Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`MULTIMEDIA CONTENT
`MANAGEMENT LLC,
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`Plaintiff
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`v.
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`DISH NETWORK L.L.C.,
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`Defendant.
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`Civil Action No.: 6:18-cv-00207-ADA
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`JURY TRIAL DEMANDED
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`PATENT CASE
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`§
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`DEFENDANT’S REPLY CLAIM CONSTRUCTION BRIEF
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`DISH, Exh.1029, p.0001
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 2 of 20
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`TABLE OF CONTENTS
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`I.
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`II.
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`A.
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`B.
`C.
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`D.
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`E.
`F.
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`A.
`B.
`C.
`D.
`E.
`F.
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`III.
`IV.
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`CONSTRUCTION OF INDEPENDENT CLAIM TERMS ............................................... 1
`Term 1: “to generate controller instructions” (’468: Claim 1 / ’925: Claim 1) or
`“generating controller instructions” (’468: Claim 23 / ’925: Claim 29) ....................... 1
`Term 2: “a controller node” (’468: Claims 1 and 23 / ’925: Claims 1 and 29) ............ 3
`Term 3: “a service provider network” (’468: Claims 1 and 23 / ’925: Claims 1
`and 29) .......................................................................................................................... 5
`Term 4: “selectively transmit[ting, by the plurality of gateway units,] the
`content requests to the service provider network in accordance with the
`controller instructions” (’468: Claims 1 and 23 / ’925: Claims 1 and 29) .................... 9
`Term 5: “gateway units” (’468 Patent: Claims 1 and 23) ........................................... 11
`Term 6: “network elements” (’925: Claims 1 and 29) ................................................ 12
`CONSTRUCTION OF DEPENDENT CLAIM TERMS ................................................. 13
`Term 7: “if the gateway unit enters the inactive state” (’468: Claim 29) ................... 14
`Term 8: “registration information” (’468: Claim 33) ................................................. 14
`Term 9: “uniquely” (’468: Claim 24) ......................................................................... 14
`Term 10: “initial operating parameters” (’468: Claim 33) ......................................... 15
`Term 11: “subscriber management system” (’925: Claim 25) ................................... 15
`Term 12: “authenticate subscribers or devices before allowing access into the
`service provider network” (’925: Claim 25) ............................................................... 15
`DISH’S EXPERT DECLARATION ................................................................................ 15
`CONCLUSION ................................................................................................................. 15
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`
`i
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`DISH, Exh.1029, p.0002
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 3 of 20
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`
`
`CASES
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`TABLE OF AUTHORITIES
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`Page(s)
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`ACTV, Inc. v. Walt Disney Co.,
`346 F.3d 1082 (Fed. Cir. 2003)..................................................................................................9
`
`Am. Piledriving Equip., Inc. v. Geoquip, Inc.,
`637 F.3d 1324 (Fed. Cir. 2011)..............................................................................................4, 8
`
`CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG,
`224 F.3d 1308 (Fed. Cir. 2000)..........................................................................................11, 12
`
`Phillips v. AWH Corp,
`415 F.3d 1303 (Fed. Cir. 2005)................................................................................................13
`
`Regeneron Pharm., Inc. v. Merus N.V.,
`864 F.3d 1343 (Fed. Cir. 2017)..................................................................................................2
`
`The Medicines Co. v. Mylan, Inc.,
`853 F.3d 1296 (Fed. Cir. 2017)..................................................................................................9
`
`
`
`ii
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`DISH, Exh.1029, p.0003
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 4 of 20
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`MCM has now abandoned its positions with respect to half of the independent claim terms.
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`While MCM states that the amendments are to “simplify claim construction issues,” the
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`amendments were necessitated by MCM’s original unsupportable constructions. However,
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`MCM’s amended constructions do not fully remedy the deficiencies of the original constructions.
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`DISH’s constructions reflect the plain and ordinary understanding of the terms, an understanding
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`that MCM’s own expert acknowledges now is correct. As reflected below, few actual disputes
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`exist in light of the admissions by MCM’s expert.
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`I.
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`CONSTRUCTION OF INDEPENDENT CLAIM TERMS
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`A.
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`Term 1: “to generate controller instructions” (’468: Claim 1 / ’925: Claim 1)
`or “generating controller instructions” (’468: Claim 23 / ’925: Claim 29)
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`MCM’s Amended Construction
`“generate computer processor-executable
`instructions, excluding merely a uniform
`resource locator (URL) or an internet protocol
`(IP) address, excluding operations in which
`the controller instructions are only transmitted
`or are relayed by a device”
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`DISH’s Construction
`“to create[ing] or bring[ing] into being
`computer executable instructions that
`determine whether to transmit or not transmit a
`content request from a user to the service
`provider network”
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`MCM’s amended construction adds a second negative limitation yet still fails to define
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`what “controller instructions” are or how they are “generated” in context of the claims. DISH’s
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`construction affirmatively construes “generate” without importing negative limitations while
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`MCM continues to use the term “generate” to define itself.
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`DISH’s construction of “generate” as “to create or bring into being” reflects the ordinary
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`meaning of the term in the context of the Asserted Patents to a person of ordinary skill in the art.
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`The term “generate” refers to something that did not exist prior to the generation. MCM used this
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`same understanding in its response to the Unified Patents IPR. See Dkt. No. 48 at 4 (quoting Ex. A
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`at 13 (“the generated item did not exist prior to being generated”)). Indeed, MCM provides no
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`reason why “create or bring into being,” words Applicant used in the Patent Owner Preliminary
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`1
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`DISH, Exh.1029, p.0004
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 5 of 20
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`Response (“POPR”) of the Unified Patents IPR, would be an inappropriate construction of the
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`term “generate.” See Dkt. No. 53 at 4-7. MCM’s own expert entirely concedes the issue: “but in
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`the context of ‘controller instruction,’ what does ‘generate’ mean? A: I thought I was clear.
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`Bringing – you know, create something that didn’t exist before. To – Q: And would you say it
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`means to create or bring into existence? A: Yes.” Ex. M, 4-12-19 Transcript of J. Williams at
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`42:6-13; see also id. at 47:8-22. Indeed, MCM’s expert confirmed the necessity to interpret this
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`term as part of his validity analysis before the PTAB: “And it was critical in the context of
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`controller instructions that you interpret what the term ‘generate’ actually meant; is that correct?
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`A: Yeah, I agree.” Id. at 40:9-12. Despite this concession, MCM does not interpret “generate” in
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`its proposed construction.
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`Instead of providing a construction that explains what “controller instructions” actually are,
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`MCM seeks to define the term “controller instructions” by what they are not. MCM only argues
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`that controller instructions exclude “merely a uniform resource locator (URL) or an internet
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`protocol (IP) address.” Negatively construing the claim based on what the claim does not cover is
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`not proper claim construction. See Regeneron Pharm., Inc. v. Merus N.V., 864 F.3d 1343, 1352
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`(Fed. Cir. 2017) (“Because ‘comprise’ is inclusive or open-ended, the use of the term does not
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`exclude unrecited elements.”).
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`Controller instructions determine whether or not to transmit a content request in the context
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`of the claims. MCM’s own expert confirms this understanding. Ex. M at 49:13-18 (“Is it your
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`understanding that in the context of Claim 1, that the controller instructions in that case were to
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`determine whether to transmit or not transmit a content request? A: Generally, I would say yes.”)
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`(objections omitted). MCM’s argument that the specification supports that “controller
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`instructions” do more than “determine whether or not to transmit content requests” is wrong. See
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`2
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`DISH, Exh.1029, p.0005
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 6 of 20
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`Dkt. No. 53 at 5-6 (citing ’468 Patent, 7:53-8:18, 10:31-39). MCM’s citations do not concern or
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`even mention “controller instructions” when discussing the purported functions of “redirect[ing] a
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`content request” or “notify[ing] authorities regarding a content request.” Tellingly, the only
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`reference to “controller instructions” in those citations concerns the function of “selectively
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`transmit[ting] the network access requests over the network in accordance with the controller
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`instructions.” ’468 Patent at 7:55-61 (emphasis added). DISH’s construction therefore correctly
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`defines the phrase “generate controller instructions” by affirmatively construing “generate” in the
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`context of the instructions to be created.
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`The dependent claims identified by MCM in fact support that the “controller instructions”
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`must “determine whether to transmit or not transmit a content request.” The dependent claims
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`provide additional, optional functions that the “controller instructions” may perform if the
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`determination is made not to transmit a content request (by either instructing a gateway unit to
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`redirect a content request or notify authorities regarding a content request). See ’468 Patent at
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`7:53-8:18, 10:31-39. In both of those scenarios, the controller instructions must have determined
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`that the content requests should either be transmitted or not transmitted (and redirect those content
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`requests or notify authorities). Thus, DISH’s construction is also consistent with the dependent
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`claims.
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`B.
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`Term 2: “a controller node” (’468: Claims 1 and 23 / ’925: Claims 1 and 29)
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`MCM’s Construction
`“a network-based router or computer located
`within the network and remote from the
`[gateway unit / network element] and that
`controls the operation of one or more
`[gateway units / network elements]”
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`DISH’s Construction
`“a single network device that controls the
`operation of the gateway units”
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`The remaining key dispute between the parties’ construction concerns whether a
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`“controller node” must be a “single network device” as DISH proposes or “any number of
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`3
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`DISH, Exh.1029, p.0006
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 7 of 20
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`devices . . . combined to ‘generate’ the controller instructions and ‘transmit’ the controller
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`instructions” as MCM proposes. See Dkt. No. 53 at 9. Based on MCM’s concessions in the
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`Unified Patents IPR and the plain language of the claims, MCM limited “a controller node” to a
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`single device.
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`No intrinsic support shows “a controller node” as multiple devices. Nor has MCM cited
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`any such support. MCM attempts to suggest that “[t]he ’468 Patent describes a controller node as
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`including multiple components, some of which may generate controller instructions, and some of
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`which may transmit the controller instructions.” Dkt. No. 53 at 8. “Multiple components” does
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`not mean “multiple devices”; however, MCM’s response briefly attempts to revise the meaning of
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`statements that MCM made during IPR. MCM now contends that “[t]he term ‘another device,’ as
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`used in the context of the IPR, only distinguishes the device from something that is not the
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`controller node.” Dkt. No. 53 at 8 (emphasis in original). As explanation, MCM only offers that
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`it would be understood “in the context of the IPR.” Id. That is no justification for reinterpreting
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`MCM’s concession. MCM made public statements to overcome prior art, and the public must be
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`allowed to rely on the reasonable interpretation of those statements to determine claim scope. See
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`Am. Piledriving Equip., Inc. v. Geoquip, Inc., 637 F.3d 1324, 1336 (Fed. Cir. 2011). MCM’s own
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`expert now agrees that those public statements confirm that the controller node is a single network
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`device: “In the context of the claim, is it your understanding that the controller node is the node,
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`the single node that generated the controller instruction? A: Yes.” Ex. M at 77:17-21; see also id.
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`at 76:23-77:8 (citing to Mr. Williams’s statements in his IPR declaration). MCM’s expert’s
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`unequivocal answer should resolve any remaining dispute that DISH’s construction is correct.
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`MCM’s proposed construction also reads out the commonly understood meaning of a
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`“node.” If “a controller node” can be any number of distributed devices over a network—as MCM
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`4
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`DISH, Exh.1029, p.0007
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 8 of 20
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`apparently contends—the word “node” would have no meaning. The specification of the ’468
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`Patent supports DISH’s construction of a “single” device by equating a “controller node” to an
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`“Internet Control Point.” See, e.g., ’468 Patent at 3:43-46 (emphasis added); see also id. at 4:55-
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`57; Fig. 3. However, MCM’s construction would allow any number of devices located at any
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`number of locations (or “points”) in the network to be construed as “a controller node.” Such a
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`construction contradicts the plain meaning of the word “node.” See Dkt. No. 48 at 9.
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`For the same reasons discussed in DISH’s opening and responsive briefs, the “network-
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`based router or computer” limitation is extraneous and should not read into the claims. Thus, the
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`Court should adopt DISH’s construction as properly reflecting the intrinsic record.
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`C.
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`Term 3: “a service provider network” (’468: Claims 1 and 23 / ’925: Claims 1
`and 29)
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`MCM’s Amended Construction
`“a network that is operated or controlled by a
`service provider to provide regulated access
`to content delivery services for subscribers,
`but not including subscriber equipment or a
`subscriber network or the entire public
`internet”
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`DISH’s Construction
`“a network between the controller node and
`the plurality of gateway units that is not the
`public Internet and only includes those
`network elements operated or controlled by
`the service provider”
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`The parties’ dispute regarding “service provider network” centers on whether that network
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`can include any portion of the “public internet” not owned, controlled, or operated by the service
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`provider. In its responsive brief, MCM proposed an amended construction that relies on portions
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`of a public disclaimer that MCM made during the Unified Patents IPR. However, the cherry-
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`picked portions of that disclaimer adopted by MCM do not properly give effect to the clear,
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`unambiguous statements that MCM made to avoid institution of the IPR before the Patent Trial
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`and Appeal Board (“PTAB”). Only DISH’s construction holds MCM to the full extent of the
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`concession made during the prior IPR to overcome prior art that the service provider network “only
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`includes those network elements operated or controlled by the service provider.” Dkt. No. 48,
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`5
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`DISH, Exh.1029, p.0008
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 9 of 20
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`Ex. A at 6.
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`MCM’s amended construction explains that the “service provider network” does not
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`include “subscriber equipment or a subscriber network or the entire public internet.” Dkt. No. 53
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`at 9 (emphasis in original to show amendment). MCM’s new proposal provides no additional
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`guidance as to what the “service provider network” is. A plain language interpretation of MCM’s
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`revised construction suggests that if a network does not include the entire public internet, it would
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`fall within MCM’s construction of “service provider network.” Taking this understanding to its
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`logical conclusion, so long as a network excluded at least one public router, switch, or server, it
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`would fall within MCM’s construction. No network uses every part of the public Internet. Thus,
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`MCM’s construction still fails because it does not reflect the clear, unambiguous disclaimers made
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`during prosecution and in the Unified Patents IPR.
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`During prosecution and in the Unified Patents IPR, the Applicant and MCM repeatedly
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`characterized the service provider network as a network that “only includes those network
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`elements operated or controlled by the service provider.” Applicant provided this understanding
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`during prosecution of the parent ’128 Patent in response to an Examiner’s anticipation rejection
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`by U.S. Patent No. 6,516,416 to Gregg et al. (“Gregg”). See Dkt. No. 48, Ex. F at 2. Applicant
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`argued that the system of Gregg did not disclose the amended claims because the alleged
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`“controller node” and “gateway units” were separated by a local area network, not a service
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`provider network as claimed. Dkt. No. 48, Ex. H at 32-33. Applicant’s statement regarding the
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`scope of a claim limitation in related patents “applies with equal force to subsequently issued
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`patents that contain the same claim limitation.” Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973,
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`980 (Fed. Cir. 1999).
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`During the Unified Patents IPR, MCM expanded the scope of the disclaimer for the
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`6
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`DISH, Exh.1029, p.0009
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 10 of 20
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`“service provider network.” Like Gregg, the prior art in the Unified Patents IPR—U.S. Patent No.
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`5,987,611 to Freund (“Freund”)—involved a conditional access server that communicated with a
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`client via a local area network behind a firewall. Dkt. No. 48, Ex. I at Fig. 3A. To distinguish the
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`claimed system of the ’468 Patent from the system disclosed by Freund, MCM argued that the
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`service provider network did not include any third-party network elements or any network
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`elements of the public Internet:
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`Fig. 1 also illustrates that the “service provider network” 54 is distinct from Non-
`SPA Network Elements 55. Collectively, the “service provider network” and Non-
`SPA Network Elements comprise the Internet/Metro Area Network. Thus, the
`“service provider network” is not the entire public Internet and only includes those
`network elements operated or controlled by the service provider.
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`Dkt. No. 48, Ex. A at 6 (emphasis added). DISH’s proposed construction merely imports this
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`language verbatim to capture the full disavowal of claim scope made by MCM because it excludes
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`“those network elements operated or controlled by the service provider.” Thus, DISH’s proposed
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`construction is proper.
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`MCM’s own expert confirmed this understanding during deposition regarding his
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`declaration. When asked, whether “‘service provider network’ only includes those network
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`elements operated or controlled by the service provider,” he responded unequivocally, “[c]orrect.”
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`Ex. M at 51:17-22. Mr. Williams confirmed that this interpretation is supported by the
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`specification and the understanding of a person of ordinary skill in the art. Id. at 52:7-14.
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`Specifically, Mr. Williams confirmed that the IPR statements support the interpretation that the
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`service provider network is not the public Internet and only includes those network elements
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`operated or controlled by the service provider as proposed in DISH’s construction.
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`Q: Now, in your statement that a person of ordinary skill in the art would not
`understand the entire public Internet to be claimed as the service provider network,
`it’s your understanding that some portion of the Internet might be part of the service
`provider network, provided those network elements were either owned, operated,
`or controlled by the provider; correct?
`
`7
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`DISH, Exh.1029, p.0010
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 11 of 20
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`A. Yes. I agree.
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`Q. And if they’re not owned, operated, or controlled by the service provider, then
`they’re not part of the ‘service provider network,’ as you understand the term to
`mean in the context of Claim 1; correct?
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`A. That’s correct.
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`Id. at 53:11-25. To the extent any question remained regarding the interpretation of these
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`statements, MCM’s expert resolved those differences in favor of DISH’s proposed construction.
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`MCM argues that DISH’s proposal of excluding the word “entire” in its construction
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`“tak[es] an unsupported, illogical leap.” Dkt. No. 53 at 10. But MCM’s argument relies on the
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`wrong part of the statements that Mr. Williams made in the Unified Patents IPR. DISH’s proposed
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`construction excludes the word “entire” because a network that “only includes those network
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`elements operated or controlled by the service provider” forecloses the use of any portion of the
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`“public Internet.” Thus, DISH’s proposed construction reflects MCM’s public statements
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`regarding the claim scope.
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`Similarly, MCM relies on an annotated version of Figure 1 that, it argues, demonstrates
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`that the service provider network is “located within the Internet.” Dkt. No. 53 at 10. MCM’s
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`argument misses the point. DISH’s construction is that the “service provider network” cannot be
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`the public Internet, and “only includes those network elements operated or controlled by the
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`service provider” as MCM argued to the PTAB. DISH’s construction still would allow a service
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`provider network located within the Internet, so long as the devices creating the service provider
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`network all were operated or controlled by the service provider network. Thus, MCM’s argument
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`fails in view of the disclaimers that MCM made to define the service provider network during
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`prosecution. DISH’s proposed construction must be adopted because the public is entitled to rely
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`on MCM’s full statement and interpretation and need not guess which parts would later be re-
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`claimed by MCM. See Am. Piledriving Equip., 637 F.3d at 1336 (explaining that “regardless of
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`8
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`DISH, Exh.1029, p.0011
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 12 of 20
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`whether the examiner agreed with” a patent owner’s statements, those “statements still inform the
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`proper construction of the term”).
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`D.
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`Term 4: “selectively transmit[ting, by the plurality of gateway units,] the
`content requests to the service provider network in accordance with the
`controller instructions” (’468: Claims 1 and 23 / ’925: Claims 1 and 29)
`
`MCM’s Construction
`“a gateway unit, under control of the remotely
`located controller node, executes previously
`received controller instructions to determine
`whether to transmit a content request from a
`user or to take other action (e.g., deny the
`content request, redirect the content request,
`or notify authorities regarding the content
`request)”
`
`DISH’s Construction
`“transmitting all content requests to take place
`within the service provider network in
`response to the controller instructions’
`decision to transmit the content requests”
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`The parties’ dispute centers on whether all content requests that are transmitted must travel
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`within the service provider network. MCM’s argument that the content requests can travel outside
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`of the service provider network reflects its flawed interpretation of the “service provider network”
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`term described above. DISH’s construction accurately reflects the specification, MCM’s
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`admissions in IPR, and admissions MCM’s expert confirmed during deposition, all of which
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`demonstrate that the transmitted content requests all must take place within the “service provider
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`network.”
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`The specification unequivocally states “all ICP-CG communications take place within the
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`ISP side of the network.” ’468 Patent at 4:33-34 (emphases added). As explained in DISH’s
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`opening brief, because “all” communications take place within the service provider network, the
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`specification requires that “content requests” also travel within the service provider network. See
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`The Medicines Co. v. Mylan, Inc., 853 F.3d 1296, 1305 (Fed. Cir. 2017) (explaining that claim
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`construction requires a process described in the specification when the specification states that the
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`“process includes all of the embodiments as described”).
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`The context of the claims is especially instructive for claim construction for determining
`9
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`DISH, Exh.1029, p.0012
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 13 of 20
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`the ordinary and customary meaning. ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed.
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`Cir. 2003) (“the context of the surrounding words of the claim also must be considered in
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`determining the ordinary and customary meaning of those terms”). Read in context, the claimed
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`system concerns regulating access to a “service provider network.” Given the claimed “regulate
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`access to a service provider network,” the ordinary meaning of the “selectively transmit” step
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`requires that the transmission occurs over that service provider network and not outside of the
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`network. MCM’s expert also agrees with this ordinary understanding.
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`Q: Now, it’s your understanding the way that it says ‘selectively transmit the
`content request to the service provider network in accordance with the controller
`instructions,’ to meet that claim limitation, all of the content requests need to be
`through the service provider network; correct?
`
`
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`A: That would be my understanding of it.
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`Ex. M at 56:12-20 (objections omitted) (emphasis added).
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`Despite MCM’s expert agreeing that the content requests are all sent through (i.e., within)
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`the service provider network, MCM suggests that DISH’s proposed construction “is inconsistent
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`with the specification.” MCM premises its argument by suggesting that DISH’s construction
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`“explicitly encompasses subscriber devices that are networked together on a LAN.” Dkt. No. 53
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`at 12. In support, MCM relies on its own annotations to Figure 1 and a citation to the specification.
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`However, the actual Figure 1 does not show a LAN at all:
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`’468 Patent at Fig. 1.
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`10
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`DISH, Exh.1029, p.0013
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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 14 of 20
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`As for the specification, the quote that MCM cites but fails to include in its responsive brief
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`demonstrates the flaw in MCM’s argument:
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`The ICPs control the processing of data sent between subscribers (e.g., client PCs
`or LAN servers) and the ISPs or content servers with which they are exchanging
`information, using the CGs.
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`’468 Patent at 3:55-58. At most, this portion of the specification suggests that subscribers may use
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`“PCs” or “LAN servers.” Id. MCM provides no explanation for why Figure 1 must include a
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`LAN or why the LAN would be between the communication gateways and the alleged service
`
`provider network when in fact it fails to show one. The LAN may just as likely be located between
`
`the subscriber terminal and the communication gateway. Thus, the presence or lack thereof of a
`
`LAN is of no import to DISH’s proposed construction and did not deter MCM’s expert from his
`
`admissions.
`
`Finally, MCM’s response brief suggests that when a subscriber owns, as opposed to leases,
`
`a set-top box, that the box would no longer be a part of the “service provider network” under
`
`DISH’s construction. Dkt. No. 53 at 12-13. That is not the case. Although a subscriber may own
`
`the set-top box, that box still operates using the controller instructions and other operating
`
`parameters sent to the box by the service provider. To the extent that the service provider maintains
`
`this level of control, the set-top box would still be “operated or controlled” by the service provider.
`
`E.
`
`Term 5: “gateway units” (’468 Patent: Claims 1 and 23)
`
`MCM’s Amended Construction
`“a computer device that is located within a
`subscriber premise, remote from the
`controller node, that is under control of the
`controller node, and that is usable by a
`subscriber to perform certain functionality
`only as permitted by the controller node”
`
`DISH’s Construction
`“computer devices that are remote from the
`controller node and interface with the service
`provider network and a subscriber terminal”
`
`While MCM correctly concedes that “gateway units” need not be “located within a
`
`subscriber premise,” MCM’s amended construction includes other unnecessary limitations. As
`
`11
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`DISH, Exh.1029, p.0014
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`

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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 15 of 20
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`shown in DISH’s briefs, the Court should reject these extraneous limitations and adopt DISH’s
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`construction. See Dkt. No. 48 at 19-22; Dkt. No. 52 at 18-19.
`
`F.
`
`Term 6: “network elements” (’925: Claims 1 and 29)
`
`MCM’s Construction
`“a computer device that is located remote
`from the controller node, that is under control
`of the controller node, and that is usable by a
`subscriber to perform certain functionality
`only as permitted by the controller node”
`
`DISH’s Construction
`“computer devices within the service provider
`network”
`
`The parties’ dispute centers on whether the differently claimed “network elements” of the
`
`’925 Patent and “gateway units” of the ’925 and ’468 Patent should be construed differently or the
`
`same. MCM removed from its original proposed construction the distinction that the gateway
`
`units must be “located within a subscriber premise.” Claim construction principles suggest
`
`different terms of claims should be interpreted differently without some suggestion to the contrary.
`
`See CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir.
`
`2000) (“In the absence of any evidence to the contrary, we must presume that the use of these
`
`different terms in the claims connotes different meanings.”). MCM offers no such reason.
`
`MCM now suggests that even if the terms are “interpreted to mean the same thing, that
`
`does not mean they are the same device.” Dkt. No. 53 at 14 (emphasis omitted). However,
`
`carrying MCM’s logic forward to the dependent claims demonstrates the flaws in MCM’s logic.
`
`As originally drafted, claim 24 includes both “communication gateways” and “network elements.”
`
`The system of claim 1 wherein the controller instructions include controller
`24.
`instructions to be distributed to a plurality of communication gateways via the
`plurality of network elements.
`
`’925 Patent at Claim 24 (emphasis added). As both parties agree, “communication gateways” are
`
`the same as “gateway units.” See, e.g., Dkt. No. 48 at 19-22; Dkt. No. 51 at 20-23; ’925 Patent at
`
`3:50-52. Substituting MCM’s constructions into claim 24 reads as follows:
`
`12
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`DISH, Exh.1029, p.0015
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`

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`Case 6:18-cv-00207-ADA Document 58 Filed 04/15/19 Page 16 of 20
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`The system of claim 1 wherein the controller instructions include controller
`24.
`instructions to be distributed to a plurality of computer device[s] that [are] located
`remote from the controller node, that [are] under control of the controller node,
`and that [are] usable by a subscriber to perform certain functionality only as
`permitted by the controller node via the plurality of computer device[s] that [are]
`located remote from the controller node, that [are] under control of the controller
`node, and that [are] usable by a subscriber to perform certain functionality only
`as permitted by the controller node.
`
`Thus, adopting MCM’s proposed constructions leads to absurd results with regards to claim 24.
`
`Instead of having the same meaning, as MCM suggests, the Applicant chose different terms that
`
`must be given different meanings. See CAE Screenplates, 224 F.3d at 1317.
`
`The specification supports DISH’s broader construction because it explains “[n]etwork
`
`elements 54, 55 may include, for example, network switches and routers. SPA-controlled network
`
`elements 54 aid in regulating access and distributing content through network 52.” ’925 Patent at
`
`5:11-14. Similarly, the specification states “SPA-controlled network elements 54 may include one
`
`or more network interfaces 300, one or more processors 302, a memory device 304 including a
`
`database, and one or more switch modules 306 for providing routing and switching services.” Id.
`
`at 7:27-31. Thus, the specification demonstrates that network elements are computer devices that
`
`are used within the service provider network.
`
`II.
`
`CONSTRUCTION OF DEPENDENT CLAIM TERMS
`
`Under Phillips, deviation from the plain-and-ordinary-meaning rule must be supported by
`
`evidence in the intrinsic record that the applicant gave a term a special meaning or acted a