Case 2:19-cv-00395-JRG Document 47 Filed 05/05/20 Page 1 of 14 PageID #: 804
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`LUMINATI NETWORKS LTD.
`
`
`
`
`
`Plaintiff,
`
`v.
`
`TESO LT, UAB; OXYSALES, UAB;
`METACLUSTER LT, UAB;
`
`
`Defendants.
`
`
`
`
`
`
`Case No. 2:19-cv-395-JRG
`LEAD CASE
`
`
`
`
`LUMINATI’S SURREPLY IN OPPOSITION TO DEFENDANTS’ MOTION TO
`DISMISS
`
`
`
`Major Data UAB v. Bright Data Ltd.
`IPR2022-00915, EX. 2070
`1 of 14
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`Case 2:19-cv-00395-JRG Document 47 Filed 05/05/20 Page 2 of 14 PageID #: 805
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`TABLE OF CONTENTS
`INTRODUCTION ................................................................................................................. 1
`I.
`II. ARGUMENT ......................................................................................................................... 2
`A. Defendants Acknowledge Supremacy of Claim Language But Ignore the Express
`Language of the Claims ........................................................................................................ 2
`B. Defendants Ignore the Clear Language in the Claims and Specifications Distinguishing
`Between Client Devices and Servers .................................................................................... 4
`C. Defendants Improperly Attempt to Confuse the Client-Server Model the Client Device
`Modules in an Attempt to Broaden the Meaning of Client Devices to Render them
`Interchangeable .................................................................................................................... 6
`D. That the Client Devices Include Processors, Memory, and a Storage is Irrelevant to the
`101 Inquiry ........................................................................................................................... 7
`E. Defendants’ Improperly Mischaracterize Luminati’s Position by Trying to Improperly
`Limit the Claim Language to Specific Figures .................................................................... 7
`F. Defendants’ Arguments Regarding the Novelty of Individual Elements of the Claims is
`Irrelevant to the 101 Inquiry ................................................................................................. 9
`G. The Claims Do Not Disclose Replacing Client Devices with Servers ................................. 9
`H. Defendants Have the Burden to Prove the Patents Invalid And Can’t Avoid this Burden
`By Complaining that Defendants Don’t have Support in the Record .................................. 9
`I. Motions to Dismiss Should Be Denied Without Need for Claim Construction, But
`Defendants’ Arguments Make Clear that Defendants Would Need Claim Construction
`Ignoring Differences Between Client Devices and Servers to Support a Finding of
`Abstractness ........................................................................................................................ 10
`III. CONCLUSION .................................................................................................................... 10
`
`i
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`Case 2:19-cv-00395-JRG Document 47 Filed 05/05/20 Page 3 of 14 PageID #: 806
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`TABLE OF AUTHORITIES
`
`Cases
`
`Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121 (Fed. Cir. 2018) ............. 3, 9
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014) .................................................... 1
`
`Amdocs (Isr.) Ltd. v. Openet Telecom, Inc., 841 F. 3d 1288 (Fed. Cir. 2016) ........................... 3, 7
`
`BASCOM Glob. Internet Servs. V. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) ......... 3
`
`DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) ................................ 3, 7
`
`Ericsson Inc. v. TCL Commun. Tech. Holdings Ltd., No. 2018.2003, 2020 U.S. App. LEXIS
`11702 (Fed. Cir. Apr. 14, 2020) .................................................................................................. 2
`
`Freeny v. Fossil Grp., Inc., No. 2:18-CV-00049-JRG-RSP, 2019 U.S. Dist. LEXIS 36688 (E.D.
`Tex. Feb. 12, 2019) ................................................................................................................. 4, 7
`
`Uniloc USA, Inc. v. LG Elecs. USA, Inc., No. 2019-1835, 2020 U.S. App. LEXIS 13876 (Fed.
`Cir. Apr. 30, 2020) .............................................................................................................. 1, 4, 7
`
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`I.
`
`INTRODUCTION
`
`Rather than address the patent claims as written, Defendants continue to misread and
`
`misrepresent them to create straw man claims that Defendants then argue are abstract. But
`
`Defendants are not permitted to rewrite the claims to invalidate them. The Patent Office, with a
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`substantial body of Alice-related law to draw on, reviewed the actual claims of each patent and
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`found them valid. The clear claim language discloses methods of steps performed by a client
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`device in a new, novel server–client device–web server architecture that Defendants ignore,
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`instead improperly oversimplifying and rewriting the claims as disclosing only an abstract
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`computer-computer-computer architecture, which is clearly incorrect in light of the claim
`
`language itself and the specifications.1 Defendants’ approach also defies the clear Section 101
`
`analysis under Alice recognizing “[a]t some level, all inventions embody, use, reflect, rest upon,
`
`or apply laws of nature, natural phenomena, or abstract ideas.” Alice Corp. Pty. Ltd. v. CLS Bank
`
`Int’l, 134 S. Ct. 2347 (2014). Having ignored the language of the claims themselves, Defendants
`
`also further attempt to limit the claims to specific figures while ignoring other figures from the
`
`specification as well as Luminati’s citations to the specification in its Opposition. Defendants
`
`other arguments are similarly unavailing. Defendants do not have evidence in the record to support
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`an unpatentability finding and the motion should be dismissed. However, even if not dismissed,
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`Defendants could not support such a motion without a favorable claim construction order and
`
`additional evidence.
`
`
`1 Defendants also argue that the claims themselves do not include a “new network.” That is
`incorrect -- the claims set forth the components of the new network and how they relate to each
`other in a way that establishes such a network, which is a disclosure of the new network.
`Moreover, to the extent that enabling a new network is an advantage of the claims, there is no
`requirement that the claims expressly state their own advantages. Uniloc USA, Inc. v. LG Elecs.
`USA, Inc., No. 2019-1835, 2020 U.S. App. LEXIS 13876, at *13 (Fed. Cir. Apr. 30, 2020)
`(“Claims need not articulate the advantages of the claimed combinations to be eligible.”)
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`1
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`II.
`
`ARGUMENT
`
`A.
`
`Defendants’ Reply Fails to Address Nonpatent Claims
`
`Defendants’ reply only addresses its motion on patent claims and fails to answer Luminati’s
`
`opposition (and thus waives) its motion regarding nonpatent claims.
`
`B.
`
`Defendants Err by Ignoring the Actual Language of the Claims
`
`Section 101 analysis focuses on the claimed invention, but Defendants err by ignoring the
`
`actual language of the claims. Reply at 2. Defendants rely upon Ericsson for the unremarkable
`
`assertion that under the facts of that case and the particular patent at issue there, the “three layered
`
`architecture” did not provide “the necessary inventive concept” when the alleged “‘architecture’
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`was ‘wholly missing’ from the claims.” Id. As the Federal Circuit found in Ericsson regarding
`
`the claims at issue, “[n]either claim recites any particular architecture at all—much less the
`
`specific three layered architecture advocated by Ericsson. Nor does either claim recite software
`
`stacks or units—vertical, horizontal, or otherwise.” Ericsson Inc. v. TCL Commun. Tech. Holdings
`
`Ltd., No. 2018.2003, 2020 U.S. App. LEXIS 11702, at *21-22 (Fed. Cir. Apr. 14, 2020) (emphasis
`
`added). 2 However, Ericsson is inapposite to this case.
`
`Defendants wrongly argue that “Luminati never shows where, in the claims, the new
`
`architecture is allegedly found.” Reply at 2 (emphasis in original). This is false. As shown in the
`
`
`2 “According to Ericsson, claims 1 and 5 "recite three specific layers of software," in which the
`bottom "services layer" is "further arranged into vertical functional software stacks." Appellees'
`Br. 36 (internal quotations omitted). Ericsson contends that the novelty of the claims is, in part,
`the "arrangement of horizontally partitioned functional software units" which "differs from the
`standard model, which uses vertical layers only." Id. But this allegedly novel aspect of the
`invention is wholly missing from claims 1 and 5. Neither claim recites any particular architecture
`at all—much less the specific three layered architecture advocated by Ericsson. Nor does either
`claim recite software stacks or units—vertical, horizontal, or otherwise.” Ericsson Inc. v. TCL
`Commun. Tech. Holdings Ltd., No. 2018-2003, 2020 U.S. App. LEXIS 11702, at *21-22 (Fed. Cir.
`Apr. 14, 2020).
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`2
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`Opposition (and unlike Ericsson), each of the independent claims of the Asserted Patents claim
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`methods involving steps performed by a client device within a server–client device–web server
`
`architecture with all three distinct elements expressly recited in the claims. Opp. at 14-17.
`
`Importantly, the claims distinguish between and specify the device types and servers rather than
`
`call for generic computers. Luminati discussed the claim language extensively in the Opposition
`
`including the use of color coding to show each of the recited elements of the server–client device–
`
`web server architecture as recited in the claims. Id. at 14-17, 20-22. As just one example from
`
`the Opposition, the preamble of claim 1 of the ’319 Patent shows all the elements.
`
`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:
`
`
`
`The above architecture utilizing distinct network components including steps performed
`
`by a “client device” is not abstract and clearly claims these specific components in the body of the
`
`claims.3 In addition, the Federal Circuit has “routinely held software claims patent eligible under
`
`
`3 Having ignored the novel server-client device-web server architecture of the claims based on the
`dubious assertion that “residential” does not appear in the claims, Defendants compound this error
`by continuing to rely on case law distinguished extensively in the Opposition. Reply at 7-8, n. 5;
`Opp. at 19-23. This server-client device-web server entailed an unconventional arrangement and
`technological solution that required the modification of client devices to add the functionality of a
`server in line with the claims found patentable in Amdocs, DDR Holdings, and BASCOM. Amdocs,
`841 F.3d at 1301 (the use of “arguably generic gatherers, network devices working in an
`unconventional [manner] to solve a particular technological problem.”); DDR Holdings, 773 F.3d
`at 1257 (“the claimed solution is necessarily rooted in computer technology in order to overcome
`a problem specifically arising in the realm of computer networks”); BASCOM Glob. Internet
`Servs. V. AT&T Mobility LLC, 827 F.3d 1341, 1350-51 (Fed. Cir. 2016) (“an inventive concept
`can be found in the non-convention and non-generic arrangement of known, conventional pieces”);
`See also Aatrix, 882 F.3d at 1127 (district court decision granting 12(b)(6) and denying amended
`complaint overturned because “invention increased the efficiencies of computers processing tax
`forms….suggest[ing] that the claimed invention is directed to an improvement in the computer
`technology itself and not directed to generic components performing conventional activities.”);
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`3
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`Alice step one when they are directed to improvements to the functionality of a computer or
`
`network platform itself.” Uniloc USA, Inc. v. LG Elecs. USA, Inc., No. 2019-1835, 2020 U.S.
`
`App. LEXIS 13876, at *6 (Fed. Cir. Apr. 30, 2020). The Reply fails to dispute that the architecture
`
`of the Asserted Patents is described in the specifications as providing a number of advantages over
`
`conventional systems,
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`including
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`improved data communication speed, anonymity and
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`untraceability. Opp. at 2-7. The Asserted Patents claims are directed toward methods of improving
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`networks through the server-client device-web server architecture and should be upheld as valid
`
`under Alice step one.
`
`Defendants Ignore the Clear Language in the Claims and Specifications
`C.
`Distinguishing Between Client Devices and Servers
`
`Defendants continue to improperly assert that the Court can ignore the clear differences
`
`between the above client devices and servers in the claims to wrongly treat them as
`
`interchangeable. See e.g. Reply at 1, 5, 6, 9. Essentially, Defendants improperly oversimplify the
`
`patents to argue that the claims reciting server–client device–web server architecture merely
`
`involve general purpose computers in communication with one another in a computer-computer-
`
`computer architecture, but that is not the language employed in the patent claims, and Defendants
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`are not permitted to rewrite claims to invalidate them.
`
`For example, as addressed in the Opposition and ignored in the Reply, the ’614 Patent
`
`distinguished clients from servers in conventional client-server Internet Architecture (Dkt. 1-1 at
`
`4:40-61), and defined servers as web servers, proxy servers or acceleration servers while
`
`
`Freeny v. Fossil Grp., Inc., No. 2:18-CV-00049-JRG-RSP, 2019 U.S. Dist. LEXIS 36688, at *9
`(E.D. Tex. Feb. 12, 2019) (12(b)(6) motion denied for failure to show that the claims were (1) not
`directed to improvements rooted in technology, and (2) even assuming the patent had been drawn
`to an abstract idea, had not shown that the ordered combination of elements was conventional).
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`modifying client devices to comprise client peers or agents allowing client devices to serve as
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`‘tunnel’ devices (Id. at 83:4-15). Opp. at 4-5, 7. Defendants continue to erroneously repeat that
`
`devices and servers are interchangeable based on the following quotations from the ‘614 Patent
`
`specification: “each of the devices that are not denoted herein as servers, may equally function as
`
`a server in the meaning of client/server architecture” (Dkt. 1-1 at 119:50-53) and “each of the
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`devices denoted herein as servers, may equally function as a client in the meaning of the
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`client/server architecture” (Id. at 119:50-53) (emphasis added). Mot. At 18-19 and Reply at 5.
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`Defendants fundamentally misunderstand these quotes to mean that each device in the claim can
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`be replaced with a server and vice-versa. However, the specification is clearly explaining that
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`patented claims add functionality to devices and servers to allow them to serve as proxies by
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`allowing client devices to “provide facilities or services” and servers to access client devices “for
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`a service or resource” in contrast to conventional client-server Internet architecture. Dkt. 1-1 at
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`4:40-61. Additionally, Defendants’ citations emphasize that the patent specification refers to the
`
`different components having different roles and are not all just used as generic computers.
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`With regard to the ‘319 and ‘510 Patents, the specification clearly contrasts communication
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`devices against servers. Opp. at 3-4. Defendants cite no basis from the specifications of these
`
`patents to assert that a client device is interchangeable with a server. All the citations Defendants
`
`cite refer to a “communication device” that may serve as a client, agent, or peer—the list does not
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`include a server. Id. at 4. In addition, as explained in the Opposition and below, these patents
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`disclose the client device as including multiple modules to allow that device to alternatively serve
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`as a client, agent, or peer, depending upon its role in requesting or receiving content. The purpose
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`set forth in these patents is to use user devices instead of servers to act as proxy nodes in the
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`network. Opp. at 3-7. That brings the advantages of being able to build a large-scale network of
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`millions of residential devices that are proxies, which was never done in the claimed manner prior
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`to these patents.
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`Defendants Improperly Attempt to Confuse the Client-Server Model the
`D.
`Client Device Modules in an Attempt to Broaden the Meaning of Client Devices to
`Render them Interchangeable
`
`To the extent that Defendants suggest that agents, peers and clients are interchangeable
`
`with servers, that is incorrect and contrary to the
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`specification. Reply at 4, Opp. at 3-4. These modules
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`allow the client device to function in a manner contrary to
`
`the conventional client/server architecture. Defendants’
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`comparison of agents, peers and clients is a red herring, as
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`these descriptions are merely functionalities that can
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`operate on a client device. Reply at 4, 9; see Opp. at 3. As
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`further described in the ’319 Patent specification, “the
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`acceleration application 220 intercepts the requests being made by applications of the
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`communication device (client) that use the Internet, in order to modify the requests and route the
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`requests through the communication network….Fig. 6 is a schematic diagram further illustrating
`
`elements of the acceleration application 220, as well as communication paths of the acceleration
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`application 220….The acceleration application 220 also contains three separate modules that run
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`in parallel, namely, a client module 224, a peer module 226, and an agent module 228, each of
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`which comes into play according to the specific role that the communication device 200 is
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`partaking in the communication network 100 at a given time.” ’319 Patent at 8:60-9:25.
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`Claims Directed to Novel Network Improvements or Architecture are
`E.
`Patentable as a Matter of Law, and the Client Devices’ Inclusion of Processors,
`Memory, and a Storage is Irrelevant
`
`Defendants erroneously assert that because client devices contain processors, memory and
`
`a storage, they are just general-purpose computers and must be unpatentable under 101. Reply at
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`4-5. However, Section 101 analysis requires that the claims be analyzed as a whole. The fact that
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`a component may include conventional components does not render such a claim unpatentable.
`
`“The collection, filtering, aggregating, and completing steps all depend upon the invention’s
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`unique distributed architecture—the same architecture outlined in our earlier analysis of the ‘065
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`patent. An understanding of how this is accomplished is only possible through an examination of
`
`the claims in light of the written description.” Amdocs (Isr.) Ltd. v. Openet Telecom, Inc., 841 F.
`
`3d 1288, 1303 (Fed. Cir. 2016) (emphasis added).
`
`The Federal Circuit just reconfirmed the law that network architecture improvements are
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`patentable this past week in Uniloc USA, Inc. v. LG Elecs. USA, Inc., No. 2019-1835, 2020 U.S.
`
`App. LEXIS 13876, at *6 (Fed. Cir. Apr. 30, 2020) (noting that courts have “routinely held” such
`
`claims patentable and reversing district court finding of invalidity). See also DDR Holdings, LLC
`
`v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) (use of Internet was not abstract when claim
`
`language viewed in light of specification); Aatrix, 882 F.3d at 1128 (computer program not abstract
`
`as claimed); Freeny v. Fossil Grp., Inc., No. 2:18-CV-0049-JRG-RSP, 2019 U.S. Dist. LEXIS
`
`36688, at *11-13 (E.D. Tex., Feb. 12, 2019) (rejecting Defendants’ argument that because the
`
`claim only asserted generic or conventional computer components” because “the components are
`
`used to perform a specific improvement over the prior art.”). Opp. at 21.
`
`Defendants’ Improperly Mischaracterize Luminati’s Position by Trying to
`F.
`Improperly Limit the Claim Language to Specific Figures
`
`Having ignored the claim language, Defendants attempt to mischaracterize the
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`specification to read the server–client device–web server architecture out of the claims. Reply at
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`3-6. In the Opposition, Figure 3 of the ’319 and ‘510 Patents and 12a of the ’614 Patent are used
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`to illustrate the lines of communication showing the steps performed by the proxy client device.
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`Defendants attempt to use these specific figures to improperly limit the express language by
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`mischaracterizing Luminati as “view[ing] a ‘server’ and ‘client to be broad enough to encompass
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`one another.” Reply at 4, 5. This is not true as Luminati provided extensive support from the
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`specifications of the Asserted Patents distinguishing between client devices and servers. See e.g.
`
`Opp. at 3-5 and 17-19.
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`The Asserted Patents disclose a number of embodiments and network combinations, not
`
`all of which are captured in a single figure. In addition to the figures shown in the Opposition, the
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`Asserted Patents also include the below figures 1 of the ‘319 and ‘510 Patents and Figure 13 of
`
`the ’614 Patent showing that servers can be used as an additional intermediary between the proxy
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`client device of the claims and a second client device originating the requests for content.
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`The claim language addressed above clearly describes a server–client device–web server
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`architecture and Defendants cannot get around this by showing that the patents also disclose client
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`device-client device-web server architecture.
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`Defendants’ Arguments Regarding the Novelty of Individual Elements of the
`G.
`Claims is Irrelevant to the 101 Inquiry
`
`Defendants dispute the novelty of individual components in the claims, but that is not how
`
`patentability is assessed. If the combination is patentable as set forth in the claim (which the
`
`server–client device–web server architecture is) then the claim is patentable. Novelty is a
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`separate validity requirement not asserted in the motion to dismiss. Opp. at 25.
`
`H.
`
`The Claims Do Not Disclose Replacing Client Devices with Servers
`
`Defendants repeatedly and wrongly assert that the claims allow for switching the claimed
`
`client devices with servers. Reply at 6-9. As addressed above, this interpretation ignores the clear
`
`language of the claims and specification to create a straw man abstract computer-computer-
`
`computer architecture. The patent claims do not allow Defendants to simply replace a client
`
`device with a server or vice versus.
`
`Evidence is Relevant to Alice Step Two, and Defendants Fail to Meet Their
`I.
`Burden
`
`Defendants argue that they do not need to provide evidence in support of their motion,
`
`because they filed a 12(b)(6) motion. Reply at 8. However, Patents are assumed valid and
`
`Defendants have the burden of proving that they are abstract. The patent specifications disclose
`
`the modification of client devices to add the functionality of servers contrary to the conventional
`
`client-server Internet architecture and contrary to the routine and ordinary use of these client
`
`devices, such as laptops and smart phones, and consequently the claimed components do not
`
`operate in a routine or ordinary way. Opp. at 23-25. Step two of Alice is satisfied “when the claim
`
`limitations involve more than performance of well-understood, routine, and conventional activities
`
`previously known to the industry.” Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d
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`1121, 1128 (Fed. Cir. 2018).
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`There is no support in the specification for Defendants position that client devices function
`
`as servers as part of their routine and ordinary use and Defendants provide no evidence for this
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`position. Reply at n. 1; 6-8. It is a complete misreading of FRCP 12(b)(6), for Defendants to argue
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`that because there is no evidence of record that supports their position, they can ignore this
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`requirement. Reply at 8. As Defendants don’t have evidence to the contrary, Defendants can’t
`
`meet their burden of proof and the motion should be dismissed for failing to satisfy Alice step two.
`
`Motions to Dismiss Should Be Denied Without Need for Claim Construction,
`J.
`But Defendants’ Arguments Make Clear that Defendants Would Need Claim
`Construction Ignoring Differences Between Client Devices and Servers to Support a
`Finding of Abstractness
`
`While the Motion should be dismissed without delay, Defendants make it clear that they
`
`would need a favorable claim construction ruling to support their interpretation of the claims to
`
`read the client devices and servers as the same. Reply at 8-10. Based on Defendants’ preliminary
`
`arguments in this briefing, they appear to take the position that the client device is interchangeable
`
`with a server, because the claimed invention modifies the client device to add the functionality of
`
`a server and vice versus allowing the client device to serve as a proxy contrary to conventional
`
`client-server Internet architecture. There is no question that client devices include mobile devices
`
`such as smartphones, given the dependent claims (see e.g. ‘614 Patent claims 15-16), however
`
`Defendants seek to broaden the scope of the client device to incorporate commercial servers. Such
`
`a construction is contrary to the express language of the claims and specification, but regardless
`
`Defendants would need this construction to support their computer-computer-computer abstract
`
`architecture argument.
`
`III. CONCLUSION
`For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendants’
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`Rule 12(b)(6) motion in its entirety.
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`Case 2:19-cv-00395-JRG Document 47 Filed 05/05/20 Page 14 of 14 PageID #: 817
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`
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`Dated: May 5, 2020
`
`Respectfully submitted,
`
`
`
`
`
`
`
`By: /s/ Korula T. Cherian__
`Mark Mann
`Mann | Tindel | Thompson
`300 West Main
`Henderson, TX 75652
`mark@themannfirm.com
`Office 903-657-8540
`Cell 903-658-0401
`Marshall Office 903-472-4294
`Tyler Office 903-596-0900
`Waco Office 254-776-3336
`
`Robert Ruyak
`Corrine Saylor Davis
`Ronald Wielkopolski
`RuyakCherian LLP
`1901 L St. NW, Suite 700
`Washington, DC 20036
`
`Korula T. Cherian
`Robert Harkins
`RuyakCherian LLP
`1936 University Ave, Ste. 350
`Berkeley, CA 94702
`
`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
`Luminati Networks Ltd.
`
`
`
`11
`
`Major Data UAB v. Bright Data Ltd.
`IPR2022-00915, EX. 2070
`14 of 14
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`