Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 1 of 36 PageID #: 853
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`
`Case No. 2:19-cv-396-JRG
`
`
`LUMINATI NETWORKS LTD.
`
`
`
`
`
`Plaintiff,
`
`v.
`
`CODE200, UAB; OXYSALES, UAB;
`METACLUSTER LT, UAB;
`
`
`Defendants.
`
`
`
`
`LUMINATI’S OPENING CLAIM CONSTRUCTION BRIEF
`(LOCAL PATENT RULE 4-5(a))
`
`
`
`Data Co Exhibit 1101
`Data Co v. Bright Data
`IPR2022-00135
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 2 of 36 PageID #: 854
`
`I.
`II.
`
`TABLE OF CONTENTS
`INTRODUCTION............................................................................................................. 1
`FACTUAL AND PROCEDURAL BACKGROUND .................................................... 1
`A. The Patents-in-Suit ........................................................................................................ 1
`B. The Asserted Claims ...................................................................................................... 4
`LEGAL STANDARDS FOR CLAIM CONSTRUCTION ........................................... 6
`III.
`LEVEL OF ONE OF ORDINARY SKILL IN THE ART ............................................ 8
`IV.
`AGREED UPON TERMS FOR CONSTRUCTION ..................................................... 8
`V.
`TERMS CONSTRUED BY THIS COURT REGARDING RELATED PATENTS .. 9
`VI.
`VII. DISPUTED TERMS FOR CLAIM CONSTRUCTION ............................................. 10
`A. Client Device ................................................................................................................. 10
`B. First Server ................................................................................................................... 13
`C. Second Server ............................................................................................................... 14
`VIII. THE “INDEFINITENESS” ARGUMENTS MADE BY DEFENDANTS DO NOT
`SUPPORT INDEFINITENESS AND ARE NOT CLAIM CONSTRUCTION
`DISPUTES ....................................................................................................................... 16
`A. Not Indefinite: “Sending…the First Content Identifier to the Web Server Using
`the Selected IP Address” / “Sending…to the Web Server Using the Selected IP
`Address” ...................................................................................................................... 17
`B. Not Indefinite: “A Response Time When Communicating” .................................... 20
`C. Not Indefinite: “Source Address”............................................................................... 21
`D. Not Indefinite: “For Use With A Web Server That Is A HTTP Or HTTPS Server
`That Respectively Responds To HTTP Or HTTPS Requests And Stores A First
`Content Identified By A First Content Identifier” .................................................. 22
`E. Not Indefinite: “Receiving … From The Second Server Using The Selected IP
`Address” ...................................................................................................................... 24
`F. Not Indefinite: “Determining … That The Received Part Of, Or The Whole Of,
`The First Content, Is Valid” & “The Determining Is Based On A Received HTTP
`Header According To, Or Based On IETF RFC 2616” .......................................... 26
`This Court Has Already Rejected Indefiniteness Arguments Regarding Near Identical
`1.
`Terms from the Same Family of Patents .................................................................................... 26
`2.
`These Terms Are Not Indefinite ....................................................................................... 27
`G. Not Indefinite: “Periodically Communicating” ........................................................ 29
`This Court Has Already Rejected Indefiniteness Arguments Regarding the Identical Term
`1.
`from the Same Family of Patents .............................................................................................. 29
`2.
`This Term Is Not Indefinite ............................................................................................. 29
`
`i
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 3 of 36 PageID #: 855
`
`IX.
`
`CONCLUSION ............................................................................................................... 30
`
`
`
`
`
`
`
`ii
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 4 of 36 PageID #: 856
`
`TABLE OF AUTHORITIES
`
`
`
`Cases
`
`Bancorp Servs. L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367 (Fed. Cir. 2004) ....................... 17
`
`BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360 (Fed. Cir. 2017) .................................. 28, 29
`
`Danco, Inc. v. Fluidmaster, Inc., No. 5:16-cv-73-JRG-CMC, 2017 U.S. Dist. LEXIS 155936
`(E.D. Tex. Sep. 22, 2017) ............................................................................................................ 8
`
`Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342 (Fed. Cir. 2005) ............................... 16
`
`Energizer Holdings v. International Trade Com’n, 435 F.3d 1366 (Fed. Cir. 2006) ................... 16
`
`Gilead Scis. v. Mylan Inc., No. 1:14CV99, 2015 U.S. Dist. LEXIS 44558 (N.D.W. Va. Apr. 6,
`2015).......................................................................................................................................... 17
`
`Huawei Techs. Co. v. T-Mobile US, Inc., No. 2:16-CV-00057-JRG-RSP, 2017 U.S. Dist. LEXIS
`96097 (E.D. Tex. June 21, 2017) .......................................................................................... 7, 15
`
`Markman v. Westview Instr., Inc., 517 U.S. 370 (1996) ................................................................. 6
`
`Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014) .................................... passim
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351 (Fed. Cir. 2008) .................. 7
`
`On-Line Tech. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133 (Fed. Cir. 2004) ............... 8
`
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005)................................................................. 7
`
`SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331 (Fed. Cir. 2005) ............................. 28
`
`Tate Access Floors, Inc. v. Interface Architectural Res., Inc. 279 F.3d 1357 (Fed. Cir. 2002) ... 17
`
`Tech. Licensing Corp. v. Videotek, Inc., 545 F.3d 1316 (Fed. Cir. 2008) .................................... 16
`
`Teva Pharmaceuticals USA v. Sandoz, Inc., 135 S.Ct. 831 (2015) ................................................ 7
`
`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) ................................................................................................... 16, 27
`
`VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308 (Fed Cir. 2014) .................................................... 8
`
`Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996) ....................................... 7, 8
`
`iii
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 5 of 36 PageID #: 857
`
`Statutes
`
`35 U.S.C. § 282 ............................................................................................................................. 16
`
`iv
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 6 of 36 PageID #: 858
`
`I.
`
`INTRODUCTION
`
`Derry Shribman and Ofer Vilenski, founders of Plaintiff Luminati Networks Ltd.
`
`(“Luminati”), invented new methods for fetching content from a target web server over the Internet
`
`using a client device – server - web server architecture. The inventions include methods whereby
`
`a server or client device selects an IP address from a group of IP addresses for use in requesting
`
`the content from the web server. These inventions are claimed U.S. Patent Nos. 10,484,511 (the
`
`“’511 Patent,” Ex. A) and 10,637,968 (“‘968 Patent”) (collectively the “Patents-in-Suit” or
`
`“asserted patents”). Using this novel method permits a user to access content from a server that
`
`might otherwise block the request or return a fake response. For example, a retailer can use this
`
`service to request pricing data from a competitor by appearing to that competitor as a potential
`
`customer to ensure the retailer receives the same information that customers receive.
`
`The claim terms at issue in this case are not indefinite and should be afforded their plain
`
`and ordinary meaning. In some cases, however, additional clarification is important because under
`
`the rubric of “plain meaning” Defendants in fact deviate from the plain meaning of the claim terms
`
`as used in the patents in light of the clear prosecution history by interpreting “servers” and “client
`
`devices” as interchangeable. As used in these patents, they are not. Defendants also assert
`
`indefiniteness as to a variety of claim terms, but such arguments are baseless as these claims were
`
`properly issued by the Patent Office and entitled to the presumption of validity.
`
`
`
`II.
`
`FACTUAL AND PROCEDURAL BACKGROUND
`A.
`
`The Patents-in-Suit
`
`The Patents-in-Suit are directed to architecture and methods for fetching content over the
`
`Internet. The ’511 and ’968 Patents, filed on February 17, 2019 and April 28, 2019 respectively,
`
`share a common specification claiming priority to the same provisional application filed on
`
`1
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 7 of 36 PageID #: 859
`
`October 8, 2009. The patents are titled: “System Providing Faster and More Efficient Data
`
`Communication.” The asserted patents claim methods utilizing a client device - server – web
`
`server architecture, where an IP address is selected from a group for use in fetching content from
`
`the web server. Figure 1 of the ’511 and ‘968 Patents showed that traditional proxy servers merely
`
`provided an interface between client devices and the Internet:
`
`The ’511 and ‘968 Patents solve the above described problems including the “need for a new
`
`method of data transfer that is fast for the consumer, cheap for the content distributor and does not
`
`require infrastructure investment for ISPs” through a client device – server - web server
`
`architecture, which includes the functionality of selecting and using an IP address from a group of
`
`IP addresses by the first server in the case of the ‘511 Patent or by the requesting client device in
`
`the case of the ‘968 Patent. For example, an IP address can be selected based on a response time.
`
`See e.g. ‘511 Patent at 20:29-31; ‘968 Patent at 19:36-38.
`
`As addressed by Dr. Rhyne in paragraphs 10-11 of his declaration attached as Exhibit C,
`
`the ’511 and ‘968 Patents claim methods reciting steps being performed by server or client device
`
`2
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 8 of 36 PageID #: 860
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`respectively:
`
`As set forth in the preamble of independent claim 1 of the ’511 Patent, the
`10.
`first server stores a group of IP addresses. Claim 1 of the ’511 Patent recites “the
`method by the first server” and includes the step of “selecting, in response to the
`receiving of the first content identifier from the first client device, an IP address
`from the group.” In contrast, claim 1 of the ’968 Patent includes the steps of
`“identifying, by the requesting client device, an HTTP or HTTPS request for the
`first content” and “selecting, by the requesting client device, an IP address from
`the list.”
`
`Separate from the selecting and/or identifying steps of claim 1 of the ’511
`11.
`and ‘’968 Patents, each independent claim includes a series of sending and/or
`receiving steps corresponding to the above-described client device (cid:316)(cid:3)first/second
`server (cid:316)(cid:3)web server architecture. To illustrate these sending/receiving steps, I
`have modified Figure 1 as shown below. The “client 16,” “proxy server 6,” and
`“web server 32” of Figure 1 are examples of a “client device,” “first/second
`server”, and “web server” of the claims, with the numbered arrows corresponding
`with the bracketed letters identifying the sending/receiving elements of the claims
`as shown in the annotated table following the figure.
`
`A
`
`D
`
`B
`
`C
`
`3
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 9 of 36 PageID #: 861
`
`’511 Patent
`1. A method for fetching, by a first client
`device, a first content identified by a first
`content identifier and stored in a web server,
`for use with a first server that stores a group
`of IP addresses, the method by the first
`server comprising:
`[A] receiving, from the first client
`device, the first content identifier;
`selecting, in response to the receiving
`of the first content identifier from the first
`client device, an IP address from the group;
`[B] sending, in response to the
`selecting, the first content identifier to the
`web server using the selected IP address;
`[C] receiving, in response to the
`sending, the first content from the web
`server; and
`[D] sending the received first content
`to the first client device,
`wherein the first content comprises a
`web-page, an audio, or a video content, and
`wherein the first content identifier comprises
`a Uniform Resource Locator (URL).
`
`’968 Patent
`1. A method for use with a requesting client
`device that comprises an Hypertext Transfer
`Protocol (HTTP) or Hypertext Transfer
`Protocol Secure (HTTPS) client, for use with
`a first web server that is a HTTP or HTTPS
`server that respectively responds to HTTP or
`HTTPS requests and stores a first content
`identified by a first content identifier, for
`use with a second server distinct from the
`first web server and identified in the Internet
`by a second IP address, and for use with a list
`of IP addresses, the method comprising:
`identifying, by the requesting client
`device, an HTTP or HTTPS request for the
`first content;
`selecting, by the requesting client
`device, an IP address from the list;
`[A] sending, by the requesting client
`device, to the second server using the second
`IP address over the Internet in response to the
`identifying and the selecting, the first content
`identifier and the selected IP address; and
`[D] receiving, by the requesting client
`device, over the Internet in response to the
`sending, from the second server using the
`selected IP address, the first content.
`
`B.
`
`The Asserted Claims
`
`The ’511 Patent claims recite a method performed by a server in a client device – server -
`
`web server architecture where the server selects IP addresses from a group of IP addresses for use
`
`in fetching content from a web server (ECF 22 at ¶¶ 32-35, 83; ECF 22-4 at 19:16-33):
`
`Client
`Device
`
`Server
`IP Address 1
`IP Address 2
`
`Selected
`IP Address
`
`Web
`Server
`
`4
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 10 of 36 PageID #: 862
`
`In the present action, Luminati asserts infringement of independent claim 1 and dependent
`
`claims 14, 17, 20, 21, 22, 25, 27, 28, 29 and 30 of the ’511 Patent, and independent claim 1 and
`
`dependent claims 2, 8, 9, 11, 12, 15, 17, 18, 21, 26, 27, and 28 of the ’968 Patent.
`
`Representative independent claim 1 of the ’511 Patent claims as follows:
`
`1. A method for fetching, by a first client device, a first content identified by a first
`content identifier and stored in a web server, for use with a first server that stores
`a group of IP addresses, the method by the first server comprising:
`receiving, from the first client device, the first content identifier;
`selecting, in response to the receiving of the first content identifier from the first
`client device, an IP address from the group;
`sending, in response to the selecting, the first content identifier to the web server
`using the selected IP address;
`receiving, in response to the sending, the first content from the web server; and
`sending the received first content to the first client device, wherein the first
`content comprises a web-page, an audio, or a video content, and wherein the
`first content identifier comprises a Uniform Resource Locator (URL).
`
`Ex. A at 19:16-33 (annotated)
`
`The ’968 Patent claims recite a method performed by a client device in a similar client
`
`device-server-web server architecture, but it is the client device that selects IP addresses from a
`
`group of IP addresses. (Complaint at ¶¶ 39-41, 101; ECF 22-5 at 19:16-35):
`
`Server
`
`IP Address 1
`
`Web
`Server
`
`Client
`Device
`
`Selects
`IP Address 1
`
`Representative independent claim 1 of the ’968 Patent claims as follows:
`
`1. A method for use with a requesting client device that comprises an Hypertext
`Transfer Protocol (HTTP) or Hypertext Transfer Protocol Secure (HTTPS) client,
`for use with a first web server that is a HTTP or HTTPS server that respectively
`responds to HTTP or HTTPS requests and stores a first content identified by a first
`content identifier, for use with a second server distinct from the first web server
`
`5
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 11 of 36 PageID #: 863
`
`and identified in the Internet by a second IP address, and for use with a list of IP
`addresses, the method comprising:
`identifying, by the requesting client device, an HTTP or HTTPS request for the
`first content;
`selecting, by the requesting client device, an IP address from the list;
`sending, by the requesting client device, to the second server using the second
`IP address over the Internet in response to the identifying and the selecting,
`the first content identifier and the selected IP address; and
`receiving, by the requesting client device, over the Internet in response to the
`sending, from the second server using the selected IP address, the first
`content.
`
`Ex. B at 19:16-35 (annotated)
`
`Dependent claim 17 of the ’511 Patent adds to claim 1 the element of “wherein the criterion
`
`is based on, or comprises, a response time when communicating.” Dependent and claim 2 of the
`
`’968 Patent Dependent claims 14 adds to claim 1 the element of “wherein the selecting is further
`
`based on a response time when communicating with the [requesting] client device” a response time
`
`when communicating.” Dependent claim 25 of the ’511 Patent adds to claim 1 the element of
`
`“wherein sending of the first content identifier to the web server comprises using the selected IP
`
`address as a source address.” Dependent claim 8 of the ’968 Patent adds to claim 1 the element of
`
`“further comprising determining, by the requesting client device, that the received part of, or the
`
`whole of, the first content, is valid.” Dependent claim 10 of the ’968 Patent adds to claim 8 the
`
`element of “wherein the determining is based on the received HTTP header according to, or based
`
`on, IETF RFC 2616.” Dependent claim 15 of the ’968 Patent respectively adds to claim 1 “further
`
`comprising periodically communicating between the second server and the first client device.”
`
`III. LEGAL STANDARDS FOR CLAIM CONSTRUCTION
`
`The proper construction of any disputed terms within a patent claim is exclusively within
`
`the province of the court. Markman v. Westview Instr., Inc., 517 U.S. 370, 372 (1996). Although
`
`the ultimate issue of claim construction is a question of law, claim construction may contain
`
`6
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 12 of 36 PageID #: 864
`
`evidentiary underpinnings; thereby involving questions of fact. Teva Pharmaceuticals USA v.
`
`Sandoz, Inc., 135 S.Ct. 831, 838 (2015).
`
`Claim terms that form key disputes between the parties require construction. O2 Micro
`
`Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008). Also, courts
`
`should provide clarifying constructions when they will help the jury understand the terms as used
`
`in the claims (and may decline to adopt constructions that would instead cause juror confusion).
`
`Huawei Techs. Co. v. T-Mobile US, Inc., No. 2:16-CV-00057-JRG-RSP, 2017 U.S. Dist. LEXIS
`
`96097, at *33 (E.D. Tex. June 21, 2017). For claim construction courts will look to intrinsic
`
`evidence (claim language, specification, and prosecution history), and, if helpful and needed,
`
`extrinsic evidence (dictionaries, treatises, experts, and the like). Vitronics Corp. v. Conceptronic,
`
`Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). “[E]xtrinsic evidence may be useful to the court, but it
`
`is unlikely to result in a reliable interpretation of patent claim scope unless considered in the
`
`context of the intrinsic evidence.” Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed. Cir. 2005)
`
`(en banc).
`
`With respect to the written description, i.e., the patent specification, it is “entirely
`
`appropriate for a court, when conducting claim construction, to rely heavily on the written
`
`description for guidance as to the meaning of the claims.” Phillips, 415 F.3d at 1317. “[W]e cannot
`
`look at the ordinary meaning of [a] term … in a vacuum. Rather, we must look at the ordinary
`
`meaning in the context of the written description and the prosecution history.” Id. at 1313.
`
`Extrinsic evidence “may be useful to the court, but it is unlikely to result in a reliable
`
`interpretation of patent claim scope unless considered in the context of the intrinsic evidence.”
`
`Phillips, 415 F.3d at 1319. It “cannot be used to alter a claim construction dictated by a proper
`
`analysis of the intrinsic evidence.” On-Line Tech. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d
`
`7
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 13 of 36 PageID #: 865
`
`1133, 1139 (Fed. Cir. 2004); see also VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1317 (Fed
`
`Cir. 2014). “Claim constructions that read out a preferred embodiment are rarely, if ever, correct.”
`
`Danco, Inc. v. Fluidmaster, Inc., No. 5:16-cv-73-JRG-CMC, 2017 U.S. Dist. LEXIS 155936, at
`
`*17 (E.D. Tex. Sep. 22, 2017) (citing Vitronics, 90 F.3d at 1583-84).
`
`IV.
`
`LEVEL OF ONE OF ORDINARY SKILL IN THE ART
`
`Consistent with Plaintiff’s P.R. 4-3 disclosures, with regard to the Patents-in-Suit, “a
`
`person of ordinary skill in the art (“POSA”) would be an individual who, as of October 8, 2009,
`
`the filing date of the provisional application, had a Master’s Degree or higher in the field of
`
`Electrical Engineering, Computer Engineering, or 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.” Rhyne Declaration at ¶ 4.
`
`V.
`
`AGREED UPON TERMS FOR CONSTRUCTION
`
`The parties jointly ask the Court to include these constructions in its order:
`
`Claim Term / Phrase
`
`Preamble
`
`’511 Pat. Claim 1; ’968 Pat. Claim 1
`
`Agreed Proposed Construction
`
`Limiting
`
`“selecting, in response to the receiving of the first
`content identifier, an IP address from the group”
`
`Plain and ordinary meaning
`
`’511 Pat. Claim 1
`
`8
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 14 of 36 PageID #: 866
`
`VI.
`
`TERMS CONSTRUED BY THIS COURT REGARDING RELATED PATENTS
`
`In the case of Luminati Networks Ltd. v. Teso LT, UAB et al., Case No. 2:19-cv-293-JRG
`
`(“Teso Case”),1 this Court recently issued a claim construction order (Ex. D, Dkt. 191) on patents
`
`from the same family as the Asserted Patents sharing a common specification involving some of
`
`the same claim terms at issue in this case. Here are the relevant prior constructions this Court
`
`entered, which are provided here for the Court’s convenience:
`
`Claim Term / Phrase
`
`“client device”
`
`’319 Patent cls.1, 2, 14, 17, 22, 24, and 25; ’510 Patent
`cls.1, 2, 8,10, 13, 15, 18, and 19
`
`“first server”2
`
`’319 Pat. Claim 1, 21
`
`“second server”
`
`’319 Pat. Claim 1, 17, 21, and 24; ’510 Pat. Claims 1, 2,
`8, 15, and 18
`
`Court’s Claim Construction
`
`“communication device that is
`operating in the role of a client.”
`
`
`Plain and ordinary meaning
`
`“server that is not the client
`device”
`
`“determining, by the first client device, that the received
`first content, is valid”
`’319 Pat. Claim 14; ’510 Pat. Claim 10
`
`Not Indefinite
`
`“the determining is based on the received HTTP header
`according to, or based on, IETF RFC 2616”
`’319 Pat. Claim 15; ’510 Pat. Claim 11
`
`Not Indefinite
`
`“periodically communicating”
`’319 Pat. Claim 17; ’510 Pat. Claim 8
`
`Not Indefinite
`
`
`1 While certain Defendant names differ, Defendants in this case are part of a family of companies
`that present themselves to the public as “Oxylabs” and are each represented by the same counsel
`in this case.
`2 It is important to note that the preamble of claim 1 of the ’319 Patent recites “for use with a first
`server that comprises a web server….” Consequently, the first server of the ’319 Patent claims is
`not the “first server” of the ’511 Patent.
`
`9
`
`

`

`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 15 of 36 PageID #: 867
`
`VII. DISPUTED TERMS FOR CLAIM CONSTRUCTION
`A.
`
`Client Device
`
`Claim Term
`“client device” / “requesting
`client device”
`
`(’968 Pat., cl. 1, 2, 14, 17, 22, 24,
`and 25; ’510 Pat., cl. 1, 2, 8, 10,
`13, 15, 18, and 19)
`
`Plaintiff’s Proposal
`“Consumer computer”
`or, in the alternative,
`“communication device that is
`operating in the role of a
`client.”
`
`
`Defendant’s Proposal
`Plain and ordinary
`meaning
`
`
`The preamble of the ’968 Patent clearly distinguishes between a requesting “client device,”
`
`and two servers - “first web server” and a “second server”:
`
`A method for use with a requesting client device that comprises an Hypertext
`Transfer Protocol (HTTP) or Hypertext Transfer Protocol Secure (HTTPS) client,
`for use with a first web server that is a HTTP or HTTPS server that respectively
`responds to HTTP or HTTPS requests and stores a first content identified by a first
`content identifier, for use with a second server distinct from the first web server
`and identified in the Internet by a second IP address, and for use with a list of IP
`addresses, the method comprising:
`
`Ex. B at 19:16-24 (annotated)
`
`The specification further distinguishes
`
`the term “client device” from “servers.”
`
`Specifically, “client device” is defined in the patent specification of the ’968 Patents: “In the
`
`network 50, files are stored on computers of consumers, referred to herein as client devices 60.”
`
`Ex. A at 2:44-46.3 Dr. Rhyne has provided his opinion that as to the claims of the patents-in-suit
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`“a POSA would understand the term ‘client device’ to refer to a consumer computer.” Rhyne
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`Declaration, Ex. C at ¶ 8. Such devices are referred to in the patents as “communications devices.”
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`Consistent with this definition, figure 3 illustrates a communication network 100 showing
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`“client” 100, “peers” 112, 114, and 116, “agent” 122, “web server” 152, and “acceleration server”
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`162, which has a “storage device” 164. Ex. A at Fig. 3. The specification clearly distinguishes
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`3 For simplicity, all references to the shared specification of will be made to the specification of
`the ’511 Patent, but will be understood to include the corresponding citation from the ’968 Patent.
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`between (a) “communication devices” of the client/peer/agent, (b) a web server, and (c) an
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`acceleration server. The specification further describes the communication devices as serving as a
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`“client,” “peer” or “agent” depending upon the requirements of the network.
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`The present system and method provides for faster and more efficient data
`communication within a communication network. An example of such a
`communication network 100 is provided by the schematic diagram of FIG. 3. The
`network 100 of FIG. 3 contains multiple communication devices. Due to
`functionality provided by software stored within each communication device,
`which may be the same in each communication device, each communication device
`may serve as a client, peer, or agent, depending upon requirements of the network
`100, as is described in detail herein. It should be noted that a detailed description
`of a communication device is provided with regard to the description of FIG. 4….
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`Ex. A at 4:43-55 (emphasis added).
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`The specification further distinguishes the servers of Figure 3 (the web server and
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`acceleration server) from the communication devices:
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`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. It should be noted that the server 152
`is not limited to being an HTTP server. In fact, if a different communication
`protocol is used within the communication network, the server may be a server
`capable of handling a different protocol….
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`The communication network 100 further contains an acceleration server 162 having
`an acceleration server storage device 164.
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`Id. at 4:64-5:12 (emphasis added); see also e.g. Id. at 12:33-56.
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`Defense expert Dr. Freedman provided a declaration with Defendants’ P.R. 4-3 disclosures
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`that confirms that a “communication device” can “serve as a client, peer or agent.” Ex. E at ¶ 21.
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`However, while the patent specification and claims themselves distinguish between “client
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`devices” and “servers,” Dr. Freedman opines that both run on a “general purpose computer” in
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`reaching his conclusion that “[i]n all cases, the web browser, web proxy, and webserver are
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`applications that run on general-purposes computers, such as a laptop, desktop or machine running
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`in a ‘server farm’ or ‘datacenter.’” Id. at ¶ 23. However, such a construction is contrary to the clear
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`language of the claims as further clarified in the specification. A consumer device such as a laptop,
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`desktop or smartphone, is not interchangeable with a “server farm” or “datacenter.” This
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`interpretation is also contrary to the specification as shown above, which distinguishes between
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`communication devices with the functionality of a client/peer/agent and servers of the network.
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`See also e.g. Ex. A at Fig. 1.
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`Dr. Freedman repeats a mischaracterization
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`regarding Luminati’s opposition to
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`Defendants’ motion to dismiss in the Teso Case to argue incorrectly that Luminati had admitted
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`that a client device can be a server. Freedman Declaration, Ex. D at ¶ 24. This is false. Luminati
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`took the opposite position throughout its briefing arguing that the terms “client device” and
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`“server” require construction because they are not interchangeable. Teso Case, ECF 24 at 4; ECF
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`28 at 24; ECF 47 at 4-8. Ignoring Luminati’s briefing, Dr. Freedman took a modified exemplary
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`figure out of context. Freedman Declaration, Ex. E at ¶ 24. For example, as detailed in the
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`Luminati’s Reply brief:
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`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.
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`ECF 47 at 8. The claims clearly distinguish between a client device and a server, and Luminati
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`never argued or admitted otherwise.
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`A POSA would understand that “client device” refers to a “consumer device.” Rhyne
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`Declaration, Ex. C at ¶ 8. However, in the recent claim construction order from the Teso case, the
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`Court has construed “client device” as a “communication device that is operating in the role of a
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`client.” Teso Case, Dkt. 191 at 23. In the context of these Asserted Patents, where the recited
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`Case 2:19-cv-00396-JRG Document 86 Filed 12/18/20 Page 18 of 36 PageID #: 870
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`client device is in a client device – server - web server architecture and only operates in the role
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`of a client, such a construction is an acceptable alternative to Luminati’s proposed construction.
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`Consistent with the claim language, the definition provided by the specification and the
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`detailed discussion therein, a “client device” should be construed to