UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`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 RESPONSIVE CLAIM CONSTRUCTION BRIEF
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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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`EXHIBIT 2006
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`

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`TABLE OF CONTENTS
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`F.
`
`A.
`B.
`C.
`D.
`E.
`F.
`
`CONSTRUCTION OF INDEPENDENT CLAIM TERMS ............................................... 1
`Term 1: “to generate controller instructions” (’468 Patent: Claim 1 / ’925
`Patent: Claim 1) or “generating controller instructions” (’468 Patent: Claim 23
`/ ’925 Patent: Claim 29) ................................................................................................ 1
`Term 2: “a controller node” (’468 Patent: Claims 1 and 23 / ’925 Patent: Claims
`1 and 29) ....................................................................................................................... 6
`Term 3: “a service provider network” (’468: Claims 1 and 23 / ’925: Claims 1
`and 29) ........................................................................................................................ 10
`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) .................. 14
`Term 5: “gateway units” (’468 Patent: Claims 1 and 23) ........................................... 18
`Term 6: “network elements” (’925: Claims 1 and 29) ................................................ 20
`CONSTRUCTION OF DEPENDENT CLAIM TERMS ................................................. 21
`Term 1: “if the gateway unit enters the inactive state” (’468: Claim 29) ................... 23
`Term 2: “registration information” (’468: Claim 33) ................................................. 24
`Term 3: “uniquely” (’468: Claim 24) ......................................................................... 25
`Term 4: “initial operating parameters” (’468: Claim 33) ........................................... 26
`Term 5: “subscriber management system” (’925: Claim 25) ..................................... 27
`Term 6: “authenticate subscribers or devices before allowing access into the
`service provider network” (’925: Claim 25) ............................................................... 27
`CONCLUSION ................................................................................................................. 28
`
`
`
`
`
`
`I.
`
`II.
`
`III.
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`
`
`i
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`EXHIBIT 2006
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`

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`TABLE OF AUTHORITIES
`
`Cases
`
`Page(s)
`
`Altiris, Inc. v. Symantec Corp.,
`318 F.3d 1363 (Fed. Cir. 2003)................................................................................................22
`
`Am. Piledriving Equip., Inc. v. Geoquip, Inc.,
` 637 F.3d 1324 (Fed. Cir. 2011)...............................................................................................11
`
`Andersen Corp. v. Fiber Composites, LLC,
`474 F.3d 1361 (Fed. Cir. 2007)................................................................................................13
`
`Arendi S.A.R.L. v. Google LLC,
`882 F.3d 1132 (Fed. Cir. 2018)..................................................................................................2
`
`Aylus Networks, Inc. v. Apple Inc.,
`856 F.3d 1353 (Fed. Cir. 2017)............................................................................................2, 11
`
`CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG,
`224 F.3d 1308 (Fed. Cir. 2000)................................................................................................20
`
`DSW, Inc. v. Shoe Pavilion, Inc.,
`537 F.3d 1342 (Fed. Cir. 2008)................................................................................................22
`
`Enzo Biochem Inc. v. Applera Corp.,
`780 F.3d 1149 (Fed. Cir. 2015)..................................................................................................4
`
`Hill-Rom Servs., Inc. v. Stryker Corp.,
`755 F.3d 1367 (Fed. Cir. 2014)..................................................................................8, 9, 23, 25
`
`In re Johnston,
`435 F.3d 1381 (Fed. Cir. 2006)................................................................................................17
`
`In re Packard,
`751 F.3d 1307 (Fed. Cir. 2014)..................................................................................................9
`
`InterDigital Commc’ns, LLC v. Int’l Trade Comm’n,
`690 F.3d 1318 (Fed. Cir. 2012)................................................................................................18
`
`Intervet Am., Inc. v. Kee-Vet Labs., Inc.,
`887 F.2d 1050 (Fed. Cir. 1989)..................................................................................................5
`
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995)....................................................................................................23
`
`Merck & Co. v. Teva Pharm. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005)..................................................................................................5
`
`ii
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`EXHIBIT 2006
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`Northern Telecom Ltd. v. Samsung Elecs. Co.,
`215 F.3d 1281 (Fed. Cir. 2000)................................................................................................22
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..........................................................................8, 16, 22, 23, 28
`
`Seachange Int’l, Inc. v. C-COR, Inc.,
`413 F.3d 1361 (Fed. Cir. 2005)................................................................................................22
`
`Sorensen v. Int’l Trade Com’n,
`427 F.3d 1375 (Fed. Cir. 2005)..................................................................................................2
`
`The Medicines Co. v. Mylan, Inc.,
`853 F.3d 1296 (Fed. Cir. 2017)................................................................................................15
`
`Toshiba Corp. v. Imation Corp.,
`681 F.3d 1358 (Fed. Cir. 2012)..................................................................................................8
`
`
`
`
`
`iii
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`EXHIBIT 2006
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`

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`MCM’s opening brief proposes constructions for six independent claim terms and six
`
`dependent claim terms. For the independent claim terms, MCM cherry picks portions of the
`
`intrinsic record to support its proposed constructions while ignoring its own unequivocal
`
`disclaimers made during the prior Unified Patents IPR. As DISH explained in its opening brief,
`
`the public is entitled to rely on all statements found in the intrinsic record that inform and define
`
`the scope of the claims of the Asserted Patents, not just the ones MCM now deems relevant. For
`
`the dependent claim terms, MCM provides no reason why this Court should depart from the plain
`
`and ordinary meaning for those terms. MCM fails to establish that the Applicant acted as its own
`
`lexicographer or otherwise altered the ordinary definition of these easily understood terms.
`
`I.
`
`CONSTRUCTION OF INDEPENDENT CLAIM TERMS
`
`A.
`
`Term 1: “to generate controller instructions” (’468 Patent: Claim 1 / ’925
`Patent: Claim 1) or “generating controller instructions” (’468 Patent: Claim
`23 / ’925 Patent: Claim 29)
`
`MCM’s Construction
`“generate computer processor-executable
`instructions, excluding merely a uniform
`resource locator (URL) or an internet protocol
`(IP) address”
`
`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”
`
`The dispute between the parties concerns two issues: (1) whether instructions must be
`
`created and not simply transmitted or relayed to qualify as the claimed “controller instructions”
`
`and (2) whether the claimed intrinsic evidence supports the understanding that “controller
`
`instructions” must decide whether or not to transmit content requests. As shown in DISH’s
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`opening brief and below, the specification and MCM’s concessions in the prior IPR answer both
`
`of these questions in the affirmative. MCM’s construction does not address these issues and
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`instead imports a characteristic of controller instructions, that they cannot be a URL or IP address.
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`1
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`DISH does not dispute this feature as the ordinary meaning of controller instructions requires more
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`than a URL or IP address.
`
`1.
`
`MCM Declines to Construe the Term “Generate” Despite Giving the Term
`Specific Meaning to Overcome Prior Art in the Unified Patents IPR
`
`In support of its construction, MCM includes no citation to any portion of the specifications
`
`of the Asserted Patents, because the specification provides no guidance as to what “generate”
`
`actually means. Thus, the prosecution history, including the statements made by MCM in IPR,
`
`must be considered to construe this term. Arendi S.A.R.L. v. Google LLC, 882 F.3d 1132, 1135
`
`(Fed. Cir. 2018) (“In construing patent claims, a court should consult the patent’s prosecution
`
`history so that the court can exclude any interpretation that was disclaimed during prosecution.”)
`
`(quoting Sorensen v. Int’l Trade Com’n, 427 F.3d 1375, 1378 (Fed. Cir. 2005)); Aylus Networks,
`
`Inc. v. Apple Inc., 856 F.3d 1353, 1360 (Fed. Cir. 2017) (extending prosecution disclaimer doctrine
`
`to IPR proceedings). MCM’s opening brief recognizes that in MCM’s Patent Owner Preliminary
`
`Response (“POPR”), MCM conceded that “a person of ordinary skill in the art would understand
`
`the meaning of ‘generate’ to exclude operations in which the controller instructions are only
`
`transmitted or relayed by a device (i.e., brought ‘into being’).” Dkt. No. 51 at 12 (emphases
`
`added). DISH’s proposed construction accurately reflects that concept using the identical language
`
`MCM used: “the generated item did not exist prior to being generated.” Dkt. No. 48, Ex. A at 12-
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`13.
`
`Accordingly, MCM’s allegation that DISH’s use of “create or bring into being” for its
`
`construction is “inconsistent with the understanding of one of ordinary skill in the art as disclosed
`
`in the file history” is simply wrong. See Dkt. No. 51 at 12. DISH’s construction of “create or
`
`bring into being” for “generate controller instructions” relies upon the dictionary definition of the
`
`word “generate” and comports with MCM’s unequivocal requirement that the functions of
`
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`“transmitting” or “relaying” cannot be encompassed within generating controller instructions. In
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`sharp contrast, MCM’s construction merely reuses the term “generate” to potentially include
`
`“transmit” or “relay.” Additionally, claim 1 already separately recites a step to “transmit the
`
`controller instructions.” If “generating” could include only transmitting instructions it received
`
`rather than “creating” its own instructions, “generate” would have no meaning.
`
`2.
`
`DISH’s Construction Properly Includes the Limitation “Determine
`Whether to Transmit or Not to Transmit a Content Request” with this Term
`
`MCM does not dispute that the overall claim needs to make a “determination” of “whether
`
`to transmit a content request.” See Dkt. No. 51 at 12, 17-20 (MCM construing “selectively
`
`transmitting” to include “to determine whether to transmit a content request from a user or to take
`
`other action”). Rather, MCM suggests that the intrinsic evidence supports the “controller
`
`instructions” performing more than determining whether or not to transmit a content request. This
`
`is not the case. The proper construction of this term includes the “determining whether to transmit
`
`or not transmit” limitation, where the “determining” aligns with the function and purpose of the
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`“controller instructions.”
`
`The context of the claims concerns regulating access to content. The specification
`
`uniformly describes the functionality of the “controller instructions” as “determining whether to
`
`transmit or not transmit content requests” and not anything else. See, e.g., ’468 Patent at 2:23-3:2
`
`(“the second processor selectively transmitting at least some of the network access requests over
`
`the network in accordance with the controller instructions”) (emphases added); 7:54-65 (“At step
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`404, the gateway unit selectively transmits the network access requests over the network in
`
`accordance with the controller instructions.”) (emphases added); 9:64-10:6 (“Next, at step 502,
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`the network unit selectively inhibits access to a portion of the content servers by a second group
`
`of users in accordance with the controller instructions.”) (emphases added). The specification
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`3
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`as a whole shows using the controller instructions “to determine whether to transmit or not transmit
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`a content request.” Thus, the specification demonstrates that the ordinary meaning of “controller
`
`instructions” as used in the Asserted Patents requires determining whether or not to transmit
`
`content requests.
`
`MCM’s assertion that “the ’468 Patent describes multiple examples of operations
`
`performed by gateway units that execute the controller instructions” lacks any support in the
`
`specification. Dkt. No. 51 at 11. The citations MCM relies upon do not describe or even mention
`
`any “controller instructions.” MCM states:
`
`One such example operation, entitled “Active and Inactive CG [Communication
`Gateway] Processing Control,” is used by a communication gateway to “register
`itself as ‘idle’ by sending an event notification to ICP 50.” Id. at 7:34–37. “Inactive
`CGs 58 may process and control either CG maintenance or may carry out activity
`delegated to inactive CGs by design.” Id. at 50–52 (emphasis added). There is
`nothing in the specification of the ʼ468 Patent to suggest that the operation of
`processing and controlling communication gateway maintenance is the same as or
`related to determining “whether to transmit or not transmit a content request,” as
`Defendant’s construction would require.
`
`Id. These example operations are not done “in accordance with controller instructions” nor do
`
`they reference any “controller instructions.” See id. Instead, the specification only describes the
`
`controller instructions in the context of “determining whether to transmit or not transmit a content
`
`request.”
`
`
`
`MCM’s construction would read terms out of the claim. See Enzo Biochem Inc. v. Applera
`
`Corp., 780 F.3d 1149, 1154 (Fed. Cir. 2015) (rejecting construction that reads out a claim term
`
`and “thus, impermissibly broaden[s] the claim”). In effect, MCM construes “generate controller
`
`instructions” as “generate computer processor-executable instructions,” while only specifying
`
`what a controller instruction cannot by itself be: a URL or IP address. However, this does not
`
`construe the “controller” aspect of the “controller instructions.” The claims function to control
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`access to content using controller instructions. Dkt. No. 51 at 6-7 (“The instructions control the
`4
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`operation of the CGs.”); ’468 Patent, Claims 1 and 23. By construing the controller instructions
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`as generic computer processor-executable instructions that cannot be a URL or IP address, MCM
`
`reads “controller” out of the claim. The “controller” portion reflects that a determination must be
`
`made. Only DISH’s construction reflects the meaning of all terms. Merck & Co. v. Teva Pharm.
`
`USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005) (“A claim construction that gives meaning to all
`
`the terms of the claim is preferred over one that does not do so.”).
`
`3.
`
`MCM’s Proposed Construction, by its Own Arguments, Imports an
`Unnecessary Limitation
`
`MCM argues that “one of ordinary skill in the art would understand a ‘controller
`
`instruction’ to exclude merely a uniform resource locator (‘URL’) or an internet protocol (‘IP’)
`
`address.” Dkt. No. 51 at 10. In support of this argument, MCM relies exclusively on a declaration
`
`from MCM’s expert, Joel Williams, that MCM submitted as part of its Patent Owner Preliminary
`
`Response in the Unified Patents IPR. See id. at 9-12. While DISH does not dispute that to be true,
`
`MCM fails to explain how the negative limitation “excluding merely a uniform resource locator
`
`(URL) or an internet protocol (IP) address” clarifies “controller instructions” or amounts to more
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`than an improper importation of an ancillary term. See Intervet Am., Inc. v. Kee-Vet Labs., Inc.,
`
`887 F.2d 1050, 1053 (Fed. Cir. 1989) (“limitations appearing in the specification will not be read
`
`into the claims”).
`
`
`
`MCM provides no explanation for why the negative limitation is needed or appropriate.
`
`Indeed, MCM appears to concede that a “controller instruction” might include a URL or IP address
`
`with something more. Dkt. No. 51 at 10 (“the URLs and IP addresses alone are not controller
`
`instructions.”) (emphasis added). If one of ordinary skill in the art understands a “controller
`
`instruction” excludes a URL or IP address, then the limitation “excluding merely a uniform
`
`resource locator (URL) or internet protocol (IP) address” is redundant and unnecessary. The added
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`limitation will only confuse a jury without providing any meaningful guidance. Further, MCM
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`contends that “[i]n the art of computer networks, an instruction describes a command to be
`
`performed” and “[a]n address, either in URL or IP form, is not a command and does not describe
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`an operation to be performed.” Dkt. No. 51 at 10. MCM’s own statements support an
`
`understanding that “instruction” excludes a URL or IP address alone, thus rendering MCM’s
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`importation of the limitation extraneous.
`
`This Court should reject MCM’s construction, which includes an unnecessary and
`
`unsupported limitation, and adopt DISH’s construction, which provides clarity to the term
`
`“generate” and is consistent with the claims and specification.
`
`B.
`
`Term 2: “a controller node” (’468 Patent: Claims 1 and 23 / ’925 Patent:
`Claims 1 and 29)
`
`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]”
`
`DISH’s Construction
`“a single network device that controls the
`operation of the gateway units”
`
`DISH’s construction that “a controller node” is a single network device is required in view
`
`of the full intrinsic record which dictates that the “generating” and “transmitting” controller
`
`instructions must be performed by the same device, and not by multiple devices in a distributed
`
`manner. MCM attempts to recast that argument by suggesting that DISH is limiting an entire
`
`network to a single controller node. That is not the case. DISH does not dispute that multiple
`
`controller nodes can be in a network. However, the intrinsic evidence mandates that each
`
`controller node must be a single device that both “generates” and “transmits” the controller
`
`instructions.
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`MCM’s construction seeks to import features from the specification such as placing a
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`controller node “within the network” and “remote from the gateway unit.” These features do not
`
`belong in the construction and do not make sense in the context of the claims.
`
`1.
`
`“[A] Controller Node” Must be a Single Device When Interpreted in
`Context of the Claims and MCM’s Statements in IPR Proceedings
`
`MCM argues that because the specification refers to the Internet Control Point (“ICP”) in
`
`plural form, DISH’s construction cannot be correct. Dkt. No. 51 at 14. MCM’s reliance is
`
`misplaced. Specifically, MCM states:
`
`In fact, the ʼ468 Patent explicitly contradicts Defendant’s construction: “The ICPs
`are installed in an ISP’s network. ICPs may be network-based routers or computers
`that control the operation of CGs.” ʼ468 Patent, 3:43–47 (emphasis added). Every
`term in this portion of the ʼ468 Patent is plural. The ʼ468 Patent expressly
`considers multiple “network-based routers or computers.” Id.
`
`Id. (emphasis added).
`
`DISH does not dispute that there may be more than one “controller node” in any network.
`
`However, the intrinsic evidence demonstrates that each controller node must be “a single network
`
`device” that performs the “generate” and “transmit” functions. First, the claims require that a
`
`controller node must be the same device that does both the “generate” and “transmit” functions
`
`based on the antecedent structure of the claims. See ’468 Patent at Claim 1 (reciting “the controller
`
`node comprising” processors to “generate” and a network interface to “transmit” the controller
`
`instructions); Dkt. No. 48 at 8. Second, MCM clarified in the Unified Patents IPR that receiving
`
`instructions from a human or another device falls outside the scope of the claimed step of
`
`“generating controller instructions” performed by the first processor of the controller node. Dkt.
`
`No. 48, Ex. A at 13-14; Dkt. No. 48 at 8-9. Because (1) “the controller node” must do both the
`
`“generating” and “transmitting” functions as claimed, and (2) the “generating” function does not
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`include receiving the instructions from another device, the claimed controller node must be
`
`construed as a “single” network device. See Dkt. No. 48 at 7-9.
`
`Of course, the claims may cover systems that include multiple controller nodes. See Dkt.
`
`No. 51 at 14 (citing ’468 Patent at 3:43-47). But MCM’s statements in the Unified Patents IPR
`
`confirm that there must be a one-to-one mapping of “a controller node” to “a single network
`
`device.” See Dkt. No. 48 at 7-9.
`
`2.
`
`MCM Improperly Imports Limitations from the Specification into its
`Construction in an Attempt to Preserve Validity of the Claims
`
`MCM’s construction imports limitations such as “network-based router or computer,”
`
`“within the network,” and “remote from the gateway unit” without any lexicography or disclaimer
`
`to support limiting the plain meaning of the claimed term. Toshiba Corp. v. Imation Corp., 681
`
`F.3d 1358, 1369 (Fed. Cir. 2012) (“Absent disclaimer or lexicography, the plain meaning of the
`
`claim controls.”). MCM’s only specification support for its proposed construction states “[t]he
`
`ICPs are installed in an ISP’s network. ICPs may be network-based routers or computers that
`
`control the operation of CGs.” See Dkt. No. 51 at 13 (citing ’468 Patent at 3:43-47) (emphasis
`
`added). This is not lexicography or a disclaimer. See Hill-Rom Servs., Inc. v. Stryker Corp., 755
`
`F.3d 1367, 1371 (Fed. Cir. 2014) (“To act as its own lexicographer, a patentee must clearly set
`
`forth a definition of the disputed claim term other than its plain and ordinary meaning and must
`
`clearly express an intent to redefine the term.”) (quotations omitted). Further, the Federal Circuit
`
`has cautioned against confining claims to alternative embodiments. See Phillips v. AWH Corp.,
`
`415 F.3d 1303, 1323 (Fed. Cir. 2005) (“[A]lthough the specification often describes very specific
`
`embodiments of the invention, we have repeatedly warned against confining the claims to those
`
`embodiments.”).
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`MCM’s importations also introduce ambiguity and conflict with MCM’s own descriptions
`
`of the figures and specification. For example, in proposing the construction “network-based router
`
`or computer,” MCM obscures whether the “network-based” portion of the construction modifies
`
`“router” only or also “computer.” Dkt. No. 51 at 12-13. MCM’s construction is also unclear on
`
`what is meant by “within the network,” and specifically within which network: such as the service
`
`provider network. Constructions that introduce such ambiguities should not be adopted. In re
`
`Packard, 751 F.3d 1307, 1324 (Fed. Cir. 2014) (“[A]mbiguity in claim constructions should be
`
`disapproved.”).
`
`Assuming MCM clarifies the network to mean the service provider network, MCM’s
`
`illustration of Figure 1 of this claim term would then contradict its illustration for service provider
`
`network. Cf. Dkt. No. 51 at 13 (Figure 1 of ’468 Patent) with Dkt. No. 51 at 15 (annotated Figure
`
`1 of ’468 Patent).
`
`Dkt. No. 51 at 13
`
`If the service provider network is at element 54 as argued by MCM (Dkt. No. 51 at 15), then the
`
`controller node (the Internet Control Point 50) is certainly not “within the network.”
`
`Dkt. No. 51 at 15
`
`
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`Given these ambiguities in MCM’s attempts to import these limitations, MCM’s only
`
`reason to offer such a construction appears to be to provide more structure to the claims in view
`
`of the abstract idea the Asserted Patents embody. See Dkt. No. 34. But the Federal Circuit cautions
`
`against allowing parties to re-draft claims under the guise of claim construction to preserve validity
`
`under a Section 101 challenge. Hill-Rom Servs., 755 F.3d at 1374 (“Where the meaning of a claim
`
`term is clear, as it is here, we do not rewrite the claim to preserve its validity.”).
`
`As such, the Court should adopt DISH’s construction which properly reflects MCM’s prior
`
`statements made during IPR proceedings without importing additional limitations from the
`
`specification.
`
`C.
`
`Term 3: “a service provider network” (’468: Claims 1 and 23 / ’925: Claims 1
`and 29)
`
`MCM’s 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”
`
`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”
`
`During the Unified Patents IPR, MCM again disclaimed claim scope to overcome prior art.
`
`MCM now backpedals away from some of those disclaimers. In particular, MCM’s proposed
`
`construction for “a service provider network” imports only those prosecution history statements
`
`favorable to MCM’s interpretation while ignoring the narrower statements from the IPR that
`
`prevent them from maintaining infringement claims against DISH. Additionally, MCM’s
`
`construction imports unnecessary limitations from the specification into the term that fail to make
`
`it any easier for a jury to understand. DISH’s proposed construction simply holds MCM to the
`
`statements made by MCM during the Unified Patents IPR to maintain validity of its claims.
`
`1.
`
`MCM’s Construction Selectively Imports Only Those Prosecution History
`Statements Most Favorable to MCM
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`MCM argues that DISH’s “proposed construction improperly adds an extraneous
`
`limitation, i.e., ‘only includes those network elements operated or controlled by the service
`
`provider.’” Dkt. No. 51 at 16. It does not. The limitation comes directly from an unequivocal
`
`disclaimer made by MCM in its POPR. Dkt. No. 48, Ex. A at 6-7. However, MCM’s brief
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`inexplicably ignores MCM’s own statements that support DISH’s construction found on the same
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`page of intrinsic evidence that MCM cites to in support of its construction:
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`During the IPR, Mr. Williams testified that the “service provider network” is not
`the entire public Internet and only includes those network elements operated or
`controlled by the service provider. Further, the service provider network does not
`include the subscriber equipment (e.g., subscriber PC) nor the subscriber LAN
`located at the subscriber’s premises.
`
`Id. (citing EX2001, ¶ 47–57) (emphases added). This statement was literally inserted into DISH’s
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`construction. MCM cites Mr. Williams’s statements to show that “the file history of the ʼ468
`
`Patent supports Plaintiff’s constructions.” Id. at 15. In other words, MCM asks this Court to adopt
`
`a portion of Mr. Williams’s statements and ignore another portion less than ten lines later. MCM
`
`argues that DISH’s proposed construction improperly imports limitations into the claims—
`
`limitations that are based on the same statements made on the same page by MCM.
`
`MCM cannot cherry pick the portions of the intrinsic record to define the scope of the
`
`claims. As DISH explained in its opening brief, statements made by a patent owner during IPR
`
`put the public on notice of how the patent owner views its patent. See Aylus, 856 F.3d at 1359.
`
`MCM provides no reason why this Court should adopt the portions MCM cites while ignoring
`
`MCM’s other statements made by the same expert to overcome the same prior art. The public
`
`is entitled to rely on MCM’s full statement and interpretation and need not guess which parts would
`
`later by claimed by MCM. See Am. Piledriving Equip., Inc. v. Geoquip, Inc., 637 F.3d 1324, 1336
`
`(Fed. Cir. 2011) (explaining that “regardless of whether the examiner agreed with” a patent
`
`owner’s statements, those “statements still inform the proper construction of the term”).
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`In fact, DISH’s proposed construction obviates the need to include the negative limitation
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`proposed by MCM in a manner that is more readable and understandable by a jury. DISH’s
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`proposed construction reflects the statements made by MCM in the Unified Patents IPR and
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`entirely subsumes the concept cherry picked by MCM. MCM claims the service provider network
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`does “not include[e] subscriber equipment or a subscriber network.” Dkt. No. 51 at 14. However,
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`a network that “only includes those network elements operated or controlled by the service
`
`provider” necessarily excludes subscriber equipment and subscriber networks because they are
`
`operated and controlled by the subscriber, not the service provider.
`
`2.
`
`MCM’s Specification Citations do not Clarify what the “Service Provider
`Network” Is
`
`MCM also argues that their “proposed construction is supported by, and consistent with,
`
`the specification of the ʼ468 Patent.” Id. In particular, MCM asserts that “the ’468 Patent relates
`
`‘to regulation of access to a [service provider] network . . . to distribut[e] content efficiently while
`
`protecting the digital rights associated with the content.’” Id. (quoting ʼ468 Patent at 1:17-20).
`
`Likewise, MCM argues that “[t]he service provider delivers content to subscriber terminals, which
`
`are located at a subscriber’s premises.” Id. (citing ʼ468 Patent at 1:38-39). The quotations
`
`provided by MCM stand for little more than the proposition that the claims relate to methods and
`
`systems that regulate access to a service provider network—a fact DISH does not dispute. See,
`
`e.g., Dkt. No. 13 (explaining that the Asserted Patents are directed to the abstract idea of
`
`“controlling access to content”). However, none of the quotations relied on by MCM explain
`
`what a service provider network actually is. This Court should adopt DISH’s proposed
`
`construction because it properly reflects what the claimed “service provider network” is, not how
`
`the claimed methods and systems interact with it.
`
`The remainder of MCM’s citations support DISH’s proposed construction as much, if not
`
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`more, than they support MCM’s proposed construction. For example, MCM explains that “[t]he
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`ʼ468 Patent describes a ‘service provider network’ that is operated or controlled by a service
`
`provider, such as a cable television provider.” Dkt. No. 51 at 14 (citing ʼ468 Patent at 1:35-38)
`
`(emphasis added). DISH’s proposed construction “only includes those network elements operated
`
`or controlled by the service provider.”
`
`3.
`
`The Specification and Prosecution History Support DISH’s Proposed
`Construction
`
`Finally, MCM argues that DISH’s proposed construction is “inconsistent with the
`
`specification of the ʼ468 Patent” because it “would exclude all . . . commonly-controlled (or shared
`
`usage) communication pathways from the definition of ‘service provider network.’” Dkt. No. 51
`
`at 16-17. MCM asserts that “[i]n common configurations, even privately-controlled networks can
`
`use commonly controlled (or shared usage) communication pathways (e.g., towers, cables,
`
`switches, etc.) to route communication between and among privately-controlled network
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`elements.” Id. at 17. However, MCM’s own statements disclaimed the use of these “commonly-
`
`controlled communication pathways.” As discussed in DISH’s opening brief, MCM overcame the
`