Case 2:19-cv-00396-JRG Document 97 Filed 02/08/21 Page 1 of 37 PageID #: 1501
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`LUMINATI NETWORKS LTD.,
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`
`Plaintiff,
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`
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`v.
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`CODE200, UAB ET AL.,
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`
`Defendants.
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`
`
`
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`Case No. 2:19-cv-00396-JRG
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`CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
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`Before the Court is the opening claim construction brief of Luminati Networks Ltd.
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`(“Plaintiff”) (Dkt. No. 86, filed on December 18, 2020),1 the response of Code200, UAB,
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`Oxysales, UAB, and Metacluster LT, UAB (collectively “Defendants”) (Dkt. No. 88, filed on
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`January 4, 2020), and Plaintiff’s reply (Dkt. No. 89, filed on January 8, 2021). The Court held a
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`hearing on the issues of claim construction and claim definiteness on January 29, 2021. Having
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`considered the arguments and evidence presented by the parties at the hearing and in their briefing,
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`the Court issues this Order.
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`1 Citations to the parties’ filings are to the filing’s number in the docket (Dkt. No.) and pin cites
`are to the page numbers assigned through ECF.
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`1
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`Case 2:19-cv-00396-JRG Document 97 Filed 02/08/21 Page 2 of 37 PageID #: 1502
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`
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`Table of Contents
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`I.
`II.
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`V.
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`BACKGROUND ............................................................................................................... 3
`LEGAL PRINCIPLES ..................................................................................................... 5
`A.
`Claim Construction ................................................................................................. 5
`B.
`Departing from the Ordinary Meaning of a Claim Term ........................................ 8
`C.
`Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA) ................... 9
`III. AGREED CONSTRUCTIONS...................................................................................... 10
`IV. CONSTRUCTION OF DISPUTED TERMS ............................................................... 11
`A.
`“client device” ....................................................................................................... 11
`B.
`“first server” and “second server”......................................................................... 13
`C.
`“sending . . . the first content identifier to the web server using the selected
`IP address” ............................................................................................................ 15
`“a response time when communicating” ............................................................... 19
`“source address”.................................................................................................... 23
`“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” ..................................................... 27
`“receiving, by the requesting client device, over the Internet in response to
`the sending from the second server using the selected IP address” ...................... 29
`“determining, . . . that the received part of, or the whole of, first content, is
`valid” and “the determining is based on a received HTTP header
`according to, or based on IETF RFC 2616” ......................................................... 31
`“periodically communicating” .............................................................................. 35
`I.
`CONCLUSION ............................................................................................................... 37
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`D.
`E.
`F.
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`G.
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`H.
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`2
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`Case 2:19-cv-00396-JRG Document 97 Filed 02/08/21 Page 3 of 37 PageID #: 1503
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`I.
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`BACKGROUND
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`
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`Plaintiff alleges infringement of two U.S. Patents: No. 10,484,511 (the “’511 Patent”) and No.
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`10,637,968 (the “’968 Patent”) (collectively, the “Asserted Patents”). The patents are related
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`through a series of continuation and division applications. They each list an earliest priority claim
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`to an application filed on October 8, 2009. The ’511 and ’968 Patents share a substantially identical
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`specification, outside of the claim sets. The Court cites the ’511 Patent herein with the
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`understanding that the ’968 Patent includes the same material.
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`The Asserted Patents are related to patents recently construed by the Court in Claim
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`Construction Opinion and Order, Luminati Networks, Ltd. v. Teso LT UAB et al., No. 2:19-cv-
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`00395-JRG (E.D. Tex. Dec. 7, 2020), Dkt. No. 191 (the “Teso Markman Order”). Specifically, the
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`Court there construed claims in three U.S. Patents: No. 10,257,319 (the “’319 Patent), No.
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`10,484,510 (the “’510 Patent), and No. 10,469,614 (the “’614 Patent”). The ’319 and ’510 Patents
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`are related to the Asserted Patents and share a substantially identical specification with the
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`Asserted Patents, outside of the claim sets.
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`In general, the Asserted Patents are directed to technology for improving communications in
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`a communication network. The technology can be generally understood with reference to Figure
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`3, reproduced and annotated below. Communication devices in a network may be (inclusively)
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`configured as a client (102), an agent (122), or a peer (112, 114, 116). Clients are configured to
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`request content from a web server (152). Peers are configured to store copies of portions of the
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`requested content in cache. Agents are configured to process the clients’ requests for content (solid
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`green arrow) by (1) providing the client with a list of potential alternative sources of the requested
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`content (dashed red arrow) or (2) if there are no suitable alternative sources, providing the client
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`with the requested content which the agent retrieves from the web server (solid magenta arrow).
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`3
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`An acceleration server (162) stores a list of IP addresses of communication devices in the network
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`and provides clients with a list of potential agents for the client request (blue solid arrow). ’511
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`Patent col.4 l.43 – col.5 l.50, col.10 ll.22–46, col.12 ll.57 – col.15 l.11.
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`Fig. 3
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`request for content
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`content
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`potential sources
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`request for content
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`content
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`The abstracts of the Asserted Patents are identical and provide:
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`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.
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`Claim 1 of the ’511 Patent and Claim 1 of the ’968 Patent, the independent claims at issue,
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`recite as follows (with terms in dispute emphasized):
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`’511 Patent Claim 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).
`
`’968 Patent Claim 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;
`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.
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`II.
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`LEGAL PRINCIPLES
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`A.
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`Claim Construction
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc.,
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`
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`381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by
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`considering the intrinsic evidence. Id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d
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`858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d
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`1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the
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`specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at
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`861. The general rule—subject to certain specific exceptions discussed infra—is that each claim
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`term is construed according to its ordinary and accustomed meaning as understood by one of
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`ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d
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`at 1312–13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure
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`Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption
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`that claim terms carry their accustomed meaning in the relevant community at the relevant time.”)
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`(vacated on other grounds).
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` “The claim construction inquiry . . . begins and ends in all cases with the actual words of the
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`claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n
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`all aspects of claim construction, ‘the name of the game is the claim.’” Apple Inc. v. Motorola,
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`Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed.
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`Cir. 1998)). First, a term’s context in the asserted claim can be instructive. Phillips, 415 F.3d at
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`1314. Other asserted or unasserted claims can also aid in determining the claim’s meaning, because
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`claim terms are typically used consistently throughout the patent. Id. Differences among the claim
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`terms can also assist in understanding a term’s meaning. Id. For example, when a dependent claim
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`adds a limitation to an independent claim, it is presumed that the independent claim does not
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`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. (quoting
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`Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he
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`specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive;
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`it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp.,
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`299 F.3d 1313, 1325 (Fed. Cir. 2002). But, “‘[a]lthough the specification may aid the court in
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`interpreting the meaning of disputed claim language, particular embodiments and examples
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`appearing in the specification will not generally be read into the claims.’” Comark Commc’ns, Inc.
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`v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-
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`Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is
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`improper to read limitations from a preferred embodiment described in the specification—even if
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`it is the only embodiment—into the claims absent a clear indication in the intrinsic record that the
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`patentee intended the claims to be so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d
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`898, 913 (Fed. Cir. 2004).
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`The prosecution history is another tool to supply the proper context for claim construction
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`because, like the specification, the prosecution history provides evidence of how the U.S. Patent
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`and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317.
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`However, “because the prosecution history represents an ongoing negotiation between the PTO
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`and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the
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`specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic
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`Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution
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`history may be “unhelpful as an interpretive resource”).
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`Although extrinsic evidence can also 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
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`(quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court
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`understand the underlying technology and the manner in which one skilled in the art might use
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`claim terms, but technical dictionaries and treatises may provide definitions that are too broad or
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`may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony
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`may aid a court in understanding the underlying technology and determining the particular
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`meaning of a term in the pertinent field, but an expert’s conclusory, unsupported assertions as to a
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`term’s definition are not helpful to a court. Id. Extrinsic evidence is “less reliable than the patent
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`and its prosecution history in determining how to read claim terms.” Id. The Supreme Court has
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`explained the role of extrinsic evidence in claim construction:
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`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. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871)
`(a patent may be “so interspersed with technical terms and terms of art that the
`testimony of scientific witnesses is indispensable to a correct understanding of its
`meaning”). In cases where those subsidiary facts are in dispute, courts will need to
`make subsidiary factual findings about that extrinsic evidence. These are the
`“evidentiary underpinnings” of claim construction that we discussed in Markman,
`and this subsidiary factfinding must be reviewed for clear error on appeal.
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`Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331–32 (2015).
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`B.
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`Departing from the Ordinary Meaning of a Claim Term
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`There are “only two exceptions to [the] general rule” that claim terms are construed according
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`to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts as his own
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`lexicographer, or 2) when the patentee disavows the full scope of the claim term either in the
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`specification or during prosecution.”2 Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365
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`(Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed.
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`Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir.
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`2014) (“[T]he specification and prosecution history only compel departure from the plain meaning
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`in two instances: lexicography and disavowal.”). The standards for finding lexicography or
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`disavowal are “exacting.” GE Lighting Solutions, 750 F.3d at 1309.
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`To act as his own lexicographer, the patentee must “clearly set forth a definition of the
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`disputed claim term,” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669
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`F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must appear
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`“with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.
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`To disavow or disclaim the full scope of a claim term, the patentee’s statements in the
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`specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis
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`Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at
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`1366 (“The patentee may demonstrate intent to deviate from the ordinary and accustomed meaning
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`of a claim term by including in the specification expressions of manifest exclusion or restriction,
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`representing a clear disavowal of claim scope.”). “Where an applicant’s statements are amenable
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`to multiple reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M
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`Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
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`C.
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`Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)
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`Patent claims must particularly point out and distinctly claim the subject matter regarded as
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`the invention. 35 U.S.C. § 112, ¶ 2. A claim, when viewed in light of the intrinsic evidence, must
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`2 Some cases have characterized other principles of claim construction as “exceptions” to the
`general rule, such as the statutory requirement that a means-plus-function term is construed to
`cover the corresponding structure disclosed in the specification. See, e.g., CCS Fitness, Inc. v.
`Brunswick Corp., 288 F.3d 1359, 1367 (Fed. Cir. 2002).
`9
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`“inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus
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`Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). If it does not, the claim fails § 112, ¶ 2
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`and is therefore invalid as indefinite. Id. at 901. Whether a claim is indefinite is determined from
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`the perspective of one of ordinary skill in the art as of the time the application for the patent was
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`filed. Id. at 911. As it is a challenge to the validity of a patent, the failure of any claim in suit to
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`comply with § 112 must be shown by clear and convincing evidence. BASF Corp. v. Johnson
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`Matthey Inc., 875 F.3d 1360, 1365 (Fed. Cir. 2017). “[I]ndefiniteness is a question of law and in
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`effect part of claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed.
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`Cir. 2012).
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`When a term of degree is used in a claim, “the court must determine whether the patent
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`provides some standard for measuring that degree.” Biosig Instruments, Inc. v. Nautilus, Inc., 783
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`F.3d 1374, 1378 (Fed. Cir. 2015) (quotation marks omitted). Likewise, when a subjective term is
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`used in a claim, “the court must determine whether the patent’s specification supplies some
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`standard for measuring the scope of the [term].” Datamize, LLC v. Plumtree Software, Inc., 417
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`F.3d 1342, 1351 (Fed. Cir. 2005). The standard “must provide objective boundaries for those of
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`skill in the art.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014).
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`III. AGREED CONSTRUCTIONS
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`The parties have agreed to constructions set forth in their Patent Rule 4-5(d) Joint Claim
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`Construction Chart (Dkt. No. 91). Based on the parties’ agreement, the Court hereby adopts the
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`agreed constructions.
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`IV. CONSTRUCTION OF DISPUTED TERMS
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`A.
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`“client device”
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`Disputed Term3
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`“client device”
`
`•
`•
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`’510 Patent Claim 1
`’968 Patent Claim 1
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`The Parties’ Positions
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`Plaintiff’s Proposed
`Construction
`consumer computer
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`alternatively,
`• communication device
`that is operating in the
`role of a client
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`Defendants’ Proposed
`Construction
`communication device that is
`operating in the role of a
`client
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`Plaintiff submits: The “client device” of the Asserted Patents is defined to refer to a consumer
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`computer, such as a laptop, desktop, or smartphone (citing ’511 Patent col.2 ll.47–494). These
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`devices are also referred to as “communication devices.” Such devices are distinct from the
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`“servers” of the patents, which may encompass devices such as server farms and data centers. Dkt.
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`No. 86 at 15–18.
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`In addition to the claims themselves, Plaintiff cites the following intrinsic and extrinsic
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`evidence to support its position: Intrinsic evidence: ’511 Patent figs.1, 3, col.2 ll.44–46, col.4
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`ll.43–55, col.4 l.64 – col.5 l.12, col.12 ll.33–56. Extrinsic evidence: Rhyne Decl.5 ¶ 8 (Plaintiff’s
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`Ex. C, Dkt. No. 86-3); Freedman Disclosure6 ¶¶ 21, 23–24 (Plaintiff’s Ex. E, Dkt. No. 86-5).
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`Defendants respond: As the Court held in the Teso Markman Order, “the language on which
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`Luminati relies is not sufficient to redefine the meaning of the term to ‘consumer computer’”
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`3 For all term charts in this order, the claims in which the term is found are listed with the term
`but: (1) only the highest-level claim in each dependency chain is listed, and (2) only asserted
`claims identified in the parties’ Patent Rule 4-5(d) Joint Claim Construction Chart (Dkt. No. 91)
`are listed.
`4 Plaintiff cites column 2, lines 44–46 but quotes column 2, lines 47–49.
`5 Declaration of Dr. Vernon Thomas Rhyne III in Support of Plaintiff Luminati Network Ltd.’s
`Claim Constructions (Nov. 6, 2020).
`6 Patent LR 4-3 Disclosure of Expert Testimony (Nov. 5, 2020).
`11
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`(quoting Teso Markman Order at 11). Further, as the Court previously held, the (common)
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`specification does not mandate that “a client device is specifically not a server.” In fact, the
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`Asserted Patents describe that an exemplary communication device comprising a general-purpose
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`assembly of standard computer components may act as the client when performing the role of the
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`client. Further, that the “client device” is defined by its role rather than special equipment comports
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`with the customary meaning of “client” in the art. Dkt. No. 88 at 5–11.
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`In addition to the claims themselves, Defendants cite the following intrinsic and extrinsic
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`evidence to support their position: Intrinsic evidence: ’511 Patent col.2 ll.44–49, col.4 ll.3-4, col.4
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`ll.49–51, col.4 ll.53–55, col.5 ll.54–62, col.6 ll.18–21, col.6 ll.33–35, col.6 ll.63–67, col.9 ll.21–
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`40, col.16 l.22. Extrinsic evidence: Freedman Decl.7 ¶¶ 30–31, 39–45 (Dkt. No. 88-1); R. Fielding
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`et al., Network Working Group, RFC 2616 Hypertext Transfer Protocol — HTTP/1.1 at § 1.3
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`(1999) (Defendants’ Ex. 2, Dkt. No. 88-3 at 9–11); Merriam-Webster Online Dictionary,
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`“consumer”8.
`
`Plaintiff replies: “The specification distinguishes ‘communication devices’ from servers . . .
`
`which was recognized by this Court . . . in the Teso [Markman Order].” There is a distinction
`
`between a client device acting as a server and a server. Dkt. No. 89 at 4–6.
`
`Plaintiff cites further intrinsic evidence to support its position: ’968 Patent col.4 l.41 – col.5
`
`l.10; ’319 Patent col.2 ll.44–46.
`
`
`7 Declaration of Dr. Michael Freedman in Support of Defendants’ Responsive Claim
`Construction Brief (Dec. 31, 2020).
`8 https://www.merriam-webster.com/dictionary/consumer. Defendants did not submit a copy of
`this webpage as an exhibit.
`
`
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`Case 2:19-cv-00396-JRG Document 97 Filed 02/08/21 Page 13 of 37 PageID #: 1513
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`
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`Analysis
`
`There appear to be two issues in dispute. First, whether a client device is necessarily a
`
`“consumer computer.” Second, whether a client device is necessarily not a server. These issues
`
`largely parallel the issues addressed in the Teso Markman Order and the Court here reiterates and
`
`adopts the reasoning and ruling of that order. Teso Markman Order at 10–12. Specifically, the
`
`client device is defined by the role of the communication device as a client rather than by the
`
`components of the device and regardless of any additional role the device may serve, including as
`
`a server.
`
`Accordingly, the Court construes “client device” as follows:
`
`• “client device” means “communication device that is operating in the role of a
`
`client.”
`
`B.
`
`“first server” and “second server”
`
`Disputed Term
`
`“first server”
`
`’510 Patent Claim 1
`•
`“second server”
`
`•
`
`’968 Patent Claim 1
`
`The Parties’ Positions
`
`Plaintiff’s Proposed
`Construction
`server that is not the client
`device or the web server
`
`server that is not the client
`device or the web server
`
`Defendants’ Proposed
`Construction
`plain and ordinary meaning
`
`plain and ordinary meaning
`
`Plaintiff submits: Based on the plain meaning of the claim language, the “first server” and the
`
`“second server” are each separate from the recited “web server” and “client device” of the claims.
`
`Dkt. No. 86 at 18–20.
`
`In addition to the claims themselves, Plaintiff cites the following intrinsic and extrinsic
`
`evidence to support its position: Intrinsic evidence: ’511 Patent col.2 ll.44–46, col.4 ll.43–64.
`
`Extrinsic evidence: Rhyne Decl. ¶ 8 (Plaintiff’s Ex. C, Dkt. No. 86-3).
`
`
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`Case 2:19-cv-00396-JRG Document 97 Filed 02/08/21 Page 14 of 37 PageID #: 1514
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`Defendants respond: There is no need to specify that the “first server” or “second server” is
`
`separate from the web server. Such a construction would either be redundant or improperly change
`
`the scope of the claim. In fact, Claim 1 of the ’968 Patent recites that the second server is “distinct”
`
`from the first server. Dkt. No. 88 at 11–13.
`
`In addition to the claims themselves, Defendants cite the following extrinsic evidence to
`
`support their position: Freedman Decl. ¶¶ 20–35, 46–51 (Dkt. No. 88-1).
`
`Plaintiff replies: The first and second servers are described and claimed as components
`
`separate from the web server. Dkt. No. 89 at 6–8.
`
`Plaintiff cites further extrinsic evidence to support its position: Merriam-Webster Online
`
`Dictionary, “distinct”9.
`
`Analysis
`
`The issue in dispute appears to be whether one component can simultaneously serve as more
`
`than one of: the client device, the first server/second server, and the web server. It cannot.
`
`The “first server” (’511 Patent) and the “second server” (’968 Patent) are distinct from the
`
`“client device” and “web server” separately recited in the claims. To begin, they are recited
`
`separately in the claims, suggesting that they are distinct components. Becton, Dickinson & Co. v.
`
`Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010) (“Where a claim lists elements
`
`separately, the clear implication of the claim language is that those elements are distinct
`
`components of the patented invention.” (quotation and modification marks omitted)). The recited
`
`operation of the claims further suggests a distinction among these components. For instance, Claim
`
`1 of the ’511 Patent, a “method by the first server comprising” recites “receiving, from the first
`
`
`9 https://www.merriam-webster.com/dictionary/distinct. Plaintiff did not submit a copy of this
`webpage as an exhibit.
`
`
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`Case 2:19-cv-00396-JRG Document 97 Filed 02/08/21 Page 15 of 37 PageID #: 1515
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`client device, the first content identifier,” “sending . . . the first content identifier to the web server,”
`
`“receiving . . . the first content from the web server,” and “sending the received first content to the
`
`first client device.” This plainly is directed to a “first server” acting as an intermediary between
`
`the “client device” and “second server.” Claim 1 of the ’968 Patent similarly indicates the
`
`distinction among components. It recites “a second server distinct from the first web server” and
`
`“sending, by the requesting client device, to the second server.” Again, this is plainly directed to a
`
`method treating the first web server, second server, and client device as three distinct components.
`
`Accordingly, the Court construes “first server” and “second server” as follows:
`
`• “first server” means “server that is not the client device or the web server”;
`
`• “second server” means “server that is not the client device or the first web
`
`server.”
`
`C.
`
`“sending . . . the first content identifier to the web server using the selected IP
`address”
`
`Defendants’ Proposed
`Construction
`indefinite
`
`Disputed Term
`
`“sending . . . the first content
`identifier to the web server
`using the selected IP
`address”10
`
`•
`
`’511 Patent Claim 1
`
`Plaintiff’s Proposed
`Construction
`the first server sending the
`Uniform Resource Locator
`for the first content to the
`web server using the selected
`IP address from the stored
`group of IP addresses
`
`The Parties’ Positions
`
`Plaintiff submits: The claim “clearly identifies the first content identifier as ‘a Uniform
`
`Resource Locator.’” And while the claim broadly requires sending this identifier to the web server
`
`“using the selected IP address” without specifying exactly how the sending uses the selected IP
`
`
`10 The parties also separately identify “sending … to the web server using the selected IP
`address,” which is a subset of the broader term. Dkt. No. 91-1 at 2.
`15
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`
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`address, breadth is not indefiniteness. In fact, dependent claims specify further details of the
`
`selected IP address: Claim 2 requires that it is associated with a client device, Claim 25 requires
`
`that it is a source address. Dkt. No. 86 at 22–24.
`
`In addition to the claims themselves, Plaintiff cites the following extrinsic evidence to support
`
`its position: Rhyne Decl. ¶¶ 15–16 (Plaintiff’s Ex. C, Dkt. No. 86-3).
`
`Defendants respond: The meaning of this term is not reasonably certai