Case 6:18-cv-00207-ADA Document 81 Filed 06/17/19 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE WESTERN DISTRICT OF TEXAS
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`WACO DIVISION
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`MULTIMEDIA CONTENT
`MANAGEMENT LLC
`Plaintiff
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`v.
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`DISH NETWORK CORPORATION
`Defendant
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`CIVIL NO. 6:18-CV-00207-ADA
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`MARKMAN CONSTRUCTION ORDER
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`The Court enters the following claim constructions following briefing and a hearing that
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`was conducted on April 26, 2019. During that hearing, the Court informed the Parties of the
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`constructions it intended to provide. This Order does not alter any of those constructions.
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`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)
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`The dispute between the Parties concerns two issues: (1) whether instructions must be
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`created and not simply transmitted or relayed to qualify as the claimed "controller instructions,"
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`and (2) whether the claimed intrinsic evidence supports the understanding that "controller
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`instructions" must decide whether or not to transmit content requests.
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`The Court finds that the use of "create or bring into being" for "generate controller
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`instructions" is appropriate. This construction accurately reflects the dictionary definition of the
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`word "generate" and comports with the requirement that the functions of "transmitting" or
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`"relaying" cannot be encompassed within generating controller instructions. Thus, the Court
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`finds that it would be incorrect to utilize the terms "transmitting" or "relaying."
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`EXHIBIT 2003
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`Case 6:18-cv-00207-ADA Document 81 Filed 06/17/19 Page 2 of 7
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`Further, the context of the claims concerns regulating access to content. The specification
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`uniformly describes the functionality of the "controller instructions" as "determining whether to
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`transmit or not transmit content requests" and not anything else. See, e.g, '468 Patent at 2:23-3:2
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`("the second processor selectively transmitting at least some of the network access requests over
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`the network in accordance with the controller instructions") (emphasis added); 7:54-65 ("At step
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`404, the gateway unit selectively transmits the network access requests over the network in
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`accordance with the controller instructions.") (emphasis 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
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`group of users in accordance with the controller instructions.") (emphasis added).
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`With respect to MCM's proposed construction, it argues that "one of ordinary skill in the
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`art would understand a 'controller instruction' to exclude merely a uniform resource locator
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`('URL') or an internet protocol ('IP') address." Dkt. Number 51 at 10. The Court rejects
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`Plaintiff's contention that this should be used in construing the claim term. MCM fails to explain
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`how the negative limitation "excluding merely a uniform resource locator (URL) or an internet
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`protocol (IP) address" clarifies "controller instructions" or amounts to more than an improper
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`importation of an ancillary term. See Intervet Am., Inc. v. Kee- Vet Labs., Inc., 887 F.2d 1050,
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`1053 (Fed. Cir. 1989) ("limitations appearing in the specification will not be read into the
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`claims"). The Court does not find the restriction to be necessary or appropriate.
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`Because of the foregoing, the construction for this claim term is "to create[ing] or
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`bring[ing] into being computer executable instructions that determine whether to transmit or not
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`transmit a content request from a user to the service provider network"
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`EXHIBIT 2003
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`Case 6:18-cv-00207-ADA Document 81 Filed 06/17/19 Page 3 of 7
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`Term 2: "a controller node" ('468 Patent: Claims 1 and 23 / '925 Patent: Claims 1 and 29)
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`The primary dispute with respect to this claim term is whether a single network device is
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`required in view of the full intrinsic record, which dictates that the "generating" and
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`"transmitting" controller instructions must be performed by the same device, or whether it may
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`be performed by multiple devices in a distributed manner. The Court agrees with Dish that the
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`intrinsic evidence demonstrates that each controller node must be "a single network device" that
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`performs the "generate" and "transmit" functions. The Court makes this finding because (1) "the
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`controller node" must do both the "generating" and "transmitting" functions as claimed, and (2)
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`the "generating" function does not include receiving the instructions from another device, the
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`claimed controller node must be construed as a "single" network device. See Dkt. Number 48 at
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`7-9.
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`The Court rejects the construction proffered by MCM because it imports limitations such
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`as "network-based router or computer," "within the network," and "remote from the gateway
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`unit" without any lexicography or disclaimer to support limiting the plain meaning of the
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`claimed term. Toshiba Corp. v. Imation Corp., 681 F.3d 1358, 1369 (Fed. Cir. 2012) ("Absent
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`disclaimer or lexicography, the plain meaning of the claim controls."). The Court carefully
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`considered the reasons that MCM articulated at the hearing as to why these were necessary but
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`believes that they are incorrect as a matter of well-established caselaw. The Court also finds that
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`the construction it is adopting is consistent with the statements made by MCM during the IPR
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`proceedings. Accordingly, the construction for this claim term is: "a single network device that
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`controls the operation of the gateway units."
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`EXHIBIT 2003
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`Case 6:18-cv-00207-ADA Document 81 Filed 06/17/19 Page 4 of 7
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`Term 3: "a service provider network" ('468: Claims 1 and 23 I '925: Claims 1 and 29)
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`At the heart of this dispute is whether a service provider network "only includes those
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`network elements operated or controlled by the service provider." In favor of its proposed
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`construction, Dish argues that its proposed construction is entirely consistent with an
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`unequivocal disclaimer made by MCM during the prosecution of the IPR. The Court agrees.'
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`The Court also agrees with Dish that their proffered construction is more understandable to the
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`jury than MCM's construction.
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`As previously stated, Dish's proposed construction is consistent with the position taken
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`by MCM in the IPR. MCM overcame the prior art at issue in the Unified Patents IPR by arguing
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`that the service provider network did not include 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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`Ex. A (POPR) at 6 (emphasis added). Accordingly, the construction for this claim term is: "a
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`network between the controller node and the plurality of gateway units that is not the public
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`Internet and only includes those network elements operated or controlled by the service
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`provider."
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`Term 4: "selectively transmitting, by the plurality of gateway units,1 the content requests
`to the service provider network in accordance with the controller instructions" ('468:
`Claims 1 and 23 / '925: Claims 1 and 29)
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`The dispute that the Court must resolve is whether the content requests from the gateway
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`units or network elements must travel over the service provider network or not. MCM took the
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`The Court notes that the intrinsic record that this Court must consider includes the positions and statements made
`by the Parties to the IPR.
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`EXHIBIT 2003
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`Case 6:18-cv-00207-ADA Document 81 Filed 06/17/19 Page 5 of 7
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`position in the IPR that all content requests must travel over (take place within) the "service
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`provider network." The Court finds that the construction proffered by MCM attempts to add
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`unsupported elements and structure to the "selectively transmitting" step by construing the term
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`as: "(1) 'a gateway unit" wherein "(2) the gateway unit is 'under control of the remotely located
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`controller node" and "(3) [t]he gateway unit
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`'executes previously received controller
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`instructions to determine whether to transmit a content request from a user or to take other
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`actions' such as denying the content request." Dkt. Number 51 at 19.
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`The specification explains that the "selectively transmitting" step occurs within the
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`service provider network. Specifically, the specification unequivocally states "all ICP-CG
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`communications take place within the ISP side of the network." '468 Patent at 4:33-34
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`(emphases added). As such, the Court finds that because "all" communications take place within
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`the service provider network, the specification requires that "content requests" also travel within
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`the service provider network. See The Medicines Co. v. Mylan, Inc., 853 F.3d 1296, 1305 (Fed.
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`Cir. 2017) (explaining that claim construction requires a process described in the specification
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`when the specification states that the "process includes all of the embodiments as described").
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`In short, the Court rejects MCM's proposed construction because it finds no basis for
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`construing the functional "selectively transmifting" term to include a structural "gateway unit"
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`limitation or why "selectively transmitting" requires "the remotely located controller node" to
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`control the gateway units. Accordingly, the construction of this claim is: "transmitting all
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`selected content requests through the service provider network in response to the controller
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`instructions' decision to transmit the content requests.
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`5
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`EXHIBIT 2003
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`Case 6:18-cv-00207-ADA Document 81 Filed 06/17/19 Page 6 of 7
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`Term 5: "gateway units" ('468 Patent: Claims 1 and 23)
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`Both Parties agree that "gateway units" are located "remote from the controller node."
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`MCM attempts to include the narrowing limitation "located within a subscriber premise." Dkt.
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`Number 51 at 20. The Court finds that MCM's inclusion of "located within a subscriber
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`premise" is unsupported; therefore, the Court rejects the MCM's proffered construction. The
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`Court also finds no basis for adding the element of being controlled by the controller node to the
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`claim construction. Both DISH's and MCM's construction of "a controller node" includes
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`"control[ling] the operation of the gateway units," and thus, that limitation is redundant and
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`unnecessary. As such, the Court adopts the Dish's proffered construction. Accordingly, the
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`construction of this term is: "computer devices that are remote from the controller node and
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`interface with the service provider network and a subscriber terminal"
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`Term 6: "network elements" ('925: Claims 1 and 29)
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`In its proposal for the construction of this claim term, MCM adds much that the Court
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`finds unnecessary. MCM relies on Figure 1 to suggest that the Court should import the "located
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`remote from the controller node" feature into the construction of network elements. MCM argues
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`that that Figure 1 of the'925 Patent "illustrates 'SPA Network Elements' 54 and 'Non-SPA
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`Network Elements' 55 as located within 'Internet/Metro Area Network 52' and remote from
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`'Internet Control Point' 50 (i.e., a controller node)." Id. at 28. The Court disagrees. Figure 1 of
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`the '925 Patent does show that the network elements are coupled to "Internet Control Point" 50.
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`However, there is nothing in Figure 1 or the accompanying text in the specification that requires
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`the network elements to be "located remote from the controller node."
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`The Court finds that Dish's proffered construction is correct. The specification supports a
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`broader construction of the "network elements" term than the construction proposed by MCM
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`EXHIBIT 2003
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`Case 6:18-cv-00207-ADA Document 81 Filed 06/17/19 Page 7 of 7
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`Dkt. Number 48 at 22-23. The specification explains that "[n]etwork elements 54, 55 may
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`include, for example, network switches and routers. SPA-controlled network elements 54 aid in
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`regulating access and distributing content through network 52." '925 Patent at 5:11-14.
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`Similarly, the specification states "SPA-controlled network elements 54 may include one or
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`more network interfaces 300, one or more processors 302, a memory device 304 including a
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`database, and one or more switch modules 306 for providing routing and switching services." Id.
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`at 7:27-31. Accordingly, the construction of the claim term is: "computer devices within the
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`service provider network"
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`Construction of the Dependent Claim terms
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`The Court finds that all of the dependent claim terms raised by the Parties should have
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`their plain and ordinary meaning.
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`UNITED STATES DISTRI
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`EXHIBIT 2003
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