IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`§§
`
`§
`§ Case No. 2:19-CV-00395-JRG
`§
`
`§§
`
`§
`
`LUMINATI NETWORKS LTD.
`
`Plaintiff,
`
`v.
`TESO LT, UAB; OXYSALES, UAB;
`METACLUSTER LT, UAB;
`
`Defendants.
`
`LUMINATI’S REPLY CLAIM CONSTRUCTION BRIEF
`(LOCAL PATENT RULE 4-5(c))
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`TABLE OF CONTENTS
`
`I.
`
`II.
`
`INTRODUCTION............................................................................................................. 1
`
`DISPUTED TERMS FOR CLAIM CONSTRUCTION ............................................... 1
`
`A. Client Device (First Family) .......................................................................................... 1
`B. First Server (First Family) ............................................................................................ 3
`C. Second Server (First Family) ........................................................................................ 3
`D. Client Device (Second Family) ...................................................................................... 3
`E. First Server (Second Family) ........................................................................................ 6
`
`III.
`
`THE CLAIM TERMS ARE NOT INDEFINITE .......................................................... 6
`A. Not Indefinite: “The First IP Address” / “The First Client IP Address” ................. 6
`B. Not Indefinite: “Determining, By The First Client Device, That The Received First
`Content, Is Valid” / “The Determining Is Based On The Received HTTP Header
`According To, Or Based On IETF RFC 2616”.......................................................... 7
`C. Not Indefinite: “Periodically Communicating” .......................................................... 8
`D. Not Indefinite: “In Response To The Receiving Of The First Content Identifier” . 8
`E. The Sending Of The Hypertext Transfer Protocol (HTTP) Request / Receiving
`And Storing Of The First Content / The Sending Of The Part Of, Or The Whole
`Of, The Stored First Content....................................................................................... 9
`F. The Steps Are Sequentially Executed ........................................................................ 10
`IV. CONCLUSION ............................................................................................................... 10
`
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`TABLE OF AUTHORITIES
`
`Cases
`
`BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360 (Fed. Cir. 2017) .................................. 7, 8, 9
`
`Microsoft Corp. v. Multi-Tech Sys., 357 F.3d 1340 (Fed. Cir. 2004) ............................................. 7
`
`Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120 (2014) ................................................. 6
`
`Optimum Imaging Techs. LLC v. Canon Inc., No. 2:19-CV-00246-JRG, 2020 U.S. Dist. LEXIS
`102126 (E.D. Tex. June 11, 2020) ...................................................................................... 6, 8, 9
`
`Traxxas LP v. Hobby Prods. Int’l, No. 2:14-CV-945-JRG-RSP, 2015 U.S. Dist. LEXIS 114148
`(E.D. Tex. Aug. 27, 2015) ....................................................................................................... 6, 7
`
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`I.
`
`INTRODUCTION
`
`Defendants repeatedly ignore the clear language of the claims, specification, and patent
`
`prosecution history in seeking a nominal “plain meaning” construction. Defendants’ version of
`
`“plain meaning” is actually an overbroad interpretation that improperly treats the distinct elements
`
`of the claimed server – client device – web server architecture as interchangeable, effectively
`
`reducing the claims to a computer – computer – computer architecture. At the same time,
`
`Defendants repeatedly assert indefiniteness for claim terms by disregarding the clear context of
`
`the claims and improperly confusing claim breadth for indefiniteness.
`
`
`
`II.
`
`DISPUTED TERMS FOR CLAIM CONSTRUCTION
`
`A.
`
`Client Device (First Family)
`
`Regarding “client device,” the patent specification expressly states, “In the network 50,
`
`files are stored on computers of consumers, referred to herein as client devices 60.” ECF 126-2 at
`
`2:44-46 (emphasis added). Defendants’ ignore the clear language distinguishing client devices
`
`from other claim elements in an improper attempt to misconstrue this term to include servers. First,
`
`Defendants misinterpret the ability of a client device to function as a “client, peer, or agent” to
`
`imply that a client device could also be a server. It cannot. A client device can perform different
`
`roles of client, peer, or agent to request content and respond to a request for content depending
`
`upon the needs of the network – this is how the proxy client device of the claims practices the
`
`invention – but the patent never allows for a server to be a “client device.”
`
`Critically, the specification does not equate client devices with servers. Regardless,
`
`Defendants improperly attempt to read the requirements that a client device have a processor,
`
`memory and storage device to ignore all other requirements of a client device. Next Defendants
`
`argue that anything with a processor, memory and storage device, such as a commercial server, is
`
`a client device, thereby rewriting the claims to require only a computer – computer – computer
`
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`architecture. This is wrong and inconsistent with the express language of the specification and the
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`claims themselves, as well as the prosecution history, which distinguish the client device from
`
`servers in the disclosed server – client device – web server architecture. See e.g. ECF 126-2 at
`
`claim 1; see also Ex. G, LUM-00149134 (“It is respectfully submitted that the conventional
`
`arrangement involves fetching data by a client device from a server device, while the claims
`
`disclose a server receiving information from another server via a client device, which is unique
`
`and solves a specific problem such as anonymity when fetching information.”)
`
`Second, Defendants mischaracterize Luminati’s opposition to Defendants’ motion to
`
`dismiss, arguing incorrectly that Luminati had admitted that a client device can be a server. This
`
`is false. Luminati took the opposite position throughout its briefing that the terms “client device”
`
`and “server” require construction because they are not interchangeable. ECF 24 at 4; ECF 28 at
`
`24; ECF 47 at 4-8. Ignoring Luminati’s briefing, Defendant took a modified exemplary figure out
`
`of context. Id. For example, as detailed in the Luminati’s Reply brief:
`
`In the Opposition, Figure 3 of the ’319 and ‘510 Patents and 12a of the ’614 Patent
`are used to illustrate the lines of communication showing the steps performed by
`the proxy client device. Defendants attempt to use these specific figures to
`improperly limit the express language by mischaracterizing Luminati as “view[ing]
`a ‘server’ and ‘client to be broad enough to encompass one another.” Reply at 4, 5.
`This is not true as Luminati provided extensive support from the specifications of
`the Asserted Patents distinguishing between client devices and servers. See e.g.
`
`ECF 47 at 8. The claims clearly distinguish between a client device and a server, and Luminati
`
`never argued or admitted otherwise.
`
`Third, extrinsic evidence can’t change the express language of the specification and patent
`
`claims that distinguish servers from client devices. Furthermore, there is no basis to read “device”
`
`out of “client device.” That a client device may function as a client does not stop it from also being
`
`a consumer device, distinct and different from servers. Fourth, the claim construction of “client
`
`device” from the Tesonet case involved a different patent family that does not share the
`
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`specification of the ’319 and ’510 Patents. Consistent with the claim language, the definition
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`provided by the specification and the detailed discussion therein, a “client device” should be
`
`construed to mean “consumer computer.”
`
`B.
`
`First Server (First Family)
`
`Defendants concede that the first server is a web server. Oppn. at 8. To help minimize jury
`
`confusion between the patent claims, it would be helpful to construe the “first server” of the ’319
`
`Patent as a “web server,” consistent with the other Asserted Patents. 1
`
`C.
`
`Second Server (First Family)
`
`Defendants concede that the first server is a web server, and they make clear why
`
`Luminati’s proposed constructions are necessary when they then argue that “the claim does not
`
`recite that the ‘second server’ is not the client device or web server.” Oppn. at 8. To clarify that
`
`these are separate components and help minimize jury confusion between the patent claims, the
`
`“second server” of the ’319 and ’510 Patents should be construed.
`
`D.
`
`Client Device (Second Family)
`
`While the ’319 and ’510 Patents are from a separate family with a different specification,
`
`the ’614 Patent also recites a method that employs the same server – client device – web server
`
`architecture with steps performed by the client device. Defendants concede that the patentee
`
`overcame prior art during prosecution by expressly asserting “the Action equates the various
`
`recited steps to action performed by the server device 106 server device 106, which is clearly a
`
`server device and NOT a client device.” ECF 126-6 at LUM-00148122. (underlining added, all
`
`
`1 As an unintentional illustration of potential confusion, which the requested claim construction
`would prevent, Plaintiff’s opening brief included a typographical error on page 4 switching the
`words “first” and “second” before the respective servers, although the color coding and use of
`“web server” is accurate. ECF 126 at 4.
`
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`caps in original). This constitutes prosecution history disclaimer, in contrast to Defendants’
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`incorrect assertion that the prosecution says nothing about “the types of computers or computer
`
`devices that may serve in the role of a client.” The Patentee could not be clearer: a server is “NOT
`
`a client device.” Defendants argue that the patent specification does not define client device
`
`sufficiently for a disclaimer of scope, but ignore the patent prosecution history.
`
`Similarly, the patent specification distinguishes between devices and servers and
`
`functionalities “in the meaning of client/server architecture” (ECF 126-4 at 119:20-29):
`
`Each of the devices denoted herein as servers, such as the acceleration server 32,
`the data server #1 22a, the data server #2 22b, and the acceleration server 202, may
`typically function as a server in the meaning of client/server architecture, providing
`services, functionalities, and resources, to other devices (clients), commonly in
`response to the clients' request.
`
`….
`
`Devices that are not denoted herein as servers, such as client devices (such as
`the client device #1 31a, the client device #2 31b, or the client device #1 201a),
`tunnel devices (such as the tunnel device #1 33a or the tunnel device #2 33b), agent
`devices (such as the agent device #1103a or the agent device #2 103b), or peer
`devices (such as the peer device #1102a or the peer device #2 102b), may typically
`function as a client in the meaning of client/server architecture, commonly initiating
`requests for receiving services, functionalities, and resources, from other devices
`(servers or clients). Each of [SIC] these devices may further employ, store,
`integrate, or operate a client-oriented (or end-point dedicated) operating system,
`such as Microsoft Windows®….”
`
`ECF 126-4 at 118:64-119:3; 119:22-34 (emphasis added). The patent specification clearly
`
`distinguishes between client devices and servers. However, while client devices and servers may
`
`“typically function” as a client or server respectively in “the meaning of client/server architecture,”
`
`the client device of the claims also functions as a server in the meaning of the client/server
`
`architecture. This innovation makes the server–client device–web server architecture of the
`
`claims possible. Defendants seek to rewrite the claim terms as merely requiring a computer –
`
`computer - computer architecture in contrast to the clear language of the claims.
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`The claim construction order from the Tesonet Case was entered regarding different patents
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`without the prosecution history estoppel found in the ’614 Patent. ECF 126-7 at 51. Defendants
`
`propose plain and ordinary meaning, essentially conceding that the claim construction from the
`
`Tesonet Case is inappropriate at least with regard to the ’614 Patent. However, Defendants are
`
`wrong in asking the Court to ignore the prosecution history of the ’614 Patent and in so doing
`
`incorrectly argue that the “plain meaning” of client device and servers makes them
`
`interchangeable.
`
`For the first time, Defendants propose in the alternative that the “client device” be
`
`construed as a “device in the role of a client,” but this construction illustrates the problem of
`
`attempting to define the proxy client device by function. For example, Independent claim 1
`
`discloses the same client device performing both the steps of “sending, by the client device, the
`
`first content identifier to the web server” and “sending, by the client device the received first
`
`content to the first server.” These steps are consistent with the client device both “initiating
`
`requests for receiving … resources” performing the functionality of a client in the first step and
`
`“providing…resources” performing the functionality of a server in the second step. However,
`
`under Defendants’ approach, the same client device could not satisfy Defendants’ proposed
`
`alternative construction for the second step where the client device is not functioning “in the role
`
`of a client.” Such construction is contradicted by the claims themselves.
`
`Consistent with the clear language of the claims,2 the specification and the patentee’s
`
`position during prosecution, Luminati asks for a claim construction clarifying that client devices
`
`use a client dedicated operating system.
`
`
`2 Defendants also assert that dependent claim 9 adds the limitation of using a client operating
`system, but ignores that this dependent claim includes limitations such as the “storing” of a client
`operating system that are not included in Luminati’s proposed construction for client device.
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`E.
`
`First Server (Second Family)
`
`For the same reasons discussed above with regard to “client device,” the claims,
`
`specification and patent prosecution history of the ’614 Patent distinguish between “client devices”
`
`and “servers” in the claimed method utilizing the server – client device – web server architecture.
`
`To help minimize jury confusion between the patent claims, it would be helpful to give “first
`
`server” of the ’614 Patent Luminati’s proposed construction.
`
`III.
`
`THE CLAIM TERMS ARE NOT INDEFINITE
`
`In addition to the above claim construction issues, Defendants have raised a number of
`
`additional issues they assert are related to indefiniteness. Plaintiff disagrees. Following Nautilus,
`
`35 U.S.C. § 112 requires that “a patent’s claims, viewed in light of the specification and
`
`prosecution history, inform those skilled in the art about the scope of the invention with reasonable
`
`certainty.” Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). If the claim
`
`language “inform[s], with reasonable certainty, those skilled in the art about the scope of the
`
`invention[,]” it is not indefinite. Id. at 2124. Additionally, a patent claim is not indefinite if
`
`“someone working in the relevant technical field could understand the bounds of a claim.” Traxxas
`
`LP v. Hobby Prods. Int’l, No. 2:14-CV-945-JRG-RSP, 2015 U.S. Dist. LEXIS 114148, at *8 (E.D.
`
`Tex. Aug. 27, 2015) (emphasis added). Many of Defendant’s indefiniteness challenges rely on
`
`antecedent basis arguments, but lack of antecedent basis “does not constitute per se grounds for
`
`invalidity; instead … the law requires a clear and convincing showing that one of ordinary skill
`
`cannot reasonably ascertain claim scope.” Optimum Imaging Techs. LLC v. Canon Inc., No. 2:19-
`
`CV-00246-JRG, 2020 U.S. Dist. LEXIS 102126, *25 (E.D. Tex. June 11, 2020) (citing Nautilus).
`
`A.
`
`Not Indefinite: “The First IP Address” / “The First Client IP Address”
`
`Lack of antecedent basis by itself is insufficient to find a term indefinite. OIT, 2020 U.S.
`
`Dist. LEXIS 102126, at *25. From the context of claim 2 of the ‘319 and ‘510 patents, “the client
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`device is identified by a media Access Control (MAC) address or a hostname,” and the first [client]
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`IP address is included in the subsequent list of terms “the first [client] IP address, the MAC address,
`
`or the hostname” in that claim limitation. A POSA would know that the “first IP address” identifies
`
`the client device, given the context of the claim and the specific list incorporated therein. As Dr.
`
`Rhyne stated in his declaration, “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.” Ex. D at ¶ 15. The same applies equally
`
`to “first client IP address” in the ’510 patent, and the fact that the same language was used
`
`regarding a related patent further clarifies to a POSA that the IP address is for the first client device.
`
`See Microsoft Corp. v. Multi-Tech Sys., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (looking to related
`
`patent to inform as to claim construction). Similarly, whether or not a client device could be
`
`identified by other IP addresses is irrelevant to the claim and in no way renders it indefinite.
`
`Not Indefinite: “Determining, By The First Client Device, That The Received
`B.
`First Content, Is Valid” / “The Determining Is Based On The Received HTTP
`Header According To, Or Based On IETF RFC 2616”
`
`Defendants ignore the clear guidance from the specification regarding the meaning of the
`
`term “determining … that the received first content, is valid” (ECF 126-2 at 14:32-38) and the
`
`dependent claim’s reference to “IETF RFC 2616” (Id. at 20:24-26) as the basis for determining.
`
`These terms are not indefinite as “someone working in the relevant technical field could
`
`understand the bounds of a claim.” Traxxas LP, 2015 U.S. Dist. LEXIS at *8. In addition,
`
`Defendants are wrong to the extent that they assert indefiniteness based on the breadth of the
`
`claims. “[B]readth is not indefiniteness.” BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360,
`
`1367 (Fed. Cir. 2017).
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`Similarly, lack of antecedent basis by itself is insufficient to find a term indefinite. OIT,
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`2020 U.S. Dist. LEXIS 102126, at *25. The preambles of independent claim 1 for both patents
`
`refer to a web server that responds to HTTP requests. A POSA would understand with reasonably
`
`certainty that the “received HTTP header” refers to the HTTP content associated with the first
`
`content consistent with Dr. Rhyne’s opinion. ECF 126-2 at ¶ 19. Instead of analyzing this term in
`
`the context of the claims, Defendants assert that the term “header” can have many meanings
`
`outside of the claims. This argument is irrelevant and these terms should not be found indefinite.
`
`C.
`
`Not Indefinite: “Periodically Communicating”
`
`Defendants continue to wrongly confuse breadth with definiteness in their analysis of
`
`“periodically communicating.” BASF Corp. 875 F.3d at 1367 (“[B]readth is not indefiniteness.”)
`
`Consistent with Dr. Rhyne’s opinion (ECF 126-5 at ¶ 21), a POSA would understand with
`
`reasonable certainty that the limitation of “periodically communicating” is narrower than claim 1,
`
`while still being broader than the dependent claims that specify that “the periodically
`
`communicating comprises exchanging ‘keep alive’ messages.” ECF 126-2 at claim 18. The term
`
`does not require a specific interval or number of communications, and Defendants arguments in
`
`this regard point to breadth, not definiteness.
`
`D.
`Not Indefinite: “In Response To The Receiving Of The First Content
`Identifier”
`
`Lack of antecedent basis by itself is insufficient to find a term indefinite. OIT, 2020 U.S.
`
`Dist. LEXIS 102126, at *25. A POSA would understand with reasonable certainty that “in
`
`response to the receiving of the first content identifier” means “in response to receiving of the first
`
`content identifier.” A POSA would not need a separate antecedent receiving step to understand the
`
`scope of the claim with reasonable certainty. Defendants argue that claim construction requires
`
`claim 15 to be narrower than claim 1, but do not disclose that claim 15 expressly requires additional
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`limitations including “receiving, by the first client device from the second server, over the
`
`established TCP connection, the first content identifier.” (emphasis added). Regardless, “breadth
`
`is not indefiniteness.” BASF Corp. 875 F.3d at 1367. A POSA would understand the scope of the
`
`claim with reasonable certainty as requiring “sending the received first content, to the second
`
`server over the established TCP connection, in response to the receiving of the first content
`
`identifier.” ECF 126-3 at 19:29-31. Defendants’ attempts to add limitations are improper.
`
`The Sending Of The Hypertext Transfer Protocol (HTTP) Request /
`E.
`Receiving And Storing Of The First Content / The Sending Of The Part Of, Or The
`Whole Of, The Stored First Content
`
`Defendants continue to ignore the context of the claims in arguing for lack of antecedent
`
`basis, despite lack of antecedent basis being insufficient by itself to find the terms indefinite. OIT,
`
`2020 U.S. Dist. LEXIS 102126, at *25. Dependent claim 13 provides “a 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….” ECF 126-3 at 20:26-34. Each of the
`
`three terms challenged are to be properly analyzed in the context of this claim language and
`
`independent claim 1. First, a POSA would understand with reasonable certainty that the HTTP
`
`request refers to the “sending, to the web server over an Internet, the first content identifier” given
`
`that the “web server…responds to Hypertext Transfer Protocol (HTTP) requests.
`
`Defendants argue for the purposes of claim 13 that a POSA would only understand the web
`
`server as having storage (Oppn. at 2), but this is belied by the fact that Defendants elsewhere
`
`conceded that a client device must have “at least one storage device.” ECF 138 at 2. Further, a
`
`POSA would understand with reasonable certainty that the client device has a storage, and claim
`
`13 adds the storing of the first content by the first client device. In Dr. Rhyne’s opinion, “[a] POSA
`
`would understand from the common specification that software may be stored on the client device
`
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`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.” ECF 126-5 at ¶ 27.
`
`Finally, Defendants’ argument is similarly nonsensical with regard to the “sending of the
`
`… stored first content.” A POSA would understand with reasonable certainty that the claim refers
`
`to the software application on the first client device and that the first content is stored on the client
`
`device. ECF 126-5 at ¶ 29. This is consistent with the remainder of claim 13 reciting the
`
`downloading and installing of the software application by the first client device.
`
`F.
`
`The Steps Are Sequentially Executed
`
`Claim 1 of the ’614 Patent includes two sets of steps involving the client device “associated
`
`with first and second state according to a utilization of the resource” followed by “performing a
`
`task, by the client device,” which is “further configured for fetching over the Internet a first content
`
`… and the task comprising….” (emphasis added). Here, despite the clear antecedent basis for
`
`“the task,” Defendants appear to wrongly understand this claim as involving two separate tasks,
`
`each of which must be performed one after the other. However, as this is the same task, Defendants
`
`clearly misread the claim. A POSA would understand with reasonable certainty that the first set
`
`of steps would be performed and, if those steps result in the client device being in the first state
`
`and receiving a request, then the client device would proceed by performing the task comprising
`
`each of the remaining steps for fetching content in sequential order. ECF 126-5 at ¶ 36.
`
`IV. CONCLUSION
`
`For the foregoing reasons, Plaintiff respectfully requests that the Court enter its proposed
`
`constructions as set forth above, and find that none of the claims is indefinite.
`
`
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`Dated: October 20, 2020
`
`Respectfully submitted,
`
`By: /s/ Korula T. Cherian
`J. Mark Mann
`State Bar No. 12926150
`mark@themannfirm.com
`G. Blake Thompson
`State Bar No. 24042033
`blake@themannfirm.com
`MANN | TINDEL | THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`(903) 657-8540
`(903) 657-6003 (fax)
`
`Robert Ruyak
`Corrine Saylor Davis
`Ronald Wielkopolski
`RuyakCherian LLP
`1901 L St. NW, Suite 700
`Washington, DC 20036
`robertr@ruyakcherian.com
`ronw@ruyakcherian.com
`corrinesd@ruyakcherian.com
`
`Korula T. Cherian
`Robert Harkins
`RuyakCherian LLP
`1936 University Ave, Ste. 350
`Berkeley, CA 94702
`sunnyc@ruyakcherian.com
`bobh@ruyakcherian.com
`
`S. Calvin Capshaw
`State Bar No. 03783900
`Elizabeth L. DeRieux
`State Bar No. 05770585
`Capshaw DeRieux, LLP
`114 E. Commerce Ave.
`Gladewater, TX 75647
`Telephone: 903-845-5770
`ccapshaw@capshawlaw.com
`ederieux@capshawlaw.com
`
`Attorneys for Plaintiff
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`Luminati Networks Ltd.
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