Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 1 of 34 PageID #: 6166
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`Luminati Networks Ltd.,
`
` Plaintiff,
`
` v.
`
`Teso LT, UAB, Oxysales, UAB, and
`Metacluster LT, UAB,
`
` Defendants.
`
`
`
`
`
`
`
`Civil Action No.
`2:19-cv-00395-JRG
`
`Lead Case
`
`
`
`
`
`OXYLABS’ RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`
`
`
`SIEBMAN, FORREST,
`BURG & SMITH LLP
`
`MICHAEL C. SMITH
`
`
`CHARHON CALLAHAN
`ROBSON & GARZA, PLLC
`
`STEVEN CALLAHAN
`CRAIG TOLLIVER
`GEORGE T. “JORDE” SCOTT
`MITCHELL SIBLEY
`
`Counsel for Teso LT, UAB, Oxysales, UAB,
`and Metacluster LT, UAB
`
`
`
`
`
`October 13, 2020
`
`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 001
`
`

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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 2 of 34 PageID #: 6167
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`TABLE OF CONTENTS
`INTRODUCTION .............................................................................................................. 1 
`DISPUTED CLAIM CONSTRUCTION TERMS ............................................................. 1 
`A.  Client Device (’319 and ’510 Patents) ...................................................................... 1 
`B. 
`First Server (’319 Patent) .......................................................................................... 8 
`C. 
`Second Server (’319 and ’510 Patents) ..................................................................... 8 
`D.  Client Device (’614 Patent) ...................................................................................... 9 
`E. 
`First Server (’614 Patent) ........................................................................................ 13 
`INDEFINITENESS........................................................................................................... 13 
`A. 
`Indefiniteness of “the first IP address” / “the first client IP address” ..................... 14 
`B. 
`Indefiniteness of “determining, by the first client device, that the received first
`content, is valid” ..................................................................................................... 17 
`Indefiniteness of “the determining is based on the received HTTP header
`according to, or based on, IETF RFC 2616” .......................................................... 20 
`Indefiniteness of “periodically communicating” .................................................... 21 
`D. 
`Indefiniteness of “in response to the receiving of the first content identifier” ....... 23 
`E. 
`Indefiniteness of claim 13 of the ’510 patent .......................................................... 26 
`F. 
`Indefiniteness of “the steps are sequentially executed” .......................................... 29 
`G. 
`CONCLUSION ................................................................................................................. 30 
`
`C. 
`
`i
`
`I. 
`II. 
`
`III. 
`
`IV. 
`
`
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 002
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`

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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 3 of 34 PageID #: 6168
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`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Andersen Corp. v. Fiber Composites,
`474 F.3d 1361 (Fed. Cir. 2007)................................................................................................10
`
`Apple, Inc. v. Ameranth, Inc.,
`842 F.3d 1229 (Fed. Cir. 2016)..................................................................................................8
`
`Chef Am., Inc. v. Lamb-Weston, Inc.,
`358 F.3d 1371 (Fed. Cir. 2004)................................................................................................17
`
`Dow Chem. Co. v. Nova Chemicals Corp. (Canada),
`803 F.3d 620 (Fed. Cir. 2015)..................................................................................................14
`
`Energizer Holdings, Inc. v. Int’l Trade Comm’n,
`435 F.3d 1366 (Fed. Cir. 2006)................................................................................................13
`
`GE Lighting Sols., LLC v. AgiLight, Inc.,
`750 F.3d 1304 (Fed. Cir. 2014)............................................................................................6, 12
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ..................................................................................... 1, 13-14, 17, 21, 25
`
`Schindler Elevator Corp. v. Otis Elevator Co.,
`593 F.3d 1275 (Fed. Cir. 2010)................................................................................................11
`
`Teva Pharm. USA, Inc. v. Sandoz, Inc.,
`789 F.3d 1335 (Fed. Cir. 2015)................................................................................................19
`
`
`
`
`
`
`
`
`
`
`
`
`
`ii
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 003
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`

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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 4 of 34 PageID #: 6169
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`Defendants Teso LT, UAB, Oxysales, UAB, and Metacluster LT, UAB (collectively,
`
`“Oxylabs”) file this Responsive Claim Construction Brief:
`
`I.
`
`INTRODUCTION
`
`Luminati’s patents-in-suit are plagued by sloppy claim drafting. As discussed below in
`
`Section III concerning indefiniteness, Luminati asserts multiple patent claims that purport to rely
`
`on antecedent support that simply does not exist. Luminati now asks the Court to redraft the
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`claims to avoid its prosecution mistakes. But these are not errors that the Court can fix—the er-
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`rors instead preclude a POSA from understanding the claim scope with reasonable certainty.
`
`Luminati must bear the burden of its claim drafting, and the Court should not allow Luminati to
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`rush its claims through prosecution, file suit and then hope that the Court will rewrite the claims
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`to save them from indefiniteness. As the Supreme Court has stated, “a patent must be precise
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`enough to afford clear notice of what is claimed, thereby ‘appris[ing] the public of what is still
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`open to them.’” Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 909 (2014) (quotations
`
`omitted). “The patent drafter”—not the Court and not the defendant—“is in the best position to
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`resolve the ambiguity” in the patent claims. Id. at 910 (quotations omitted).
`
`Luminati also improperly attempts to redefine “client” to allegedly require specialized
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`“consumer” device equipment. As Oxylabs explains below in Section II, Luminati’s attempted
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`redefinitions are at odds with the patent specification, Luminati’s admissions, a POSA’s general
`
`knowledge, and a prior claim construction order by this Court interpreting “client device” in an-
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`other Luminati patent. Instead, “client” and “server” are used in their plain and ordinary sense,
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`and therefore refer to computer equipment serving in a standard “client” or “server” role.
`
`II.
`
`DISPUTED CLAIM CONSTRUCTION TERMS
`
`A.
`
`Client Device (’319 and ’510 Patents)
`
`Luminati concocts a new definition of “client device”—a “consumer computer”—that
`1
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`
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 004
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`

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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 5 of 34 PageID #: 6170
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`stands in contrast with (i) the specification of the ’319 and ’510 patents, (ii) Luminati’s earlier
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`admissions in this case, (iii) the common understanding of a “client device,” and (iv) the Court’s
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`construction of “client device” in a prior case between the parties. A POSA1 would understand,
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`as confirmed by the patent specification, that a “client device” has a plain and ordinary meaning
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`of a device operating in the role of a “client” (as in the client-server context). “Client device”
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`does not refer to any specialized equipment, whether a “consumer computer” or otherwise. And
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`as discussed below, it is not even clear what Luminati means by “consumer” in this context or
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`how Luminati would use that term to alter the disclosure in the patent specification.
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`First, the patents2 confirm that “each communication device may serve as a client, peer,
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`or agent” in a portion of the specification quoted and emphasized by Luminati on page 11 of its
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`brief.3 ’319 pat. at 4:48-50; Lum. Claim Constr. Brief (“Br.”) at 11. Luminati, however, did not
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`emphasize the next sentence of the specification stating that “a detailed description of a commu-
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`nication device is provided with regard to the description of FIG. 4.” Id. at 4:51-53. The corre-
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`sponding description of Figure 4 describes the “communication device” in detail and confirms
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`that the “communication device” “contains general components of a computer” and “may serve
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`as a client, agent, or peer.” Id. at 5:52-57.
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`“[T]he communication device 200 includes a processor 202, memory 210, [and] at least
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`one storage device 208 . . .” Id. at 5:59-60. The specification also confirms other standard fea-
`
`tures of the “communication device,” including that its memory may include “ROM, hard drive,
`
`
`1 A person of ordinary skill (POSA) would have at least a bachelor’s degree in Computer
`Science or related field (or equivalent experience), as well as two or more years of experience
`working with and programming networked computer systems. Freedman Decl., ¶ 18.
`2 The ’319 patent and ’510 patent share a common specification. Citations herein are to the
`’319 patent unless otherwise noted.
`3 Unless otherwise noted, all emphases in quotations herein have been added.
`
`
`
`2
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 005
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`tape, CDROM, etc.” and that its input/output devices may include “a keyboard, mouse, scanner,
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`microphone, etc.” or a printer. Id. at 6:18-20, 6:61-7:3. The communication device also includes
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`“an operating system (O/S).” Id. at 6:31-33.
`
`The ’319 and ’510 patents therefore disclose general purpose computers, such as those
`
`with standard computing processors, operating systems, memory, and storage devices such as
`
`hard drives, that serve in the claimed roles shown in Figure 3—client, peer, or agent. The speci-
`
`fication does not suggest that the “client device” is comprised of special computer equipment—
`
`“consumer” or otherwise—and it instead it is crystal clear that it is made up of “general compo-
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`nents” of a standard computer.
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`Further, the specification explains that a “client module,” “peer module” or “agent mod-
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`ule” of an application on a communication device may “come[] into play according to the specif-
`
`ic role that the communication device 200 is partaking in the communication network 100 at a
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`given time.” Id. at 9:22-25. The “client module” provides functionality, for example, “when the
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`communication device 200 is requesting information from the Web server” and the “peer mod-
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`ule” provides functionality, for example, that is “required by the communication device 200
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`when answering other clients within the communication network 100.” Id. at 9:27-39, 9:37-39.
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`Second, Luminati has already admitted that the general computer equipment described in
`
`the specification, and discussed above, may interchangeably serve as a client or server, thereby
`
`conceding that whether something is a “client” or “server” depends on the role it performs at a
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`given time. Luminati, in fact, earlier filed a brief in this case where Luminati argued, using color
`
`coding, that the “first client device” (for which Luminati uses red font in its brief) of the ’319
`
`Patent is depicted by the “agent” box and the “second server” (for which Luminati uses green
`
`font in its brief) is depicted by the “client” box in Figure 3.
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`
`
`3
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 006
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`

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`
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`ECF No. 28 at 14-15.
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`Luminati therefore understands that a “server” and “client” are broad enough to encom-
`
`pass the same equipment, particularly given that the “client” and “agent” functionality of Figure
`
`3—discussed above—is performed by the standard computer equipment discussed in the patent.
`
`
`
`Even in the “Background” section of its claim construction brief, Luminati states that the
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`“client devices are modified to function as a client, peer or agent and serve as a proxy in the sys-
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`tem, permitting ‘any number of agents and peers.’” Br. at 2. Luminati cites to the ’319 patent at
`
`4:43-64 which, as discussed above, confirms that the client device is a “communication device”
`
`explained in conjunction with the Figure 4 description, and is standard computer equipment.
`
`
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`Third, the points discussed above merely confirm what would already be known to a
`
`POSA—namely that “client” or “server” terminology defines a role and not a special type of
`
`equipment. Luminati’s own citations of extrinsic evidence readily establish this point, mak-
`
`ing it difficult to understand how Luminati can now contest the issue. Among other things, Lu-
`
`minati cited the following in its Patent L.R. 4-2 disclosures for “client device”:
`
` “RFC 1983 at 11: Definition of ‘client’: A computer system or process
`that requests a service of another computer system or process. A work-
`station requesting the contents of a file from a file server is a client of
`
`
`
`4
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 007
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`

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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 8 of 34 PageID #: 6173
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`the file server.”
`
` “W3 Glossary of Terms for Device Independence at 2: Definition of
`‘Client’: The role adopted by an application when it is retrieving and/or
`rendering resources or resource manifestations.”
`
` “IEV ref 732-01-12 definition of ‘client’: ‘functional unit that requests
`and receives services from a server.’”
`
`Ex. 1 (attached hereto) at 1-2 (citations to page numbers of chart). These definitions proffered by
`
`Luminati confirm that a “client” device refers to the role of the device, not to special equipment.
`
`Oxylabs’ expert, Dr. Freedman, agrees that a “client” refers to a role in a specific proto-
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`col or application, such that an application playing the role of a client may request services or
`
`content from an application playing the role of a server. Freedman Decl., ¶¶ 21-33. As Dr.
`
`Freedman notes, the ’319 and ’510 patents also refer in claim 1 to the use of the HTTP protocol,
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`which is defined by the protocol RFC 2616 (HTTP/1.1) released by the Internet Engineering
`
`Task Force in 1999. Id. at ¶¶ 31-32. Further, the patents expressly cite to RFC 2616. ’319 pat. at
`
`16:22. RFC 2616 confirms the role-based usage of “client” and “server.” For example, RFC
`
`2616 defines a “client” as “[a] program that establishes connections for the purpose of sending
`
`requests,” while a “server” is defined as “[a]n application program that accepts connections in
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`order to service requests by sending back responses.” Ex. 2 (attached hereto) (RFC 2616) at §1.3.
`
`RFC 2616 also confirms that “client” and “server” refer to roles, and that “[a]ny given program
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`may be capable of being both a client and a server; our use of these terms refers only to the role
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`being performed by the program for a particular connection.” Id. at §1.3.
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`Fourth, in the prior case between the parties (Tesonet, 18-cv-00299-JRG) the Court con-
`
`strued “client device” to mean “a device that is operating in the role of a client by requesting ser-
`
`
`
`5
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 008
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`vices, functionalities, or resources from other devices.” ECF No. 126-7 (Ex. F) at 51.4 In so do-
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`ing, the Court noted that Luminati “submitted a technical definition of ‘client’ as meaning ‘[a]
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`computer system or process that requests a service of another computer system or process.’” Id.
`
`at 50. As discussed above, Luminati resubmitted the same definition in this case. But the con-
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`struction Luminati seeks here is inconsistent with the Court’s prior construction in Tesonet.
`
`
`
`In contrast to the sheer weight of the evidence discussed above, Luminati points to three
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`lines of the patent specification at 2:44-46 that refer in passing to “computers of consumers” re-
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`lated to prior art. That portion of the specification fails to redefine the plain meaning of “client
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`device” and, in any event, is misconstrued by Luminati. Specifically, the ’319 patent at various
`
`places refers to a prior art peer-to-peer network. For example, patent Figure 2, which refers to
`
`the network 50, “provid[es] a prior art example of a peer-to-peer file transfer network.” ’319 pat.
`
`at 4:1-2. The patent at 2:44-46 discusses the network 50 of a “peer-to-peer file transfer network”
`
`such as BitTorrent which is mentioned as an example of such a network at 2:43. The patent then
`
`states that, in the prior art “network 50, files are stored on computers of consumers, referred to
`
`herein as client devices 60.” ’319 pat. at 2:44-46.
`
`
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`Therefore, the files in the prior art network 50 of the “peer-to-peer” system are stored on
`
`computers of consumers. Such consumer computers from the prior art may indeed fall within the
`
`scope of “client devices” further discussed in the ’319 patent, but this does not indicate to a
`
`POSA that “client device” has been clearly redefined to mean a “consumer computer” of the pri-
`
`or art. GE Lighting Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (“To act as
`
`
`4 Oxylabs has proposed that “client device” receive a plain and ordinary meaning. To avoid
`confusion, Oxylabs contends that the plain and ordinary meaning of “client device” is the same
`as what the Court earlier construed. Oxylabs agrees to “client device” being construed as the
`Court earlier construed “client device,” if the Court believes a construction is necessary.
`
`
`
`6
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 009
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`

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`its own lexicographer, a patentee must clearly set forth a definition of the disputed claim term,
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`and clearly express an intent to define the term.”) (quotations omitted); Freedman Decl., ¶ 26.
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`Nor does the ’319 patent otherwise redefine “client device” in such a manner. Instead, as dis-
`
`cussed herein, the ’319 patent’s specification, the extrinsic evidence, and Luminati’s statements
`
`are consistent with “client device” having its plain and ordinary meaning of a device in the role
`
`of a client.
`
`Luminati’s assertion that Oxylabs wants “client device” to “be a ‘general purpose comput-
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`er’” that “includes servers” is confusing. Br. at 12-13. As Oxylabs shows above, “client” and
`
`“server” refer to two different roles—they do not define specific equipment. Dr. Freedman
`
`agrees that “[a] POSA would understand that the usage of ‘client’ or ‘server’ defines a role in a
`
`specific protocol or application, such that an application playing the role of a client may request
`
`services or content from an application playing the role of a server.” Freedman Decl., ¶ 25. He
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`opines that “client device” would “refer to the plain and ordinary meaning of ‘client device,’ or a
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`device in the role of a client.” Id. at ¶ 33. Luminati’s arguments to the contrary are meritless.
`
`It is noteworthy that Luminati does not seek to reconstrue “server” to be a specific type of
`
`equipment, and instead proposes that a “second server” is “a server that is not the client device or
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`first server.” Br. at 13. Luminati therefore appears to understand that a “server” is a “server” (i.e.,
`
`with the plain and ordinary meaning of a device providing a service to another). Luminati should
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`treat “client” the same way, without attempting to reconstrue “client device” to be a “consumer
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`computer.”
`
`Finally, Luminati’s attempt to rewrite “client device” as “consumer computer” introduces
`
`significant ambiguity. Luminati does not explain what a “consumer” computer is, to the extent
`
`that it is different from the general-purpose computer equipment discussed above that the patents
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`7
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 010
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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 11 of 34 PageID #: 6176
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`describe as providing the functionality of a “client device.” “Consumer” means “one that utilizes
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`economic goods,” and does not appear to define any specific type of computer.5 The Court
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`should reject Luminati’s proposed re-definition.
`
`B.
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`First Server (’319 Patent)
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`
`
`Luminati seeks to re-write “first server,” in claim 1 of the ’319 patent, as “web server.”
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`There is no need for this, because claim 1 of the ’319 patent recites in the preamble “a first server
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`that comprises a web server.” The claim language therefore makes clear the relationship between
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`the “first server” and “web server,” which is that the “first server” comprises a “web server.” It
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`would be unnecessary and confusing to re-write the language as proposed by Luminati to effec-
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`tively claim “a web server that comprises a web server.” See Apple, Inc. v. Ameranth, Inc., 842
`
`F.3d 1229, 1237 (Fed. Cir. 2016) (“Construing a claim term to include features of that term al-
`
`ready recited in the claims would make those expressly recited features redundant.”)
`
`Further, claim 1 of the ’510 patent recites a “web server” rather than “first server.” Equat-
`
`ing the claim terms “web server” and “first server that comprises a web server” would cause con-
`
`fusion because the claim language is not the same.
`
`For these reasons, “first server” does not need construction, and should receive a plain
`
`and ordinary meaning of “first server.”
`
`C.
`
`Second Server (’319 and ’510 Patents)
`
`Luminati seeks to construe “second server,” as found in claim 1 of the patents, to mean “a
`
`server that is not the client device or [first/web] server.” As with “first server,” “second server”
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`does not need construction. The claim does not recite that the “second server” is not the client
`
`device or web server, and the Court should not incorporate such a limitation into the claim.
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`
`5 See, e.g., https://www.merriam-webster.com/dictionary/consumer.
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`
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`8
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 011
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`Luminati’s new proposed limitation is further flawed because, at least in the ’319 patent,
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`there is no “web server” claimed. In claim 1 of the ’319 patent, the term “web server” is men-
`
`tioned only once, where the preamble recites that the “first server comprises a web server.”
`
`Claim 1 of the ’319 patent does not otherwise recite a “web server” in the method steps. There is
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`simply no basis—and Luminati provides none—to rewrite the claims so that the second server
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`(like the first server) cannot also comprise a web server. Instead, a “server” has a plain and ordi-
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`nary meaning of a device in the role of a server. See Section II.A above; Freedman Decl., ¶ 36.
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`The Court should reject Luminati’s attempt to import a limitation into “second server.”
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`D.
`
`Client Device (’614 Patent)
`
`Luminati seeks to construe “client device”—the same term discussed above in Section
`
`II.A—very differently for the ’614 patent as compared to Luminati’s proposed construction for
`
`the ’319 and ’510 patents. For the ’614 patent, Luminati proposes that “client device” is “a de-
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`vice using a client dedicated operating system and operating in the role of a client by requesting
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`services, functionalities, or resources from servers.” Oxylabs seeks a consistent construction of
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`plain and ordinary meaning, or that the “client device” is a device in the role of a client.
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`As discussed above in Section II.A, the Court construed “client device” in the Tesonet
`
`case to mean “a device that is operating in the role of a client by requesting services, functionali-
`
`ties, or resources from other devices.” The Court’s prior Claim Construction Order considered
`
`the specification of the ’866 patent, of which the ’614 patent is a continuation. The Court’s earli-
`
`er construction therefore was based upon the same patent specification now at issue and made
`
`clear that “the specification explains that being a ‘client’ is a ‘role’ assumed by a device.” ECF
`
`No. 126-7 (Ex. F) at 50 (citing common patent specification).
`
`Other portions of the patent specification support this conclusion. The patent explains
`
`that “[t]he terms ‘server or ‘server computer’ relates herein to a device or computer (or a plurali-
`9
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`Luminati Exhibit 2004
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 012
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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 13 of 34 PageID #: 6178
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`ty of computers) connected to the Internet and is used for providing facilities or services to other
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`computers or other devices (referred to in this context as ‘clients’),” and that “[c]lients common-
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`ly initiate connections that a server may accept.” ’614 pat. at 4:40-61. The patent further explains
`
`that a device denoted as a server “may typically function as a server in the meaning of cli-
`
`ent/server architecture, providing services, functionalities, and resources, to other devices (cli-
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`ents), commonly in response to the clients’ request.” Id. at 118:64-119:3. Also, a client “in the
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`meaning of client/server architecture, commonly initiat[es] requests for receiving services, func-
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`tionalities, and resources, from other devices (servers or clients).” Id. at 119:28-32.
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`Luminati’s proposed construction adds the new limitation that a “client device” uses “a
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`client dedicated operating system,” which is different from the Court’s prior claim construction.
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`Such a construction is plainly contradicted by the patent claims. Claim 1 recites a “client device”
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`without any recitation regarding any operating system. It is improper for Luminati to attempt to
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`write such a limitation into the claims.
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`Further, asserted claim 9 states, “The method according to claim 1, wherein the client de-
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`vice is further storing, operating, or using, a client operating system.” Claim 9 therefore adds the
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`limitation regarding a client operating system, which Luminati now attempts to retroactively
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`write into the definition of the “client device” in claim 1. The doctrine of claim differentiation
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`prevents this. See, e.g., Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1369 (Fed.
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`Cir. 2007) (reiterating that claim differentiation is based on “the common sense notion that dif-
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`ferent words or phrases used in separate claims are presumed to indicate that the claims have dif-
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`ferent meanings and scope”).
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`Luminati asserts without basis that Oxylabs wishes to “assert that client devices and serv-
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`ers are interchangeable general use computers.” Br. at 16. As discussed above in Section II.A,
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`10
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`Oxylabs does not take that position, but instead has consistently asserted that “client” and “serv-
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`er” refers to separate roles of a device, just as the Court ruled in its prior Claim Construction Or-
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`der. “General use computers” (as Luminati states) are described in the patents as performing the
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`roles, but this does not make “clients” and “servers” the same thing, as Luminati implies.
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`Luminati’s quotation from the ’614 patent prosecution history (Br. at 16) is unremarkable
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`and does not remotely support Luminati’s proposed construction. Instead, the first paragraph of
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`the quotation reflects the fact that the quoted limitations require the “client device”—as opposed
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`to the “first server” that is separately recited in claim 1, or any other device—to perform certain
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`claim steps. Br. at 16. The patentees argued that Sigurdsson did not teach a “client device” that
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`performed the “various recited steps” such as the “determining” or “shifting” steps but instead
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`disclosed a “server device 106” performing the steps. Id. This argument says nothing about the
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`types of computers or computer devices that may serve in the role of a client, and it says nothing
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`about any “client dedicated operating system,” which is the extraneous limitation Luminati now
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`seeks to import into the construction of “client device.” This argument therefore does not consti-
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`tute the type of clear and unmistakable disavowal or disclaimer that could be used to alter the
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`definition of a claim term, and certainly not to add the “client dedicated operating system” lan-
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`guage that is not discussed in the prosecution history quoted by Luminati. Schindler Elevator
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`Corp. v. Otis Elevator Co., 593 F.3d 1275, 1285 (Fed. Cir. 2010) (disclaimer or disavowal must
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`be done “unequivocally” and must be “clear and unmistakable”; an “unambiguous disavowal”
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`will not suffice).
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`Further, that prosecution history argument is irrelevant to claim 1 of the ’614 patent as is-
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`sued, which pursuant to its plain language does not require the “client device” to perform the
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`“determining” or “shifting” steps, as opposed to the “initiating,” “receiving,” and “performing”
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`11
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`IPR2020-01266 Page 014
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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 15 of 34 PageID #: 6180
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`steps that the “client device” performs per the claim language. See also ’614 pat., claim 2 (“The
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`method according to claim 1, wherein the determining is performed by the client device.”).
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`Therefore, the whole point of the patentees’ argument regarding the “client device” performing
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`the “determining” and “shifting” steps is not reflected in claim 1 of the ’614 patent.
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`Finally, Luminati’s citation to the’614 patent specification does not establish any defini-
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`tion of “client device” different from the Court’s prior construction. Br. at 17. Specifically, Lu-
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`minati’s citation to 7:6-9 of the specification discusses what a client device “typically” receives
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`and “uses.” The fact that a “client device” may typically “use[]” a “client dedicated or oriented
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`operating system” instead establishes the contrary: the Court should not construe a “client de-
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`vice” to require any operating system because a “client device” may instead separately typically
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`(but not always) “use[]” an operating system. Indeed, as noted above, claim 9 separately recites
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`the “client device” “using” a client operating system. Further, the portions of the patent specifi-
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`cation quoted by Luminati do not rise to the level of a redefinition of “client device” or disclaim-
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`er of scope. GE Lighting, 750 F.3d at 1309.
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`Finally, Luminati concludes by stating that “a POSA would understand that a client de-
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`vice is not interchangeable with a server.” Br. at 18. Again, Luminati is not engaging with the
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`true issue, which is that a “client” and “server” define separate roles. Whether they are “inter-
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`changeable” is immaterial. However, assuming that Luminati asserts that the same computer de-
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`vice cannot serve as both a “client” and “server” (depending on its current role), Luminati’s as-
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`sertion is flatly contradicted by the ’614 patent specification. ’614 pat. at 119:50-53 (“Alterna-
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`tively or in addition, each of the devices that are not denoted herein as servers, may equally func-
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`tion as a server in the meaning of client/server architecture.”); id. at 119:18-21 (“Alternatively or
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`in addition, each of the devices denoted herein as servers, may equally function as a client in the
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`12
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`IPR2020-01266 Page 015
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`Case 2:19-cv-00395-JRG Document 138 Filed 10/13/20 Page 16 of 34 PageID #: 6181
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`meaning of client/server architecture.”).
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`The Court should reject Luminati’s attempt to import an unnecessary and improper limi-
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`tation into “client device.”
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`E.
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`First Server (’614 Patent)
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`Claim 1 of the ’614 patent recites steps performed by a “first server,” “client device,” and
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`“web server,” but it does not recite any limitations as to whether the “first server” is “not the cli-
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`ent device or web server.” That restrictive limitation proposed by Luminati is not necessary.
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`If Luminati is simply reiterating that claim 1 requires that certain steps specifically in-
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`volve