Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 1 of 18
`
`Brian A.E. Smith (SBN 188147)
`Alden KW Lee (SBN 257973)
`Jeffrey D. Chen (SBN 267837)
`Joseph J. Fraresso (SBN 289228)
`BARTZO ZANKEL BUNZEL & MILLER
`One Embarcadero Center, Suite 800
`San Francisco, CA 94111
`Telephone: (415) 956-1900
`bsmith@bzbm.com
`alee@bzbm.com
`jchen@bzbm.com
`jfraresso@bzbm.com
`
`Attorneys for Plaintiff
`Packet Intelligence LLC
`
`[Additional counsel listed on signature page]
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`PACKET INTELLIGENCE LLC,
`
`Case No. 3:19-cv-04741-WHO
`
`Plaintiff,
`
` v.
`
`JUNIPER NETWORKS, INC.,
`
`Defendant.
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`PLAINTIFF PACKET INTELLIGENCE
`LLC’S REPLY CONSTRUCTION BRIEF
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`DEMAND FOR JURY TRIAL
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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` CASE NO. 3:19-CV-04741-WHO
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 1 of 18
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`

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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 2 of 18
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`
`
`Table of Contents
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`
`I.
`
`INTRODUCTION .................................................................................................................... 1
`
`II.
`
`DISPUTED TERMS FOR CONSTRUCTION .............................................................................. 2
`
`A. “conversational flow” / “conversational flow-sequence” ........................................... 2
`
`B. “flow-entry database” .................................................................................................. 5
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`C. “the flow” / “new flow” / “existing flow” ................................................................... 7
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`D. “base protocol” ............................................................................................................ 8
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`E. “slicer” ......................................................................................................................... 9
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`F. “a protocol/state identification mechanism coupled to the state patterns/operations
`memory and to the lookup engine, the protocol/state identification engine configured
`to determine the protocol and state of the conversational flow of the packet” .......... 10
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`G. “claim preambles” ..................................................................................................... 12
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`III. CONCLUSION ...................................................................................................................... 14
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 2 of 18
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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 3 of 18
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`
`
`Cases
`
`Table of Authorities
`
`Allen Eng’g Corp. v. Bartell Indus., Inc.,
`299 F.3d 1336 (Fed. Cir. 2002) .................................................................................................. 13
`
`Amgen, Inc. v. F. Hoffmann-LaRoche Ltd.,
`494 F. Supp. 2d 54 (D. Mass. 2007) ............................................................................................ 7
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`Applied Materials, Inc. v. Advanced Semiconductor Materials America, Inc.,
`98 F.3d 1563 (Fed. Cir. 1996) .............................................................................................. 12, 14
`
`Aspex Eyewear, Inc. v. Marchon Eyewear, Inc.,
`672 F.3d 1335 (Fed. Cir. 2012) .................................................................................................. 13
`
`Catalina Mktg. Int’l, Inc. v. Coolsav-ings.com, Inc.,
`289 F.3d 801 (Fed. Cir. 2002) .................................................................................................... 14
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`Cochlear Bone Anchored Sols. AB v. Oticon Med. AB,
`958 F.3d 1348 (Fed. Cir. 2020) ............................................................................................ 12, 13
`
`Deere & Co. v. Bush Hog, LLC,
`703 F.3d 1349 (Fed. Cir. 2012) ............................................................................................ 12, 14
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`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F.3d 1111 (Fed. Cir. 2004) ............................................................................................ 13, 14
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`Key Pharm. v. Hercon Labs. Corp.,
`161 F.3d 709 (Fed. Cir. 1998) ...................................................................................................... 7
`
`Markman v. Westview Instruments, Inc.,
`517 U.S. 370 (1996) ................................................................................................................. 1, 6
`
`Packet Intelligence LLC v. NetScout Sys., Inc.,
`No. 2019-2041 (Fed. Cir. July 14, 2020) ............................................................................. 1, 6, 7
`
`Pass & Seymour, Inc. v. Hubbell Inc.,
`2011 U.S. Dist. LEXIS 1135 (N.D.N.Y. Jan 5, 2011) ................................................................. 7
`
`Rambus Inc. v. Hynix Semiconductor Inc.,
`569 F. Supp. 2d 946 (N.D. Cal. 2008) ......................................................................................... 7
`
`Rowe v. Dror,
`112 F.3d 473 (Fed. Cir. 1997) .................................................................................................... 14
`
`TomTom, Inc. v. Adolph,
`790 F.3d 1315 (Fed. Cir. 2015) .................................................................................................. 13
`
`U.S. Surgical Corp. v. Ethicon, Inc.,
`103 F.3d 1554 (Fed. Cir. 1997) .................................................................................................... 8
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 3 of 18
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`

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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 4 of 18
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`
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`I.
`
`INTRODUCTION
`
`Last week, the Federal Circuit issued its opinion in Packet Intelligence LLC v. NetScout
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`Systems, Inc., et al., No. 2019-2041 (Fed. Cir. July 14, 2020), addressing these disputed terms. The
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`Court: (1) affirmed the jury verdict of willful infringement; (2) affirmed the validity of the asserted
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`claims under §§ 101, 102(a), and 102(f); and (3) affirmed all damages-related findings other than
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`pre-suit damages.
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`The Court described the inventions of the patents-in-suit1 as follows:
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`[The asserted patents] teach a method for monitoring packets exchanged over a
`computer network. A stream of packets between two computers is called a
`connection flow. ’789 patent col. 2 ll. 43–45. Monitoring connection flows cannot
`account for disjointed sequences of the same flow in a network. Id. col. 3 ll. 56–59.
`The specifications explain that it is more useful to identify and classify
`“conversational flows,” defined as “the sequence of packets that are exchanged in
`any direction as a result of an activity.” Id. col. 2 ll. 45–47. Conversational flows
`provide application-specific views of network traffic and can be used to generate
`helpful analytics to understand network load and usage. See ’751 patent col. 3 l. 2–
`col. 4 l. 11.
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`Packet Intelligence LLC v. NetScout Sys., Inc., No. 2019-2041, slip op. at 3 (Fed. Cir. July 14,
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`2020) [hereinafter NetScout Appeal]. In affirming the infringement verdict, the Court addressed the
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`following term from representative claim 19 of the ’789 Patent: “a memory for storing a database
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`comprising none or more flow-entries for previously encountered conversational flows, each flow-
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`entry identified by identifying information stored in the flow entry.” See id. at 8. The Court held
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`that “the claims do not require the joining of connection flows into conversational flows.” Id. As
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`detailed below, in so holding, the Court rejected Juniper’s positions for the “flow-entry database”
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`terms as well as the “flow/existing flow/new flow” terms. The Federal Circuit’s holding is binding
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`in this proceeding. Markman v. Westview Instruments, Inc., 517 U.S. 370, 390-91 (1996)
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`(“[T]reating interpretive issues as purely legal will promote (though it will not guarantee)
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`intrajurisdictional certainty through the application of stare decisis . . . .”).
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`
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`1 The NetScout appeal related to the ’725, ’751, and ’789 Patents. However, the parties in this case
`have not disputed that like terms across the patents warrant like constructions. Thus, the Federal
`Circuit’s analysis is binding as to terms at issue in this case.
`1
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 4 of 18
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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 5 of 18
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`II. DISPUTED TERMS FOR CONSTRUCTION
`
`A.
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`“conversational flow” / “conversational flow-sequence”
`
`Claim Term
`
`“conversational flow”/
`“conversational flow-
`sequence”
`
`’099 claims 1, 5
`’725 claims 10, 17
`’646 claims 1, 7, 16;
`’751 claims 1, 17;
`’789 claims 1, 19, 44
`
`Juniper’s Construction
`
` “The sequence of packets that
`are exchanged in any direction
`as a result of specific software
`program activity, where such
`packets
`form
`multiple
`connection
`flows
`that are
`linked based on that activity”
`
`Packet Intelligence’s
`Construction
`the sequence of packets that
`are exchanged in any direction
`as a result of an activity—for
`instance, the running of an
`application on a server as
`requested by a client—and
`where some conversational
`flows involved more than one
`connection, and some even
`involve more
`than
`one
`exchange of packets between a
`client and server
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`
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`
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`Juniper argues the “Court should construe this term to differentiate ‘conversational flows’
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`from ‘only connection flows.’” ECF No. 62 at 3 (“Response”). But as Packet Intelligence explained
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`in its opening brief, the patent specification defines both terms. Juniper refuses to accept that “the
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`sequence of packets that are exchanged in any direction as a result of an activity” might include
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`only a single connection. ECF No. 57 at 9 (“Opening”). This is analogous to the idea that while
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`most English words consist of multiple letters, that does not prohibit some letters—alone—from
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`being identified as a word as well, for example: “A” and “I.” Juniper cannot rewrite the
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`specification definitions to its liking. The Court should adopt the express specification definition,
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`which another district court and the PTAB have already adopted.
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 5 of 18
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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 6 of 18
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`Juniper and its expert concede the difference between “connection flows” and
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`“conversational flows.” Connection flows are defined by a 5-tuple of information: “the IP source
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`address, IP destination address, source port number, destination port number, and an identifier of
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`the transport protocol in use . . . .” ECF No. 54-3 (Dr. Steven Bellovin Decl.) ¶ 60. As Dr. Bellovin
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`admits, “these five datagram control fields are commonly referred to as the 5-tuple, or flow ID, and
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`are used to identify datagrams within a single end-to-end communication session since the
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`beginning of the internet.” Id. (emphasis added). Thus, referring to Dr. Bellovin’s graphic, a
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`connection flow can be discerned from the 5-tuple information detailed above, which can be
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`obtained from the Network (IP) and Transport (TCP) layer headers:
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`Id. at ¶ 64. This information, however, is insufficient to determine the activity to which the
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`connection corresponds, and relatedly, whether the underlying activity is completed via only a
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`single connection or whether the underlying activity requires multiple connections.
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`Determining the underlying activity is protocol dependent, and often requires information
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`from the Application Layer illustrated above. See id. at ¶ 61 (“The application layer defines the
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`transmission structure known as a ‘message.’ Again, an application layer message typically
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`comprises a header and payload. The header in an application layer message can be application
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`protocol specific.”) (emphasis added). This application specific information is accounted for in the
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`claims, for example, by the “parsing/extraction operations memory configured to store a database
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`of parsing/extraction operations that includes information describing how to determine at least one
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`of the protocols used in a packet from data in the packet.” ECF No. 57-2 (’099 Pat") at 35:9-13.
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 6 of 18
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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 7 of 18
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`Additionally, the state patterns/operations memory includes application and protocol specific
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`information used to discern the “activity” to which a given flow relates: “a state patterns/operations
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`memory configured to store a set of predefined state transition patterns and state operations such
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`that traversing a particular transition pattern as a result of a particular conversational flow-sequence
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`of packets indicates that the particular conversational flow-sequence is associated with the
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`operation of a particular application program.” Id. at 35:31-37. Juniper’s insistence that a
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`recognized “activity” must include more that one connection flow is without basis. The
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`specification says “some,” not “all.” See id. at 2:42-45 (“[S]ome conversational flows involve more
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`than one connection, and some even involve more than one exchange of packets between a client
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`and server.”).
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`Juniper’s evidence from other proceedings (e.g., PTAB and trial) is both incomplete and
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`misleading. For instance, Packet Intelligence argued to the PTAB that Engel failed to disclose
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`“conversational flows” because it lacked the ability to relate independent connection flows. See
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`ECF No. 62-2 (IPR2017-00769 Patent Owner’s Prelim. Rsp.) at 41-42 (“[T]he conversational flows
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`of the ’099 patent are concerned with analyzing the content of each packet (if necessary, up to layer
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`7) and determining if that packet is related to other packets. In other words, the conversational flows
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`claimed require processing the information in each packet column (i.e., across OSI levels within a
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`packet) and determining if a given packet is related to existing flows.” (emphasis added)). The
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`monitor of the asserted patents has the ability to recognize related connection flows—it never states
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`that every conversational flow must include multiple connection flows. See ECF No. 57-2 (’099
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`Pat.) at 3:48-51 (“What 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.” (emphasis
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`added)).
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`Dr. Almeroth’s trial testimony about infringement is both incomplete and irrelevant to claim
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`construction. His testimony hinged on specific infringement examples showing the flow records of
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`the accused products, which included enough information to relate one or more connection flows
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`to the extent that they related to the same user activity. ECF No. 72 (Trial Tr., Nov. 8, 2017) at
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`105:25-106:2 (“It, again, is the user activity. It’s a result of an activity running an application on
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 7 of 18
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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 8 of 18
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`
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`a server, something like Facebook.” (emphasis added)). Similarly, the inventor testimony at trial
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`(which is also irrelevant to claim construction) regarded specific examples portrayed in trial
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`demonstratives. See ECF No. 244 (Trial Tr., Oct. 10, 2017) at 55:11 (“Using this example that you
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`have here, what was the problem . . . .”); id. at 57:8-9 (“And the conversational flow, as we see in
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`this picture . . . .” (emphasis added)). Mr. Maixner’s testimony reflected that the “conversational
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`flow” was an abstraction that gave them the ability to recognize disjointed, but related, connection
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`flows. See ECF No. 245 (Trial Tr., Oct. 10, 2017) at 15:24-25 (“[W]e were able to abstract that as
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`conversational flow.”). Juniper takes these statements out of context in its attempt to directly
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`contradict the definitions in the specification.
`
`B.
`
`“flow-entry database”
`
`Packet Intelligence’s
`Construction
`PI proposes to construe
`“flow-entry database” as “a
`database configured to store
`entries, where each entry
`describes a flow”
`
`Juniper’s Construction
`
`“database having a separate
`entry for each encountered
`conversational flow”
`
`Claim Term
`
`“flow-entry database
`including a plurality of
`flow-entries for
`conversational flows
`encountered by the
`monitor” / “database
`comprising flow-entries for
`previously encountered
`conversational flows” /
`“database of one or more
`flow-entries for any
`previously encountered
`conversational flows” /
`“flow-entry database
`[comprising none / for
`containing one] or more
`flow-entries for previously
`encountered conversational
`flows” / “database
`[comprising none / for
`containing one] or more
`flow-entries for previously
`encountered conversational
`flows”
`
`’099 claim 1;
`’646 claims 1, 7, 16;
`’751 claims 1, 17, 19;
`’789 claims 1, 44
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` CASE NO. 3:19-CV-04741-WHO
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 8 of 18
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`

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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 9 of 18
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`Juniper alleges that “one skilled in the art would understand that the ‘flow-entry database’
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`terms require a ‘database having a separate entry for each encountered conversational flow . . . .”
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`Response at 14. The Federal Circuit has now resolved this dispute, agreeing with Packet
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`Intelligence’s position.
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`In the NetScout appeal, NetScout argued that “a memory for storing a database comprising
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`none or more flow-entries for previously encountered conversational flows” required a database of
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`already correlated flow entries—i.e., the database cannot contain connection flow entries. See
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`NetScout Appeal, No. 2019-2041, slip op. at 7-8 (“NetScout argues that the limitation requires
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`correlating connection flows
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`into conversational flows.”). This served as NetScout’s
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`noninfringement position because its accused products maintain information about connection
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`flows. See id. at 8 (“In NetScout’s view, the record establishes that the accused products track
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`connection flows but never join them together.”). Packet Intelligence responded to “NetScout’s
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`claim construction argument, [stating] . . . that the claims do not require joining flows into a single
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`conversational flow.” Id. The Federal Circuit agreed with Packet Intelligence and rejected
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`NetScout’s proposed claim construction:
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`We first agree with Packet Intelligence that the claims do not require the joining of
`connection flows into conversational flows. The term “conversational flow”
`appears in claim 19’s memory limitation: “a memory for storing a database
`comprising none or more flow-entries for previously encountered conversational
`flows, each flow-entry identified by identifying information stored in the flow
`entry.” ’789 patent col. 36 ll. 45–48. Contrary to NetScout’s argument, however, a
`limitation requiring memory for storing flow entries for previously encountered
`conversational flows does not require the added action of correlating connection
`flow entries into conversational flows.
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`Id. (emphases added).
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`The Federal Circuit has squarely addressed the claim construction proposed by Juniper, and
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`it rejected that proposed construction. And neither party has alleged that the flow-entry database
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`limitations should be construed differently across the patents. Thus, the Federal Circuit’s holding
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`in the NetScout appeal is binding in this proceeding. See Markman, 517 U.S. at 390–91 (“[T]reating
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`interpretive issues as purely legal will promote (though it will not guarantee) intrajurisdictional
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`certainty through the application of stare decisis . . . .”). The Federal Circuit has “recognize[d] the
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`national stare decisis effect that [its] decisions on claim construction have.” Key Pharm. v. Hercon
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 9 of 18
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`

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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 10 of 18
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`
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`Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998); see also Rambus Inc. v. Hynix Semiconductor
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`Inc., 569 F. Supp. 2d 946, 963–64 (N.D. Cal. 2008) (“A district court must apply the Federal
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`Circuit’s claim construction even where a non-party to the initial litigation would like to present
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`new arguments.”); Amgen, Inc. v. F. Hoffmann-LaRoche Ltd., 494 F. Supp. 2d 54, 60–61 (D. Mass.
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`2007) (holding when the Federal Circuit has already construed claims, that Court’s construction is
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`binding and district courts may not modify its holding); Pass & Seymour, Inc. v. Hubbell Inc., No.
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`5:07-CV-945 (NAM/DEP), 2011 U.S. Dist. LEXIS 1135, at *4 (N.D.N.Y. Jan. 5, 2011) (“[D]istrict
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`courts are bound to apply the Federal Circuit’s claim constructions, even as against non-parties to
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`the initial litigation.”). For these reasons, the Court should adopt Packet Intelligence’s proposed
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`construction.
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`C.
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`“the flow” / “new flow” / “existing flow”
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`PI’s Construction
`No construction necessary
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`Juniper’s Construction
`“the conversational flow” /
`“existing conversational
`flow” / “new conversational
`flow”
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`Claim Term
`“the flow” / “new flow” /
`“existing flow”
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`’099 claims 1, 2
`’725 claims 16
`’646 claims 1, 7, 16;
`’751 claims 1, 5, 10, 15, 17;
`’789 claims 1, 13, 14, 16, 19,
`44
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`The Federal Circuit resolved this dispute when it addressed the flow-entry database terms.
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`See supra Section II.B. As detailed above, the Federal Circuit held that the claimed “memory
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`storing a flow-entry database” need not include already correlated connection flow entries. See
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`NetScout Appeal, No. 2019-2041, slip op. at 8 (“[A] limitation requiring memory for storing flow
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`entries for previously encountered conversational flows does not require the added action of
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`correlating connection flow entries into conversational flows.” (emphasis omitted)). Juniper’s
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`proposed construction is inconsistent with the Federal Circuit’s holding.
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`Relying on Claim 19 of the ’789 Patent, as the Federal Circuit did, illustrates the issue. First,
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`the claim includes “a memory for storing a database comprising none or more flow-entries for
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`previously encountered conversational flows . . . .” ECF No. 63-6 [hereinafter ’789 Patent] at
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`36:45-47. Then, it requires “a lookup engine . . . to lookup whether the particular packet . . . has a
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 10 of 18
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`

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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 11 of 18
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`matching flow-entry, the looking up using at least some of the selected packet portions and
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`determining if the packet is of an existing flow . . . .” Id. at 36:49-55 (emphasis added). Finally, the
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`claim recites:
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`a flow insertion engine . . . configured to create a flow-entry in the flow-entry
`database, the flow-entry including identifying information for future packets to be
`identified with the new flow-entry, the lookup engine configured such that if the
`packet is of an existing flow, the monitor classifies the packet as belonging to the
`found existing flow; and if the packet is of a new flow, the flow insertion engine
`stores a new flow-entry for the new flow in the flow-entry database…
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`Id. at 36:56-65 (emphasis added). Notably, if the packet is of “a new flow,” then a flow entry for
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`that new flow is stored in the flow-entry database. And the Federal Circuit confirmed that the flow-
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`entry database can comprise connection flow entries. For this reason, Juniper’s arguments that the
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`“a new flow” and “an existing flow” terms must specify a “conversational flow” should be rejected.
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`D.
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`“base protocol”
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`Claim Term
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`“base protocol”
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`’725 claims 1, 17
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`Packet Intelligence’s
`Construction
`No construction necessary
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`Juniper’s Construction
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`“frame transmission protocol,
`such as the data link layer
`protocol”
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`Defendant contends its proposed construction is permissible because it says its construction
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`merely provides an example, and “does not limit the meaning of this term.” ECF 62 (Response) at
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`20. For this reason alone, the Court should reject the construction. See U.S. Surgical Corp. v.
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`Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of resolution
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`of disputed meanings and technical scope, to clarify and when necessary to explain what the
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`patentee covered by the claims, for use in the determination of infringement. It is not an obligatory
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`exercise in redundancy.”).
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`Here, the claims are readily understandable on their face, because they define the meaning
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`of a “base protocol”—it is the base (or lowest level) protocol “of the packet.” See, e.g., ECF No.
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`57-3 (ʼ725 Pat.) at cl. 1(c) (“the set of protocol descriptions based on the base protocol of the
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`packet.” (emphasis added)). Indeed, Defendant says the concepts addressed here are all “well-
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`known” and “both parties will refer to and explain these well-known models before the jury.” ECF
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 11 of 18
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`

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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 12 of 18
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`No. 62 (Response) at 19-20.
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`Put simply: Defendant concedes the lack of any disclaimer and both Defendant and its
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`expert concede the term “base protocol” often refers to layers other than the “data link layer.”
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`Accepting Defendant’s argument that these concepts are “well-known,” there is no reason to
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`provide a construction of this term identifying a single example—even if it is an “inclusive”
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`example as Defendant contends. Any attempt to do so is more likely to lead to gamesmanship than
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`clarity. Because Defendant identifies no disputed matter of scope or meaning, the Court should
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`reject Defendant’s proposal.
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`E.
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`“slicer”
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`Claim Term
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`“slicer”
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`’789 claims 19
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`Packet Intelligence’s
`Construction
`Component or process that
`performs extraction
`operations on a packet
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`Juniper’s Construction
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`No construction necessary
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`To the extent the Court
`requires a construction,
`Juniper proposes:
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`“a component that performs
`extraction operations on a
`packet”
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`Defendant contends requiring that the slicer be a “component” does not limit it to “a
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`hardware component.” ECF 62 (Response) at 21. Instead, Defendant says, it “could be a discrete
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`software component.” Id. Defendant’s new inclusion of the word “discrete” here is telling—though
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`Defendant says it does not intend “component” to refer to hardware (the common meaning of the
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`term), Defendant still promotes a construction that would limit a “slicer” to an independent,
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`standalone item.
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`There is no support to inject such a limitation into the claims. To the contrary—both the
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`claims and the specification show that the slicer is a component or process that is part of the
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`extraction engine to enable the system to extract certain portions of a packet. See, e.g., ECF No.
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`57-6 (ʼ789 Pat.) at 22:30-41 (“the extraction engine (also called a ‘slicer’) … The commands are
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`sent from PRE 1006 to slicer 1007 in the form of extraction instruction pointers which tell the
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`extraction engine 1007 where to a find the instructions in the extraction operations database
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`PI’S REPLY CLAIM CONSTRUCTION BRIEF
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`Packet Intelligence LLC Exh 2071
`Juniper Networks, Inc., et al v. Packet Intelligence LLC
`IPR2020-00337
`Page 12 of 18
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`Case 3:19-cv-04741-WHO Document 68 Filed 07/21/20 Page 13 of 18
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`memory (i.e., slicer instruction database) 1002.”) And Juniper studiously avoids addressing the
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`specification’s teaching that the entire flow can be implemented on a single piece of hardware. See
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`id. at 21:35-40 (“the flow of FIG. 3 may alternatively be implemented in software running on
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`one or more general-purpose processors, or only partly implemented in hardware.”)
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`(emphasis added)).
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`The specification also contradicts Defendant’s suggestion that the slicer cannot be
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`implemented as a process, because it shows the extractor (slicer) receiving instructions to carry out
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`a process. See id. at 22:42-48 (“Thus, when the PRE 1006 recognizes a protocol it outputs both the
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`protocol identifier and a process code to the extractor [slicer]. The protocol identifier is added to
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`the flow signature and the process code is used to fetch the first instruction from