Case 6:21-cv-00261-ADA Document 29 Filed 11/12/21 Page 1 of 38
`
`IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
`DISTRICT OF TEXAS WACO DIVISION
`
`
`
`
`SABLE NETWORKS, INC. AND
`SABLE IP, LLC,
`
` Plaintiffs,
`
` v.
`
`RIVERBED TECHNOLOGY, INC.,
`
` Defendant.
`
`
`
`Sable Networks, Inc. and
`Sable IP, LLC,
`
` Plaintiffs,
`
` v.
`
`Cloudflare, Inc.,
`
` Defendant.
`
`
`
`
`
`
`
`
`
`Civil Action No.
`6:21-cv-00175-ADA
`
`
`JURY TRIAL DEMANDED
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`
`
`
`
`
`
`
`Civil Action No.
`6:21-cv-00261-ADA
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`
`JURY TRIAL DEMANDED
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`
`
`
`
`CLOUDFLARE, INC’S OPENING CLAIM CONSTRUCTION BRIEF
`
`
`CHARHON CALLAHAN
`ROBSON & GARZA, PLLC
`
`STEVEN CALLAHAN
`CHRISTOPHER T. BOVENKAMP
`ANTHONY M. GARZA
`C. LUKE NELSON
`JOHN HEUTON
`
`Counsel for Defendant Cloudflare, Inc.
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`
`
`
`
`
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`Sable Networks, Inc. Exhibit 2009
`Page 2009 - 1
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`Case 6:21-cv-00261-ADA Document 29 Filed 11/12/21 Page 2 of 38
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`TABLE OF CONTENTS
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`INTRODUCTION .......................................................................................................................... 1
`
`BACKGROUND ............................................................................................................................ 1
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`I.
`
`The Asserted Patents and Related Proceedings ................................................................. 1
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`A. U.S. Patent No. 6,954,431 (the “’431 patent”) (Exhibit 1) ................................................1
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`B. U.S. Patent 6,977,932 (the “’932 patent”) (Exhibit 2) .......................................................2
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`C. U.S. Patent No. 7,012,919 (the “’919 patent”) (Exhibit 3) ................................................2
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`D. U.S. Patent 8,243,593 (the “’593 patent”) (Exhibit 4) .......................................................2
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`E. Related Proceedings: IPRs and the Cisco Action. ..............................................................3
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`AGREED CONSTRUCTIONS ...................................................................................................... 3
`
`ARGUMENT .................................................................................................................................. 4
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`II. The ’431 Patent ................................................................................................................. 4
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`1. Preamble (19) [CF Term] ...................................................................................................4
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`2. Microflow (1, 10, 11, 16, 18-29) [Sable Term] ..................................................................5
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`3. Based on a characteristic (1, 10) [CF Term] ......................................................................8
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`4. Packet discard time (8, 17, 19-22, 24) [Sable Term] .........................................................9
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`5. Means for determining a capacity of a buffer containing a microflow based on a
`characteristic (10) [CF Term] ...........................................................................................11
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`6. Weighting factor (16, 19-22, 25, 26) [Sable Term] ..........................................................13
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`7. A delay variation substructure configured to provide a buffer value to dampen jitter in a
`transmission of the microflow (19) [CF Term] ................................................................14
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`8. Wherein at least of the wherein the packet discard time substructure, the microflow
`timeout period substructure, the weighting factor substructure, and the delay variation
`substructure is used to determine a behavior of a microflow (22) [CF Term] .................15
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`9. The predetermined value for the microflow timeout period substructure comprises is less
`than 32 seconds (29) [CF Term] .......................................................................................16
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`III. The ‘932 Patent .............................................................................................................. 17
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`1. Flow state information (1, 9, 24, 32) [Sable Term] ..........................................................17
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`2. Micro-flow (1, 24, 32) [Sable Term] ................................................................................20
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`3. Tunnel identifier (1, 32) [Sable Term] & Aggregate flow block (1, 6, 9, 10, 24, 25, 26, 29,
`32) [CF Term] ..................................................................................................................21
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`4. Preamble (9, 24) [CF Term] .............................................................................................23
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`IV. The ’919 Patent .............................................................................................................. 25
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`1. Aggregate flow (25, 26) [CF Term] .................................................................................25
`
`i
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`2. Micro-flow (25, 27) [Sable Term] ....................................................................................27
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`3. Label switched path(s) (26, 27) [Sable Term] ..................................................................27
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`V. The ’593 Patent ............................................................................................................... 28
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`1. “Undesirable behavior” (1-5, 9, 25, 29) & “Badness factor” (9, 29) [CF Term] .............28
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`2. Based at least partially upon the set of behavioral statistics (4, 5, 9, 25, 29) [CF Term] 32
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`CONCLUSION ............................................................................................................................ 34
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`ii
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`INTRODUCTION
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`Sable Networks asserts a series of patents that grow out of its predecessor Caspian
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`Network’s efforts to improve existing quality of service (QoS) and “flow-based” router
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`technology. Complaint (Dkt. 1) ¶¶ 5-8. According to Sable, Caspian’s founder, Larry Roberts,
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`sought to “buil[d] flow-based routers that advanced quality of service and load balancing
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`performance.” See id. Caspian’s patents state that its flow-based routers provide “a previously
`
`unavailable degree of quality of service.” See, e.g., ’431 patent at Abstract. Nonetheless, Caspian’s
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`router, the Apeiro, was unsuccessful in the marketplace and by 2008, Caspian sold its assets to
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`Sable Networks. Complaint ¶¶ 6-9.
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`Sable now asserts patents related to its approaches to QoS and flow-based router
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`technology against companies like Cloudflare that do not manufacture routers and use very
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`different techniques and products in their networks. To do so, Sable stretches the asserted claims
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`well beyond the scope of the technology it purports to have invented including flip-flopping on
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`the meaning of terms from one litigation or proceeding to the next. Accordingly, Cloudflare
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`respectfully requests that the Court reject Sable’s proposals and instead adopt Cloudflare’s
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`proposed constructions, which match the alleged inventions described in Sable’s patents.
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`I.
`
`The Asserted Patents and Related Proceedings
`
`BACKGROUND
`
`A.
`
`U.S. Patent No. 6,954,431 (the “’431 patent”) (Exhibit 11)
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`The ’431 patent, entitled “Micro-Flow Management,” describes one aspect of Caspian’s
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`flow-based routing technology. It is directed to providing the ability to give quality of service
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`(QoS) guarantees for data transmissions through the use of “microflows” and “QoS associated
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`
`1 All numbered exhibits hereto are attached to the Declaration of C. Luke Nelson.
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`1
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`with each microflow that is characterized by a set of descriptors.” See ’431 patent at Abstract.
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`“These descriptors are communicated to each switch by the first packet of the micro-flow
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`associated with the descriptors.” Id. The claims of the ’431 patent do not match its specification,
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`and Cloudflare has moved to invalidate the ’431 patent based on its lack of written description.
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`B.
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`U.S. Patent 6,977,932 (the “’932 patent”) (Exhibit 2)
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`The ’932 patent is directed to solving QoS-related problems in conventional MPLS
`
`networks and describes “network tunneling . . . utilizing flow state information.” See ‘932 patent
`
`at Abstract. The ’932 patent further describes “an aggregate flow block that includes tunnel
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`specific information for the selected network tunnel” and “the aggregate flow block further
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`include[ing]statistics for the selected network tunnel.” Id.
`
`C.
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`U.S. Patent No. 7,012,919 (the “’919 patent”) (Exhibit 3)
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`The ʼ919 patent, which is related to and builds on the concepts described in the ’431
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`Patent, 2 describes another aspect of Caspian’s flow-based routing technology—aggregating
`
`microflows using “intelligent load balancing” in MPLS networks. See ’919 patent at Abstract.
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`More specifically, the ’919 Patent describes a method of routing micro-flows among “a set of label
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`switched paths (LSPs) [that] is defined for a [MPLS] network domain.” See id.
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`D.
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`U.S. Patent 8,243,593 (the “’593 patent”) (Exhibit 4)
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`The ’593 Patent describes a Caspian solution to a problem of its time—the “advent of file
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`sharing applications such as KaZaA, Gnutella, BearShare, and Winny” and peer-to-peer (P2P)
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`traffic. See ’593 patent at 1:7-10. Because P2P protocols were increasing in sophistication, the
`
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`2 Both the ’919 Patent and the ’431 Patent claim priority to Application No. 09/552,278 (the “’278
`application”), which issued as U.S. Pat. No. 6,574,195 (the “’195 Patent”). The ’919 patent issued
`from a continuation-in-part of the ’278 application, which added new subject matter and four
`additional named co-inventors.
`
`2
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`inventor of the ’593 patent wanted to find a way to identify P2P traffic such that it could be
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`effectively controlled. See id. at 1:46-49. Attempting to take advantage of indefinite language in
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`the asserted claims, Sable is stretching the ’593 patent to cover systems unrelated to the
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`identification and control of P2P traffic.
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`E.
`
`Related Proceedings: IPRs and the Cisco Action.
`
`Cloudflare has filed petitions for Inter Partes Review of each of the asserted patents. Sable
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`has filed a Patent Owner’s Preliminary Response (“POPR”) to each, in which Sable has taken
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`claim-construction positions that are pertinent to—and in some instances in contradiction with—
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`the claim constructions Sable is proposing to the Court. Cloudflare’s IPR petitions and Sable’s
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`POPRs will be referred to here as, e.g., “’431 IPR” and “’431 POPR.”
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`Additionally, in a previous litigation before this Court in which Sable asserted the ’431,
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`’932, and ’919 patents against Cisco Systems, Inc. (action no. 6:20-cv-00288-ADA; the “Cisco”
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`action), Sable similarly adopted certain claim-construction positions and agreements that are
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`pertinent to and in contradiction with the positions Sable now asserts to this Court. Sable’s
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`Opening Claim Construction Brief (which includes a section reciting Sable’s agreed constructions
`
`of various terms) is attached as Exhibit 5 and will be referred to as “Sable Cisco Brief.”
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`AGREED CONSTRUCTIONS
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`The parties have agreed to constructions for certain claim terms, which are set forth in the
`
`attached Exhibit 6.
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`3
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`ARGUMENT
`
`II.
`
`The ’431 Patent
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`1.
`
`Preamble (19) [CF Term]
`
`Cloudflare’s Proposed Construction
`
`Sable’s Proposed Construction
`
`Claim 19’s preamble is limiting
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`Claim 19’s preamble is not limiting
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`
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`The dispute between the parties is whether Claim 19’s preamble is limiting (as proposed
`
`by Cloudflare) or not (as proposed by Sable). Sable’s position in this case is a flip of a position it
`
`agreed to in previous litigation involving the same patent where it agreed Claim 19’s preamble
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`was limiting. See Sable Cisco Brief at 18. Sable now takes the contrary position. Not only is this
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`new position inconsistent with Sable’s past representations, it is wrong. Claim 19 provides:
`
`19. In a network management system for controlling data traffic
`through a network, the data traffic comprised of a plurality of
`microflows, a microflow classification structure to determine data
`traffic type comprising:
`
`a packet discard time substructure configured to provide a time
`value to ensure buffer capacity for a microflow;
`
`a weighting factor substructure configured to partition available
`bandwidth among the plurality of microflows
`to be
`transmitted through the network; and
`
`a delay variation substructure configured to provide a buffer
`value to dampen jitter in a transmission of the microflow.
`
`’431 patent at claim 19 (bold and underlined emphasis added).
`
`The preamble here is limiting, because it recites essential structure and is necessary to give
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`life, meaning, and vitality to the claim. See Shoes by Firebug LLC v. Stride Rite Children’s Group,
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`LLC, 962 F.3d 1362, 1367 (Fed. Cir. 2020) (quoting Catalina Mktg. Int’l, Inc. v. Coolsavings.com,
`
`Inc., 289 F.3d 801, 808 (Fed. Cir. 2002)). The preamble terms “a network” and “a plurality of
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`microflows” are plainly the antecedent bases for the claim terms “the network” and “the plurality
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`4
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`of microflows” in the body of the claim. See bolded claim language, supra. “[W]hen the preamble
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`is essential to understand limitations or terms in the claim body, the preamble limits claim scope.”
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`Catalina Mktg., 289 F.3d at 808; accord Shoes by Firebug, 962 F.3d at 1368.
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`Furthermore, the body of the claim recites three “substructure[s]”—these cannot sensibly
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`be considered outside of the meaning and context of the overall “microflow classification
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`structure” specified by the preamble. That is to say, there needs to be an antecedent “structure”—
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`the “microflow classification structure”—in order to understand the structural limitations of the
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`“substructure”—i.e., the “packet discard time substructure,” “weighting factor substructure,” and
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`“delay variation substructure” recited in the body of the claim.
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`The preamble of claim 19 therefore is essential to and limits the body of the claim.
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`2.
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`Microflow (1, 10, 11, 16, 18-29) [Sable Term]
`
`Cloudflare’s Proposed Construction
`
`Sable’s Proposed Construction
`
`Plain and ordinary meaning
`
`Uniquely identifiable set of data signals that
`typically have the same open system
`interconnection model network layer and
`transport layer characteristics
`
`
`
`There is a dispute between the parties as to the scope of the term “microflow,” made more
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`difficult by Sable’s inconsistent, potentially prejudicial treatment of the term. The term
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`“microflow” occurs in three of the patents at issue in this case. Each of these patents was previously
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`asserted including against Cisco. In the Cisco action, Sable and Cisco agreed to construe
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`“microflow” to mean a “uniquely identifiable set of data signals that typically have the same open
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`system interconnection model network layer and transport layer characteristics.” Sable Cisco Brief
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`at 18. Sable proposes the same construction here. Cloudflare relied on this same construction in
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`the IPR it filed against the ’431 patent. Ex. 7, ’431 IPR at 14.
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`5
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`But Sable departed from the Cisco agreed construction (and the construction it proposes
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`here) in each of its Preliminary Patent Owner Responses to the respective Cloudflare IPRs. In its
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`’431 POPR, for example, Sable defined “microflow” as “a group of data packets from a single
`
`transmission wherein each data packet in the microflow includes the same source address,
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`destination address, source port, destination port, and protocol type, and is assigned a quality of
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`service (QoS) value.” Ex. 8, ’431 POPR at 1-2 (emphasis added). Sable used the following diagram
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`to illustrate a microflow.
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`
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`’431 POPR at 15. Sable emphasized the fact that “[t]he first micro-flow data packet includes a
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`label field 305, a QoS field 310 and a data field 312.” ’431 POPR at 16 (citing ’431 patent at 8:17-
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`21) (Sable’s emphasis). Sable then argued that the Petitioner failed to show the presence of a
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`“microflow” in the prior art: “It is therefore not surprising that Petitioner provides no evidence,
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`and fails to explain, why a stream of data packets in ATM networks is the same as an individual
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`micro-flow—a set of data packets sharing the same source address, destination address, source
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`port, destination port, and protocol type wherein the first data packet contains QoS descriptors
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`6
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`that describe QoS constraints for the micro-flow.” ’431 POPR at 18 (emphasis added). Sable urged
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`similar “microflow” definitions in its POPR filings for two other patents-in-suit: the ’919 patent
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`and the ’932 patent. Ex. 9, ’919 POPR at 1-2, 14, 15; Ex. 10, ’932 POPR at 9, 14-15, 24-25
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`(including arguments based on disclosure in the ’278 application—i.e., the substance of the ’431
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`patent’s specification).
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`Sable should be held to the positions it took and relied upon in each of the currently pending
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`IPRs. For the related (albeit not identical) ’431 Patent and ’919 Patent, Sable defined “microflow”
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`in almost identical manners.
`
`“Microflow,”
`’431 Patent
`
`“Micro-flow,”
`’919 Patent
`
`
`Under the plain meaning of the term “microflow,” confirmed by
`the patent specification, the claimed “microflow” includes a
`group of data packets from a single transmission wherein each
`data packet in the micro-flow includes the same source address,
`destination address, source port, destination port, and protocol
`type, and is assigned a quality of service (QoS) value.
`
`’431 POPR at 1-2.
`
`The plain meaning of this claim language, as supported by the
`patent specification, requires that the claimed “plurality of
`individual micro-flows” comprises
`individual micro-flows
`consisting of a group of data packets from a single transmission
`wherein each data packet in an individual micro-flow includes
`the same source address, destination address, source port,
`destination port, and protocol type, and is assigned a quality of
`service (QoS) value.
`
`’919 POPR at 1-2.
`
`
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`Sable’s proposed construction in this case is clearly different. For example, Sable’s
`
`proposed construction of “microflow” in this case does not require the inclusion of any QoS
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`information. In contrast, both POPR-proposed constructions of Sable specifically include QoS
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`information. ’431 POPR at 1-2; ’919 POPR at 1-2. Given the alignment of the claim construction
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`standards in district court cases and IPR proceedings, there is no legitimate reason for Sable’s
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`7
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`different proposed constructions. Sable should not be allowed to put forth a different construction
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`here than offered in its POPRs.
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`3.
`
`Based on a characteristic (1, 10) [CF Term]
`
`Cloudflare’s Proposed Construction
`
`Sable’s Proposed Construction
`
`Based on a characteristic associated with the
`microflow
`
`Term does not require construction; plain and
`ordinary meaning
`
`
`
`The dispute between the parties is whether the claim term “based on a characteristic”
`
`should be construed to clarify what characteristic is being referred to in the claim. This term is
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`another example of Sable back-tracking on a previously taken position. In the Cisco action, Sable
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`agreed to essentially the same construction now being proposed by Cloudflare: “based on a
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`characteristic associated with a microflow.” Sable Cisco Brief at 21. Cloudflare proposed a tweak
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`of that agreed construction (changing the “characteristic associated with a” to a “characteristic
`
`associated with the”) to better conform to the language of the claim.
`
`Claim 1 (the disclaimed basis for dependent claim 8) and claim 10 each recite the limitation
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`“determining a capacity of a buffer containing a microflow based on a characteristic.” ’431 patent
`
`at claims 1, 10. The claim language begs the question: “based on a characteristic” of what?
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`Cloudflare proposes, in context of the claim language, that the limitation means “determining a
`
`capacity of a buffer containing a microflow based on a characteristic associated with the
`
`microflow.”
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`Construction is needed because Sable has taken two different positions already as to the
`
`meaning. As noted above, originally, in the Cisco action, Sable agreed to a somewhat similar
`
`construction, “determining a capacity of a buffer containing a microflow based on a characteristic
`
`associated with a microflow.” Sable Cisco Brief at 21 (emphasis added). But the Cisco
`
`construction leaves open the possibility that this claim limitation could in essence be read as
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`8
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`including “determining a capacity of a buffer containing a microflow based on a characteristic
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`associated with any microflow anywhere.” This would not make sense given the claim language.
`
`Sable is now unwilling to construe the term at all—meaning that Sable is unwilling for
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`“characteristic” to be limited even to a characteristic of a microflow, somewhere. Sable is in
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`essence asking for the construction to include such breadth as “determining a capacity of a buffer
`
`containing a microflow based on a characteristic of anything at all.” There is no basis for such a
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`construction.3
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`4.
`
`Packet discard time (8, 17, 19-22, 24) [Sable Term]
`
`Cloudflare’s Proposed Construction
`
`Sable’s Proposed Construction
`
`Plain and ordinary meaning
`
`
`a value used to ensure buffer availability within
`the switch
`
`
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`The dispute between the parties is whether “packet discard time” should mean a “packet
`
`discard time”—as is well understood by a POSA—or should be re-defined to encompass, e.g., a
`
`generic “value” rather than a time. The term “packet discard time” is yet another example of a term
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`in which Sable has taken two different positions. In the Cisco action, Sable agreed that “packet
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`discard time” meant a “time value that ensures buffer availability within the switch.” Sable Cisco
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`Brief at 18. But in this action, Sable proposes “a value used to ensure buffer availability within the
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`switch”—i.e., dropping “time” from the construction. Sable is obviously attempting to broaden the
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`scope of the “packet discard time” term such that it is not limited to a “time.” There is simply no
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`basis to do so. The term “packet discard time” is used in its plain and ordinary sense.
`
`
`3 Compounding the construction problem is the ’431 patent specification’s complete failure to
`describe the claimed inventions. See Cloudflare’s Motion for Summary Judgment of Invalidity of
`the ’431 Patent for lack of written description filed concurrently herewith (the “’431 MSJ”).
`
`9
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`In some contrast to many of the ’431 patent claim terms, the ’431 patent’s specification
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`does offer some guidance here. The specification provides:
`
`The packet discard time limit (“D”) value 315 is used to ensure
`buffer availability within the switch 220. This value is a parameter
`that can operate like a burst tolerance that allows the switches 220
`of the network 200 to have a basis for policing micro-flows. In one
`embodiment, the packet discard time can be between 10 ms and 500
`ms.
`
`’431 patent at 9:45-50. Under this disclosure, the “packet discard time” is a time parameter with a
`
`value in milliseconds. Sable’s two constructions dodge definition of what a packet discard time is
`
`and instead attempt to define what the “packet discard time” allegedly does. This is unnecessary,
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`as “packet discard time” is a term of art well known to a POSA and not re-defined in the ’431
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`patent. Declaration of Paul S. Min, Ph.D. (“Min dec.”) ¶¶ 38-42.
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`Sable’s attempt to import extra information like “buffer” into the construction appears to
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`be an attempt to bolster the inadequate written description of the ’431 patent specification for these
`
`claims—the above-quoted passage is the only reference in the entire ’431 patent specification to a
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`“buffer” that is not discussing and criticizing prior art (as discussed in the ’431 MSJ). Claim
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`construction’s purpose is to construe the meaning of claim terms. E.g., Phillips v. AWH Corp., 415
`
`F.3d 1303, 1311, 1316 (Fed. Cir. 2005).
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`And moreover, at the same time as Sable is trying to read in extraneous disclosure to the
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`meaning of a straightforward, well-known term of art, Sable is trying to read out the basic
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`parameter of what the term is: a time parameter. There is no basis for doing so—a “packet discard
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`time” is a time. No construction is needed of this well understood term. Min dec. ¶¶ 38-42.
`
`10
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`Case 6:21-cv-00261-ADA Document 29 Filed 11/12/21 Page 14 of 38
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`5.
`
`Means for determining a capacity of a buffer containing a microflow based on
`a characteristic (10) [CF Term]
`
`Cloudflare’s Proposed Construction
`
`Sable’s Proposed Construction
`
`Indefinite
`
`As to the proper function, see supra
`construction of “based on a characteristic”
`
`Function: determining a capacity of a buffer
`containing a microflow based on a
`characteristic.
`
`Structure: ingress micro-flow manager 505
`(including the micro-flow recognizer 520 and
`micro-flow classifier 530), memory 550
`(including the storage block table 560 and flow
`block table 570), linecard 410, and equivalents
`thereof. See cols. 13:11-14:46, and associated
`Figures.
`
`
`
`
`
`The dispute between the parties is whether any structure exists in the ’431 patent’s
`
`specification corresponding to the claimed function of “determining a capacity of a buffer
`
`containing a microflow based on a characteristic [associated with the microflow].” See Williamson
`
`v. Citrix Online, LLC, 792 F.3d 1339, 1351 (Fed. Cir. 2015) (en banc). The specification, which
`
`includes no description of the claim invention, not surprisingly identifies no structure
`
`corresponding to the claimed function. See ’431 MSJ.
`
`Sable’s proposed function requires, e.g., an act of “determining” a capacity of a buffer
`
`containing a microflow based on a characteristic. Sable’s proposed structure includes an “ingress
`
`micro-flow manager 505,” “micro-flow recognizer 520,” “micro-flow classifier 530,” “memory
`
`550,” “storage block table 560,” “flow block table 570,” or “linecard 410,” but none of these
`
`independently or cooperatively are described in the specification as determining a capacity of a
`
`buffer containing a microflow based on a characteristic (of anything). The specification states that
`
`the “linecard 410”—which includes both the “micro-flow manager 505” and the “memory 550,”
`
`’431 patent at 12:11-29—is “responsible for processing data packets received either from the trunk
`
`11
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`lines or from the switch core 430,” not for determining a capacity of a buffer. ’431 patent at 11:10-
`
`65. Similarly, the specification teaches that “ingress micro-flow manager 505”—which includes
`
`“micro-flow recognizer 520” and “micro-flow classifier 530,” ’431 patent at 12:11-29—operates
`
`to “police the incoming data packets through packet discards,” not to determine a capacity of a
`
`buffer. ’431 patent at 16:36-37. Moreover, “memory 550”—which includes “storage block table
`
`560” and “flow block table 570,” ’431 patent at 12:11-29—is never described as a buffer or as
`
`determining a capacity of a buffer. Accordingly, none of the referenced structures correspond to
`
`or perform what is claimed here. Min dec. ¶¶ 43-46.
`
`Sable’s proposed structure also references columns 13:11-14:46 of the specification and
`
`“associated Figures,” but none of these provide any better evidence of corresponding structure.
`
`The specification says nothing about a “buffer,” “a capacity of a buffer,” or “determining a
`
`capacity of a buffer” in the context of describing an embodiment of inventions. None of the ’431
`
`patent’s figures include a depiction of a buffer or the determining of a capacity of a buffer. See
`
`’431 patent 13:11-14:46 and patent figures; and compare with ’919 patent Fig. 4B (showing
`
`“Buffers 408” in added disclosure in the ’919 patent); Min dec. ¶¶ 43-46; see also ’431 MSJ.
`
`Because the patentee included no structure in the ’431 patent specification corresponding
`
`to the function of “determining a capacity of a buffer containing a microflow based on a
`
`characteristic” this limitation is indefinite.4 E.g., Williamson, 792 F.3d at 1351.
`
`
`4 The same legal analysis is applicable to each of the means-plus-function clauses in the ’431 patent
`as the ’431 specification does not disclose the claimed inventions. See ’431 MSJ. For the purposes
`of stream-lining the case for the Court, Cloudflare selected this clause as representative.
`
`12
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`Case 6:21-cv-00261-ADA Document 29 Filed 11/12/21 Page 16 of 38
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`6. Weighting factor (16, 19-22, 25, 26) [Sable Term]
`
`Cloudflare’s Proposed Construction
`
`Sable’s Proposed Construction
`
`Factor indicating the portion of available rate
`bandwidth to be delegated to the micro-flow
`compared to other micro-flows
`
`"the portion of an available rate a micro-flow
`is able to be delegated as compared to other
`micro-flows"
`
`
`
`The dispute between the parties is whether a reason exists to depart from a previously
`
`agreed construction. Here again, Sable has changed its proposed construction from the
`
`construction Sable agreed to and proposed in the Cisco action. In that litigation, Sable proposed
`
`exactly the construction Cloudflare now proposes. Sable Cisco Brief at 18. The pertinent disclosure
`
`in the specification is as follows:
`
`The weighting factor (“W”) value 320 for AR traffic indicates how
`much of a portion of an AR rate a micro-flow is able to be delegated
`as compared to other micro-flows.
`
`’431 patent at 10:19-39.
`
`Sable now changes its proposed construction, however, to “the portion of an available rate
`
`a micro-flow is able to be delegated as compared to other micro-flows.” Sable’s new proposed
`
`construction is incorrect, because it changes the manner in which the specification describes a
`
`weighting factor. That is, the specification says the weighting factor “value . . . indicates how much
`
`of a portion of an AR rate a micro-flow is able to be delegated as compared to other micro-flows,”
`
`but Sable wants to change “how much of a portion” to simply “the portion.” There is no basis for
`
`doing so. Accordingly, the Court should reject Sable’s proposed construction, and should construe
`
`“weighting factor” as Sable agreed in the Cisco action, “factor indicating the portion of available
`
`rate bandwidth to be delegated to the micro-flow compared to othe