THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`BRIGHT DATA LTD.
`
`Plaintiff,
`
`v.
`
`NETNUT LTD.
`
`
`Defendant.
`
`
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`CLAIM CONSTRUCTION ORDER
`
`Case No. 2:21-CV-225-JRG-RSP
`
`On April 21, 2022, the Court held a hearing to determine the proper construction of
`
`disputed terms in United States Patents No. 10,257,319, 10,484,510, 10,491,713, 11,050,852,
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`and 11,044,346. Before the Court is the Opening Claim Construction Brief (Dkt. No. 106) filed
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`by Plaintiff Bright Data Ltd. Also before the Court is the Responsive Claim Construction Brief
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`(Dkt. No. 115) filed by Defendant NetNut Ltd. as well as Plaintiff’s reply (Dkt. No. 118).
`
`Further before the Court are the parties’ Patent Rule 4-3 Joint Claim Construction Statement
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`(Dkt. No. 93) and the parties’ Patent Rule 4-5(d) Joint Claim Construction Chart (Dkt. No. 123,
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`Ex. A). Having reviewed the arguments made by the parties at the hearing and in their claim
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`construction briefing, having considered the intrinsic evidence, and having made subsidiary
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`factual findings about the extrinsic evidence, the Court hereby issues this Claim Construction
`
`Order. See Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc); Teva Pharm.
`
`USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
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`Table of Contents
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`I. BACKGROUND ....................................................................................................................... 2
`II. LEGAL PRINCIPLES ........................................................................................................... 4
`III. AGREED TERMS................................................................................................................. 8
`IV. DISPUTED TERMS .............................................................................................................. 8
`A. “client” and “client device” ................................................................................................ 10
`B. “first server” ........................................................................................................................ 16
`C. “server” and “second server” .............................................................................................. 17
`D. “Hypertext Transfer Protocol (HTTP),” “HTTP request(s),” “Hypertext Transfer
`Protocol Secure (HTTPS),” and “HTTPS request(s)” ........................................................ 23
`E. “from the first server over the Internet in response to the sending” and “from the web
`server over the Internet in response to the sending” ........................................................... 31
`F. “sending, to the second server using the second IP address over the Internet in response
`to the identifying, the first content identifier and a geographical location,” “generating
`an HTTP or HTTPS request that comprises the first URL and a geographical location,”
`“sending, to the second server using the second IP address over the Internet, the
`generated HTTP or HTTPS request,” and “sending, . . . a geographical location and
`HTTP or HTTPS requests” ................................................................................................. 37
`G. “receiving . . . via a first client device” ............................................................................... 39
`H. “geographical location” ...................................................................................................... 46
`I. “anonymously fetching” ....................................................................................................... 49
`J. “wherein the content is identified over the Internet using a distinct URL” ......................... 52
`V. CONCLUSION...................................................................................................................... 54
`
`I. BACKGROUND
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`Plaintiff alleges infringement of United States Patent Nos. 10,257,319 (“the ’319 Patent”)
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`10,484,510 (“the ’510 Patent”), 10,491,713 (“the ’713 Patent”), 11,050,852 (“the ’852 Patent”)
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`and 11,044,346 (“the ’346 Patent”) (collectively, the “patents-in-suit”) (Dkt. No. 106, Exs. A–E).
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`Plaintiff submits that the patents-in-suit relate to “new methods for fetching content from
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`a target server over the Internet using intermediary proxies including third-party client devices,
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`such as an individual’s cell phone, in order to make the request from the intermediary proxy
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`instead of the original requestor.” Dkt. No. 106 at 1.
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`Defendant submits that “[t]he patents are generally directed to speeding up Hypertext
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`Transfer Protocol (‘HTTP’) requests by requesting the content directly from a peer who already
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`has the content in its cache, rather than accessing it from a web server.” Dkt. No. 115 at 1.
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`The ’319 Patent,
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`titled “System Providing Faster and More Efficient Data
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`Communication,” issued on April 9, 2019, and bears an earliest priority date of October 8, 2009.
`
`The Abstract of the ’319 Patent states:
`
`A system designed for increasing network communication speed for users, while
`lowering network congestion for content owners and ISPs. The system employs
`network elements including an acceleration server, clients, agents, and peers,
`where communication requests generated by applications are intercepted by the
`client on the same machine. The IP address of the server in the communication
`request is transmitted to the acceleration server, which provides a list of agents to
`use for this IP address. The communication request is sent to the agents. One or
`more of the agents respond with a list of peers that have previously seen some or
`all of the content which is the response to this request (after checking whether this
`data is still valid). The client then downloads the data from these peers in parts
`and in parallel, thereby speeding up the Web transfer, releasing congestion from
`the Web by fetching the information from multiple sources, and relieving traffic
`from Web servers by offloading the data transfers from them to nearby peers.
`
`The parties submit that all five of the patents-in-suit are related and share the same
`
`
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`specification. See Dkt. No. 106 at 2 n.1; see also Dkt. No. 115 at 2.
`
`
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`“Bright Data asserts infringement of independent claim 1 and dependent claims 2, 14, 15,
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`17, 18, 21, 22, 23, 24, 25, 26, and 27 of the ’319 Patent, independent claim 1 and dependent
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`claims 2, 8, 9, 10, 11, 15, 16, 18, 19, 20, 22, and 23 of the ’510 Patent, independent claim 1 and
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`dependent claims 11, 24, and 27 of the ’713 Patent, independent claim 1 and dependent claims
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`14, 25, and 28 of the ’852 Patent, and independent claim 1 and dependent claims 15, 17, 20, 22,
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`23, 24, 25, and 26 of the ’346 Patent.” Id. at 6.
`
`
`
`The Court previously construed disputed terms in the ’319 Patent and the ’510 Patent in
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`Luminati Networks, Ltd. v. Teso LT, UAB, et al., No. 2:19-CV-395, Dkt. No. 191 (E.D. Tex.
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`Dec. 7, 2020) (“Teso CC Order”), and Bright Data Ltd. v. Teso LT, UAB, et al., No. 2:19-CV-
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`395, Dkt. No. 453 (E.D. Tex. Aug. 6, 2021) (“Teso Supplemental CC Order” or “Teso Suppl. CC
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`Order”).
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`
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`Shortly before the start of the April 21, 2022 hearing, the Court provided the parties with
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`preliminary constructions with the aim of focusing the parties’ arguments and facilitating
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`discussion. Those preliminary constructions are noted below within the discussion for each
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`term.
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`II. LEGAL PRINCIPLES
`
`
`
`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention
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`to which the patentee is entitled the right to exclude.’” Phillips, 415 F.3d at 1312 (quoting
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`Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir.
`
`2004)). Claim construction is clearly an issue of law for the court to decide. Markman v.
`
`Westview Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
`
`(1996). “In some cases, however, the district court will need to look beyond the patent’s
`
`intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the
`
`background science or the meaning of a term in the relevant art during the relevant time period.”
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`Teva, 135 S. Ct. at 841 (citation omitted). “In cases where those subsidiary facts are in dispute,
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`courts will need to make subsidiary factual findings about that extrinsic evidence. These are the
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`‘evidentiary underpinnings’ of claim construction that we discussed in Markman, and this
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`subsidiary factfinding must be reviewed for clear error on appeal.” Id. (citing 517 U.S. 370).
`
`
`
`To determine the meaning of the claims, courts start by considering the intrinsic
`
`evidence. See Phillips, 415 F.3d at 1313; see also C.R. Bard, Inc. v. U.S. Surgical Corp., 388
`
`F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc.,
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`262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
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`specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, 388 F.3d
`
`at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of
`
`ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips,
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`415 F.3d at 1312–13; accord Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir.
`
`2003).
`
`The claims themselves provide substantial guidance in determining the meaning of
`
`particular claim terms. Phillips, 415 F.3d at 1314. First, a term’s context in the asserted claim
`
`can be very instructive. Id. Other asserted or unasserted claims can aid in determining the
`
`claim’s meaning because claim terms are typically used consistently throughout the patent. Id.
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`Differences among the claim terms can also assist in understanding a term’s meaning. Id. For
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`example, when a dependent claim adds a limitation to an independent claim, it is presumed that
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`the independent claim does not include the limitation. Id. at 1314–15.
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`“[C]laims ‘must be read in view of the specification, of which they are a part.’” Id.
`
`at 1315 (quoting Markman, 52 F.3d at 979). “[T]he specification ‘is always highly relevant to
`
`the claim construction analysis. Usually, it is dispositive; it is the single best guide to the
`
`meaning of a disputed term.’” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v.
`
`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); accord Teleflex, Inc. v. Ficosa N. Am.
`
`Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own
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`terms, give a claim term a different meaning than the term would otherwise possess, or disclaim
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`or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor’s
`
`lexicography governs. Id. The specification may also resolve the meaning of ambiguous claim
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`terms “where the ordinary and accustomed meaning of the words used in the claims lack
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`sufficient clarity to permit the scope of the claim to be ascertained from the words alone.”
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`Teleflex, 299 F.3d at 1325. But, “[a]lthough the specification may aid the court in interpreting
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`the meaning of disputed claim language, particular embodiments and examples appearing in the
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`specification will not generally be read into the claims.” Comark Commc’ns, Inc. v. Harris
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`Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc.,
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`848 F.2d 1560, 1571 (Fed. Cir. 1988)); accord Phillips, 415 F.3d at 1323.
`
`The prosecution history is another tool to supply the proper context for claim
`
`construction because a patent applicant may also define a term in prosecuting the patent. Home
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`Diagnostics, Inc. v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (“As in the case of the
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`specification, a patent applicant may define a term in prosecuting a patent.”). “[T]he prosecution
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`history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that
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`may have been disclaimed or disavowed during prosecution in order to obtain claim allowance.”
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`Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985).
`
`
`
`Although extrinsic evidence can be useful, it is “less significant than the intrinsic record
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`in determining the legally operative meaning of claim language.” Phillips, 415 F.3d at 1317
`
`(citations and internal quotation marks omitted). Technical dictionaries and treatises may help a
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`court understand the underlying technology and the manner in which one skilled in the art might
`
`use claim terms, but technical dictionaries and treatises may provide definitions that are too
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`broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly,
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`expert testimony may aid a court in understanding the underlying technology and determining
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`the particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported
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`assertions as to a term’s definition are entirely unhelpful to a court. Id. Generally, extrinsic
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`evidence is “less reliable than the patent and its prosecution history in determining how to read
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`claim terms.” Id.
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`
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`The Supreme Court of the United States has “read [35 U.S.C.] § 112, ¶ 2 to require that a
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`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
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`Instruments, Inc., 134 S. Ct. 2120, 2129 (2014). “A determination of claim indefiniteness is a
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`legal conclusion that is drawn from the court’s performance of its duty as the construer of patent
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`claims.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005)
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`(citations and internal quotation marks omitted), abrogated on other grounds by Nautilus, 134
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`S. Ct. 2120. “Indefiniteness must be proven by clear and convincing evidence.” Sonix Tech. Co.
`
`v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).
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`“[P]rior orders in related cases do not bar the Court from conducting additional
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`construction in order to refine earlier claim constructions.” TQP Dev., LLC v. Intuit Inc., No.
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`2:12-CV-180-WCB, 2014 WL 2810016, at *6 (E.D. Tex. June 20, 2014) (Bryson, J., sitting by
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`designation).
`
`
`
`In general, however, prior claim construction proceedings involving the same patents-in-
`
`suit are “entitled to reasoned deference under the broad principals of stare decisis and the goals
`
`articulated by the Supreme Court in Markman, even though stare decisis may not be applicable
`
`per se.” Maurice Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779,
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`at *4 (E.D. Tex. June 21, 2006) (Davis, J.); see TQP, 2014 WL 2810016, at *6 (“[P]revious
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`claim constructions in cases involving the same patent are entitled to substantial weight, and the
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`Court has determined that it will not depart from those constructions absent a strong reason for
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`doing so.”); see also Teva, 135 S. Ct. at 839–40 (“prior cases will sometimes be binding because
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`of issue preclusion and sometimes will serve as persuasive authority”) (citation omitted); Finisar
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`Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1329 (Fed. Cir. 2008) (noting “the importance of
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`uniformity in the treatment of a given patent”) (quoting Markman v. Westview Instruments, Inc.,
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`517 U.S. 370, 390 (1996)).
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`III. AGREED TERMS
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`
`
`In their February 9, 2022 Patent Rule 4-3 Joint Claim Construction and Prehearing
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`Statement (Dkt. No. 93 at 1), in their briefing (Dkt. No. 106 at 10), and in their March 23, 2022
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`Patent Rule 4-5(d) Joint Claim Construction Chart (Dkt. No. 123, Ex. A at 1, 8 & 14), the parties
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`submit the following agreed-upon construction:
`
`Term
`
`Preamble
`
`’319 Patent, Claim 1
`’510 Patent, Claim 1
`’713 Patent, Claim 1
`
`Agreed Construction
`
`
`Limiting
`
`IV. DISPUTED TERMS
`
`
`
`The parties present competing proposals for the level of ordinary skill in the art. “Factors
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`that may be considered in determining [the] level of ordinary skill in the art include: (1) the
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`educational level of the inventor; (2) type of problems encountered in the art; (3) prior art
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`solutions to those problems; (4) rapidity with which innovations are made; (5) sophistication of
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`the technology; and (6) educational level of active workers in the field.” Daiichi Sankyo Co.,
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`Ltd. v. Apotex, Inc., 501 F.3d 1254, 1256 (Fed. Cir. 2007) (citation and internal quotation marks
`
`omitted).
`
`Plaintiff proposes: “Consistent with Plaintiff’s P.R. 4-3 disclosures, with regard to the
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`Patents-in-Suit, ‘a person of ordinary skill in the art (‘POSA’) would be an individual who, as of
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`October 8, 2009, the filing date of the shared provisional application, had a Master’s Degree or
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`higher in the field of Electrical Engineering, Computer Engineering, or Computer Science or as
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`of that time had a Bachelor’s Degree in the same fields and two or more years of experience in
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`Internet communications.’ Ex. F, Williams Declaration at ¶ 18.” Dkt. No. 106 at 9.
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`
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`Defendant proposes: “A POSITA would have had (1) at least a bachelor’s degree in
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`electrical engineering, computer engineering, computer science, or a similar field; (2) at least two
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`years of practical academic or industry technical experience in the computer network field, such
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`as serving as an engineer for an Internet service provide[r] performing network design,
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`development, or configuration tasks, or as a software developer for network communications
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`software or related utility software, and would be familiar with the underlying principles of Web,
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`Internet, and network communication, data transfer, and content sharing across networks,
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`including protocols such as the HTTP and TCP/IP protocols, and the pertinent Internet RFCs; or
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`(3) at least three years’ full-time technical experience as stated (or an equivalent combination of
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`academic study and work experience).” Dkt. No. 115 at 3.
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`
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`Because the Court’s analysis herein would remain the same under either proposal (and
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`because the parties’ proposals are largely equivalent to one another), the Court does not herein
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`further address the parties’ submissions regarding level of ordinary skill in the art.
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`A. “client” and “client device”
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`“client device”
`(’319 Patent, Claims 1, 2, 14, 17, 22, 24, 25;
`’510 Patent, Claims 1, 2, 8, 10, 13, 15, 18, 19;
`’713 Patent, Claims 1, 11, 24, 27;
`’852 Patent, Claims 1, 14, 25, 28;
`’346 Patent, Claims 1, 15, 20)
`
`Plaintiff’s Proposed Construction
`
`Defendant’s Proposed Construction
`
`“Consumer computer” or, in the alternative,
`“communication device that is operating in the
`role of a client”
`
`“a device operating in the role of a client”;
`some devices can be configured to operate in
`multiple roles including as a client or a server
`
`Dkt. No. 93, App’x A at 1; Dkt. No. 123, Ex. A at 1, 14, 19 & 24.
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`Shortly before the start of the April 21, 2022 hearing, the Court provided the parties with
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`the following preliminary construction: “communication device that is operating in the role of a
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`client.”
`
`(1) The Parties’ Positions
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`Plaintiff argues: “[T]he term ‘client device’ is defined in the patent specification of the
`
`Patents-in-Suit: ‘In the network 50, files are stored on computers of consumers, referred to herein
`
`as client devices 60.’ [’319 Patent] at 2:44–46.” Dkt. No. 106 at 10. Plaintiff also argues that
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`Defendant’s proposal “would overly broaden the meaning of the term in a manner inconsistent
`
`with” the Court’s construction in Teso. Id. Plaintiff urges:
`
`NetNut’s proposed construction of “a device operating in the role of a client”
`would remove any meaningful distinction between a client device and server such
`that any intermediary computer
`computer
`pathway satisfies both the requirements of a client device and server. This is
`contrary to (a) the patent claims; (b) common specification, which as discussed
`above defines client devices as consumer devices and further contrasts
`communication devices with servers; (c) the prosecution history of for example
`the ’319 Patent; and (d) extrinsic evidence including this Court’s previous claim
`construction orders issued in the Teso Action.
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`Id. at 12.
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`
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`Defendant responds that “the word ‘communication’ in the Court’s previous construction
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`is unnecessary, because all devices that communicate over a network, whether clients, servers, or
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`other devices, are understood to be ‘communication devices.’” Dkt. No. 115 at 5 (citation
`
`omitted). Defendant also argues that “[t]he generic nature of the ‘client device’ is confirmed by
`
`the specification . . . .” Id. (citation omitted). Further, Defendant argues that “NetNut’s
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`construction is further confirmed by then-existing IETF RFCs, such as RFC 2616, which is
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`referenced in the Asserted Patents.” Id. at 7 (citations omitted). Finally, Defendant submits that
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`“NetNut’s construction is that the device can be configured to operate in different roles,
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`consistent with the Court’s previous claim construction orders.” Id. at 8.
`
`
`
`Plaintiff replies: “Ignoring the clear distinctions between client devices and servers that
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`were made in the common specification and patent prosecution history, Defendant does not
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`dispute that its proposed constructions of these terms would cause any computer intermediary in
`
`a generic computer
`
`computer
`
`computer pathway to satisfy both the requirements of a client
`
`device and server in an improper attempt to broaden these claim terms so as to be
`
`interchangeable.” Dkt. 118 at 1. Plaintiff argues that Defendant’s proposal is inconsistent with
`
`the Court’s claim construction in Teso, and Plaintiff also argues that “[t]he common specification
`
`references but in no way limits the client device or server in reference to any RFC or protocol.”
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`Id. at 1–2 (citation omitted).
`
`
`
`At the April 21, 2022 hearing, Defendant argued that the term “client device” should not
`
`be limited to any particular type of hardware. Rather, Defendant argued, the role or functionality
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`of the device is driven by software.
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`(2) Analysis
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`Defendant submits: “The parties originally proposed construing ‘client’ and ‘client
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`device’ separately but agreed to construe only ‘client device.’” Dkt. No. 115 at 5 n.1. Plaintiff
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`similarly states that “[t]he same argument applies equally to ‘client,’ which is only recited in the
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`context of a ‘client device.’” Dkt. No. 106 at 15.
`
`
`
`Claim 1 of the ’319 Patent, for example, recites (emphasis added):
`
`1. A method for use with a first client device, for use with a first server that
`comprises a web server that is a Hypertext Transfer Protocol (HTTP) server that
`responds to HTTP requests, the first server stores a first content identified by a
`first content identifier, and for use with a second server, the method by the first
`client device comprising:
`
`receiving, from the second server, the first content identifier;
`
`sending, to the first server over the Internet, a Hypertext Transfer Protocol
`(HTTP) request that comprises the first content identifier;
`
`receiving, the first content from the first server over the Internet in
`response to the sending of the first content identifier; and
`
`sending, the first content by the first client device to the second server, in
`response to the receiving of the first content identifier.
`
`The specification discloses, for example, that “[d]ue 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.” ’319
`
`Patent at 4:46–49; see also id. at Fig. 6.
`
`
`
`In the Teso CC Order, the Court construed “client device” to mean “communication
`
`device that is operating in the role of a client.” Teso CC Order at 10–12.
`
`
`
`The specification also discloses:
`
`In the network 50, files are stored on computers of consumers, referred to herein
`as client devices 60.
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`’319 Patent at 2:44–46 (emphasis added).
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`In the Teso CC Order, the Court considered this
`
`disclosure, among other evidence, and rejected a proposal that “client device” refers to a
`
`“consumer computer.” Teso CC Order at 11.
`
`In the Teso Supplemental CC Order, the Court reinforced the distinction between a client
`
`device and a server device by stating:
`
`The patents do not include servers as a type of ‘communication device,’ but that is
`not sufficient to construe ‘client device’ as unable to act as a server in all cases.
`
`
`Plaintiff’s argument that Defendant seeks to treat client devices and servers
`interchangeably, citing to the Court’s statement that “[Defendants] deny that they
`will claim client devices and servers are interchangeable general user computers”
`is an oversimplification of the issue. It is not that Defendants seek to “reduc[e]
`
`omputer architecture” as Plaintiffs argue. See Dkt.
`No. 242 at 4. Rather, a component can be configured to operate in different
`roles—so long as it does not “simultaneously serve as more than one of: the client
`device, the first server/second server, and the web server.”
`
`Teso Suppl. CC Order at 10.
`
`
`
`Neither Plaintiff nor Defendant persuasively justifies departing from the Court’s prior
`
`construction and analysis. The recital of a “client” accompanied by, and interacting with, the
`
`recited “servers” in above-reproduced Claim 1 of the ’319 Patent reinforces that the recited
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`“client” is distinct from the “servers.”
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`
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`For example, Plaintiff does not justify revisiting the Court’s rejection of a proposal to
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`construe a “client device” to be a “consumer” device. See Teso CC Order at 11. Neither the
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`opinion of Plaintiff’s expert nor the extrinsic evidence cited by Plaintiff compels otherwise. See
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`Dkt. No. 106, Ex. F, Feb. 9, 2022 Williams Decl. at ¶ 24; see also id., Ex. G, Network
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`Fundamentals Study Guide at p. 6 of 21. Plaintiff’s argument that “it is indisputable that the
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`specification never refers to a server as a ‘communication device’” likewise does not justify
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`limiting the Court’s construction to “consumer” devices. Dkt. No. 106 at 13–14.
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`Defendant also asserts that “a POSITA would understand ‘client’ and the related terms
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`discussed here, to refer to a device operating in the r[o]le of a client but can also have the
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`functions of a server.” Dkt. No. 115 at 8. For example, Defendant cites deposition testimony of
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`Plaintiff’s expert in this regard. See Dkt. No. 115, Ex. E, Feb. 25, 2022 Williams dep. at 89:15–
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`18 (“Q. Can a personal computer or workstation also have installed on it software that is
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`configured to perform server tasks? A. Yes.”). To whatever extent this would amount to a
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`device operating in the role of a server as well as operating in the role of a client, the Court has
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`previously found that “a component can be configured to operate in different roles—so long as it
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`does not ‘simultaneously serve as more than one of: the client device, the first server/second
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`server, and the web server.’” Teso Suppl. CC Order at 10 (citation omitted; emphasis added).
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`The industry standard and the expert opinions relied upon by Defendant are extrinsic evidence
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`and do not justify departing from the Court’s prior analysis. See Dkt. No. 115 at 7–8 (discussing
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`id., Ex. F, IETF RFC 2616 § 1.3; citing id., Ex. A, Feb. 9, 2022 Claffy Decl. at ¶ 27). Further,
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`Defendant submits: “Bright Data also suggests that NetNut’s construction for ‘client device’
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`includes the device simultaneously serving as more than one of the communication devices.
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`This is not what NetNut proposes. NetNut’s construction is that the device can be configured to
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`operate in different roles, consistent with the Court’s previous claim construction orders.” Dkt.
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`No. 115 at 8 (citing Dkt. No. 106 at 14).
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`
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`Finally, disclosure in the specification that a “communication device 200” “contains
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`general components of a computer” (’713 Patent at 5:52–55) does not warrant removing the
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`word “communication” from the Court’s prior construction. As noted in the prosecution history
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`and as previously discussed by the Court, a “client device” is not merely a general-purpose
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`computer. See Dkt. No. 106, Ex. J, ’319 Patent Prosecution History, Oct. 18, 2018 Response
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`at 4–5 (BDNET-0000304–05) (“[T]he claims involve specific networking of physical elements
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`such as servers and clients, connected via various networks forming a specific structure and
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`relationships, which are physical apparatuses, and are NO[T] a ‘generic computer’ as stated in
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`the Action.”; “[T]he claimed components as a combination perform functions that are not merely
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`generic — It is respectfully submitted that the conventional arrangement involves fetching data
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`by a client device from a server device, while the claims disclose a server receiving information
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`from another server via a client device, which is unique and solves a specific problem such as
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`anonymity when fetching information.”); see also Teso, No. 2:19-CV-395, Dkt. No. 303 (E.D.
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`Tex. Feb. 16, 2021) (denying Motion for Judgment on the Pleadings Under Fed. R. Civ. P. 12(c)
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`and 35 U.S.C. § 101) (“it is the use of non-traditional client devices that transforms the Asserted
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`Claims into non-abstract subject matter”).
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`
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`As to any remaining dispute regarding whether a device merely sending a request
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`amounts to “operating in the role of a client” (see Dkt. No. 106 at 15; see also Dkt. No. 115 at 7
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`& 9) or whether a device merely responding to a request is operating in the role of a server, any
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`such disputes pertain to implementation details of particular accused instrumentalities and thus
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`present factual disputes regarding infringement rather than any legal question for claim
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`construction. See PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998)
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`(“after the court has defined the claim with whatever specificity and precision is warranted by
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`the language of the claim and the evidence bearing on the proper construction, the task of
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`determining whether the construed claim reads on the accused product is for the finder of fact”);
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`see also Acumed LLC v. Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007) (“[t]he resolution of
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`some line-drawing problems . . . is properly left to the trier of fact”) (citing PPG, 156 F.3d at
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`1355); Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314, 1318–19
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`(Fed. Cir. 2016) (citing PPG, 156 F.3d at 1355; citing Acumed, 483 F.3d at 806).
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`
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`The Court therefore hereby construes “client device” to mean “communication device
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`that is operating in the role of a client.”
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`B. “first server”
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`“first server”
`(’319 Patent, Claims 1, 21, 25;
`’713 Patent, Claims 1, 27;
`’852 Patent, Claims 1, 14, 25, 28;
`’346 Patent, Claims 1, 15, 17)
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`Plaintiff’s Proposed Construction
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`Defendant’s Proposed Construction
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`“web server”
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`See construction for “server”; no further
`construction necessary.
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`Dkt. No. 93, App’x A at 6; Dkt. No. 123, Ex. A at 2, 14 & 19; see id. at 24–25.
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`Shortly before the start of the April 21, 2022 hearing, the Court provided the parties with
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`the following preliminary construction: “Plain meaning (apart from the Court’s construction of
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`‘server,’ below).”
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`(1) The Parties’ Position