing process providing a host website in
`communication with a visitor computer with context sensitive, transparent
`e-commerce support pages, comprising the steps of:
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`a) capturing a look and feel description associated with a host website;
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`b) providing the host website with a link for inclusion within a page on the
`host website for serving to a visitor computer, wherein the provided link
`correlates the host website with a selected commerce object; and
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`c) upon receiving an activation of the provided link from the visitor
`computer, serving to the visitor computer an e-commerce supported page
`with a look and feel corresponding to the captured look and feel
`description of the host website associated with the provided link and with
`content based on the commerce object associated with the provided link.
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`’572 Patent
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`13. An e-commerce outsourcing system comprising:
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`a) a data store including a look and feel description associated with a host
`web page having a link correlated with a commerce object; and
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`b) a computer processor coupled to the data store and in communication
`through the Internet with the host web page and programmed, upon
`receiving an indication that the link has been activated by a visitor
`computer in Internet communication with the host web page, to serve a
`composite web page to the visitor computer wit[h] a look and feel based
`on the look and feel description in the data store and with content based on
`the commerce object associated wit[h] the link.
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`17. An e-commerce outsourcing process comprising the steps of:
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`a) storing a look and feel description associated with a first website in a
`data store associated with a second website;
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`b) including within a web page of the first website, which web page has a
`look and feel substantially corresponding to the stored look and feel
`description, a link correlating the web page with a commerce object; and
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`c) upon receiving an activation of the link from a visitor computer to
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`which the web page has been served, se[rv]ing to the visitor computer
`from the second website a composite web page having a look and feel
`corresponding to the stored look and feel description of the first website
`and having content based on the commerce object associated with the link.
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`20. The process of claim 17 wherein the look and feel description comprises data
`defining a set of navigational links, used on at least some of the web pages of the
`first website, each of which links link to specific web pages of the first website.
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`21. The process of claim 17 wherein the look and feel description comprises data
`defining:
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`a) a logo associated with and displayed on at least some of the web pages
`of the first website;
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`b) a color scheme used on at least some of the web pages of the first
`website;
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`c) a page layout used on at least some of the web pages of the first website;
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`and
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`d) navigational links, used on at least some of the web pages of the first
`website, each of which links link to specific web pages of the first website.
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`23. The process of claim 17 wherein the commerce object is a set of product
`categories and further comprising accepting search parameters through the
`composite web page and using said parameters to search for specific products
`within the product categories.
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`’399 Patent
`
`1. A method of an outsource provider serving web pages offering commercial
`opportunities, the method comprising:
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`(a) automatically at a server of the outsource provider, in response to
`activation, by a web browser of a computer user, of a link displayed by one
`of a plurality of first web pages, recognizing as the source page the one of
`the first web pages on which the link has been activated;
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`(i) wherein each of the first web pages belongs to one of a plurality
`of web page owners;
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`(ii) wherein each of the first web pages displays at least one active
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`link associated with a commerce object associated with a buying
`opportunity of a selected one of a plurality of merchants; and
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`(iii) wherein the selected merchant, the outsource provider, and the
`owner of the first web page are each third parties with respect to
`one other;
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`(b) automatically retrieving from a storage coupled to the server pre-stored
`data associated with the source page; and then
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`(c) automatically with the server computer-generating and transmitting to
`the web browser a second web page that includes:
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`(i) information associated with the commerce object associated
`with the link that has been activated, and
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`(ii) a plurality of visually perceptible elements derived from the
`retrieved pre-stored data and visually corresponding to the source
`page.
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`3. The method of claim 1 wherein at least one of the plurality of visually
`perceptible elements includes a set of navigational links on the source page.
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`7. The method of claim 1 wherein the commerce object associated with the link
`that has been activated comprises information defining an electronic catalog
`having a multitude of merchant offerings, and wherein the second web page
`contains one or more selectable navigation links connecting a hierarchical set of
`additional second web pages, each pertaining to a subset of the offerings in the
`catalog.
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`19. A system useful in an outsource provider serving web pages offering
`commercial opportunities, the system comprising:
`
`(a) a computer store containing data, for each of a plurality of first web
`pages, defining a plurality of visually perceptible elements, which visually
`perceptible elements correspond to the plurality of first web pages;
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`(i) wherein each of the first web pages belongs to one of a plurality
`of web page owners;
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`(ii) wherein each of the first web pages displays at least one active
`link associated with a commerce object associated with a buying
`opportunity of a selected one of a plurality of merchants; and
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`(iii) wherein the selected merchant, the outsource provider, and the
`owner of the first web page displaying the associated link are each
`third parties with respect to one other;
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`(b) a computer server at the outsource provider, which computer server is
`coupled to the computer store and programmed to:
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`(i) receive from the web browser of a computer user a signal
`indicating activation of one of the links displayed by one of the
`first web pages;
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`(ii) automatically identify as the source page the one of the first
`web pages on which the link has been activated;
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`(iii) in response to identification of the source page, automatically
`retrieve the stored data corresponding to the source page; and
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`(iv) using the data retrieved, automatically generate and transmit to
`the web browser a second web page that displays:
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`(A) information associated with the commerce object
`associated with the link that has been activated, and
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`(B) the plurality of visually perceptible elements visually
`corresponding to the source page.
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`II. LEGAL PRINCIPLES
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`A determination of patent infringement involves two steps: first, the patent claims are
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`construed, and, second, the claims are compared to the allegedly infringing device. Cybor Corp.
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`v. FAS Techs., Inc., 138 F.3d 1448, 1455 (Fed. Cir. 1998) (en banc). Claim construction is a
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`legal question for the courts. Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996).
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`The legal principles of claim construction were reexamined by the Court of Appeals for the
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`Federal Circuit in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). The Federal
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`Circuit in Phillips expressly reaffirmed the principles of claim construction as set forth in
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`Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S.
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`370 (1996), Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996), and
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`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111 (Fed. Cir. 2004).
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`The Phillips court also reaffirmed that “the prosecution history can often inform the
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`meaning of the claim language by demonstrating how the inventor understood the invention and
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`whether the inventor limited the invention in the course of prosecution, making the claim scope
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`narrower than it would otherwise be.” 415 F.3d at 1317 (citing Vitronics, 90 F.3d at 1582–83).
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`The prosecution history is a significant source for “evidence of how the PTO [(United States
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`Patent and Trademark Office)] and the inventor understood the patent.” Id. The prosecution
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`history is thus probative of the proper claim interpretation and may also contain a disclaimer of
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`claim scope in some cases:
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`[A]n applicant’s argument that a prior art reference is distinguishable on a
`particular ground can serve as a disclaimer of claim scope even if the applicant
`distinguishes the reference on other grounds as well.” Andersen Corp. v. Fiber
`Composites, LLC, 474 F.3d 1361, 1374 (Fed. Cir. 2007). Moreover, regardless of
`whether the examiner agreed with [the patentee’s] arguments . . ., its statements
`still inform the proper construction of the term. See Seachange Int’l, Inc. v.
`C-COR Inc., 413 F.3d 1361, 1374 (Fed. Cir. 2005) (“An applicant’s argument
`made during prosecution may lead to a disavowal of claim scope even if the
`Examiner did not rely on the argument.”); Microsoft Corp. v. Multi-Tech Sys., 357
`F.3d 1340, 1350 (Fed. Cir. 2004) (“We have stated on numerous occasions that a
`patentee’s statements during prosecution, whether relied on by the examiner or
`not, are relevant to claim interpretation.”).
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`Am. Piledriving Equip., Inc. v. Geoquip, Inc., 637 F.3d 1324, 1336 (Fed. Cir. 2011).
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`“[F]or prosecution disclaimer to attach, our precedent requires that the alleged
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`disavowing actions or statements made during prosecution be both clear and unmistakable.”
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`Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1325-26 (Fed. Cir. 2003); accord Lazare
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`Kaplan Int’l, Inc. v. Photoscribe Techs., Inc., 628 F.3d 1359, 1370 (Fed. Cir. 2010). The Federal
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`Circuit has “declined to apply the doctrine of prosecution disclaimer where the alleged disavowal
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`of claim scope is ambiguous.” Omega Eng’g, 334 F.3d at 1324.
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`The Court construes the disputed terms in accordance with the doctrines of claim
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`construction it has outlined here along with those it has enunciated in the past. See Pioneer
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`Corp. v. Samsung SDI Co., No. 2:07-CV-170, 2008 WL 4831319, at *1-*5 (E.D. Tex. Mar. 10,
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`2008).
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`III. DISCUSSION
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`The parties have agreed upon the following constructions:
`
`Term
`Look and feel
`
`Visually
`perceptible
`elements
`Web page
`
`First web page
`Website
`First website
`Commerce
`object
`Merchant
`Host/Owner
`
`Agreed Construction
`A set of elements related to visual appearance and user interface conveying
`an overall appearance identifying a website; such elements include logos,
`colors, page layout, navigation systems, frames, “mouse-over” effects, or
`others [sic] elements consistent through some or all of the website.
`Look and feel elements that can be seen.
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`A document that is accessible through the World Wide Web and capable of
`being displayed by a web browser.
`Host web page.
`One or more related web pages at a location on the World Wide Web.
`Host website.
`A third-party merchant’s: catalog, category, product (goods or services), or
`dynamic selection.
`Producer, distributor, or reseller of goods or services to be sold.
`An operator of a website that engages in Internet commerce by
`incorporating one or more links to an e-commerce outsource provider into
`its web content.
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`Outsource
`provider/e-
`commerce
`outsource
`provider
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`A party, independent from the host associated with the commerce object or
`merchant of the commerce object, that provides e-commerce support
`services between merchant(s) and host(s).
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`11/3/2011 Joint Claim Construction Chart, Dkt. No. 300 at 3.
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`A. “link”
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`(1) The Parties’ Positions
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`This term appears in claims of all three of the patents-in-suit. Plaintiff proposes that no
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`construction is necessary. Dkt. No. 274 at 7. Alternatively, Plaintiff proposes this term means “a
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`hypertext, text, banner, logo, graphic, or contextual element that permits a user to navigate from
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`one web location to another web location by activating that element.” Id. at 9. Defendants
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`propose this term means “HTML element that, when activated by a visitor, causes the web
`1
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`browser to retrieve the content at the URL previously generated by the outsource provider.”
`2
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`Dkt. No. 281 at 3.
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`Plaintiff cites the specification extensively and urges that the patents-in-suit use the term
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`consistent with its meaning “in ordinary parlance.” Dkt. No. 274 at 8. Plaintiff submits that its
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`alternative proposed construction is derived from one of the Defendants own documents and
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`from a dictionary definition. Id. at 8-9. Plaintiff argues that contrary to Defendants’ proposal,
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`the URL or content need not have been “previously” generated because the specification itself
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`discloses “dynamically generated web pages . . . served by the e-commerce outsource provider.”
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`1
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` HTML refers to “hypertext markup language.” ’135 Patent at 1:21.
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`2
` The Court assumes that the parties and the patents-in-suit use “URL” to refer to a Uniform Resource
`Locator, which some might refer to as a “Web address” or “Internet address.”
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`Id. at 10 (citing ’135 Patent at 23:3-6). Plaintiff also argues that “[t]here is no reason to limit to
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`HTML just because that is the predominant language today.” Id. at 10.
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`Defendants respond that “the specification does not describe a system that uses the
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`ordinary type of links found on most web pages, but rather a specific type of link that is essential
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`for the proper operation of the outsourcing system and method of the asserted claims.” Dkt. No.
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`281 at 4. Specifically, Defendants submit that the “outsource provider generates the specific
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`URL and provides the URL to the host,” which in turn includes an HTML element on its website.
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`Id. Defendants note that “[t]he specification only teaches a single embodiment.” Id. at 5.
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`Defendants also argue that whereas “the patents-in-suit teach the e-commerce provider
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`dynamically generating content for web pages,” “the Patents-in-Suit never teach a Host
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`dynamically generating a URL.” Id. at 6. Finally, Defendants argue that the extrinsic evidence
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`that Plaintiff relies upon is unreliable because it is a “decade-late, third-party legal contract.” Id.
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`at 8.
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`Plaintiff replies by re-emphasizing “five different places, scattered through the
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`specification, where the inventors used the term ‘link’ in the ordinary sense.” Dkt. No. 292 at
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`1-2 (citing ’135 Patent at 3:7-11, 23:2-3 & 24:40-43). Plaintiff also submits that the contract
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`Plaintiff cited involved a subsidiary of Defendant Expedia, Inc. and thus constitutes an
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`admission. Id. at 3 (citing Fed. R. Evid. 801(d)(2)).
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`During the November 17, 2011 claim construction hearing, Plaintiff stressed that
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`although limiting the term “link” to HTML might not matter for the above-captioned case, such a
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`limitation could have ramifications for the ’399 Patent, which Plaintiff submitted will not expire
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`until the year 2022. Plaintiff suggested that although Defendants all appear to be using HTML,
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`the Internet could change during the next ten years. Plaintiff also argued that any construction
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`that includes “HTML” would generate needless debate about what “HTML” is or what version of
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`the HTML standard is relevant. Finally, Plaintiff cited the Court’s claim construction in another
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`case in which the Court rejected the defendants’ argument that the term “Web page” be
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`construed, in relevant part, to mean “an HTML document.” epicRealm v. Autoflex Leasing, Inc.,
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`No. 5:07-cv-125 (originally No. 2:05-cv-163), Dkt. No. 194 at 7 (E.D. Tex. Aug. 15, 2006). In
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`conclusion, Plaintiff urged, in as many words, that it does not matter to the invention how the
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`link was generated or what language it is in; the link simply provides the necessary connection.
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`In response, Defendants argued that the specification defines the term “by implication,”
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`as contemplated by Novartis Pharm. Corp. v. Abbott Labs., 375 F.3d 1328, 1334 (Fed. Cir.
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`2004), and Phillips, 415 F.3d at 1321. In this vein, Defendants noted that the specification refers
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`to a “Link”—capitalized—in several instances. Defendants also argued that any construction of
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`“link” that is not limited to HTML would suffer from lack of enablement. Finally, Defendants
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`argued it is unclear what “contextual element” means in Plaintiff’s alternative proposed
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`construction
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`In reply, Plaintiff suggested that the word “contextual” could be removed from its
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`alternative proposed construction. Plaintiff also responded that despite Defendants mere
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`“assertion” regarding lack of enablement, there is no evidence in the record that a person of
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`ordinary skill in the art could not program a non-HTML link. Moreover, Plaintiff argued,
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`enablement is an issue for trial and not for claim construction. Plaintiff further argued that the
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`capitalized “Link” refers to the preferred embodiment and should not be used to limit the term
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`“link” in general.
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`In sur-reply, Defendants re-urged that “link” is a term that requires definition and that the
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`specification provides that definition. Plaintiff responded that Phillips “expressly rejected the
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`contention that if a patent describes only a single embodiment, the claims of the patent must be
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`construed as being limited to that embodiment.” 415 F.3d at 1323.
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`(2) Construction
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`As a threshold matter, although Plaintiff urges that no construction is required, “when the
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`parties present a fundamental dispute regarding the scope of a claim term, it is the court’s duty to
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`resolve it.” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir.
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`2008); see also id. at 1361 (“A determination that a claim term ‘needs no construction’ or has the
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`‘plain and ordinary meaning’ may be inadequate when a term has more than one ‘ordinary’
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`meaning or when reliance on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”).
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`Also, the contract relied upon by Plaintiff as extrinsic evidence is subject to Defendants’
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`objection and, even if considered, would not affect the Court’s analysis of the dispute term. The
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`Court therefore does not pass upon the contract or Defendants’ objection thereto.
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`As to the claims, Claim 8 of the ’135 Patent recites a step of “providing the host website
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`with a link for inclusion within a page on the host website for serving to a visitor computer.”
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`Defendants’ proposal, which includes referring to “the URL previously generated by the
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`outsource provider,” would render this language in Claim 8 superfluous.
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`The written description only refers to “HTML” eleven times and only once with regard to
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`a link. That sole reference to linking using HTML appears in the Background of the Invention:
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`“The World Wide Web began as a simple interface to the Internet using HTML (hypertext
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`markup language) as a means of linking documents together.” ’135 Patent at 1:21-23. The
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`remaining references to HTML primarily concern “capturing the HTML text and images that
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`comprise [the host’s] look and feel and embed[ding] within it the shopping HTML content.” Id.
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`at 12:57-59. Likewise, the written description does not expressly limit the term “link” to “the
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`URL previously generated by the outsource provider,” and the Court finds insufficient evidence
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`to conclude that this definition is provided “by implication.” Phillips, 415 F.3d at 1321.
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`On balance, Defendants’ proposal that a link must be an “HTML element that, when
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`activated by a visitor, causes the web browser to retrieve the content at the URL previously
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`generated by the outsource provider” is rejected as lacking sufficient support. See Phillips, 415
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`F.3d at 1323 (quoted above).
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`The specification comports with Plaintiff’s proposed construction. The Abstracts of the
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`patents-in-suit, as well as the Claims, teach that a link can be “activated.” See, e.g., ’135 Patent
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`at Abstract & Claim 8. The specification further explains:
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`Customer, visiting Host, activates link to commerce object within context of
`Host’s website. This activation is typically accomplished by clicking on a
`hyperlink of some kind within a webpage of the Host’s website.
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`Id. at 24:40-43; see also id. at 15:5-7. Thus, although the use of a hyperlink is “typical,” the
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`patent does not exclude other types of elements from being links. For example, the written
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`description refers to the use of a clickable “image” or “banner-style link” but does not require
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`that they be a “hyperlink” or “HTML” link. See id. at 23:1-6 (“The customer selects the item(s)
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`that she wishes to purchase by clicking a product image, banner-style link, or text link, or other
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`offer format taking her to a dynamically generated web pages [sic] . . . .”)
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`As to the function of a link, the Background of the Invention discloses that “[i]n the early
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`stages [of the Internet], website programmers increased visitor traffic by placing ‘links’ within
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`their websites to other websites, usually related in content or function, in exchange for a
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`reciprocal link.” Id. at 1:30-33. The written description also notes that “[a] Host is the operator
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`of a website that engages in Internet commerce by incorporating one or more link [sic] to the e-
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`commerce outsource provider into its web content.” Id. at 22:11-13. This supports Plaintiff’s
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`proposal that a link permits a user to navigate from one web location to another web location.
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`See also id. at 3:9-20 (“Upon actuation of such a link,” the “visitor” is presented with “pages
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`served by a server other than the host but with the host’s look and feel”) & 3:23-24 (referring to
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`“links included by the host directed to the outsource provider”). The asserted Claims provide
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`further support by reciting that upon activation of a link, a special web page is served to the
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`visitor. See, e.g., ’135 Patent at Claim 8.
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`The Detailed Description of the Inventions also comports with this construction by
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`disclosing a “Link Generator” and noting that “[e]ach Link is assigned a unique Link ID. The
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`Link ID identifies who the host is, who the merchant is, and what commerce object (catalog,
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`category, product or dynamic selection) is linked to.” Id. at 13:48-51. In the preferred
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`embodiment, upon adding a new link, “the link is saved to the system database 765, and the
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`representative is provided with a link to include within a page on the host website 770.” Id. at
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`14:58-60. “When a customer clicks on a host buying opportunity (link), the next page loaded
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`will be a shopping page.” Id. at 12:54-55.
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`As to Defendants’ argument at the claim construction hearing regarding enablement, the
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`Court of Appeals for the Federal Circuit has “certainly not endorsed a regime in which validity
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`analysis is a regular component of claim construction.” Phillips, 415 F.3d at 1327; accord
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`Pfizer, Inc. v. Teva Pharm., USA, Inc., 429 F.3d 1364, 1376 (Fed. Cir. 2005) (quoting Phillips
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`and rejecting argument that district court’s claim construction would render the claims invalid for
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`lack of enablement). Because the Court has arrived at a construction using the “the available
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`tools of claim construction,” the Court does not here consider any dispute regarding enablement.
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`Phillips, 415 F.3d at 1327 (citation and internal quotation marks omitted).
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`Finally, as to Defendants’ concern that the phrase “contextual element” may be too vague,
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`the Court applies Plaintiff’s suggestion to remove the word “contextual” from Plaintiff’s
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`proposed construction.
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`The Court therefore substantially adopts Plaintiff’s proposal and construes “link” to
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`mean “a hypertext, text, banner, logo, graphic, or other element that permits a user to
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`navigate from one web location to another web location by activating that element.”
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`B. “capturing”
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`This term appears in Claim 8 of the ’135 Patent. Plaintiff proposed that no construction
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`was necessary. Dkt. No. 274 at 11. Alternatively, Plaintiff proposed this term means “taking
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`possession from a third party of something not already in possession using at least partially
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`automated techniques.” Id. Defendants proposed this term means “automatically, by a party
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`other than the host, extracting elements from a web page of the host website, specifically
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`excluding receiving look and feel elements from the host or having the host input, upload,
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`submit, or forward the look and feel elements.” Dkt. No. 281 at 14.
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`On the morning of the November 17, 2011 claim construction hearing, the Court
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`provided the parties with a preliminary construction of this term to mean “automatically, by a
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`party other than the host, retrieving elements from a web page of the host website, specifically
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`excluding having the host input the look and feel elements.” The parties conferred and reached
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`a