Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 1 of 31
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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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`§
`§
`§
`§
`§
`§
`§
`§
`§
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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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`PLAINTIFF’S OPENING CLAIM CONSTRUCTION BRIEF
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`In accordance with the Court’s Initial Scheduling Order, Plaintiff Multimedia Content
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`Management LLC (“Plaintiff” or “MCM”) submits the following brief in support of MCM’s claim
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`constructions submitted to the Court as part of the Joint Claim Construction Statement (“JCCS”),
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`D.I. 39.
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`1
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`DISH, Exh.1024, p.0001
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 2 of 31
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`Contents
`Introduction ............................................................................................................................. 5
`I.
`II. Patents-in-Suit ......................................................................................................................... 5
`III. Technology Background.......................................................................................................... 6
`IV. Legal Standard ......................................................................................................................... 7
`V. Disputed Terms of the ʼ468 Patent .......................................................................................... 8
`A. Disputed Term No. 1 – “to generate controller instructions” .............................................. 8
`B. Disputed Term No. 2 – “a controller node” ....................................................................... 12
`C. Disputed Term No. 3 – “a service provider network” ....................................................... 14
`D. Disputed Term No. 4 – “selectively transmit[ting, by the plurality of gateway units,]
`the content requests to the service provider network in accordance with the controller
`instructions” .............................................................................................................................. 17
`E. Disputed Term No. 5 – “gateway units” ............................................................................ 20
`F. Disputed Term No. 6 – “gateway nodes” .......................................................................... 23
`G. Disputed Term No. 7 – “if the gateway unit enters the inactive state” .............................. 25
`H. Disputed Term No. 8 – “registration information” ............................................................ 26
`I. Disputed Term No. 9 – “uniquely” .................................................................................... 26
`J. Disputed Term No. 13 – “initial operating parameters” .................................................... 27
`VI. Disputed Terms of the ‘925 Patent ........................................................................................ 27
`A. Disputed Term No. 5 – “network elements” ...................................................................... 27
`B. Disputed Term No. 8 – “subscriber management system” ................................................ 29
`C. Disputed Term No. 9 – “authenticate subscribers or devices before allowing access into
`the service provider network” ................................................................................................... 30
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`2
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`DISH, Exh.1024, p.0002
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 3 of 31
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`Table of Authorities
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`Cont'l Circuits LLC v. Intel Corp., 915 F.3d 788, 797 (Fed. Cir. 2019) ................................ 14, 16
`Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050 (Fed. Cir. 1989) ....................... 11, 13, 16
`J.G. Peta, Inc. v. Club Protector, Inc., 65 F. App'x 724 (Fed. Cir. 2003) ...................................... 8
`Koepnick Med. & Educ. Research Found., L.L.C. v. Alcon Labs., Inc., 162 F. App'x 967 (Fed.
`Cir. 2005) .................................................................................................................................... 8
`Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S.
`370 (1996) ................................................................................................................................... 7
`Merck & Co. v. Teva Pharm. USA, Inc., 395 F.3d 1364 (Fed. Cir. 2005) .................................... 20
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) ...................................... 7, 8, 12
`Power Mosfet Techs., L.L.C. v. Siemens AG, 378 F.3d 1396 (Fed. Cir. 2004)............................. 19
`Ushijima v. Samsung Elecs. Co., 2014 WL 4825373 (W.D. Tex. Jan. 6, 2014) ............................ 7
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`3
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`DISH, Exh.1024, p.0003
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`Exhibit List
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`
`Exhibit No.
`2001
`2002
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`2003
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`2004
`2005
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`Description
`Declaration of Mr. Joel R. Williams
`File History of U.S. Patent Application No. 13/369,174
`Decision Denying Institution of Inter Partes Review, IPR2017-01934,
`Paper No. 10
`U.S. Patent No. 8,799,468
`U.S. Patent No. 9,465,925
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` 
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`4
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`DISH, Exh.1024, p.0004
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`I.
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`INTRODUCTION
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`Plaintiff Multimedia Content Management LLC (“Plaintiff” or “MCM”) submits the
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`following brief in support of MCM’s claim constructions submitted to the Court as part of the Joint
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`Claim Construction Statement (“JCCS”), D.I. 39. As detailed below, MCM’s proposed
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`constructions are supported by, and consistent with, the specifications and file histories of the
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`patents-in-suit. In accordance with the Court’s Scheduling Order, D.I. 33 (Jan. 4, 2019), and the
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`parties’ Joint Stipulation Regarding Proposed Amended Scheduling Order, D.I. 42 (March 12,
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`2019), the parties have not exchanged any extrinsic evidence regarding claim construction and no
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`discovery has taken place. MCM does not believe any extrinsic evidence is necessary for the Court
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`to properly construe the disputed terms, and therefore MCM has not cited to any extrinsic evidence
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`in support of its proposed constructions. Should Defendant Dish Network L.L.C. (“Defendant” or
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`“Dish”) cite to any extrinsic evidence in its opening claim construction brief, Plaintiff reserves the
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`right to continue to object to entry of such extrinsic evidence or, in the alternative, to offer
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`additional extrinsic evidence in rebuttal as well as to cross-examine any testimonial extrinsic
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`evidence.
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`II.
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`PATENTS-IN-SUIT
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`Plaintiff asserts Dish infringes two duly and legally issued United States Patents: U.S. Pat.
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`No. 8,799,468 (“the ʼ468 Patent”) and U.S. Pat. No. 9,465,925 (“the ʼ925 Patent”). The ʼ468 Patent
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`is entitled “System for Regulating Access to and Distributing Content in a Network,” and issued
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`to Robert M. Burke II and David Z. Carman on August 5, 2014. The ’468 Patent claims priority
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`from United States Patent Application No. 10/989,023 (now U.S. Pat. No. 8,122,128), and claims
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`priority to U.S. Provisional Pat. App. No. 60/523,057, filed on November 18, 2003. A true and
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`correct copy of the ’468 Patent is attached hereto as EX2004. The ʼ925 Patent is entitled “System
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`5
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`DISH, Exh.1024, p.0005
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 6 of 31
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`for Regulating Access to and Distributing Content in a Network,” and issued to Robert M. Burke
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`II and David Z. Carman on October 11, 2016. The ’925 Patent claims priority to U.S. Pat. App.
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`No. 13/369,174 (now the ʼ468 Patent), and claims priority to U.S. Provisional Pat. App. No.
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`60/523,057, filed on November 18, 2003. A true and correct copy of the ’925 Patent is attached
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`hereto as EX2005. Collectively, the ʼ468 Patent and the ʼ925 Patent are referred to as “the Patents”
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`or “the Patents-in-suit.”
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`On August 11, 2017, Unified Patents Inc. filed a 105-page Petition (with fourteen exhibits)
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`before the United States Patent Trial and Appeal Board (“PTAB”) pursuant to 35 U.S.C. §§311–
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`319 seeking to institute an inter partes review (“IPR”) of Claims 1‒5, 9, 11‒13, 19, 23‒27, and
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`32‒34 of the ’468 Patent. Unified Patents argued that the claims were obvious and therefore invalid
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`under 35 USC §103. Applying the standard set forth in 35 U.S.C. § 314(a), which requires that
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`Petitioner demonstrate a reasonable likelihood that it would prevail with respect to at least one
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`challenged claim, the Board denied the Petition. See IPR2017-01934 (referred to herein as the
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`“IPR”), Institution Decision, Paper 10 (March 5, 2018), attached hereto as EX2003.
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`III. TECHNOLOGY BACKGROUND
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`The Patents describe systems and methods for managing and regulating access from a local
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`subscriber site to content available for distribution from a remote service provider network. E.g.,
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`ʼ468 Patent, Abstract. 1 The subscriber site includes one or more subscriber terminals and
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`communications gateways (“CGs”). ʼ468 Patent, 3:37–40. The system further includes Internet
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`Control Points (“ICPs”) (located remote from the subscriber site), which generate and issue
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`instructions to the CGs. E.g., ʼ468 Patent, 3:46–48; 5:25–29. These instructions control the
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`                                                            
`1 Although citations in this section are to the ʼ468 Patent, the specifications of the ʼ468 Patent
`and the ʼ925 Patent are substantively identical.
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`6
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`DISH, Exh.1024, p.0006
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`operation of the CGs. The Patents identify several control operations and associated controller
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`instructions that the ICPs may send to the CGs (e.g., “Active and Inactive CG Processing Control,”
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`“Conditional Denial,” and “Packet Inspection,” etc.). ʼ468 Patent, 7:34–8:32. By having the ICP
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`remote from the CG in conjunction with the CG being tamperproof by the user and under the
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`exclusive control of the ICP, the systems and methods of the Patents regulate access by the
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`subscriber to content available from the subscriber network in a secure manner. The claimed
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`systems allow a service provider network to protect the digital rights associated with the content
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`and prevent a user from unauthorized alteration of the operation of the CG, which is under the
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`control of the remote ICP. See ʼ468 Patent, 4:46–48.
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`IV. LEGAL STANDARD
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`The Court is familiar with the legal standards for claim construction. E.g., Ushijima v.
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`Samsung Elecs. Co., No. A-12-CV-318-LY, 2014 WL 4825373, at *1–2 (W.D. Tex. Jan. 6, 2014).
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`Determining the proper meaning of patent claims is a question of law that exclusively belongs to
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`the Court. Markman v. Westview Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995) (en banc),
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`aff’d, 517 U.S. 370 (1996). “It is a bedrock principle of patent law that the claims of a patent define
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`the invention to which the patentee is entitled the right to exclude.” Phillips v. AWH Corp., 415
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`F.3d 1303, 1312 (Fed. Cir. 2005) (en banc).
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`The words of patent claims are generally accorded with their “ordinary and customary
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`meaning,” which is the “meaning that term would have to a person of ordinary skill in the art in
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`question at the time of invention.” Id. at 1312–13. “[T]he person of ordinary skill in the art is
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`deemed to read the claim term not only in the context of the particular claim in which the disputed
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`term appears, but in the context of the entire patent, including the specification.” Id. at 1313.
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`7
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`DISH, Exh.1024, p.0007
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`Among the hierarchy of evidentiary sources relied upon for claim interpretation, the
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`specification is the “single best guide” to the meaning of a disputed term other than the claims
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`themselves and is usually dispositive of the analysis. Id. at 1315. The file history is also relevant.
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`However, “it often lacks the clarity of the specification and thus is less useful for claim
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`construction purposes.” Id. at 1317. “Dictionaries or comparable sources are often useful to assist
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`in understanding the commonly understood meaning of words and have been used both by [the
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`Federal Circuit] and the Supreme Court in claim interpretation.” Id. at 1322. See also Koepnick
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`Med. & Educ. Research Found., L.L.C. v. Alcon Labs., Inc., 162 F. App'x 967, 972 (Fed. Cir. 2005)
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`(“[I]t was not necessary to consider extrinsic evidence, such as expert testimony, inventor
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`testimony, and technical treatises and articles.”); J.G. Peta, Inc. v. Club Protector, Inc., 65 F. App'x
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`724, 727 (Fed. Cir. 2003) (“Extrinsic evidence was unnecessary, and the district court did not err
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`in declining to conduct a hearing to consider it.”).
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`V. DISPUTED TERMS OF THE ʼ468 PATENT
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`The disputed terms for the ʼ468 Patent are presented with the same numbering as in the
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`JCCS, Docket 39. The Parties have proposed these terms for construction.
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`A. Disputed Term No. 12 – “to generate controller instructions”
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`Plaintiff’s Construction
`“generate computer processor-executable
`instructions, excluding merely a uniform
`resource locator (URL) or an internet protocol
`(IP) address”
`
`
`Defendant’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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`                                                            
`2 The number of disputed terms is made in reference to the numbering used in the appendices to
`the JCCS. Since filing the JCCS, the parties have decided to proffer the same claim construction
`(e.g., Disputed Term No. 10 of the ʼ468 Patent) for some claims listed as “disputed” in the JCCS.
`As a result, MCM has not addressed those terms herein.
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`8
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`DISH, Exh.1024, p.0008
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`Plaintiff’s proposed construction is supported by, and consistent with, the specification of
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`the ʼ468 Patent. For example, Figure 1 of the ʼ468 Patent, reproduced below, illustrates the
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`relationships between “Internet Control Point 50” (i.e., a controller node, discussed in detail in
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`§ V.2 infra), “Communication Gateways 58” (i.e., a gateway unit, discussed in detail in § V.5 infra)
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`and “SPA-controlled network elements 54” (i.e., a network element, discussed in detail in § VI.5
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`infra). The ʼ468 Patent states: “ICP 50 works in conjunction with CGs 58 and SPA-controlled
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`network elements 54 by generating instructions which are transmitted over network 52 to CGs
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`58 and SPA-controlled network elements 54, where the instructions are executed.” ʼ468 Patent,
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`5:19–23 (emphasis added).
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`
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`ʼ468 Patent, FIG. 1.
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`The controller instructions, executed at the gateway unit, perform a variety of operations.
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`E.g., ʼ468 Patent, 7:34–8:18, 11:22–43 (describing multiple examples of controller instructions
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`that are performed by the gateway units (e.g., the “Active and Inactive CG Processing Control,”
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`the “Conditional Denial,” and the “First Portal” operations)).
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`Further, the file history of the ʼ468 Patent supports Plaintiff’s construction, For example,
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`during the Inter Partes Review (“IPR”) of the ʼ468 Patent, Unified Patents, Inc. v. Multimedia
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`9
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`DISH, Exh.1024, p.0009
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 10 of 31
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`Content Management LLC, IPR2017-01934 (PTAB Dec. 14, 2017), Mr. Joel R. Williams, an
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`expert testifying on behalf of MCM, noted that one of ordinary skill in the art would understand a
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`“controller instruction” to exclude merely a uniform resource locator (“URL”) or an internet
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`protocol (“IP”) address. Decl. of Joel William filed in IPR2017-01934, attached hereto as EX2001,
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`at ¶¶ 58–69. In the art of computer networks, an instruction describes a command to be performed.
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`A URL is a computer address for a network resource, such as a web page, and an IP address is an
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`address for a device on a TCP/IP network. An address, either in URL or IP form, is not a command
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`and does not describe an operation to be performed. Therefore, a URL or IP address cannot be a
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`“controller instruction” that describes an operation to be performed by the gateway unit. EX2001,
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`¶ 60.
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`In the IPR, Mr. Williams described controller instructions as follows: “While several of
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`these controller instructions require a URL or IP address, the URLs and IP addresses are only
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`parameters for the instructions—the URLs and IP addresses alone are not controller instructions.”
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`EX2001, ¶ 62. “For example, with respect to the ‘Conditional Denial’ operation, a gateway unit
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`receives a controller instruction commanding the gateway unit to substitute a requested ‘pirate’
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`URL address with another URL address.” Id. at ¶ 63; see also id. at ¶ 64 (quoting ʼ468 Patent, 8:3–
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`6). In order to carry out the “Conditional Denial” instruction, “the gateway unit is informed of a
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`first URL (or IP address), the second URL (or IP address), and the operation to be performed (i.e.,
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`substitute the second URL for the first URL). In this example, the operation, or instruction, being
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`performed is a substitution.” Id. at ¶ 64. According to Mr. Williams, the “parameters to the
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`instruction are the first and second URLs. While this controller instruction requires URLs (or IP
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`Addresses) as parameters, the URLs (or IP addresses) do not describe the operation to be
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`10
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`DISH, Exh.1024, p.0010
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`performed.” Id. Mr. Williams’s conclusion was that “the ʼ468 Patent does not describe standalone
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`URL or IP address parameter[s] as being a controller instruction.” Id. (emphasis added).
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`Therefore, in view of the specification of the ʼ468 Patent and the file history (in particular,
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`Mr. Williams’s testimony in the IPR cited above), Plaintiff submits that the proper construction of
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`“controller instructions” is “computer processor-executable instructions, excluding merely a
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`uniform resource locator (URL) or an internet protocol (IP) address.”
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`Defendant’s proposed construction improperly imports a limitations from the specification
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`into the claim, namely the limitation to “determine whether to transmit or not transmit a content
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`request.” JCCS, Ex. A-1. See Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1053 (Fed.
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`Cir. 1989) (“[L]imitations appearing in the specification will not be read into claims, and that
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`interpreting what is meant by a word in a claim ‘is not to be confused with adding an extraneous
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`limitation appearing in the specification, which is improper.’”).
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`Defendant’s construction is inconsistent with the specification of the ʼ468 Patent. For
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`example, as noted above, the ʼ468 Patent describes multiple examples of operations performed by
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`gateway units that execute the controller instructions. ʼ468 Patent, 7:34–8:18, 11:22–43. One such
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`example operation, entitled “Active and Inactive CG Processing Control,” is used by a
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`communication gateway to “register itself as ‘idle’ by sending an event notification to ICP 50.” Id.
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`at 7:34–37. “Inactive CGs 58 may process and control either CG maintenance or may carry out
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`activity delegated to inactive CGs by design.” Id. at 50–52 (emphasis added). There is nothing in
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`the specification of the ʼ468 Patent to suggest that the operation of processing and controlling
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`communication gateway maintenance is the same as or related to determining “whether to transmit
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`or not transmit a content request,” as Defendant’s construction would require. Thus, Defendant’s
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`attempt to improperly limit the claims of the ʼ468 Patent to require the single operation of
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`11
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`DISH, Exh.1024, p.0011
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 12 of 31
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`determining “whether to transmit or not transmit a content request” is not supported by the ʼ468
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`Patent specification and is improper. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir.
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`2005) (warning against confining claims to specific embodiments).
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`In addition, Defendant’s construction would require the Court to construe “generate” as
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`“create or bring into being.” JCCS, Ex. A-1. This additional limitation finds no support in the
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`specification of the ʼ468 Patent and is inconsistent with the understanding of one of ordinary skill
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`in the art as disclosed in the file history. In particular, in the IPR, Mr. Williams testified that one
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`of ordinary skill in the art would understand the meaning of “generate,” in the context of the claims
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`of the ʼ468 Patent, to exclude operations in which the controller instructions are only transmitted
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`or are relayed (i.e., received and then transmitted) by a device. EX2001, ¶¶ 74–83; see also id. at
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`¶¶ 78–80 (finding the notion that the generated item did not exist prior to being generated
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`consistent with the understanding of one of ordinary skill in the art). Accordingly, a person of
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`ordinary skill in the art would understand the meaning of “generate” to exclude operations in which
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`the controller instructions are only transmitted or relayed by a device (i.e., brought “into being”).
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`Based on the above evidence, the proper construction of “generate controller instructions”
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`based on the ʼ468 Patent in its entirety, the file history, as well as the understanding of one of
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`ordinary skill in the art, is Plaintiff’s proposed construction: “generate computer processor-
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`executable instructions, excluding merely a URL or IPR address.” JCCS, Ex. A-1.
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`B. Disputed Term No. 2 – “a controller node”
`
`Plaintiff’s Construction
`“A network-based router or computer located
`within the network and remote from the
`gateway unit and that controls the operation
`of one or more gateway units”
`
`Defendant’s Construction
`“a single network device that controls the
`operation of the gateway units”
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`12
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`DISH, Exh.1024, p.0012
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`Plaintiff’s proposed construction is supported by, and consistent with, the specification of
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`the ʼ468 Patent. For example, the ʼ468 Patent states: “CGs operate in conjunction with SPA-based
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`Internet Service Providers (ISPs) under the control of “controller nodes,” hereinafter referred to as
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`Internet Control Points (ICPs). The ICPs are installed in an ISP’s network. ICPs may be network-
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`based routers or computers that control the operation of CGs.” ʼ468 Patent, 3:43–47 (emphasis
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`added). Therefore, in view of the specification of the ʼ468 Patent, Plaintiff proposes to construe
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`“controller node” as a “network-based router or computer located within the network and remote
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`from the gateway unit and that controls the operation of one or more gateway units.”
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`Figure 1 of the ʼ468 Patent, reproduced below, illustrates the relationships between
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`“Internet Control Point 50” (i.e., a “controller node”), “Communication Gateways 58” (i.e., a
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`gateway unit, discussed in detail in § V.E infra) and “SPA-controlled network elements 54” (i.e.,
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`a network element, discussed in detail in § VI.E infra).
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`
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`ʼ468 Patent, FIG. 1. As illustrated in Figure 1, the Internet Control Point 50 (i.e., a controller
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`node) is located remote from communication gateway 58 (i.e., a gateway unit).
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`Defendant’s proposed construction improperly adds an extraneous limitation, i.e., “a single
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`network device.” JCCS, Ex. A-2 (emphasis added). See Intervet Am., Inc. v. Kee-Vet Labs., Inc.,
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`887 F.2d 1050, 1053 (Fed. Cir. 1989) (“[L]imitations appearing in the specification will not be
`
`read into claims, and that interpreting what is meant by a word in a claim ‘is not to be confused
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`13
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`DISH, Exh.1024, p.0013
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 14 of 31
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`with adding an extraneous limitation appearing in the specification, which is improper.’”); see also
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`Cont'l Circuits LLC v. Intel Corp., 915 F.3d 788, 797 (Fed. Cir. 2019) (cautioning against
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`“improperly importing limitations into the claims.”). Specifically, Defendant’s construction seeks
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`to limit “a controller node” to “a single network device.” There is no support in the ʼ468 Patent
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`for this position. In fact, the ʼ468 Patent explicitly contradicts Defendant’s construction: “The ICPs
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`are installed in an ISP’s network. ICPs may be network-based routers or computers that control
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`the operation of CGs.” ʼ468 Patent, 3:43–47 (emphasis added). Every term in this portion of the
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`ʼ468 Patent is plural. The ʼ468 Patent expressly considers multiple “network-based routers or
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`computers.” Id.
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`Thus, the proper construction of “controller node,” based on the ʼ468 Patent in its entirety,
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`is Plaintiff’s proposed construction: “A network-based router or computer located within the
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`network and remote from the gateway unit and that controls the operation of one or more gateway
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`units.” JCCS, Ex. A-2.
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`C. Disputed Term No. 3 – “a service provider network”
`
`Plaintiff’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”
`
`Defendant’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”
`
`Plaintiff’s proposed construction is supported by, and consistent with, the specification of
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`the ʼ468 Patent. For example, the ’468 Patent relates “to regulation of access to a [service provider]
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`network . . . to distribut[e] content efficiently while protecting the digital rights associated with the
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`content.” ʼ468 Patent, 1:17–20. The ʼ468 Patent describes a “service provider network” that is
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`operated or controlled by a service provider, such as a cable television provider. ʼ468 Patent, 1:35–
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`38. The service provider delivers content to subscriber terminals, which are located at a
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`14
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 15 of 31
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`subscriber’s premises. ʼ468 Patent, 1:38–39. The subscriber’s premises may include subscriber
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`PCs networked together with other computers on a local area network (“LAN”). ʼ468 Patent, Fig.
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`1, 3:55–58. Additional network elements may be located between the “service provider network”
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`and the subscriber’s premises to aid in the distribution of content. ʼ468 Patent, 1:33–35.
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`Fig. 1, reproduced below with annotations, illustrates separation between devices at a
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`subscriber’s premises (subscriber terminals and communication gateways connected via a LAN)
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`and the “service provider network” (i.e., SPA Network Elements 54).
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`
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`Unified Patents, Inc. v. Multimedia Content Management LLC, IPR2017-01934, Patent Owner’s
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`Preliminary Response (PTAB Dec. 14, 2017), Paper 9, at 6 (annotating ʼ468 Patent, Fig. 1). Figure
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`1 also illustrates that the “service provider network” 54 is distinct from Non-SPA Network
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`Elements 55. Collectively, the “service provider network” and Non-SPA Network Elements
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`comprise the Internet/Metro Area Network 52. Thus, the service provider network does not include
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`equipment located at subscriber’s premises on the other side of the LAN.
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`Further, the file history of the ʼ468 Patent supports Plaintiff’s constructions. During
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`prosecution, Patentee amended the claims to clarify that the “network” recited in Claim 1 is the
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`“service provider network” as opposed to being any network, such as the subscriber’s local area
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 16 of 31
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`network or the entire public Internet. Supplemental Preliminary Amendment for U.S. Pat. App.
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`No. 13/369,174, Nov. 15, 2012, attached hereto as EX2002, p. 124. During the IPR, Mr. Williams
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`testified that the “service provider network” is not the entire public Internet and only includes those
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`network elements operated or controlled by the service provider. Further, the service provider
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`network does not include the subscriber equipment (e.g., subscriber PC) nor the subscriber LAN
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`located at the subscriber’s premises. EX2001, ¶ 47–57.
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`Therefore, in view of the specification of the ʼ468 Patent and the filed history, Plaintiff
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`submits that the proper construction of “service provider network” is “a network that is operated
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`or controlled by a service provider to provide regulated access to content delivery services for
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`subscribers, but not including subscriber equipment or a subscriber network.”
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`Defendant’s proposed construction improperly adds an extraneous limitation, i.e., “only
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`includes those network elements operated or controlled by the service provider.” JCCS, Ex.A-4
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`(emphasis added). See Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1053 (Fed. Cir.
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`1989) (“[L]imitations appearing in the specification will not be read into claims, and that
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`interpreting what is meant by a word in a claim ‘is not to be confused with adding an extraneous
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`limitation appearing in the specification, which is improper.’” ”); see also Cont'l Circuits LLC v.
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`Intel Corp., 915 F.3d 788, 797 (Fed. Cir. 2019) (cautioning against “improperly importing
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`limitations into the claims.”). Defendant’s construction would define a network in a manner that
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`would exclude any features that are common to multiple networks, but necessary for the network’s
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`operation. For example, Defendant’s construction would exclude the physical cables connecting
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`devices if every portion of that cable were not “operated or controlled by the service provider.”
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`Defendant’s construction is also inconsistent with the specification of the ʼ468 Patent. For
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`example, Figure 1 illustrates SPA Network Elements 54 as part of an “Internet/Metro Area
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 17 of 31
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`Network.” In common configurations, even privately-controlled networks can use commonly-
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`controlled (or shared usage) communication pathways (e.g., towers, cables, switches, etc.) to route
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`communication between and among privately-controlled network elements. Defendant’s
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`construction would exclude all such commonly-controlled (or shared usage) communication
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`pathways from the definition of “service provider network.”
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`The proper construction of “service provider network” based on the ʼ468 Patent in its
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`entirety, the file history, as well as the understanding of one of ordinary skill in the art, is Plaintiff’s
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`proposed construction: “a network that is operated or controlled by a service provider to provide
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`regulated access to content delivery services for subscribers, but not including subscriber
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`equipment or a subscriber network.” JCCS, Ex. A-4.
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`D. Disputed Term No. 4 – “selectively transmit[ting, by the plurality of gateway units,]
`the content requests to the service provider network in accordance with the
`controller instructions”
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`Plaintiff’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)”
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`Defendant’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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`Plaintiff’s proposed construction is supported by and consistent with the specification of
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`the ʼ468 Patent. For example, the ʼ468 Patent describes “a gateway unit associated with a user
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`receives controller instructions from the network.” ʼ468 Patent, 7:54–65 (internal citations
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`omitted). First, after receiving the controller instructions, “the gateway unit receives a network
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`access request from a user, via a subscriber terminal.” Id. Second, the gateway unit determines
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`whether or not to transmit the network access requests over the network in accordance with the
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`controller instructions. Id. Third, the gateway either transmits the network access requests or takes
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`17
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`Case 6:18-cv-00207-ADA Document 51 Filed 03/22/19 Page 18 of 31
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`another action (e.g., denies access or contacts law enforcement). Id. 7:53–