Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 1 of 24 PageID #: 5592
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`EXHIBIT D
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`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 001
`
`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 2 of 24 PageID #: 5593
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`
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`Civil Action No.
`2:19-cv-00395-JRG
`
`Lead Case
`
`
`
`
`
`
`
`
`
`Luminati Networks Ltd.,
`
` Plaintiff,
`
` v.
`
`Teso LT, UAB, Oxysales, UAB, and
`Metacluster LT, UAB,
`
` Defendants.
`
`
`
`Teso LT, UAB, Oxysales, UAB, and
`Metacluster LT, UAB,
`
`
`
` Counterclaim And Third-Party Plaintiffs,
`
`
` v.
`
`Luminati Networks Ltd., EMK Capital
`LLP, EMK Capital Partners LP, EMK
`Capital Partners GP Co-Investment LP,
`Hola VPN Ltd., and Hola Networks Ltd.,
`
` Counterclaim And Third-Party
`Defendants.
`
`
`
`
`
`DECLARATION OF DR. VERNON THOMAS RHYNE III IN SUPPORT OF
`PLAINTIFF LUMINATI NETWORK LTD.’S CLAIM CONSTRUCTIONS
`
`
`
`I, Dr. Thomas Rhyne, declare as follows:
`
`1.
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`My full name is Vernon Thomas Rhyne, III. I am a former professor of Electrical
`
`Engineering at Texas A&M University and an Adjunct Faculty Member at the Department of
`
`1
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 002
`
`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 3 of 24 PageID #: 5594
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`Electrical and Computer Engineering at Carnegie-Mellon University and at the University of
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`Texas at Austin. I am currently active as a part-time engineering consultant.
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`2.
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`I hold degrees from Mississippi State University (B.S.E.E., Special Honors, 1962),
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`the University of Virginia (M.E.E., 1964), and the Georgia Institute of Technology (Ph.D.,
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`Electrical Engineering, 1967). I have been a registered Professional Engineer in the State of Texas
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`since 1969 and a Registered Patent Agent since 1999. A copy of my CV is attached as Exhibit 1.
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`3.
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`4.
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`If called upon to do so, I could and would testify truthfully as follows:
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`Based on my experience in the art and my study of the Internet communication
`
`systems disclosed in the Asserted Patents (U.S. Patents Nos. 10,257,319 (“the ’319 Patent”) and
`
`10,484,510 (“the ’510 Patent”), which with the ’510 Patent as a continuation of the ’319 Patent
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`shares a common specification, and U.S. Patent No. 10,469,614 (“the ’614 Patent”), which is in a
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`separate family sharing the same inventors of Derry Shribman and Ofer Vilenski with the ’319
`
`Patent and ’510 Patent), in my opinion a person of ordinary skill in the art (a “POSA” hereafter)
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`would be an individual who, as of October 8, 2009, the filing date of a Provisional Application,
`
`had a Master’s Degree or higher in the field of Electrical Engineering, Computer Engineering, or
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`Computer Science or as of that time had a Bachelor’s Degree in the same fields and two or more
`
`years of experience in Internet communications.
`
`5.
`
`The ’319 and ’510 Patents claim methods for use with a first client device, a first
`
`server/web server, and a second server, where all the steps are performed by the first client
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`device as shown, for example, in the claims in the following table:
`
`’319 Patent
`1. A method for use with a first client device,
`for use with a first server that comprises a
`web server that is a Hypertext Transfer
`Protocol (HTTP) server that responds to
`HTTP requests, the first server stores a first
`
`’510 Patent
`1. A method for use with a web server that
`responds to Hypertext Transfer Protocol
`(HTTP) requests and stores a first content
`identified by a first content identifier, the
`method by a first client device comprising:
`
`2
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 003
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 4 of 24 PageID #: 5595
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`
`
`’510 Patent
`establishing a Transmission Control
`Protocol (TCP) connection with a second
`server;
`sending, to the web server over an
`Internet, the first content identifier;
`receiving, the first content from the
`web server over the Internet in response to
`the sending of the first content identifier; and
`sending the received first content, to
`the second server over the established TCP
`connection, in response to the receiving of the
`first content identifier.
`
`’319 Patent
`content identified by a first content identifier,
`and for use with a second server, the method
`by the first client device comprising:
`receiving, from the second server, the
`first content identifier;
`sending, to the first server over the
`Internet, a Hypertext Transfer Protocol
`(HTTP) request that comprises the first
`content identifier;
`receiving, the first content from the
`first server over the Internet in response to
`the sending of the first content identifier; and
`sending, the first content by the first
`client device to the second server, in
`response to the receiving of the first content
`identifier.
`
`
`
`6.
`
`The steps of claim 1 of both the ’319 and ’510 Patents are performed by the “first
`
`client device.” Based upon the common specification, in my opinion a POSA would understand
`
`the term “client device” to refer to a consumer computer. See, e.g. ’319 Patent at 2:44-46 (“In the
`
`network 50, files are stored on computers of consumers, referred to herein as client devices.”)1.
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`7.
`
`Based on the plain language of the Preamble of claim 1 of the ’319 Patent as shown
`
`above, in my opinion a POSA would understand the “first server” of the ’319 Patent to be a “web
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`server.” In contrast, a POSA would understand the “second server” to be a server that is not the
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`client device or the first server in the context of the ’319 Patent, and a server that is not the client
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`device or web server in the context of the ’510 Patent.
`
`8.
`
`The ’319 and ’510 Patents provide several exemplary embodiments through its
`
`written specification and its diagrams. In Figure 3, for example, an agent 122 is shown positioned
`
`between a client 102 and a web server 152. Figure 3 also includes multiple communication devices,
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`each of which stores software providing functionality that allows each communication device “to
`
`
`
`
`
`3
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 004
`
`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 5 of 24 PageID #: 5596
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`serve as a client, peer, or agent, depending upon requirements of the network 100 …” ’319 Patent
`
`at 4:44-50; see also 9:13-50. In my opinion, therefore, a POSA would understand client 102 and
`
`agent 122 to both be client devices operating as a “client” and an “agent” respectively.
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`
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`9.
`
`As shown in FIG. 3, the exemplary embodiment of network 100 illustrates that one
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`of the communication devices is functioning as a client 102. The client 102 is capable of
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`communication with one or more peers 112, 114, 116 and one or more agents 122. For exemplary
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`purposes, the network contains three peers and one agent, although I note that a client can
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`communicate with any number of agents and peers. See the following:
`
`The communication network 100 also contains a Web server 152. The Web
`server 152 is the server from which the client 102 is requesting information
`and may be, for example, a typical HTTP server, such as those being used
`to deliver content on any of the many such servers on the Internet.
`
`4
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 005
`
`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 6 of 24 PageID #: 5597
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`’319 Patent at 4:54-66
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`10.
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`As disclosed in the common specification, Figure 3 shows that agent 122, which I
`
`discussed above, in some embodiments is a client device which can receive requests for content
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`from client 102 intended for web server 152. Id. at 5:21-29. The common specification also
`
`explains that the “agent” can request this content directly from the intended web server and store
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`the content received from the server for the particular response to the client. Id. at 15:62-16:11.
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`The common specification also discloses the use of proxy servers between the client devices and
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`the web servers. In Figure 1, for example, a proxy server 6 is shown positioned between multiple
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`client devices 14 and 16 on one side and multiple web servers 20, 22 and 24 on the other:
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`5
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 006
`
`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 7 of 24 PageID #: 5598
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`11.
`
`To illustrate the steps required by independent claim 1 of the ’319 and ’510 Patents,
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`in light of the claim language and the above disclosures from the common specification, the “client
`
`102” of Figure 3 is an example of the “second server” of the claims, with the numbered arrows
`
`corresponding with the bracketed letters identifying the elements of the claims as shown in the
`
`annotated table following the figure. (I note that the step identified as “A” is only a claimed element
`
`in the ’510 Patent.)
`
`6
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 007
`
`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 8 of 24 PageID #: 5599
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`Second
`Server
`
`
`
`A
`
`B
`
`E
`
`Web Server
`
`C
`
`D
`
`First Client
`Device
`
`
`
`’319 Patent
`1. A method for use with a first client device,
`for use with a first server that comprises a
`web server that is a Hypertext Transfer
`Protocol (HTTP) server that responds to
`HTTP requests, the first server stores a first
`content identified by a first content identifier,
`and for use with a second server, the method
`by the first client device comprising:
`[B] receiving, from the second server,
`the first content identifier;
`[C] sending, to the first server over
`the Internet, a Hypertext Transfer Protocol
`(HTTP) request that comprises the first
`content identifier;
`
`’510 Patent
`1. A method for use with a web server that
`responds to Hypertext Transfer Protocol
`(HTTP) requests and stores a first content
`identified by a first content identifier, the
`method by a first client device comprising:
`[A] establishing a Transmission
`Control Protocol (TCP) connection with a
`second server;
`[C] sending, to the web server over an
`Internet, the first content identifier;
`[D] receiving, the first content from
`the web server over the Internet in response
`to the sending of the first content identifier;
`and
`
`7
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 008
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`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 9 of 24 PageID #: 5600
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`
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`’510 Patent
`[E] sending the received first content,
`to the second server over the established TCP
`connection, [B] in response to the receiving of
`the first content identifier.
`
`’319 Patent
`[D] receiving, the first content from
`the first server over the Internet in response
`to the sending of the first content identifier;
`and
`
`[E] sending, the first content by the
`first client device to the second server, in
`response to the receiving of the first content
`identifier.
`
`
`
`12.
`
`I understand that a patent claim is invalid if it is indefinite. I further understand that
`
`in order to satisfy the definiteness requirement, a claim must inform a POSA of the claimed
`
`invention’s scope with reasonable certainty when the claim is read in view of the patent’s
`
`specification and prosecution history.
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`13.
`
`I also understand from disclosures found in Defendants’ P.R. 4-1 and 4-2
`
`disclosures in this litigation that Defendants contend that the following claim terms from the ’319
`
`and ’510 Patents are indefinite. I disagree. To the contrary, in my opinion a POSA would
`
`understand and find all of the following claim terms to be definite as used in the asserted claims:
`
`• “the first IP address” / “the first client IP address” (’319 Patent, claim 2 / ’510 Patent,
`claim 2);
`• “determining, by the first client device, that the received first content, is valid” (’319
`Patent, claim 14 / ’510 Patent, claim 10);
`• “the determining is based on the received HTTP header according to, or based on,
`IETF RFC 2616” (’319 Patent, claim 15 / ’510 Patent, claim 11);
`• “periodically communicating” (’319 Patent, claim 17 / ’510 Patent, claim 8);
`• “in response to the receiving of the first content identifier” (’510 Patent, claim 1);
`• “the sending of the Hypertext Transfer Protocol (HTTP) request” (’510 Patent, claim
`13);
`• “receiving and storing of the first content” (’510 Patent, claim 13); and
`• “the sending of the part of, or the whole of, the stored first content” (’510 Patent,
`claim 13).
`
`14.
`
`Dependent claim 2 of the ’319 and ’510 Patents introduce almost the same element
`
`with a couple of small changes underlined below:
`
`8
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 009
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`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 10 of 24 PageID #: 5601
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`
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`’319 Patent
`2. The method according to claim 1, wherein
`the first client device is identified by a Media
`Access Control (MAC) address or a
`hostname, and wherein the method further
`comprising sending, by the first client device,
`during, as part of, or in response to, a start-up
`of the first client device, a first message to the
`second server, and wherein the first messages
`comprises the first IP address, the MAC
`address, or the hostname.
`
`’510 Patent
`2. The method according to claim 1, wherein
`the first client device is identified by a Media
`Access Control (MAC) address or a
`hostname, and wherein the method further
`comprising sending, by the first client device,
`during, as part of, or in response to, a start-up
`or power-up of the first client device, a first
`message to the second server, and wherein the
`first messages comprises the first client IP
`address, the MAC address, or the hostname.
`
`
`
`15.
`
`Based on Defendants’ P.R. 3-3 disclosures, I understand that Defendants assert that
`
`neither of the above-tabled claims explain what is meant by the terms “first IP address” and “first
`
`client IP address” as found in claim 2 of the ’319 and ’510 Patents respectively. I disagree. As
`
`shown above, Claim 2 adds the element of the first client device “sending … a first message to the
`
`second server” comprising “the first IP address, the MAC address, or the hostname” or “the first
`
`client IP address, the MAC address, or the hostname” respectively. The claim further states that
`
`the “first client device is identified by a Media Access control (MAC) address or a hostname.”
`
`Being included in the list of identifiers for the “first client device,” a POSA would understand from
`
`the context of the claim that the plain and ordinary meaning of the “first IP address” is the IP
`
`address for the first client device and, hence, in my opinion would not find this term indefinite.
`
`16.
`
`Dependent claim 14 of the ’319 and claim 10 of the ’510 Patents include the same
`
`element as shown below:
`
`’319 Patent
`14. The method according to claim 1, further
`comprising determining, by the first client
`device, that the received first content, is
`valid.
`
`’510 Patent
`10. The method according to claim 1, further
`comprising determining, by the first client
`device, that the received first content, is
`valid.
`
`
`
`9
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 010
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 11 of 24 PageID #: 5602
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`17.
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`I understand that Defendants are also asserting that the phrase “determining, by the
`
`first client device, that the received first content, is valid” is indefinite. I disagree. Based on the
`
`plain and ordinary meaning of the claim language, in my opinion a POSA would understand that
`
`the first client device is determining whether the received first content is valid. Based on
`
`Defendants’ P.R. 3-3 disclosures, Defendants assert that neither claim explains what is meant by
`
`“valid.” However, in my opinion, based on the plain and ordinary meaning of the term and its use
`
`in the common specification, a POSA would understand the scope of this term to be definite.
`
`Consistent with the plain and ordinary meaning of the term, the common specification states, “[i]n
`
`addition to determining if the selected agent contains an entry for this request in its database, the
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`selected agent may also determine if this information is still valid. Specifically, the selected agent
`
`determines whether the data that is stored within the memory of the selected agent or the memory
`
`of the peers, still mirrors the information that would have been received from the server itself for
`
`this request.” ’319 Patent at 14:32-38. The common specification also provides clear and non-
`
`limiting examples of the validation, including, for example, the flow chart of Figure 12, where
`
`step 504 states, “using standard HTTP protocol, check the headers to see if the URL is still valid
`
`at this time (using HTTP header information such as ‘max age, ‘no cache,’ must revalidate, etc.)”
`
`Given that disclosure, in my opinion a POSA would not find this term to be indefinite.
`
`10
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 011
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 12 of 24 PageID #: 5603
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`18.
`
`Dependent claim 15 of the ’319 and claim 11 of the ’510 Patents include the same
`
`
`
`element as shown below:
`
`’319 Patent
`15. The method according to claim 14,
`wherein the determining is based on the
`received HTTP header according to, or
`based on, IETF RFC 2616.
`
`’510 Patent
`11. The method according to claim 10,
`wherein the determining is based on the
`received HTTP header according to, or
`based on, IETF RFC 2616.
`
`
`
`19.
`
`I understand that Defendants are also asserting that the phrase “the determining is
`
`based on the received HTTP header according to, or based on, IETF RFC 2616” as found in the
`
`two claims tabled above is indefinite. As discussed above and incorporated herein, in my opinion
`
`11
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 012
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 13 of 24 PageID #: 5604
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`a POSA would understand that the first client device is determining whether the received first
`
`content is valid based upon claims 14 and 10 from which these claims depend. Based on
`
`Defendants’ P.R. 3-3 disclosures, Defendants assert that this claim language renders the claims
`
`indefinite by failing to explain what is meant by “the received HTTP header.” I disagree. The
`
`preambles of independent claim 1 of the ’319 and ’510 Patents disclose “a first server that
`
`comprises a web server that is a Hypertext Transfer Protocol (HTTP) server that responds to
`
`HTTP requests, the first server stores a first content identified by a first content identifier” and “a
`
`web server that responds to Hypertext Transfer Protocol (HTTP) requests and stores a first content
`
`identified by a first content identifier,” respectively. Claim 1 of the ’319 Patent also discloses that
`
`the “first client device… sending, to the first server over the Internet, a Hypertext Transfer Protocol
`
`(HTTP) request that comprises the first content identifier.” Claim 16 of the ’510 Patent also
`
`discloses the “the sending of the first content identifier to the web server over the Internet
`
`comprises sending a Hypertext Transfer Protocol (HTTP) request that comprises the first content
`
`identifier.” Based on the plain and ordinary meaning of the claim language in the context of these
`
`claims and the preceding claims on which they rely, in my opinion a POSA would understand that
`
`the term “received HTTP header” refers to a HTTP header associated with the “first content,”
`
`which is consistent with the disclosure in the shared specification. See e.g. ’319 Patent at 14:32-
`
`38, 14:24-51, 14:62-15:11, and 16:12-46. For example, with regard to the non-limiting example in
`
`Figure 12 as discussed in the specification:
`
`As shown by block 502, the HTTP request is looked up in the cache database of the
`agent, client or peer that is checking the validity of the HTTP request. As an
`example, the HTTP protocol, defined by RFC 2616, outlines specific methods that
`Web servers can define within the HTTP headers signifying the validity of certain
`data, such as, but not limited to, by using HTTP header information such as "max
`age" to indicate how long this data may be cached before becoming invalid, "no
`cache" to indicate that the data may never be cached, and using other information.
`
`12
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 013
`
`

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`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 14 of 24 PageID #: 5605
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`’319 Patent at 16:18-28.
`
`
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`In addition, in my opinion a POSA would not be uncertain regarding the scope of the term as the
`
`determining is “according to, or based on, IETF RFC 2616.” Thus, a POSA would not find this
`
`term indefinite.
`
`20.
`
`Dependent claim 17 of the ’319 and claim 8 of the ’510 Patents introduce similar
`
`elements involving the same term “periodically communicating” with the ’510 Patent adding an
`
`additional limitation underlined below:
`
`’319 Patent
`17. The method according to claim 1, further
`comprising periodically communicating
`between the second server and the first client
`device.
`
`’510 Patent
`8. The method according to claim 1, further
`comprising periodically communicating
`over the TCP connection between the second
`server and the first client device.
`
`
`
`21.
`
`I understand that Defendants are also asserting that the phrase “periodically
`
`communicating” is indefinite. I disagree. In my opinion, a POSA would find the phrase as used in
`
`the claims to be definite. Based on Defendants’ P.R. 3-3 disclosures, Defendants appear to assert
`
`that this element requires the specific identification of what is being communicated and/or how
`
`many communications would be required to “periodically communicate.” However, the claims
`
`include no such limitations, and in my opinion a POSA would understand “periodically
`
`communicate” to be consistent with the plain and ordinary meaning of the term. Further, a POSA
`
`would understand based on dependent claims 18 of the ’319 Patent and 9 of the ’510 Patent that
`
`“periodically communicate” also includes, but is not limited to, “exchanging ‘keep alive’
`
`messages.” ’319 Patent at 20:59-61. Thus, in my opinion a POSA would not find this term
`
`indefinite.
`
`22.
`
`Claim 1 of the ’510 Patent includes the term “in response to the receiving of the
`
`first content identifier” as shown below:
`
`13
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 014
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 15 of 24 PageID #: 5606
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`
`
`’510 Patent
`1. A method for use with a web server that responds to Hypertext Transfer Protocol (HTTP)
`requests and stores a first content identified by a first content identifier, the method by a first
`client device comprising:
`establishing a Transmission Control Protocol (TCP) connection with a second server;
`sending, to the web server over an Internet, the first content identifier;
`receiving, the first content from the web server over the Internet in response to the
`sending of the first content identifier; and
`sending the received first content, to the second server over the established TCP
`connection, in response to the receiving of the first content identifier.
`
`
`
`23.
`
`I understand that Defendants are also asserting that the phrase “in response to the
`
`first content identifier” is indefinite. On the contrary, however, in my opinion a POSA would
`
`understand that the claims including use of this phrase are definite. Based on Defendants’ P.R. 3-
`
`3 disclosures, Defendants appear to assert that this element requires the inclusion of a separate and
`
`specific step whereby the first client device receives the first content identifier. While a POSA
`
`would certainly understand that additional steps could occur involving the receiving of the first
`
`content identifier, and dependent claim 15 adds such a step of “receiving, by the first client device
`
`from the second server over the established TCP connection, the first content identifier,” in my
`
`opinion this claim only requires that the sending of the received first content occur “in response to
`
`the receiving of the first content identifier.” Thus, a POSA would not understand this claim as
`
`indefinite.
`
`24.
`
`Claim 13 of the ’510 Patent includes the term “the sending of the Hypertext
`
`Transfer Protocol (HTTP) request” as shown below:
`
`’510 Patent
`13. The method according to claim 1, for use with a software application that includes
`computer instructions that, when executed by a computer processor, cause the processor to
`perform the sending of the Hypertext Transfer Protocol (HTTP) request, the receiving and
`storing of the first content, the receiving of the first content identifier, and the sending of the
`part of, or the whole of, the stored first content, the method is further preceded by:
`downloading, by the first client device from the Internet, the software application; and
`
`14
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 015
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 16 of 24 PageID #: 5607
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`
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`installing, by the first client device, the downloaded software application.
`
`
`
`
`25.
`
`I understand that Defendants are also asserting that the phrase “the sending of the
`
`Hypertext Transfer Protocol (HTTP) request” is indefinite. I disagree. In my opinion, a POSA
`
`would find this phrase as used in the claims definite. Based upon Defendants’ P.R. 3-3 disclosures,
`
`Defendants appear to assert that there is no antecedent basis for this term. However, in my opinion
`
`a POSA would understand this dependent claim to claim a software application that includes
`
`computer instructions for performing its steps. A POSA would therefore understand from the
`
`preamble of claim 1 that the web server “responds to Hypertext Transfer Protocol (HTTP)
`
`requests” and would accordingly understand that “the sending of the Hypertext Transfer Protocol
`
`(HTTP) request” refers to the step of “sending, to the web server over an Internet, the first content
`
`identifier.” A POSA would not understand this claim as indefinite.
`
`26.
`
`Claim 13 of the ’510 Patent includes the term “receiving and storing of the first
`
`content” as shown below:
`
`’510 Patent
`13. The method according to claim 1, for use with a software application that includes
`computer instructions that, when executed by a computer processor, cause the processor to
`perform the sending of the Hypertext Transfer Protocol (HTTP) request, the receiving and
`storing of the first content, the receiving of the first content identifier, and the sending of the
`part of, or the whole of, the stored first content, the method is further preceded by:
`downloading, by the first client device from the Internet, the software application; and
`installing, by the first client device, the downloaded software application.
`
`
`
`27.
`
`I understand that Defendants are also asserting that the phrase the “receiving and
`
`storing of the first content” is indefinite. I disagree. in my opinion a POSA would find this phrase
`
`as used in the claims to be definite. Based on Defendants’ P.R. 3-3 disclosures, Defendants appear
`
`to assert that there is no antecedent basis for this term. However, a POSA would understand this
`
`15
`
`
`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 016
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 17 of 24 PageID #: 5608
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`
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`dependent claim as claiming a software application that includes computer instructions for
`
`performing the steps of the claim. While “storing of the first content” is not referenced in the
`
`independent claim, in my opinion a POSA would understand from the common specification that
`
`software may be stored on the client device providing functionality which may include the content
`
`being stored by the client device, including for example in its cache. ’510 Patent at 4:48-52; 8:7-
`
`22. Thus, a POSA would not understand this claim as indefinite.
`
`28.
`
`Claim 13 of the ’510 Patent includes the term “the sending of the part of, or the
`
`whole of, the stored first content” as shown below:
`
`’510 Patent
`13. The method according to claim 1, for use with a software application that includes
`computer instructions that, when executed by a computer processor, cause the processor to
`perform the sending of the Hypertext Transfer Protocol (HTTP) request, the receiving and
`storing of the first content, the receiving of the first content identifier, and the sending of the
`part of, or the whole of, the stored first content, the method is further preceded by:
`downloading, by the first client device from the Internet, the software application; and
`installing, by the first client device, the downloaded software application.
`
`
`
`29.
`
`I understand that Defendants are also asserting that the phrase the “the sending of
`
`the part of, or the whole of, the stored first content” is indefinite. I disagree. In my opinion, a POSA
`
`would find this phrase as used in the claims to be definite. Based upon Defendants’ P.R. 3-3
`
`disclosures, Defendants appear to assert that there is no antecedent basis for this term. However,
`
`as I explained above, a POSA would understand this dependent claim as claiming a software
`
`application that includes computer instructions for performing the steps of the claim. A POSA
`
`would therefore understand from the common specification that software may be stored on the
`
`client device providing functionality, which may include the sending of the part of, or the whole
`
`of, the stored first content. ’510 Patent at 4:48-52; 14:62-15:6. In addition, a POSA would
`
`16
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`Luminati Exhibit 2009
`Code200 et al. v. Luminati Networks LTD.
`IPR2020-01266 Page 017
`
`

`

`Case 2:19-cv-00395-JRG Document 126-5 Filed 09/29/20 Page 18 of 24 PageID #: 5609
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`
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`understand from the common specification that the content can be sent in parts, such as chunks,
`
`and thus further would not understand this claim as indefinite. See e.g. ’510 Patent at 8:23-39.
`
`30.
`
`The ’614 Patent is from a different family, but it shares the same inventors with the
`
`’319 and ’510 Patents. The ’614 Patent also discloses a method for use with a client device, first
`
`server, and web server. However, the ’614 Patent also discloses and claims other elements not
`
`disclosed in the earlier two patents. Specifically, in addition to other elements, the ’614 Patent
`
`claims have the client device shift between a first and a second state corresponding to whether the
`
`client device is available to receive requests from the first server. This shift allows the network to
`
`optimize resources by having client devices that are congested, for example, switch to a second
`
`state, whereby only non-congested client devices will be available to fetch content. I also note that
`
`the “second server” of the ’319 and ’510 Patents roughly corresponds with the “first server” of the
`
`’614 Patent. For example, in contrast to the ’319 and ’510 Patents, the client device of the ’614
`
`Patent receives the first content identifier from and sends the corresponding first content to the
`
`“first server.”
`
`’614 Patent
`1. A method for use with a resource associated with a criterion in a client device that
`communicates with a first server over the Internet, the client device is identified in the Internet
`using a first identifier and is associated with first and second state according to a utilization of
`the resource, the method comprising:
`initiating, by the client device, communication with the first server over the Internet in
`response to connecting to the Internet, the communication comprises sending, by the client
`device, the first identifier to the first server over the Internet;
`when connected to the Internet, periodically or continuously determining whether the
`resource utilization satisfies the criterion;
`responsive to the determining that the utilization of the resource satisfies the criterion,
`shifting to the first state or staying in the first state;
`responsive to the determining that the utilization of the resource does