Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 1 of 10 PageID #: 2711
`
`EXHIBIT A
`PRELIMINARY STATEMENT
`
`Defendants provide the following chart pursuant to P.R. 4-5. Defendants object to Plaintiffs’ Exhibit B because it improperly
`includes Plaintiffs’ notes and commentary, which do not comply with the rules and mischaracterize the parties’ disputes. First, the
`Patent Local Rules call for a single chart, but what Plaintiffs proposed is actually a piecemeal combination of multiple charts with
`scattered commentary that detracts from the purpose of P.R. 4-5(d): to provide a straightforward overview of the disputed claim terms,
`proposed constructions, and the Court’s order on the same. Second, the clearest and most accurate characterization of the claim
`construction issues for the Court’s consideration are the parties’ competing constructions for the disputed terms, as set forth below,
`in view of the parties’ briefings in accordance with the P.R. 4-5(a), (b), and (c) submissions. The additional discussion by Plaintiffs is
`an attempt to improperly advocate their positions, in what is supposed to be a neutral representation of the parties’ disputed constructions,
`by framing the parties’ disputes in a manner that Plaintiffs believe is helpful to their own proposed constructions. Accordingly, Plaintiffs
`submission should be disregarded as improper argument.
`
`Additionally, Defendants object to Plaintiffs’ proposed constructions for two of the terms, as noted below, because despite the
`parties’ previous agreement on these terms, Plaintiffs now propose entirely new constructions for these terms on the eve of this
`submission. As reflected in the chart below, Plaintiffs’ submission:
`
`1) deviates from the parties’ prior agreement, as memorialized in the Parties’ P.R. 4-3 Joint Claim Construction and Prehearing
`Statement (Dkt. 148), that the term “make the application program available for use” in the ’293 patent should be construed as
`“make the application available for access and download, responsive to user requests”; and
`
`2) deviates from the parties’ prior agreement that the term “application launcher program” should be construed as “a program
`distributed to a client to initially populate a user desktop and to request the application program from a server.”
`
`Plaintiffs’ attempt to reverse course on the parties’ agreed constructions for these terms after the conclusion of claim construction
`briefing is highly and manifestly prejudicial because Defendants did not brief these terms based on Plaintiffs’ representations that the
`parties’ had reached agreed constructions. Moreover, Defendants made concessions during the parties’ prior meet-and-confers in order
`to reach a compromise. Accordingly, the Court should reject Plaintiffs’ proposals as noted below and adopt the parties’ previously
`agreed constructions, which are stated by Defendants in the chart below.
`
`However, should the Court deem it appropriate to consider Plaintiffs’ new proposals, Defendants respectfully request as
`appropriate relief an opportunity to propose new constructions and file supplemental briefing for these terms. Defendants believe that
`such additional briefing, given Plaintiffs’ belated and unexcused departure from agreed upon constructions after briefing has been
`completed, strongly countenances postponing the Markman hearing until such time as Defendants have had sufficient opportunity to
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 2 of 10 PageID #: 2712
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`propose new constructions and submit additional briefing in support thereof in order to provide the Court a full record on the parties’
`claim construction disputes and their respective positions.
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 3 of 10 PageID #: 2713
`
`Terms and
`Phrases
`
`“application
`program(s) /
`application(s)”
`
`“an instance” / “an
`instance of the
`application
`program” / “an
`instance of the
`selected one of the
`plurality of
`application
`programs”
`
`CLAIM CONSTRUCTION CHART PURSUANT TO LOCAL PATENT RULE 4-5(d)
`
`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`Construction
`
`Construction1
`
`‘466
`
`‘766
`
`‘578
`
`‘293
`
`‘466
`
`‘766
`
`‘578
`
`1-4, 8-9, 13, 15-
`19, 23-24, 28,
`30-32, 36-37,
`41
`
`1-3, 7-9, 13-15
`
`1, 2, 4, 5, 7, 11-
`18, 20, 21, 23,
`27-33, 35, 36,
`38, 42-46
`
`1, 12, 17
`
`1, 14, 15, 16,
`19, 28, 41
`
`3, 9, 15
`
`15-17, 31-32,
`46
`
`
`
`
`
`“code associated with
`performing a particular
`function for a user”
`
`“application level
`software program code for
`underlying application
`level functions that
`executes locally at the
`client as a separate
`application from the
`browser”
`
`“A program is a
`sequence of
`instructions that
`indicates which
`operations the
`computer should
`perform on a set of
`data. An instance of a
`program is a copy of a
`program that is
`understandable by a
`computer’s central
`processing unit and that
`is ready to run as soon
`
`Kaspersky Labs:
`
`“a copy of an executable
`version of the program
`that has been written to
`the computer’s memory.”
`
`
`
`All other Defendants:
`
`plain and ordinary
`meaning; or, in the
`alternative, “a copy” / “a
`copy of the application
`program” / “a selected
`
`
`1 Each Defendant only takes a position for a proposed construction to the extent such term or patent is asserted against such Defendant.
`
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 4 of 10 PageID #: 2714
`
`Terms and
`Phrases
`
`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`“registration
`operations”
`
`‘293
`
`1, 12, 17
`
`‘466
`
`‘766
`
`‘578
`
`1, 15, 16
`
`3, 9, 15
`
`15, 16, 17, 32,
`46
`
`“provid[e]/[ing] an
`instance of the
`application
`program” /
`“providing an
`instance of the
`selected one of the
`plurality of
`application
`programs to the
`client for
`execution”
`
`Construction
`
`Construction1
`
`it is copied from
`storage into memory.”
`
`copy of the application
`program”
`
`“registration of the
`application program at the
`target on-demand
`server(s) so that it will be
`available for access and
`download responsive to
`user requests from client
`computers”
`
`Uniloc’s previous
`position:
`
`“registration of the file
`packet on the target on-
`demand server”
`
`Uniloc’s new position:
`
`“registration of the
`application program at
`the target on-demand
`server so that it will be
`available to users from
`client computers”
`
`“provide” – plain and
`ordinary meaning
`
`Kaspersky, Ubisoft and
`Square Enix:
`
`
`
`
`
`“instance” – see above
`
`plain and ordinary
`meaning
`
`
`
`All other Defendants:
`
`“download[ing] an
`instance of the application
`program from the server
`to the client” /
`“downloading an instance
`of the selected one of the
`
`
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 5 of 10 PageID #: 2715
`
`Terms and
`Phrases
`
`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`Construction
`
`Construction1
`
`“the initiating
`execution step”
`
`‘578
`
`6, 8
`
`plurality of application
`programs from the server
`to the client for
`execution”
`
`Indefinite
`
`
`
`Claim 6 adds to claim 1
`two limitations: A)
`storing a user set and
`an administrator set on
`a storage device, before
`initiating the execution,
`and then B) retrieving
`the stored sets in
`initiating the execution.
`
`Claim 8 adds to claim 1
`the limitation:
`obtaining default
`preference values in
`initiating the execution.
`
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 6 of 10 PageID #: 2716
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`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`Construction
`
`Construction1
`
`‘578
`
`20, 22, 24, 35,
`37, 39
`
`Claim 35 is
`representative. Claim
`35 adds to claim 32 the
`limitation: code that
`actually executes the
`application program.
`
`Indefinite
`
`
`
`Terms and
`Phrases
`
`“the computer
`readable program
`code means for
`executing the
`application
`program” / “the
`computer readable
`program code
`means for initiating
`execution” / “the
`means for
`executing the
`application
`program” / “the
`means for initiating
`execution”
`
`“license
`availability”2
`
`‘466
`
`9, 10, 24, 25,
`37, 38
`
`‘766
`
`1, 7, 13
`
`“determination that a
`user can be issued a
`license to the selected
`application program”
`
`ADP and Zendesk:
`
`
`
`“determination that a user
`can be issued a license to
`the selected application
`program, distinct from
`any determination that the
`user is authorized to
`access the selected
`application program”
`
`
`
`
`2 This term was not asserted against Defendant Blackboard. Accordingly, Blackboard takes no position on the construction of this
`term.
`
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 7 of 10 PageID #: 2717
`
`Terms and
`Phrases
`
`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`Construction
`
`Construction1
`
`“make the
`application
`program available
`for use”
`
`All other Defendants:
`
`“determination that a user
`can be issued a license to
`the selected application
`program.”
`
`‘293
`
`1, 12, 17
`
`Uniloc’s previous
`position:
`
`[PREVIOUSLY
`AGREED]
`
`“make the application
`available for access and
`download, responsive to
`user requests”
`
`[PREVIOUSLY
`AGREED] 3
`
`“make the application
`available for access and
`download, responsive
`to user requests”
`
`Uniloc’s new position:
`
`“make the application
`program available for
`use”
`
`“application
`launcher program” /
`“application
`
`‘466
`
`3, 6, 10, 18, 21,
`25, 31, 34, 38
`
`Uniloc’s previous
`position:
`
`[PREVIOUSLY
`AGREED]
`
`‘766
`
`2, 8, 14
`
`
`
`
`
`
`3 The parties had previously reached an agreed construction for this term, which is identified in the parties’ P.R. 4-3 Joint Claim
`Construction and Prehearing Statement. Dkt. 148 at 2. Defendants object to Plaintiffs’ new proposed construction for this term, which
`was not disclosed until this joint submission was due to be filed.
`
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 8 of 10 PageID #: 2718
`
`Terms and
`Phrases
`
`launcher program
`associated with the
`application
`program” /
`“application
`launcher programs
`associated with
`each of the set of
`the plurality of
`application
`programs”
`
`“a segment
`configured to
`initiate registration
`operations”
`
`“license
`management policy
`information”
`
`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`Construction
`
`Construction1
`
`‘578
`
`1, 4-5, 11-17,
`20-21, 27-32,
`35-36, 42-46
`
`“a program distributed to
`a client to initially
`populate a user desktop
`and to request the
`application program from
`a server”
`
`[PREVIOUSLY
`AGREED] 4
`
`“a program distributed
`to a client to initially
`populate a user desktop
`and to request the
`application program
`from a server”
`
`Uniloc’s new position:
`
`“a program distributed
`to a client to initially
`populate a user desktop
`and to request
`execution of the
`application program”
`
`‘293
`
`1, 12, 17
`
`[AGREED]
`
`[AGREED]
`
`‘766
`
`1, 7, 13
`
`[AGREED]
`
`[AGREED]
`
`“portion of the file
`packet that includes
`software to initiate
`registration operations”
`
`“a set of rules that
`determine whether users
`can obtain a license to
`
`
`4 Prior to the opening claim construction brief, the parties reached an agreed construction for this term. Defendants did not brief this
`term based on Plaintiffs’ representations. Defendants object to Plaintiffs’ new proposed construction for this term, which was not
`disclosed to Defendants until this joint submission was due to be filed.
`
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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 9 of 10 PageID #: 2719
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`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`Construction
`
`Construction1
`
`Terms and
`Phrases
`
`“license
`management
`server”
`
`“centralized
`network
`management
`server”
`
`‘766
`
`1, 7, 13
`
`[AGREED]
`
`[AGREED]
`
`‘293
`
`1, 12, 17
`
`[AGREED]
`
`[AGREED]
`
`“on demand server”
`
`‘766
`
`3, 9, 15
`
`[AGREED]
`
`[AGREED]
`
`“target on-demand
`server”
`
`‘293
`
`1, 12, 17
`
`[AGREED]
`
`[AGREED]
`
`“installing a
`plurality of
`application
`
`‘466
`
`1, 15, 16
`
`[AGREED]
`
`[AGREED]
`
`
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`use a particular
`application”
`
`“a server that determines
`license availability
`based on license
`management policy
`information”
`
`“centralized server for
`managing the network”
`
`“a server delivering
`applications as needed
`responsive to user
`requests as requests are
`received”
`
`“a server delivering
`applications as needed
`responsive to user
`requests as requests are
`received at the server,
`where those applications
`are distributed from a
`centralized network
`management server”
`
`plain and ordinary
`meaning
`
`

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`Case 2:16-cv-00741-RWS Document 186-1 Filed 06/16/17 Page 10 of 10 PageID #: 2720
`
`Patent
`
`Claims
`
`Plaintiff’s Proposed
`
`Defendants’ Proposed
`
`Court’s Construction
`
`Construction
`
`Construction1
`
`‘578
`
`1, 14, 15,17, 30,
`32, 45
`
`[AGREED]
`
`[AGREED]
`
`plain and ordinary
`meaning
`
`Terms and
`Phrases
`
`programs at the
`server”
`
`“installing [an / a
`second] application
`program having a
`plurality of
`configurable
`preferences and a
`plurality of
`authorized users on
`a server coupled to
`the network”
`
`“authorized user” /
`“[for which the]
`user [is (not)]
`authorized”
`
`‘466
`
`‘578
`
`“user set”
`
`‘578
`
`1, 2, 8, 15, 17,
`and 23
`
`1, 7, 10, 12-17,
`23, 26, 32, 38,
`and 41-46
`
`1, 2, 4, 6, 8, 10,
`11, 14-18, 20,
`22, 24, 26, 30-
`33, 35, 37, 39,
`41, 42, 45 and
`46
`
`[AGREED]
`
`[AGREED]
`
`plain and ordinary
`meaning
`
`[AGREED]
`
`[AGREED]
`
`plain and ordinary
`meaning
`
`
`
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