IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`§§
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`§§
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`Civil Action No. 2:06cv367-DF
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`JURY TRIAL DEMANDED
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`§§
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`§§
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`§§
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`PALTALK HOLDINGS, INC.,
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`Plaintiff,
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` vs.
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`MICROSOFT CORP.,
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`Defendant.
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`CLAIM CONSTRUCTION ORDER
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`Before this Court is PalTalk’s Corrected Second Opening Claim Construction
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`Brief. Dkt. No. 82. Also before the Court are Microsoft’s updated response, PalTalk’s
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`second reply, and Microsoft’s sur-reply. Dkt. Nos. 80, 83 & 86. The Court held a
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`hearing on January 17, 2008. Dkt. Nos. 91 & 94. After considering the patents,
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`arguments of counsel, and all other relevant pleadings and papers, the Court finds that the
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`claims of the patents-in-suit should be construed as set forth herein.
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`Petitioner Riot Games, Inc. - Ex. 1033, Cover
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`Petitioner Valve - Ex. 1033, Cover
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`

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`I.
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`II.
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`III.
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`IV.
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`V.
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`VI.
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`TABLE OF CONTENTS
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`BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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`LEGAL PRINCIPLES OF CLAIMS CONSTRUCTION . . . . . . . . . . . . . . . . . . . 1
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`THE PATENTS-IN-SUIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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`PRIOR LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`The HearMe Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
`A.
`B.
`Collateral Estoppel does not Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
`C.
`Judicial Estoppel Does Not Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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`CLAIMS AT ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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`(ii)
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`CLAIM CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`A.
`Agreed Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
`B.
`Disputed Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`(I) “Aggregating” and “Aggregated . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`(1) The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
`“Aggregating, by said Server in a Time Interval Determined in
`Accordance with a Predefined Criterion, said Payload
`Portions of Said Messages to Create an Aggregated Payload” . . 21
`(1) The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
`(iii) “Aggregating Said Payload Portions,” And “Aggregated
`Payload”
`. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`(1) Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
`(iv) “Aggregated Message . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`(1) The Partes’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`(v) “Group Messages” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`(1) The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
`(vi) “List of Message Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
`(1) The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
`(vii) “Suppressing” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
`(1) The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
`(viii) “Server Message” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
`(1)
`The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
`(2)
`Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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`-i-
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`Petitioner Riot Games, Inc. - Ex. 1033, p. i
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`Petitioner Valve - Ex. 1033, p. i
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`(x)
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`(ix) “Shared Interactive Application” . . . . . . . . . . . . . . . . . . . . . . . . . . 35
`(1) The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
`“Wherein/whereby said Aggregated/Server Message
`keeps the Shared Interactive Application Operating
`Consistently” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
`(1) The Parties’ Positions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
`(2) Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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`VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
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`-ii-
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`Petitioner Riot Games, Inc. - Ex. 1033, p.ii
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`Petitioner Valve - Ex. 1033, p. ii
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`MEMORANDUM AND OPINION
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`I. BACKGROUND
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`On September 12, 2006, PalTalk Holdings, Inc. (“PalTalk”) sued Microsoft Corp.
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`(“Microsoft”) for patent infringement relating to United States Patents 5,822,523 (the
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`“'523 Patent”), and 6,226,686 (the “'686 Patent”). Complaint, Dkt. No. 1. Both asserted
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`patents have the same title, which is “Server-group messaging system for interactive
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`applications.” Microsoft generally denies all of PalTalk’s allegations and further
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`counterclaims for declaratory judgment of non-infringement and invalidity with respect
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`to the asserted patents. Answer, Dkt. No. 19.
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`II. LEGAL PRINCIPLES OF CLAIMS CONSTRUCTION
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`A determination of patent infringement involves two steps. First, the patent
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`claims are construed, and, second, the claims are compared to the allegedly infringing
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`device. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1455 (Fed. Cir. 1998) (en banc).
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`The legal principles of claim construction were recently reexamined by the Federal
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`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,
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`517 U.S. 370 (1996), Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir.
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`1996), and Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d
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`1111 (Fed. Cir. 2004). Thus, the law of claim construction remains intact. Claim
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`construction is a legal question for the courts. Markman, 52 F.3d at 979.
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`The Court, in accordance with the doctrines of claim construction which it has
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`outlined in the past, construes the claims of the patents-in-suit below. See Pioneer v.
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`1
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 1
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`Petitioner Valve - Ex. 1033, Page 1
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`Samsung, Civ. No. 2:07-cv-170, Dkt. No. 94 at 2-8 (E.D. Tex. filed Mar. 10, 2008)
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`(claim construction order).
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`III. THE PATENTS-IN-SUIT
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`Originally, the '523 and '686 Patents (hereinafter, collectively “the Patents”) were
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`owned by a company named HearMe, which was founded in 1995. '523 Patent at cover;
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`'686 patent at cover; Dkt. No. 82 at 1. HearMe developed and sold technology to permit
`1
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`multiple parties to play video games with each other over the Internet. Dkt. No. 82 at 1.
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`PalTalk purchased the Patents from HearMe in 2002, purportedly because of their
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`relevance to PalTalk’s video and voice conferencing business. Id. at 2.
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`The application for the '523 Patent was originally filed with the United States
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`Patent and Trademark Office on February 1, 1996. '523 Patent at cover. On July 18,
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`1997, HearMe filed a continuation application (Application No. 08/896,797) based upon
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`the application of the '523 Patent (Application No. 08/595,323). '686 Patent at cover.
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`That continuation eventually matured into U.S. Patent No. 6,018,766 (the “'766 Patent”),
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`which is not asserted in this lawsuit. Id. On September 28, 1999, HearMe filed a second
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`continuation application (Application No. 09/407,371) based upon the application that
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`matured into the ’766 Patent. Id. This second continuation matured in to the '686 Patent.
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`Id. Since the '686 Patent issued in a line of ordinary continuations from the '523 Patent
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`application, the Patents share the same substantive disclosure.
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`The Court provides the following summary of the Patents without prejudice to or
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`implication upon the parties’ positions: The Patents disclose a system for deploying
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`interactive software applications over a network. '686 Patent at abstract. The system
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`operates in a conventional unicast network using conventional network links and unicast
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`1
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` All page numbers from the parties’ submissions are hereinafter cited as originally paginated.
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`2
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 2
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`Petitioner Valve - Ex. 1033, Page 2
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`routers. Id. In operation, the nodes of a unicast network send messages on a one-to-one
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`basis a node can only send a message to a single other node '523 Patent at 4:14-16 (“As
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`can be seen, each host must send a packet to every other host that it wishes to
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`communicate with in an interactive application.”). Unicast networks may be contrasted
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`to multi-cast networks that offer operational ability on a one-to-many basis one node
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`may send a single message to many other nodes. Id. at 4:34-37 (“IP multicasting
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`supports the transmission of a IP datagram to a host group by addressing the datagram to
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`a single destination address.”).
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`The Patents disclose a system generally using several host computers and a
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`central server computer, called a group messaging server (“GMS”). '523 Patent at 8:21-
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`34 (“The present invention relates to facilitating efficient communications between
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`multiple host computers over a conventional wide area communications network to
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`implement an interactive application such as a computer game between multiple players.
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`. . . The invention is comprised of a group messaging server connected to the network
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`that maintains a set of message groups used by the hosts to communicate information
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`between themselves.”). Each host is presumably employed by a user that wishes to
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`participate in a shared application, such as a networked game. Id. The purpose of a
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`shared application is that there are other users, each employing their own host computer
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`to participate in the shared application. Id. The overall group of users sharing an
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`application may be considered a message group . Id.
`2
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`In order to effect application sharing, the hosts in a message group send messages
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`to each other. '523 Patent at 1:66
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` 2:1 (“The messages sent between the PCs would
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` This reference to a “message group” is exemplary and not intended to as an alteration or
`ubstitution for the parties’ agreed definition for this term. For purposes of claim construction
`and the jury instructions, the term “message group” has been defined more fully below.
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`2 s
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`3
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 3
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`Petitioner Valve - Ex. 1033, Page 3
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`contain information that was needed to keep the game consistent between all of the
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`PCs.”). The messages are sent via the central server or group messaging server
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`(“GMS”). '523 Patent at 8:29-32 (“The invention is comprised of a group messaging
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`server connected to the network that maintains a set of message groups used by the hosts
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`to communicate information between themselves.”). The GMS is aware of the various
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`message groups among the host computers and even may be aware of the shared
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`application. Id.; '523 Patent at 27:22-24 (“Another extension to the invention is to define
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`ULP server processes that perform specific application specific processes on the contents
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`of the messages that are received.”). Therefore, a host can send a message to the GMS
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`indicating (explicitly or implicitly) a recipient group of hosts. Id. at abstract (“The hosts
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`send messages containing destination group addresses by unicast to the group messaging
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`servers.”). The GMS may then forward the message to each host in the indicated group.
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`Id. (“The group messaging server then forwards the message to each of the target
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`hosts.”). Thus, by using the GMS, each host may use the unicast network to perform
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`message routing that would otherwise only be available in a multicast network (ie., by
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`using the GMS, a single message is sent to multiple hosts).
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`The patent discusses that the GMS may be employed to offer other advantages as
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`well. For example, the GMS may aggregate messages received from several hosts and
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`send the aggregation to intended recipients via a single aggregated message. Id.
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`(“Rather than simply forward each message to its target hosts, the group messaging
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`server aggregates the contents of each of messages received during a specified time
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`period and then sends an aggregated message to the targeted hosts.”). In addition, the
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`GMS may suppress messages so that the source of a particular message does not receive
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`4
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 4
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`Petitioner Valve - Ex. 1033, Page 4
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`an “echo” of the message that was sent. '523 Patent at 22:66 23:2 (“. . . echo
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`suppression . . . means that the host will not receive a copy of its own message to the
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`group either as a single un-aggregated message or a as a payload item in an aggregated
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`message.”).
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`A. The HearMe Litigation
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`IV. PRIOR LITIGATION
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`Several years ago, PalTalk’s predecessor-in-interest, HearMe, sued a company
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`called Lipstream for infringement of the '523 Patent. The lawsuit was conducted in the
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`Northern District of California before The Honorable William H. Alsup. HearMe v.
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`Lipstream Networks, Inc., No. C 99-04506 WHA. During that dispute, the Judge Alsup
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`convened a claim construction hearing on June 20 and 21, 2000. Dkt. No. 80, Ex. H at 3.
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`In addition, Judge Alsup issued a “tentative ruling” after the hearing. Dkt. No. 80, Ex. D.
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`Judge Alsup subsequently accepted more briefing from the parties regarding claim
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`construction and ultimately issued a final claim construction order. Dkt. No. 80, Ex. H.
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`The HearMe-Lipstream case has become an issue in this proceeding for a variety
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`of reasons. First, some questions have been raised whether Judge Alsup’s Order is
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`binding upon this Court. Dkt. No. 80 at 8 (“The doctrines of judicial estoppel, stare
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`decisis, and collateral estoppel preclude PalTalk from taking an inconsistent position in
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`this case with respect to "aggregating." Even if Judge Alsup's order is not binding on this
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`Court as a matter of law, it cannot be ignored.”). Second, Microsoft contends that
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`PalTalk may be bound to statements of its predecessor HearMe. Id. Third, even if not
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`bound, Microsoft urges that this Court should not ignore Judge Alsup’s Order. Id.
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`5
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 5
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`Petitioner Valve - Ex. 1033, Page 5
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`B. Collateral Estoppel does not Apply
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`Microsoft also argues that the doctrines of collateral estoppel and stare decisis
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`apply, even though there was no final judgment in the HearMe case. Id. To support this
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`proposition, Microsoft argues that PalTalk was fully heard on the claim construction
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`issue and the Court issued two fully-reasoned orders. Dkt. No. 80 at 9, citing RF
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`Delaware v. Pacific Keystone Tech., Inc., 326 F.3d 1255 (Fed. Cir. 2003); Dana v. E.S.
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`Originals, Inc., et al., 342 F.3d 1320, 1324 (Fed. Cir. 2003).
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`In the Fifth Circuit, collateral estoppel applies when: “(1) the identical issue
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`was previously adjudicated; (2) the issue was actually litigated; and (3) the previous
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`determination was necessary to the decision.” Pace v. Bogalusa City School Bd., 403
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`F.3d 272, 290 (5th Cir. 2005). The parties in the HearMe litigation reached a voluntary
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`settlement before a final judgment was entered. The Court finds that, in this situation,
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`the majority of courts have found that collateral estoppel does not bind the later court to
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`the claim construction of the previous court. See RF Delaware, 326 F.3d at 1261-62
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`(collateral estoppel did not apply to bind the subsequent case to the claim constructions
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`in orders ruling on summary judgment motions entered in the previous case when the
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`parties had settled before final judgment); See also Logan v. Hormel Foods Corp., No.
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`6:04-CV-211, 2004 WL 5216126 at *2 (E.D. Tex. Aug. 25, 2004) (“[T]his Court is not
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`bound by Judge Werlein’s claim construction because that case settled prior to final
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`judgment on the merits.”) (Davis, J.); Abbot Diabetes Care Inc. v. Roche Diagnostics
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`Corp., 2007 WL 1239220 (N.D. Cal. 2007); Kollmorgen Corp. v. Yaskawa Electric
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`Corp., 21 Fed. Appx. 893 (W.D. Va. 2001); Graco Children’s Prods, Inc. v. Regalo Int’l,
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`77 F. Supp.2d 660, 663 (E.D. Pa. 1999); but see TM Patents, L.P. v. International
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`6
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 6
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`Petitioner Valve - Ex. 1033, Page 6
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`Business Machines, Corp., 72 F. Supp. 2d 370 (S.D.N.Y. 1999) (collateral estoppel
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`applied to bar relitigation of claim construction); Curtiss-Wright Flow Control Corp. v. Z
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`& J Technologies Gmbh, 2007 WL 5115321 (C.D. Cal. 2007). Thus, the Court declines
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`to apply the doctrine to bind this Court to Judge Alsup’s claim construction order.
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`Similarly, the Court finds no grounds for applying the stare decisis doctrine.
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`Nonetheless, the Court accords due consideration to Judge Alsup’s order in the analysis
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`below. See Lamps Plus, Inc. v. Dolan, 2003 WL 22435702 at *2 (N.D. Tex. 2003) citing
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`Texas Instruments, Inc. v. Linear Technologies Corp., 192 F. Supp. 2d 580, 589 (E.D.
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`Tex. 2002) (“While this Court agrees that neither collateral estoppels nor stare decisis
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`dictate the adoption of the [previous] claim construction on the patent at issue in this
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`case, this Court finds the [previous] court’s determination instructive.”).
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`C. Judicial Estoppel Does Not Apply
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`Microsoft argues that under the doctrine of judicial estoppel, PalTalk is bound by
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`the statements and factual representations made by HearMe. Dkt. No. 80 at 8-9 citing
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`Meadows v. Chevron, U.S.A., Inc., 782 F. Supp. 1189, 1193 (E.D. Tex. 1991); Hardy v.
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`Johns-Manville Sales Corp., 681 F.2d 334, 339 (5th Cir. 1982); Ergo Science, Inc. v.
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`Martin, 73 F.3d 595, 598 (5th Cir. 1996); Data Gen..Corp v. Johnson, 78 F.3d 1556,
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`1565 (Fed. Cir. 1996). “The doctrine of judicial estoppel prevents a party from asserting
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`a position in a legal proceeding that is contrary to a position previously taken in the same
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`or some earlier proceeding.” Ergo Science, Inc. v. Martin, 73 F.3d at 598 (“This doctrine
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`prevents internal inconsistency, precludes litigants from ‘playing fast and loose’ with
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`courts, and prohibits parties from deliberately changing positions based upon the
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`exigencies of the moment.”); See also Data Gen. Corp. v. Johnson, 78 F.3d at 1565
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`7
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 7
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`Petitioner Valve - Ex. 1033, Page 7
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`(“The doctrine of judicial estoppel is that where a party successfully urges a particular
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`position in a legal proceeding, it is stopped from taking a contrary position in a
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`subsequent proceeding where its interests have changed.”). It is within the trial court's
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`discretion to invoke judicial estoppel and preclude an argument. SanDisk Corp. v.
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`Memorex Products, Inc., 415 F.3d 1278, 1290 (Fed. Cir. 2005) citing Hamilton v. State
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`Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001).
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`Although PalTalk was not a party in the previous litigation, “a nonparty who has
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`succeeded to a party’s interest in property is bound by any prior judgments against that
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`party.” Hardy v. Johns-Manville Sales Corp., 681 F.2d at 339 quoting Southwest
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`Airlines Co. v. Texas International Airlines, 546 F.2d 84, 95 (5th Cir. 1977); see also id.
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`(explaining the rationale that “the nonparty in effect had his day in court”). However,
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`since Judge Alsup's claim construction order cannot be considered a "final judgment" as
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`provided above, the Court finds that PalTalk is not bound to HearMe's arguments in the
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`previous proceeding.
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`Moreover, even if the Court found privity between PalTalk and HearMe, as
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`discussed below, PalTalk is not strictly limited to the claim construction positions taken
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`by HearMe, as long as the positions advanced by PalTalk are not “clearly inconsistent”
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`with those of HearMe in the previous litigation. See SanDisk Corp. v. Memorex
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`Products, Inc., 415 F.3d at 1290-91.
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`V. CLAIMS AT ISSUE
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`The asserted claims discussed herein are as follows: '523 Patent, claims 1, 4, 5, 6
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`(claim 1 is independent and claims 4, 5 & 6 depend therefrom); and '686 Patent, claims 1,
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`8
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`Petitioner Riot Games, Inc. - Ex. 1033, p. 8
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`Petitioner Valve - Ex. 1033, Page 8
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`3, 5, 12,14 & 18 (claims 1, 3, 5, 12 & 18 are independent claims and claim 14 depends
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`from claim 12). Dkt. No. 53. For reference, each claim is reproduced below.
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`'523 Patent, claim 1. A method for providing group messages to a plurality of host
`computers connected over a unicast wide area communication network, comprising the
`steps of:
`
`providing a group messaging server coupled to said network, said server
`communicating with said plurality of host computers using said unicast network
`and maintaining a list of message groups, each message group containing at least
`one host computer;
`
`sending, by a plurality of host computers belonging to a first message group,
`messages to said server via said unicast network, said messages containing a
`payload portion and a portion for identifying said first message group;
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`aggregating, by said server in a time interval determined in accordance with a
`predefined criterion, said payload portions of said messages to create an
`aggregated payload;
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`forming an aggregated message using said aggregated payload; and
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`transmitting, by said server via said unicast network, said aggregated message to
`a recipient host computer belonging to said first message group.
`
`'523 Patent, claim 4. The method of claim 1 further comprising the step of creating, by
`one of said plurality of host computers, said first message group by sending a first control
`message to said server via said unicast network.
`
`'523 Patent, claim 5. The method of claim 4 further comprising the step of joining, by
`some of said plurality of host computers, said first message group by sending control
`messages via said unicast network to said server specifying said first message group.
`
`'523 Patent, claim 6. The method of claim 1 wherein said network is Internet and said
`server communicates with said plurality of host computers using a session layer protocol.
`
`'686 Patent, claim 1. A method for facilitating communications among a plurality of
`host
`computers over a network to implement a shared, interactive application, comprising the
`steps of:
`
`(1) receiving a create message from one of the plurality of host computers,
`wherein said create message specifies a message group to be created;
`
`9
`
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`
`Petitioner Valve - Ex. 1033, Page 9
`
`

`

`(2) receiving join messages from a first subset of the plurality of host computers,
`wherein each of said join messages specifies said message group;
`
`(3) receiving host messages from a second subset of said first subset of the
`plurality of host computers belonging to said message group, wherein each of said
`messages contains a payload portion and a portion that is used to identify said
`message group;
`
`(4) aggregating said payload portions of said host messages received from said
`second subset of the plurality of host computers to create an aggregated payload;
`
`(5) forming an aggregated message using said aggregated payload; and
`
`(6) transmitting said aggregated message to said first subset of the plurality of
`host computers belonging to said message group;
`
`wherein said aggregated message keeps the shared, interactive application operating
`consistently on each of said first subset of the plurality of host computers.
`
`'686 Patent, claim 3. A method for facilitating communications among a plurality of
`host computers over a network to implement a shared, interactive application, comprising
`the steps of:
`
`(1) receiving a create message from one of the plurality of host computers,
`wherein said create message specifies a message group to be created;
`
`(2) receiving join messages from a first subset of the plurality of host computers,
`wherein each of said join messages specifies said message group;
`
`(3) receiving host messages from a second subset of said first subset of the
`plurality of host computers belonging to said message group, wherein each of said
`messages contains a payload portion and a portion that is used to identify said
`message group;
`
`(4) aggregating said payload portions of said host messages received from said
`second subset of the plurality of host computers to create an aggregated message;
`and
`
`(5) transmitting said aggregated message to said first subset of the plurality of
`host computers belonging to said message group;
`
`wherein said aggregated message keeps the shared, interactive application operating
`consistently on each of said first subset of the plurality of host computers.
`
`'686 Patent, claim 5. A method for facilitating communications among a plurality of
`host computers over a network to implement a shared, interactive application, comprising
`the steps of:
`
`10
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`

`

`(1) receiving a host message from one of the plurality of host computers
`belonging to a message group, wherein said host message contains a payload
`portion and a portion that is used to identify said message group;
`
`(2) forming a server message using said payload portion of said host message;
`
`(3) transmitting said server message to each of the plurality of host computers
`belonging to said message group; and
`
`(4) suppressing said server message such that said one of the plurality of host
`computers which originated said host message does not receive said server
`message;
`
`wherein said server message keeps the shared, interactive application operating
`consistently on each of the plurality of host computers belonging to said message group.
`
`'686 Patent, claim 12. A method for providing group messages to a plurality of host
`computers connected to a group messaging server over a unicast wide area
`communication network, comprising the steps of:
`
`(1) communicating with the plurality of host computers using the unicast network
`and maintaining a list of message groups, each message group containing at least
`one host computer;
`
`(2) receiving messages from a subset of the plurality of host computers, each host
`computer in said subset belonging to a first message group, wherein each of said
`messages contains a payload portion and a portion that is used to identify said
`first message group;
`
`(3) aggregating said payload portions of said messages received from said subset
`of the plurality of host computers to create an aggregated payload;
`
`(4) forming an aggregated message using said aggregated payload; and
`
`(5) transmitting said aggregated message to a recipient host computer belonging
`to said first message group.
`
`'686 Patent, claim 14. The method of claim 12, wherein the unicast wide area
`communication network is at least a portion of the Internet, and said group messaging
`server communicates with said plurality of host computers using a session layer protocol.
`
`'686 Patent, claim 18. A method for facilitating communications among a plurality of
`host computers over a network to implement a shared, interactive application, comprising
`the steps of:
`
`11
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`

`

`(1) receiving a host message from one of the plurality of host computers
`belonging to a message group, wherein said host message contains a payload
`portion and a portion that is used to identify said message group;
`
`(2) forming a server message by using said payload portion of said host message;
`and aggregating said payload portion with the payload portion of a second host
`message received from another of the plurality of host computers belonging to
`said message group; and
`
`(3) transmitting said server message to each of the plurality of host computers
`belonging to said message group;
`
`whereby said server message keeps the shared, interactive application operating
`consistently on each of the plurality of host computers belonging to said message group.
`
`VI. CLAIM CONSTRUCTION
`
`A. Agreed Terms
`
`Term to be
`Construed
`“group
`messaging
`server”
`
`“message
`group”
`
`“payload
`portion”
`“portion for
`identifying said
`first message
`group”
`“portion that is
`used to identify
`said message
`group”
`“creating . . .
`said first
`message group
`
`Agreed Construction
`
`A server or computer system with a network interface that
`maintains a set of message groups used by the host computers to
`communicate
`information between
`themselves.
` The group
`messaging server must be capable of receiving messages from the
`host computers addressed to a message group and sending messages
`to the host computers that have joined the message group. A group
`messaging server can process messages with or without aggregated
`payloads, and can allow for group membership to change very
`rapidly.
`A collection of one or more host computers that (1) have joined a
`particular group and (2) receive group messages addressed to that
`particular group.
`The part of a message that contains data item(s) conveying
`information.
`Any part of a message, sent by a host computer to a group
`messaging server, that identifies the message group of a receiving
`host computer.
`
`Any part of a message, sent by a host computer to a group
`messaging server, that identifies the message group of a receiving
`host computer.
`
`A host computer sends a control message that creates a message
`group with at least one host computer as a member.
`
`12
`
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`
`

`

`Agreed Construction
`
`Term to be
`Construed
`by sending a
`first control
`message”
`“create
`message”
`“joining . . .
`said first
`message group
`by sending
`control
`messages”
`“join message” A message causing a host to become a member of a message group.
`“session layer
`A layer in the OSI reference model on top of the transport layer
`protocol”
`protocol.
`
`A message creating a message group.
`
`The method by which host computers become members of a
`particular message group by sending control messages.
`
`Dkt. No. 88 at Ex. A & B.
`
`B. Disputed Terms
`
`(i) “Aggregating” and “Aggregated”
`
`These terms appear in asserted claim 1 of the '523 Patent and asserted claims 1, 3,
`
`12 and 18 of the '686 Patent.
`
`(1) The Parties’ Positions
`
`The parties agree that the terms “aggregating” and “aggregated” share a common
`
`definition, which is central to the resolution of several disputed claim terms. Joint Claim
`
`Construction Chart, Dkt. No. 88, Ex. B at 3 (hereinafter “JCCCB”); Joint Claim
`
`Construction Chart, Dkt. No. 88, Ex. A at 3 (hereinafter “JCCCA”). PalTalk proposes
`
`the definition, “to collect two or more data items together as a unit,” and Microsoft
`
`proposes, “collecting and/or accumulating without changing.” Id.
`
`As evident from the variation between the proposals, the parties agree that the
`
`essence of “aggregation” is collecting the claimed payload portions. Also evident from
`
`13
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`

`

`the proposals is that the parties’ principal disagreement regards whether the claim term
`
`“aggregating/aggregated” allows any change to an incoming original payload.
`
`(2) Construction
`
`In considering the arguments of the parties, the Court begins its analysis by
`
`examining the intrinsic record and the parties’ related arguments. Philips v. AWH, 415
`
`F.3d at 1313. PalTalk argues that the Microsoft’s “without changing” limitation lacks
`
`support in the intrinsic record because the specification actually discloses embodiments
`
`that provide for changing the payloads. Dkt. No. 82 at 12-13. The Court agrees with
`
`PalTalk that the specification supports “changed”