Case 2:16-cv-00230-JRG Document 314 Filed 10/05/18 Page 1 of 27 PageID #: 20193
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`
`
`
`PACKET INTELLIGENCE LLC,
`
`Plaintiff,
`
`v.
`
`NETSCOUT SYSTEMS, INC.,
`TEKTRONIX COMMUNICATIONS, and
`TEKTRONIX TEXAS, LLC,
`
`Defendants.
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`Case No. 2:16-cv-00230-JRG
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`Jury Trial Demanded
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`(Lead Case)
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`
`
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`
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`
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`NETSCOUT’S RULE 50(b) RENEWED MOTION FOR
`JUDGMENT AS A MATTER OF LAW OF NO INFRINGEMENT
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`Case 2:16-cv-00230-JRG Document 314 Filed 10/05/18 Page 2 of 27 PageID #: 20194
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`TABLE OF CONTENTS
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`
`
`I.
`II.
`III.
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`IV.
`
`B.
`
`C.
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`INTRODUCTION ............................................................................................................. 1
`LEGAL STANDARD ........................................................................................................ 3
`NO REASONABLE JURY COULD HAVE FOUND THE ASSERTED
`CLAIMS TO BE INFRINGED ......................................................................................... 4
`A.
`Each Asserted Claim Requires Associating Connection Flows Into
`“Conversational Flows” ......................................................................................... 4
`1.
`Before trial, PI never disputed—and, in fact, repeatedly
`emphasized—that the Asserted Claims require associating packets
`into “conversational flows” ........................................................................ 4
`This Court found the requirement of associating connection flows
`into “conversational flows” is what saved the claims from
`ineligibility under § 101 ........................................................................... 11
`The undisputed construction of “conversational flow,” the
`elements and steps recited in the Asserted Claims, the patents’
`specifications and intrinsic record, and named inventors’ testimony
`all confirms the Asserted Claims require associating packets into
`“conversational flows” ............................................................................. 13
`PI Failed To Present Any Evidence That The Accused Products Ever
`Associate Connection Flows Into “Conversational Flows” ................................. 16
`Because The WPDT Feature Was Never Used Or Sold, Dr. Almeroth
`Resorted To A Deeply Flawed And Misleading Interpretation Of The
`Claims To Allege Infringement ........................................................................... 20
`CONCLUSION ................................................................................................................ 22
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`2.
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`3.
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`
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`i
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`Case 2:16-cv-00230-JRG Document 314 Filed 10/05/18 Page 3 of 27 PageID #: 20195
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`
`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`Bass Pro Trademarks v. Cabela’s Inc.,
`485 F.3d 1364 (Fed. Cir. 2007)................................................................................................15
`
`Fujitsu Ltd. v. Netgear Inc.,
`620 F.3d 1321 (Fed. Cir. 2010)................................................................................................19
`
`i4i Ltd. Partnership v. Microsoft Corp.,
`598 F.3d 831 (Fed. Cir. 2010)....................................................................................................3
`
`Johns Hopkins University v. Datascope Corp.,
`543 F.3d 1342 (Fed. Cir. 2008)................................................................................................19
`
`Retractable Technologies, Inc. v. Becton, Dickinson & Co.,
`653 F.3d 1296 (Fed. Cir. 2011)................................................................................................15
`
`z4 Techs., Inc. v. Microsoft Corp.,
`507 F.3d 1340 (Fed. Cir. 2007)..................................................................................................3
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`Statutes
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`35 U.S.C. § 101 ...................................................................................................................... passim
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`Other Authorities
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`Federal Rule of Civil Procedure 50(b) .............................................................................................1
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`
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`ii
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`Case 2:16-cv-00230-JRG Document 314 Filed 10/05/18 Page 4 of 27 PageID #: 20196
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`I.
`
`INTRODUCTION
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`Defendants NetScout Systems, Inc. and NetScout Systems Texas, LLC (formerly known
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`as Tektronix Texas, LLC d/b/a Tektronix Communications) (collectively, “NetScout”)
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`respectfully move this Court to grant Judgment as a Matter of Law (“JMOL”) of No
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`Infringement, pursuant to Federal Rule of Civil Procedure 50(b), because Plaintiff Packet
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`Intelligence LLC (“PI”) failed to present legally sufficient evidence for the jury to find any
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`infringement (direct or indirect) of claims 10 and 17 of the ’725 patent, claims 1 and 5 of the
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`’751 patent, and claims 19 and 20 of the ’789 patent (collectively, “the Asserted Patents” or “the
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`Asserted Claims”).
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`NetScout respectfully submits this is a case where the Court should vacate the jury’s
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`verdict of infringement. As explained herein, there is no dispute that PI failed to present
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`evidence that the accused G10 and GeoBlade products (the “Accused Products”) have any
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`functionality that associates connection flows into “conversational flows,” as required by each
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`Asserted Claim. The only functionality alleged to associate flows into “conversational flows”
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`was provided by an optional feature, the Web Page Download Time KPI (“WPDT”). PI’s
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`expert, Dr. Kevin Almeroth, conceded this feature was never used or sold. See Dkt. No. 250,
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`10/12/17 PM Trial Tr. at 58:24-59:3.
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`To attempt to sidestep nonuse of the WPDT feature, Dr. Almeroth espoused an entirely
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`new (and erroneous) interpretation of the Asserted Claims to suit the evidence. Dr. Almeroth
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`told the jury that the Asserted Claims do not actually require associating or correlating flows of
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`packets into “conversational flows.” See Dkt. No. 245, 10/10/17 PM Trial Tr. at 197:20-198:8
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`(Dr. Almeroth: “I don’t think that the actual correlation is a requirement of any of the asserted
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`claims.”). He told the jury that the Accused Products still infringe because they store
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`information that “can be used” to associate connection flows into “conversational flows.” Dkt.
`1
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`No. 245, Trial Tr. 10/10/17 PM at 136:25-137:2; id. at 198:1-8 (Dr. Almeroth opining if an
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`Accused Product “only contains connection flows, and it never correlates them” then it still
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`infringes). Dr. Almeroth thus vastly broadened the scope of the Asserted Claims to read them
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`onto the Accused Products by eliminating a fundamental requirement, i.e., associating flows into
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`“conversational flows.”
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`Dr. Almeroth’s new interpretation, heard for the first time at trial, is not correct. In fact,
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`it is contrary to this Court’s construction of “conversation flows” and the Asserted Patents’
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`teaching that classifying connection flows into “conversational flows” is “[w]hat distinguishes
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`this invention from prior art network monitors,” which could merely “classify packets into
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`connection flows.” ’789 patent at 2:42-44, 3:56-59; see also id. at 3:10-12 (“[I]t is desirable for
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`a network packet monitor to be able to ‘virtually concatenate’—that is, to link—the first
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`exchange with the second . . . . [so that] the two packet exchanges would then be correctly
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`identified as being part of the same conversational flow.”). His interpretation is also contrary to
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`what he and PI previously agreed was required by the Asserted Claims. For example, Dr.
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`Almeroth repeatedly admitted at his deposition that the Asserted Claims as construed by the
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`Court required “associating” or “correlating” flows into “conversational flows.” See, e.g.,
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`Declaration of Michael J Lyons, Ex. A (Almeroth Dep. Tr.) at 105:7-11 (Dr. Almeroth: “[I]t’s
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`doing the kinds of classification of flows and then associating them in the way that it’s consistent
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`with the Court’s construction . . . .”), 134:20-135:4 (“[Y]ou can get from individual flows into a
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`correlation of flows that meets the Court's claim construction . . . .”). And, in opposing
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`NetScout’s motion for summary judgment of noninfringement, PI told the Court the Accused
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`Product actually “correlate two or more connection flows” and thereby infringe the Asserted
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`Claims. Dkt. No. 157 at 9, 13.
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`2
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`This Court’s post-trial ruling assessing the eligibility of the Asserted Claims under § 101
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`further demonstrates that the infringement evidence Dr. Almeroth presented to the jury was
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`deeply flawed. This Court found the “the Asserted Claims in this case do more than just recite
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`the idea of filtering and sorting data.” Dkt. No. 298 ¶ [CL56]. Rather, per the Court, the
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`Asserted Claims recite an “unconventional technological solution,” i.e., “a particular approach
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`focused on constructing conversational flows that associate connection flows with each other.”
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`Id.; see also id. ¶ [CL52] (“[T]he Asserted Claims are oriented towards solving a discrete
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`technical problem: relating disjointed connection flows to each other.”). Dr. Almeroth’s
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`infringement testimony is based on the misguided (and misleading) view that it was unnecessary
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`for the Accused Products to meet the very requirement identified by this Court as the
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`“unconventional technological solution” claimed in the Asserted Patents.
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`Dr. Almeroth’s erroneous interpretation of the Asserted Claims infects and is fatal to his
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`entire infringement analysis. Neither he nor PI came forward with any evidence demonstrating
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`the Accused Products associate flows into “conversational flows,” as required by each Asserted
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`Claim. This Court should enter a verdict of no infringement as a matter of law.
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`II.
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`LEGAL STANDARD
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`JMOL is appropriate on a given issue when, taking the record in the light most favorable
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`to the non-moving party, a “‘reasonable jury would not have a legally sufficient evidentiary basis
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`to find for the party on that issue.’” i4i Ltd. Partnership v. Microsoft Corp., 598 F.3d 831, 841
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`(Fed. Cir. 2010) (quoting Fed. R. Civ. P. 50(a)(1) and applying Fifth Circuit law). As such,
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`NetScout is entitled to JMOL if it demonstrates that substantial evidence does not support the
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`jury’s verdict. Substantial evidence is “more than a mere scintilla” and is “such relevant
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`evidence as a reasonable mind might accept as adequate to support a conclusion.” z4 Techs., Inc.
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`v. Microsoft Corp., 507 F.3d 1340, 1353 (Fed. Cir. 2007) (quoting Consol. Edison Co. v. NLRB,
`3
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`305 U.S. 197, 229 (1938)).
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`III. NO REASONABLE JURY COULD HAVE FOUND THE ASSERTED CLAIMS
`TO BE INFRINGED
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`Contrary to Dr. Almeroth’s position at trial, each Asserted Claim requires associating
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`connection flows into “conversational flows.” As discussed below, there is no reasonable
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`dispute that this is an actual claim requirement. There is also no dispute that neither Dr.
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`Almeroth nor PI presented any evidence that the Accused Products meet this requirement.
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`Instead, Dr. Almeroth’s opinions were based on an erroneous interpretation of the Asserted
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`Claims which effectively eliminated this requirement in an attempt to skirt around it. His flawed
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`opinions did not provide the jury with a basis to find infringement.
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`A.
`
`Each Asserted Claim Requires Associating Connection Flows Into
`“Conversational Flows”
`
`1.
`
`Before trial, PI never disputed—and, in fact, repeatedly
`emphasized—that the Asserted Claims require associating packets
`into “conversational flows”
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`Before trial, there was no dispute that the Asserted Claims required recognizing whether
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`packets belong to a “conversational flow.” In its pre-trial submissions—including claim
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`construction briefing, technology tutorial, expert reports, and summary judgment responses—PI
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`never once disputed that the Asserted Claims required the classification of packets in one or
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`more connection flows into “conversational flows. In fact, before trial, PI not only repeatedly
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`asserted that correlating connection flows into “conversational flows” is what differentiated the
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`alleged invention from the prior art, it also asserted that the Accused Products implemented this
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`supposedly novel functionality.
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`For example, in its January 2017 claim construction brief, PI emphasized that “the
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`ability to identify that seemingly discrete or disjointed connections are actually related to
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`the same ‘conversational flow’” is “one benefit of the disclosed invention.” Dkt. No. 55 at 6
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`(emphasis added). PI stressed that merely classifying packets into connection flows was not the
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`invention, as such functionality was present in prior art network monitors. Id. at 4 (“[I]t is
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`important to note that conventional network monitors categorized network transmissions into
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`‘connection flows.’”). In contrast, explained PI, “[t]he network monitor disclosed in the
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`Asserted Patents categorizes network transmissions into ‘conversational flows.’” Id. at 4-5.
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`PI’s technology tutorial also underscored that classifying packets into “connection flows”
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`was different from associating connection flows into a “conversational flow”:
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`Dkt. No. 55-21 at Slides 17-18 (PI’s Technology Tutorial). As shown on PI’s “connection flow”
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`slide (above left), an application such as Skype generates multiple separate connection flows, but
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`there is no recognition that these flows are related. In contrast, as shown by PI’s “conversational
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`flow” slide (above right), identifying a “conversational flow” requires correlating each of those
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`separate connection flows into one “conversational flow.” The large blue arrow on PI’s
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`“conversational flow” slide encompasses three separate connection flows, emphasizing that
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`“conversational flow” recognition involves associating or correlating these related flows.
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`During expert discovery, there was also no dispute that the alleged invention required
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`associating connection flows of packets into “conversational flows.” Dr. Almeroth’s expert
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`report noted that a “distinguishing” aspect of the alleged invention was associating flows into
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`“conversational flows.” See Lyons Decl., Ex. B ¶ 83 (Almeroth Infringement Rpt.) (explaining
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`that “[o]ne aspect that ‘distinguishes this invention from prior art network monitors is that it has
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`the ability to recognize disjointed flows as belonging to the same conversational flow’”) (quoting
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`’789 patent at 3:56-59). His report contained multiple sections devoted to the subject of
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`“conversational flow” recognition, describing the challenges presented by being unable to
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`correlate connection flows into “conversational flows,” explaining how “conversational flow”
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`recognition constituted an alleged advance over prior art techniques, identifying the preferred
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`embodiment and process for associating packets into “conversational flows” disclosed in the
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`patents, and enumerating benefits allegedly associated with recognizing “conversational flows.”
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`Id. ¶¶ 70, 74, 82, 83, 87-90, 92-93, and 94. In these sections, as summarized below, Dr.
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`Almeroth emphasized that the Asserted Patents’ point of novelty and source of the alleged
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`benefits stemmed from going beyond merely tracking connection flows and actually classifying
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`packets into “conversational flows”:
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`Sections of Dr. Almeroth’s Expert
`Infringement Report
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`“Background of Packet Inspection
`Technology”
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`“Overview of the Disclosed Invention”
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`Dr. Almeroth’s Assertions Regarding
`“Conversational Flows”
`“The Packet Intelligence Patents describe the
`challenges presented by prior art monitoring
`techniques . . .” including “prior art packet
`monitors that classify packets into connection
`flows, but not conversational flows.” Lyons
`Decl., Ex. B ¶ 70 (emphasis added).
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`“Such [prior art] monitors were unable to
`identify and classify ‘conversational flows’
`with multiple connections, as described in the
`intrinsic record of the Packet Intelligence
`Patents.” Id. ¶ 74 (emphasis added).
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`“One of the problems that the Patentees
`desired to solve concerns disjointed flows.
`Prior art monitors were able to keep track of
`connection flows.” Id. ¶ 81 (emphasis added).
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`“One aspect that ‘distinguishes this invention
`from prior art network monitors is that it has
`the ability to recognize disjointed flows as
`belonging to the same conversational flow.’”
`Id. ¶ 83 (quoting the ’789 patent) (emphasis
`added).
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`Preferred embodiment analyzes packets and
`performs operations for “identifying other
`packet exchanges that are parts of
`conversational flows” and “to further the task
`of analyzing the conversational flow.” Id. ¶¶
`87-88 (quoting the ’789 patent) (emphasis
`added).
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`“Signatures” are “‘generated that will key on
`every new incoming packet that relates to the
`conversational flow.’” Id. ¶ 89 (quoting the
`’789 patent) (emphasis added).
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`“If the packet is part of an existing flow, the
`monitor determines from a flow entry database
`if any further processing of the packet is
`required to classify the flow. . . . If the packet
`indicates that a new flow is created that relates
`to an existing flow, signatures are built to
`recognize the new packets as part of a
`conversational flow.” Id. ¶ 90 (emphasis
`added).
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`“The Patentees said that ‘[i]t is desirable to be
`able to identify and classify conversational
`flows rather than only connection flows.’ . . .
`The ability to relate separate connection flows
`into conversational flows provides many
`benefits.” Id. ¶ 92 (quoting the ’789 patent)
`(emphasis added).
`
`“The implementation of conversational flow
`recognition allows more flexible and effective
`stateful firewall operations . . . .” Id. ¶ 93
`(emphasis added).
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`“A second benefit of relating connection
`flows into conversational flows is more robust
`understanding of the quality of service
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`7
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`“Overview of Conversational Flow
`Classification Process”
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`“Benefits of Conversational Flows”
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`(“QoS”) and bandwidth usage of a multiple
`connection flow application, such as an audio-
`video stream or a web browser based
`application such as Facebook.” Id. ¶ 94
`(emphasis added).
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`In addition to acknowledging that the Asserted Patents’ point of novelty was identifying
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`related separate flows as belonging to a “conversational flow,” Dr. Almeroth confirmed under
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`oath, at his deposition, that this functionality was required by each and every Asserted Claim.
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`For example, at his July 2017 deposition, Dr. Almeroth underscored multiple times that the
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`Asserted Claims and the Court’s construction of “conversational flows” required “correlating,”
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`“associating,” or “tying” flows of packets together. See Lyons Decl., Ex. A at 164:17-23
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`(“[T]hat was an example of where individual flows had been associated with each other
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`under the requirements of the Court’s claim construction to meet the limitations of the
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`claim.”), 105:3-11 (“[I]t’s doing the kinds of classification of flows and then associating them
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`in the way that it’s consistent with the Court’s construction . . . .”), 126:12-17 (“Q. And does
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`it have information about conversational flows? A. [The flow state block] has information that
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`can be correlated in a way that associates flows together under the Court’s claim
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`construction.”), 134:20-135:4 (“[Y]ou can get from individual flows into a correlation of flows
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`that meets the Court’s claim construction . . . .”), 189:20-190:1 (“It would store those as flow
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`entries, as separate flow entries. And then through either the information associated with the
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`flow entry or based on additional information that can be accessed based on that flow entry, then
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`it can correlate those flow entries according to the requirements of the Court's claim
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`construction.”), 217:13-17 (“[I]f there was some sort of analytics that attempted to correlate
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`the two different 5-tuples together and characterize those as a conversational flow
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`according to the Court’s claim construction, I mean, that could be an example.”) (emphasis
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`added throughout).
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`After the completion of expert discovery, PI not only maintained its position that the
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`Asserted Claims required associating packets into “conversational flows,” it opposed NetScout’s
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`summary judgment motion on the grounds that the Accused Products implemented this very
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`functionality. NetScout sought summary judgment on the grounds that there was no evidence
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`that the Accused Products ever determined whether packets belong to a “conversational flow.”
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`See Dkt. No. 135 at 1 (“Each of the claims requires determining whether packets flowing
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`through a network are part of a ‘conversational flow.’ There is no evidence that the core network
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`monitoring functionality of the G10 and GeoBlade products meets the claim requirement of
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`determining ‘conversational flows.’”). NetScout asserted that “[e]ach of the asserted claims
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`requires determining whether packets flowing through a network are part of a ‘conversational
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`flow.’” Id. at 4 (NetScout’s SOF #3). PI responded that this requirement was “not disputed”:
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`
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`Dkt. No. 157 at 2 (table cropped; red underline added). In addition, PI admitted that claim 19 of
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`the ’789 patent (which PI identified at trial as representative of the other Asserted Claims)
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`specifically requires “determining if the packet is of an existing [conversational] flow.” See id.
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`at 3-4 (PI’s RSOF #7).
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`Critically, PI’s entire basis for opposing summary judgment of noninfringement was that
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`the Accused Products’ core functionality allegedly “correlate[s] two or more connection flows”
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`and “determines,” “tracks,” and “identifies” “conversational flows.” Dkt. No. 157 at 4-5
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`(alleging “Dr. Almeroth stated at his deposition that the core traffic classification of the G10 and
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`GeoBlade determined conversational flows”), 14 (alleging “Existence of Conversational Flow
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`Tracking Created by the Core Traffic Classification Function”), 22 (alleging “Dr. Almeroth
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`opines . . . the accused system tracks conversational flows.”); Dkt. No. 187 at 4 (alleging “[t]he
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`core traffic classification of the Accused Products identifies HTTP conversational flows . . . .”)
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`(emphasis added). The first factual assertion in PI’s response brief was that its expert, Dr.
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`Almeroth, had identified functionality in the accused products that allegedly “correlate[s] two
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`or more connection flows”:
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`Dkt. No. 157 at 9 (PI’s ASOF #1) (emphasis and yellow highlighting added). PI also relied on
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`portions of Dr. Almeroth’s deposition testimony where he alleged the Accused Products’ core
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`functionality “correlates” connection flows and explained that a “correlation of flows” was
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`required to satisfy the claims as construed by the Court:
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`Dkt. No. 157 at 13 (yellow highlighting and red underlining added). As such, not only did PI
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`argue that the Accused Products correlated connection flows into “conversational flows,” it told
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`the Court that the presence of this very functionality precluded finding that any of the Asserted
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`Claims were not infringed.
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`Thus, there is no dispute that, since the outset of this case and up until trial, PI and its
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`expert, Dr. Almeroth, maintained in court filing and under oath that each of the Asserted Claims
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`required associating or correlating connection flows into “conversational flows.”
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`2.
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`This Court found the requirement of associating connection flows into
`“conversational flows” is what saved the claims from ineligibility
`under § 101
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`On February 14, 2018, this Court issued its Finding of Fact and Conclusions of Law (Dkt.
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`No. 298) denying NetScout’s Motion for Invalidity of the Asserted Patents under 35 U.S.C. §
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`101 (Dkt. No. 265). This Court found the Asserted Claims survived under § 101 because they
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`required associating packets into “conversational flows,” which was a “particular approach” that
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`constituted an “unconventional technological solution.” See Dkt. No. 298 ¶¶ [CL50]-[CL61].
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`As this Court explained:
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`The Asserted Claims in this case do more than just recite the idea of filtering and
`sorting data. . . . In particular, the Asserted Claims recite an “unconventional
`technological solution,” . . . not any approach to sorting packets, but a
`particular approach focused on constructing conversational flows that associate
`connection flows with each other and ultimately specific applications or
`protocols.
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`Id. ¶ [CL56]; see also id. ¶ [CL52] (“[T]he Asserted Claims are oriented towards solving a
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`discrete technical problem: relating disjointed connection flows to each other.”). Thus, the
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`requirement of associating packets into “conversational flows” served as the basis for the Court’s
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`conclusion that the Asserted Claims were not directed to unpatentable abstract ideas.
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`This Court also specifically recognized that this requirement of associating packets into
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`“conversational flows” is what differentiated the Asserted Claims from prior art network
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`monitors that merely tracked and stored individual connection flows. As the Court explained,
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`“[n]etwork monitors that could recognize various packets as belonging to the same connection
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`flow were well-known in the prior art when the Asserted Patents were filed.” See id. ¶ [FF28]
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`(citing ’789 patent at 2:42-44). What these prior art monitors allegedly could not do was
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`“identify disjointed connection flows as belonging to the same conversational flow.” Id.
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`¶ [FF29] (emphasis in original). “This inability to associate different connection flows to each
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`other was a crucial limitation in the prior art because applications often transmit data via multiple
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`connection flows.” Id. The Court found that the approach for creating “conversational flows”
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`recited in the Asserted Claims “allow[ed] packet monitors to classify network traffic in a way
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`that prior network monitors could not.” Id. at ¶ [CL56].
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`Therefore, this Court found associating packets into “conversational flows” to be a
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`fundamental requirement differentiating the Asserted Claims from the prior art approach of
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`merely tracking and storing connection flows.
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`Case 2:16-cv-00230-JRG Document 314 Filed 10/05/18 Page 16 of 27 PageID #: 20208
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`3.
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`The undisputed construction of “conversational flow,” the elements
`and steps recited in the Asserted Claims, the patents’ specifications
`and intrinsic record, and named inventors’ testimony all confirms the
`Asserted Claims require associating packets into “conversational
`flows”
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`The Court’s conclusion and PI’s prior admissions that the Asserted Claims require
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`associating packets into “conversational flows” follows directly from the agreed construction of
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`“conversational flow,” a term present in each Asserted Claim, the relevant components and
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`processing steps recited in the Asserted Claims, the intrinsic record for the Asserted Patents, and
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`the testimony of the named inventors.
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`First, the adopted construction of “conversational flow” is “the sequence of packets that
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`are exchanged in any direction as a result of an activity—for instance, the running of an
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`application on a server as requested by a client—and where some conversational flows involve
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`more than one connection, and some even involve more than one exchange of packets between a
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`client and server.” Dkt. No. 66 at 6. This definition distinguishes a “conversational flow” from
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`an ordinary connection flow. Thus, a “conversational flow” consists of “the sequence of packets
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`that are exchanged . . . as a result of an activity,” meaning that packets are associated based on
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`the “activity” they result from and not just according to which connection is used to exchange
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`them. In addition, the definition clarifies that a “conversational flow” could involve “more than
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`one connection,” meaning that the packets comprising a “conversational flow” are from
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`potentially multiple different connection flows. Therefore, identifying a “conversational flow”
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`requires more than just identifying separate connection flows, it requires associating packets
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`from one or more connection flows based on the activity generating the packets.
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`Second, the Asserted Claims recite components and processing steps that specifically
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`require associating packets into “conversational flows.” PI previously agreed and the Court
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`found that claim 19 of the ’789 patent is representative of the Asserted Claims. See Dkt. No. 298
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`at 9, n.2 (“PI informed the jury that Claim 19 of the ’789 Patent was ‘exemplary’ of the other
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`Asserted Claims.”). Claim 19 of the ’789 patent recites a “packet acquisition device . . .
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`configured to receive packets,” a “memory for storing a database comprising none or more flow-
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`entries for previously encountered conversational flows,” and a “lookup engine” which is
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`configured to perform various steps including (1) “look[ing] up whether the particular packet . . .
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`has a “matching flow-entry,” (2) “determining if the packet is of an existing [conversational]
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`flow,” and (3) “if the packet is of an existing [conversational] flow, . . . classif[ing] the packet as
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`belonging to the found existing [conversational] flow.” ’789 patent at claim 19. As such, claim
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`19 not only requires “determining” if a packet is of an existing “conversational flow,” it also
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`requires “classifying” any packets determined to belong to an existing “conversational flow” as
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`belonging to that particular flow. Thus, as demonstrated by representative claim 19, the Asserted
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`Claims require more than simply tracking connection flows, they require actually classifying or
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`associating flows of packets into “conversational flows.”1
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`Third, the Asserted Patents’ specifications make it clear that the Asserted Claims require
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`associating flows of packets into “conversational flows” and are not met by simply tracking
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`1 The other Asserted Claims likewise require determining whether received packets belong to a
`“conversational flow.” Claim 20 of the ’725 patent depends from claim 19 and thus includes all
`of claim 19’s limitations. With respect to claims 10 and 17 of the ’725 patent, the Court
`previously found these claims “recite similar steps [to those of claims 19 and 20 of the ’789
`patent], including performing certain operations on packets after determining the conversational
`flow to which they belong.” Dkt. No. 298, ¶¶ [FF26]-[FF27] (emphasis added); see also ’725
`patent at claim 10 (reciting performing “protocol specific operations” where “operations include
`one or more parsing and extraction operations on the packet to extract selected portions of the
`packet to form a function of the selected portions for identifying the packet as belonging to a
`conversational flow”), claim 17 (reciting performing “protocol specific operations” on a packet
`“wherein packet belongs to a conversational flow” and further performing “state processing
`operations that are a function of the state of the conversational flow of the packet”). Claims 1
`and 5 of the ’751 patent likewise recite a method that invo