Case 2:16-cv-00741-RWS Document 165 Filed 06/08/17 Page 1 of 14 PageID #: 2355
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`UNILOC USA, INC., et al,
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`Plaintiffs,
`
`
`v.
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`
`
`ADP, LLC,
`BIG FISH GAMES, INC.,
`BLACKBOARD, INC.,
`BOX, INC.,
`ZENDESK, INC.,
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`Defendants.
`
`
`UNILOC USA, INC., et al,
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`Plaintiffs,
`
`
`v.
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`
`
`AVG TECHNOLOGIES USA, INC.,
`BITDEFENDER LLC,
`PIRIFORM, INC.,
`UBISOFT, INC.,
`KASPERSKY LAB, INC.,
`SQUARE ENIX, INC.,
`
`Defendants.
`
`
`§
`§
`§ Case No. 2:16-cv-00741-RWS
`§
`
`LEAD CASE
`§
`§
`§ Case No. 2:16-cv-00858-RWS
`§ Case No. 2:16-cv-00859-RWS
`§ Case No. 2:16-cv-00860-RWS
`§ Case No. 2:16-cv-00863-RWS
`
`§
`§
`§ Case No. 2:16-cv-00393-RWS
`§
`
`LEAD CASE
`§
`§
`§ Case No. 2:16-cv-00394-RWS
`§ Case No. 2:16-cv-00396-RWS
`§ Case No. 2:16-cv-00397-RWS
`§ Case No. 2:16-cv-00871-RWS
`§ Case No. 2:16-cv-00872-RWS
`
`
`PLAINTIFFS’ REPLY CLAIM CONSTRUCTION BRIEF
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`As reported in the Opening Claim Construction Brief (“Un.Br.”), the parties reduced to
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`five the number of claim construction issues. This Reply responds to arguments in Defendants’
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`Responsive Claim Construction Brief (“D.Br.”), as to each.1
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`1 Dkt. No. 159 in 2:16-cv-741 and Dkt. No. 150 in 2:16-cv-393.
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`Case 2:16-cv-00741-RWS Document 165 Filed 06/08/17 Page 2 of 14 PageID #: 2356
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`1. Whether the ’578 and ’293 patent claims require applications be executed at the
`client.
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`The four patents in these actions are directed towards four different inventions, with each
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`invention relating to a particular portion of an enterprise computer network. The patents are
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`largely independent. A company could infringe a patent covering one portion of its network, but
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`not infringe a second patent covering a second portion, if that company chose not to use the
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`invention of the second patent in that second portion.
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`The claims of the ’466 patent are directed to methods, systems, and products for
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`downloading applications to clients for execution at the clients. Thus, all of the claims of that
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`patent incorporate specific language requiring execution at the client, namely: “providing an
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`instance of the… application… to the client for execution.”
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`But the claims of the ’578 and ’293 patents are directed towards different inventions,
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`which inventions can be practiced in networks where execution is instead at a server (as well as
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`in networks where execution is at the client). The inventors therefore did not incorporate in the
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`claims of those patents language requiring execution at the client.2
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`A.
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`The claim construction issue reduces to whether the inventors disavowed the
`ordinary and usual meaning of the claims of the ’578 and ’293 patents.
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`In the Opening Claim Construction Brief, Uniloc stated that an application is software
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`written to perform a particular function for a user -- as opposed to system software, which is
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`designed to operate the network. Un.Br. 3. Uniloc also pointed out that nothing in the ordinary
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`2 Exhibit A to the Joint Claim Construction Statement and Prehearing Memorandum (“JCCS”)
`listed 14 claim terms/phrases on which the parties have not reached agreement. For several of
`those, the disagreement centered on the same issue: whether the ’578 and ’293 patent claims
`require applications be executed at the client. Rather than repeat arguments, Uniloc, in its
`briefing, identified that as a separate, overriding claim construction issue and consolidated its
`arguments under the above heading.
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`and usual meaning of “application” would limit the term to software executed only at a client, as
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`applications are frequently executed at remote servers. Un.Br. 6. Uniloc also argued that no other
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`language in the asserted claims of the ’578 and ’293 patents, if given its ordinary usual meaning,
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`would require applications be executed at the client. Un.Br.5. Defendants did not dispute any of
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`those propositions.
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`Uniloc also recited the Federal Circuit’s position, settled en banc in Phillips v. AWH
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`Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005),that claims should be given their ordinary and
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`customary meaning, with but two exceptions: where the patentees act as their own lexicographer
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`or where the patentees disavow the full scope of the claim term in the specification or during
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`prosecution. Again, defendants do not dispute that is the law. Further, defendants do not argue
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`the lexicographer exception applies to this issue in these patents.
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`Thus, this claim construction issue reduces to whether the patentees disavowed a scope of
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`the ’578 and ’293 patent claims that would allow execution at the server. Uniloc found no
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`disavowal. Un.Br. 7. Defendants argue otherwise. D.Br. 5-10.
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`B. What is required to find a disavowal.
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`The courts have repeatedly held that the evidence of disavowal must be clear and
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`unmistakable:
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`“[D]isavowal requires that ‘the specification [or prosecution history] make clear
`that the invention does not include a particular feature.” Pacing Techs., LLC v.
`Garmin Int’l, Inc., 778 F.3d 1021, 1024 (Fed. Cir. 2015)(internal citations
`omitted).
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`“We have found disavowal or disclaimer based on clear and unmistakable
`statements by the patentee that limit the claims, such as ‘the present invention
`includes…’ or ‘the present invention is…’ or ‘all embodiments of the present
`invention are…’.” Id. (internal citations omitted); see also David Netzer
`Consulting Eng'r LLC v. Shell Oil Co., 824 F.3d 989, 994 (Fed. Cir. 2016), cert.
`denied, 137 S. Ct. 695 (2017).
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`Case 2:16-cv-00741-RWS Document 165 Filed 06/08/17 Page 4 of 14 PageID #: 2358
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`As discussed above, given their ordinary meaning, the claims of the ‘578 and ‘293
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`patents would cover portions of networks that execute applications on a server (as well as
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`networks that execute applications on the client). To establish a disavowal, defendants
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`must point to statements or arguments that clearly and unmistakably give up that broad
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`coverage. For example, “prior art reference X does not anticipate the claims of the ‘578
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`patent because in reference X, applications are executed on a server, rather than the
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`client.”
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`C.
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`Defendants’ alleged disavowal.
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`This Reply will step through each of what defendants argue constituted a disavowal.
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`None meet the above criteria.
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`1. The ’578 Specification
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`Defendants first argue the inventors “distinguished” the “claimed invention” on the basis
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`of executing at the server. D.Br. 6. They cite the following sentence from the specification of
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`the ’578 patent:
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`Each of these “mobility” systems typically do not address the full range of
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`complications which may arise in a heterogeneous network utilizing differing devices and
`connections.
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`(’578 patent at: 3:5-8), which followed a description of various mobility systems (2:35-3:4),
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`including two (2:50-55) that executed applications at the server. But the above language,
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`disparaging certain mobility systems, says nothing about executing at the server. Rather, the
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`language criticizes certain mobility systems not for where they execute applications, but for not
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`addressing “the full range of complications which may arise in a heterogeneous network utilizing
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`different devices and connections.” This limitation of prior art mobility systems (further
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`explained at 3:12-27 of the ’578 patent) would appear, from the intrinsic record, to be
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`independent of where applications are executed, as the systems disparaged included all described
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`in 2:35-3:4 of the ’578 specification, not just the systems (2:50-55) that execute at the server.
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`Patent specifications, in the portion typically entitled “background of the invention,”
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`commonly discuss the pluses and minuses of existing products or systems. Here, if the
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`specification had recited the comparative advantages and disadvantages of executing applications
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`at a server, that comparison would not normally be viewed as “disavowing” a claim scope broad
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`enough to cover either approach. But the ‘578 specification does not even go that far, as it
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`nowhere criticizes, even impliedly, executing applications on the server.
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`Defendants also argue that the disclosed embodiments in the ’578 patent specification
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`reflect that applications are executed at the client. D.Br. 6-7. But the section of the specification
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`entitled “DETAILED DESCRIPTION OF PREFERRED EMBODIMENTS” that begins at 6:29
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`and ends at 11:22, and which steps through FIGS. 2-4 of the ’578 patent, makes no mention of
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`where the applications are executed. Rather, it describes, as does the claims, downloading not the
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`application, but only the “application launcher program,” which need not include the entire
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`application. The only reference in the entire patent to an embodiment that describes execution
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`at the client is in a section (11:27-12:36) describing the “[a]lternative preferred embodiments …
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`described in [the ’466] patent application patent.” As discussed above, all the claims in the ’466
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`patent require execution as the client. That an alternate embodiment (from the ’466 patent)
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`executes at the client does not disavow the ’578 patent claims’ coverage of systems or programs
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`that execute on a server.
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`In any event, as a general rule, a court may not read into the claims limitations from an
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`embodiment, particularly when, as here, the limitation does not appear in all embodiments. See
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`SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004)(finding “a
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`particular embodiment appearing in the written description may not be read into a claim when
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`the claim language is broader than the embodiment”).
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`2. The ’293 Specification
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`Defendants point to a statement the application program is “executed at the client,” which
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`appears in the ’293 patent specification, in a paragraph (’466 patent at 3:55-4:3) that begins
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`“according to the present invention.” D.Br. 6. This argument, however, overlooks the ’293
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`patent is a divisional of the ’466 patent.
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`The inventors filed the application for the ’466 patent (application no. 9/211, 528) on
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`December 14, 1998. Although the application, like most, stylistically referred to “the” invention,
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`it actually described more than one. The patent examiner recognized this, finding there were two
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`distinct inventions, one “drawn to application management” and the other “drawn to distribution
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`of application.” [‘466 patent file history, 3/28/01 office action at 2-3: UNILOC
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`IBM_2016_01445-48 attached as Ex. A to the Declaration of James J. Foster (“Foster Dec.”)].
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`He required the inventors to elect the claims for one invention, and file a divisional application to
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`pursue the claims to the other invention. The divisional application (application no. 09/870,608)
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`was filed May 31, 2001 and resulted in issuance of the ’293 patent, directed to “distribution of
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`application programs to a target station on a network.”
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`The practice in filing a divisional is to include the entire written description from the
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`earlier application, even though it contains portions relating solely to the distinct invention being
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`pursued only in the earlier application. Thus, the portions describing the invention of the ’466
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`claims remained in the specification, even though the invention of the ’293 patent was directed to
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`a different portion of the network.
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`As earlier noted, Un.Br.4-5, all claims of the ’466 patent have language unambiguously
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`requiring execution at the client. The invention of those ’466 patent claims is what is described
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`in the paragraph of the common application (‘466 patent at 3:55-4:3) defendants now rely on.
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`D.Br. 6. That paragraph does not describe the distinct invention claimed in the ’293 patent;
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`rather, the paragraph that followed (’466 patent at 4:10-21) describes the invention of the ’293
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`patent, and that paragraph contains no mention of execution at the client. Nor would it, because
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`the invention of the ’293 patent relates to the transmission of applications from a central
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`management server to another server; that invention does not even involve a client.
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`For the same reason, we can disregard defendants’ argument that disclosed embodiments
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`in the ’293 specification reflect that applications are executed at the client. D.Br. 6-7. Those
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`embodiments appear in the portions of the specification corresponding to the distinct invention
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`of the ’466 patent. By contrast, the portion of the “DETAILED DESCRIPTION OF
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`PREFERRED EMBODIMENTS” that corresponds to the distinct invention of the ’293 patent
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`(’466 patent at 17:17-20:59) does not mention where applications are executed.
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`3. Prosecution Histories
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`Defendants cite scattered lines from various prosecution histories that ostensibly
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`“confirm” that applications in all four patents must be executed at the client.
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`A.
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`The ’466 patent
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`We can disregard the prosecution history of the ’466 patent because the claim
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`construction issue is limited to claims of the ’578 and ’293 patents. Defendants attempt to get
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`over this hurdle by arguing that because “application program” appears in all patents, a court
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`may consider a “definition” of that term from other prosecution histories. D.Br. 9.
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`Which brings us to the principal problem with defendants’ argument. As all parties agree,
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`the claims of the ’466 patent require execution at the client. But that requirement does not arise
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`from a “definition” of “application.” Nowhere do the inventors state or imply an application
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`executing at the server is not an “application.” Rather, the requirement in the ’466 patent, of
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`execution at the client, arises from other unambiguous, specific language in the ’466 claims
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`requiring execution at the client, namely: “providing an instance of the… application… to the
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`client for execution.” Thus, statements in the ’466 prosecution history that, in the claims being
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`pursued, applications are executed at the client do not define “application,” and thus would have
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`no relevance to the ’578 patent.3
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`B.
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`The ’766 patent
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`Defendants have a similar problem with statements from the ’766 prosecution history,
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`because that prosecution history also forms no part of the prosecution history of the ’578 or ’293
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`patents. On this basis alone, the Court should disregard that prosecution history. Although, as
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`with the ‘466 patent, defendants argue that statements defining “applications” should be
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`considered, they point to no statements of that type.
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`In any event, none of the scattered statements defendants discuss supports their argument.
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`The relevant claims being pursued in the ’766 patent prosecution covered a method or
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`system in which an application launcher program located on the client, and associated with a
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`particular application, requests a license availability from a server and then receives from the
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`3 By comparison, defendants, D.Br. 9, point to statements in the ‘466 prosecution history in
`which the inventors argued "resources," such as a static HTML file or a dynamically generated
`page created by a CGI-based program of the server are not "application programs." October 23,
`2001 remarks, UNILOC _IBM _2016 0631-33(Attached as Ex. E to D. Br. (Dkt. No. 59-5).
`Because those statements go to the actual definition of "application programs," as opposed to
`other parts of the claim, the statements would disavow static HTML files and dynamically
`generated pages. But that is not the claim construction issue in this case.
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`server an indication of availability or unavailability. Notably, none of the relevant claims even
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`discuss execution of an application.
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`During the prosecution, the examiner initially rejected these claims as obvious, based on
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`combinations of various references that discuss determination of license availability. Because the
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`relevant claims did not even discuss execution, defendants could not have, and did not,
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`distinguish any of those references based on where execution is performed.
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`Defendants refer to comments regarding a Franklin reference, namely, that the inventors
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`argued applications in that reference were “launched” from a server. D.Br. 8. But the inventors
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`did not distinguish Franklin on the grounds that its applications were executed on the server; nor
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`could they because, as noted, the claims did not mention where applications were executed.
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`Rather, the inventors distinguished Franklin on the ground that the application launcher was
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`located on the server, whereas in the ’766 patent, the application launcher is on the client (“the
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`launcher recited in Franklin is a server-based resource.”)4
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`Defendants also refer to comments regarding a Duvvoori reference, which the examiner
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`cited as a combining reference with a Christiano reference. D.Br. 8. The comment was the
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`reference did not disclose “a configurable instance of an application… for execution at the
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`client.” The inventors, however, did not distinguish that combination on the ground that
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`applications would be executed at the server. They could not have argued that because, in both
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`references, applications were executed at the client, not the server. As the inventors pointed out,
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`“Christiano appears to describe an environment in which the program’s executable code is
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`already on the client” and “the server recited in Christiano provides the client with permission to
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`4 Ex. B to Foster Dec. ‘766 patent file history at August 1, 2002 remarks,
`UNILOC_IBM_2016_839-844 at 843.
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`use an application that may be executing on the client.” Ex. B to Foster Dec. ’766 patent file
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`history at August 1, 2002 remarks, UNILOC_IBM_2016_839-844 at 843 and 841. The inventors
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`similarly described Duvvoori as describing “an agent process… at the client that controls
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`execution programs resident on the clients.” Ex. C to Foster Dec. UNILOC_IBM_2016_866-870
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`at 868. The inventors never described either reference as executing programs at the server.
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`Rather, the inventors’ statement distinguishing Duvvoori, as with Franklin, related to that
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`reference’s not having an application launcher located on the client .5
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`2. Whether claims 6 and 8 of the ’578 patent are indefinite.
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`Claim 1 includes a step of executing an application, using certain sets of configurable
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`preferences.
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`Claim 6 adds two unambiguous limitations: a) storing those sets on a storage device,
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`before initiating the execution and then b) retrieving the stored sets in initiating the execution.
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`One does not need to be a POSITA to figure that out. One needs only a modest understanding of
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`the English language.
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`If the drafter of claim 6 had written “the initiating execution step” as “initiating the step
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`of execution,” which means the same thing, defendants would have no argument. But seeing that
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`the language differs, in form if not in meaning, they are tying themselves in knots trying to twist
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`that difference into an indefiniteness argument. But the problem with their argument is that claim
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`5 Defendants briefly mention a separate statement allegedly distinguishing the Christiano
`reference as “not providing the client with an instance of the application program itself.” D.Br.
`8-9. That statement pertained only to three claims of the ’766 patent application with specific
`language unambiguously requiring providing “the client with an instance of the application
`program itself.” But, in any event, as the inventors argued in Christiano, the claims were
`executed at the client, that reference could not be distinguished in a way that would support
`defendants’ argument.
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`6, written either way, adds the same two unambiguous limitations. Written either way, claim 6
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`has the identical scope.
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`But even if the Court were to find that the current language introduces an ambiguity, the
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`Court has the authority to correct an error in a patent rather than find a claim indefinite. See
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`Novo Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003)(“If a correction
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`cannot be made, the claim here is invalid for indefiniteness.”).
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`A district can correct an error in a patent “if (1) the correction is not subject to reasonable
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`debate based on consideration of the claim language and the specification and (2) the prosecution
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`history does not suggest a different interpretation of the claims.” Id.
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`The analysis is the same with respect to claim 8, which adds the unambiguous limitation
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`of obtaining default preference values in initiating the execution.
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`3. Whether claims 20, 22, 24, 35, 37, and 39 of the ’578 patent are indefinite.
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`Defendants’ response presents their first explanation of their indefiniteness argument as
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`to these claims. D. Br. 17-19. As before, Uniloc will use claims 32 and 35 as representative of
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`the argument.
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`As Uniloc previously explained, a POSITA would understand the relevant code of claim
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`32 is code that causes the processor to provide an executable copy of the program for use in
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`executing the application; defendants seem to agree.
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`The code that claim 35 requires (but claims 32 does not) is code that actually executes the
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`program. Un.Br. 9-10. The scope of claim 35 thus seems definite, as the additional limitation
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`simply requires code that actually executes the program. Nothing in defendants’ dense,
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`confusing presentation seems to deny that.
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`4.
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`The construction of “license availability.”
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`Case 2:16-cv-00741-RWS Document 165 Filed 06/08/17 Page 12 of 14 PageID #: 2366
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`After reading defendants’ comments, D.Br. 19-23, little need be added to what was said
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`in the opening brief. Un.Br. 10-11. This is not a claim construction issue, as all parties agree that
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`“license availability” means a determination that a user can be issued a license to the selected
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`application program.
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`Rather, this seems to be a dispute over future jury instructions, and then only as to two
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`defendants. Those defendants want the Court to instruct the jury that determining a user can be
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`issued a license is “distinct” from determining the user is authorized. Uniloc objected that
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`instruction might mislead, where the evidence shows that a defendant’s method of determining
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`whether a user can be issued a license includes determining whether a user is authorized.
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`Uniloc suggest that this issue is better addressed at a charge conference, rather than a
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`Markman hearing.
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`5. What the jury should be told re “instance of an application program.”
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`Again, this is not a claim construction issue. Underneath all the rhetoric, the parties seem
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`to agree what an “instance of a program” means to those in the art. They just cannot agree on
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`what the Court should say to the jury. Defendants (other than Kaspersky) want the Court to give
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`nothing more than the unhelpful statement that an “instance” is a “copy.” Defendant Kaspersky’s
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`rejection of its co-defendants’ position is elegantly stated:
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`Computer science uses the word “instance” of a program as a term of art.
`Kaspersky Lab agrees with Uniloc that the term requires interpretation and that
`the Linux Information Project (“Linux”) is an authoritative source for a definition.
`Reliance on an authoritative extrinsic definition is warranted because the
`specification and file history do not define “instance” and the ordinary meaning of
`the term does not apply to computer science. Kaspersky Lab also agrees with
`Uniloc that the construction of “instance” should explain the difference between a
`copy of a program in storage and a copy of a program that is in memory and ready
`to run. An instance of a program, as the Linux definition explains, is a copy that is
`running or ready to run because it is in memory, such as RAM, as opposed to a
`copy of a program stored on a disk. Thus, multiple instances of one program can
`be running on a computer at the same time. The first sentence of the Linux
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`definition says that an instance of a program “is a copy of an executable version
`of the program that has been written to the computer’s memory.” This is an
`authoritative definition of “instance” and should be adopted. Under this proposed
`construction, it should be understood that “memory” refers to volatile memory
`such as RAM.
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`Kaspersky Br. at 2.
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`Date: June 8, 2017
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`Respectfully submitted,
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`/s/ James J. Foster_____________________
`Paul J. Hayes
`James J. Foster
`Kevin Gannon
`Prince Lobel Tye LLP
`One International Place - Suite 3700
`Boston, MA 02110
`Tel: 617-456-8000
`Email: phayes@princelobel.com
`Email: jfoster@princelobel.com
`Email: kgannon@princelobel.com
`
`Edward R. Nelson III
`ed@nelbum.com
`Texas State Bar No. 00797142
`Anthony M. Vecchione
`anthony@nelbum.com
`Texas State Bar No. 24061270
`NELSON BUMGARDNER PC
`3131 West 7th Street, Suite 300
`Fort Worth, Texas 76107
`Tel: (817) 377-9111
`
`James L. Etheridge
`Texas Bar No. 24059147
`Ryan S. Loveless
`Texas Bar No. 24036997
`ETHERIDGE LAW GROUP, PLLC
`2600 E. Southlake Blvd., Suite 120 / 324
`Southlake, TX 76092
`Tel.: (817) 470-7249
`Jim@EtheridgeLaw.com
`Ryan@EtheridgeLaw.com
`
`ATTORNEYS FOR THE PLAINTIFFS
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`CERTIFICATE OF SERVICE
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`I certify that all counsel of record who have consented to electronic service are being
`served with a copy of this document via the Court’s CM/ECF system per Local Rule CV-5(a)(3)
`on June 8, 2017.
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`_/s/ James J. Foster_______________________
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