Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 1 of 114 PageID #:
` 2976
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`The numbering of the remaining terms is presented for convenience and does not reflect the parties’ views as to the relative
`importance of the terms. All citations to patent specifications refer to section or column and line numbers and include all figures
`referenced in the relevant passages cited.
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`"processing device that
`communicates with a server/first
`node over a communications
`network"
`
`Intrinsic support:
`
`‘516 patent, Abstract; 1:48-53; 4:39-
`5:18; 5:28-35; 6:8-25; 8:17-42; 8:51-
`65; 9:6-25; 10:17-22; 10:31-50;
`12:32-36; 16:34-39;
`
`‘471 patent, Abstract; 1:59-64; 4:35-
`5:11; 5:21-28; 6:1-17; 8:5-29; 8:38-
`51; 8:59-9:10; 10:1-8; 10: 21-39;
`12:21-25; 16:16-21;
`
`Extrinsic Support:
`
`Definition of "client," Microsoft
`Computer Dictionary, Third
`Edition, 1997
`
`Definition of "node," McGraw-
`Hill Dictionary of Scientific and
`Technical Terms, Fifth Edition,
`1994
`
`Defendants’ Proposed
`Construction/Support
`“A node in the network that
`performs the recited client/second
`node functions.”
`
`Intrinsic support:
`
`‘062 patent specification, Figs. 4, 5,
`5a, 5b, 5c, 6, 6a, 6b, 7, 8, 11, 14, 15,
`16, 17, 18, and 20 and associated
`description; see also Fig. 13 as
`described at Col. 18, ln. 66 – Col. 19,
`ln. 22; Figs. 17 and 18 as described at
`Col. 20, ln. 52 – Col. 21, ln. 27; see
`also Fig. 18A illustrating a client’s
`data packet as described at Col. 21 ln.
`28-46 and Figs. 1a-1b and 2a-2o as
`described at Col. 9, ln. 59 – Col. 10,
`ln. 7; see also Decision Granting IPR
`of ‘062 patent (2/4/14), p. 3.
`
`‘062 patent specification, Col. 15, ln
`41 (defining the “server” as the “root
`of the tree”); see also Col. 5, ln. 12-
`15; Col. 5, ln. 29-32; Col. 9, ln. 45-
`49; Col. 13, ln. 9-34; and Col. 17, ln.
`22-33.
`
`
`1
`
`
`client/second node
`
`‘516 patent, claims 1, 10;
`‘471 patent, claims 2, 3, 4, 6, 7, 8, 10, 11, 12, 14, 16, 17, 18,
`19, 20, 21, 22, 31, 32, 33, 34, 35, 36, 40;
`
`
`-1-
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 2 of 114 PageID #:
` 2977
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`Expert Testimony re
`understanding of this term by a
`POSA. See Exhibit D.
`
`
`
`2
`
`
`link to said server/first node
`
`‘471 patent, claims 2, 6, 10, 14, 17, 20, 31, 34, 40;
`‘496 patent, claims 1, 2, 7, 11, 12, 16, 21, 24, 33, 40, 42, 45;
`
`
`"a path from a client to the
`server/first node"
`
`Intrinsic support:
`
`
`-2-
`
`Defendants’ Proposed
`Construction/Support
`Extrinsic Support:
`
`Definition of “client,” Microsoft
`Computer Dictionary, Third Edition,
`1997
`
`Definition of “server,” Microsoft
`Computer Dictionary, Third Edition,
`1997
`
`Drs. Heppe and/or Akl may be asked
`to provide evidence regarding the
`client recitations. In opining about the
`meaning, their declarations and
`testimony may explain how
`Defendants’ proposed constructions
`are supported by intrinsic evidence,
`extrinsic evidence, and/or the
`education and experience of a person
`of ordinary skill in the art relevant to
`the patents in suit. Their declarations
`and testimony may also respond to
`Plaintiffs’ proposed constructions and
`supporting evidence.
`
`
`“The ‘link’ includes the
`identification of each of the hops to
`be traversed by the data message
`packet en route to the first node
`(server).”
`
`

`

`No. Claim Term
`
`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 3 of 114 PageID #:
` 2978
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`Plaintiffs’ Proposed
`Construction/Support
`‘471 patent, 2:34-43; 4:60-5:43;
`6:11-17; 7:50-9:10; 9:21-12:40;
`13:26-14:29; 19:47-20:59; 20:60-
`21:26;
`
`‘496 patent, 2:37-46; 4:63-5:46;
`6:14-20; 7:52-9:12; 9:23-12:42;
`13:28-14:31; 19:49-20:61; 20:62-
`21:27;
`
`Extrinsic Support:
`
`Definition of "server," McGraw-
`Hill Dictionary of Scientific and
`Technical Terms, Fifth Edition,
`1994
`
`Definition of "node," McGraw-
`Hill Dictionary of Scientific and
`Technical Terms, Fifth Edition,
`1994
`
`Expert Testimony re
`understanding of this term by a
`POSA. See Exhibit D.
`
`
`-3-
`
`Defendants’ Proposed
`Construction/Support
`
`Intrinsic support:
`
` ‘062 patent specification, Col. 5, ln.
`23-24; 8/5/99 Office Action
`Response, p. 5 (emphasizing that
`each client must communication
`through a transmission path that
`includes all other clients); ‘062 patent
`reexamination, Response to First
`Office Action (1/22/08), pp. 4, 7 and
`10. ‘062 patent Reexam Appeal Brief
`at 34 (link tree includes identification
`of “all of the clients on the path”);
`‘062 IPR Grant of Petition at p. 3
`(defining client machines as a
`personal computer); see also, ‘314
`IPR proceedings, Patent Owner’s
`Preliminary Response, pp. 9-12, 20-
`23 (transmission path includes “all
`the nodes along the path from the
`client to the server”); and ‘516 patent
`reexamination 10/29/07Office
`Action Response, pp. 9-24 and
`declaration of Brownrigg in support
`thereof, paragraph 15-25. See also
`Patent Owner’s response to IPR
`petition filed for the ‘314 patent; Oct.
`14, 2008 Proposed After Final
`Amendment in ‘062 patent
`reexamination and associated
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 4 of 114 PageID #:
` 2979
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-4-
`
`Defendants’ Proposed
`Construction/Support
`Advisory Action (Dec. 16, 2008).
`
`
`Extrinsic Support:
`
`November 17, 2005 Deposition of
`Edwin Brownrigg, including but not
`limited to pgs. 149-54; 190-93.
`
`March 29, 2006 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 150-60; 171-75; 190-92; 196-
`97.
`
`June 18, 2013 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 111-114; 119; 124; 131.
`
`Drs. Heppe and/or Akl may be asked
`to provide evidence regarding the
`link recitations. In opining about the
`meaning, their declarations and
`testimony may explain how
`Defendants’ proposed constructions
`are supported by intrinsic evidence,
`extrinsic evidence, and/or the
`education and experience of a person
`of ordinary skill in the art relevant to
`the patents in suit. Their declarations
`and testimony may also respond to
`Plaintiffs’ proposed constructions and
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 5 of 114 PageID #:
` 2980
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`3
`
`[changes the/changing] transmission paths of [clients/each
`of the second nodes]
`
`‘314 patent, claim 12;
`‘516 patent, claims 1, 10;
`
`
`
`
`
`
`No construction necessary.
`
`Intrinsic support:
`
`‘314 patent, 4:26-35; 5:55-61; 6:9-
`10; 8:44-9:2; 9:12-21; 9:12-21; 9:44-
`51; 10:63-11:5; 11:39-12:16; 14:50-
`16:32;
`‘516 patent, 4:39-48; 6:2-7; 6:23-25;
`8:66-9:5; 9:6-25; 9:35-40; 9:42-45;
`10:1-9; 11:14-11:26; 11:58-12:36;
`15:6-16:58; 16:20-33;
`
`Extrinsic Support:
`
`Definition of "node," McGraw-
`Hill Dictionary of Scientific and
`Technical Terms, Fifth Edition,
`1994
`
`Expert Testimony re
`understanding of this term by a
`POSA. See Exhibit D.
`
`-5-
`
`Defendants’ Proposed
`Construction/Support
`supporting evidence.
`
`
`This term requires construction
`under 112(f).
`
`Function: updating the map of
`transmission paths to reflect route
`updates made by a client.
`
`Structure: Microprocessor 42
`implementing algorithms of Fig. 5
`(esp. at 86, 88, and 90) and Fig. 18
`(esp. at 388 and 392) and
`corresponding discussion in
`specification.
`
`Alternatively, specification lacks an
`adequate written description of
`structure for performing the
`recited functions
`
`Intrinsic support:
`
`See ‘062 patent specification, col. 5,
`ln. 23-24; algorithms of Fig. 5 (esp. at
`86, 88, and 90) and Fig. 18 (esp. at
`388 and 392) and corresponding
`discussion in specification; see also
`Col. 13, ln. 9-27; Col. 9, ln. 44-66
`(tree structures); Fig. 4 as described
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 6 of 114 PageID #:
` 2981
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-6-
`
`Defendants’ Proposed
`Construction/Support
`at Col. 13, ln. 9-19; see also col.
`5:23-23, 5:54-6:6, 8:59-9:16, 9:26-
`35, 9:59-67, 11:5-17, 11:25-28,
`11:63-12:7, 12:14-21; ‘062 Reexam
`Appeal Brief (4/16/09), p. 26; Reply
`Brief (5/17/10), p. 35; ‘062 Decision
`Granting IPR (2/4/14), p. 8; Oct. 14,
`2008 Proposed After Final
`Amendment in ‘062 patent
`reexamination and associated
`Advisory Action (Dec. 16, 2008);
`claims and proposed amendments
`from application 09/492,933
`(including Preliminary Amendment
`at 2-6, and U.S. Pat. No. 7,054,271
`(Preliminary Amendment at 3-6,
`7/7/05 at 2-8).
`
`Extrinsic Support:
`IP CO., LLC v. Schneider Elec.
`Bldgs. Americas, Inc., 6:11cv439,
`Plaintiff IP CO., LLC’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, pp. 9-
`10 (E.D. Tex. Jan. 11, 2013) (“the
`specification contemplates the client
`‘preferably’ choosing the “best” path
`to the server. ‘062 Patent, Col. 5, ll.
`36-38. But in the example given, the
`path chosen is the path with the least
`number of ‘hops’ to the server. ‘062
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 7 of 114 PageID #:
` 2982
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-7-
`
`Defendants’ Proposed
`Construction/Support
`Patent, Col. 8, l. 65 – Col. 9, l. 17.”).
`
`IP CO., LLC v. Sensus USA, Inc.,
`2:09-cv-037-DF, Plaintiff’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, p. 3
`(E.D. Tex. June 1, 2010) (“As new
`clients join or leave the network, or
`as conditions such as traffic or client
`speed change, the clients modify their
`paths to the server in order to
`optimize the network.”).
`
`November 17, 2005 Deposition of
`Edwin Brownrigg, including but not
`limited to pgs. 149-54; 190-93.
`
`March 29, 2006 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 150-60; 171-75; 190-92; 196-
`97.
`
`June 18, 2013 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 111-114; 119; 124; 131.
`
`Drs. Heppe and/or Akl may be asked
`to provide evidence regarding the
`changing recitations. In opining about
`the meaning or lack thereof, their
`declarations and testimony may
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 8 of 114 PageID #:
` 2983
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`
`
`4
`
`
`change a transmission path
`
`
`
`No construction necessary.
`
`
`-8-
`
`Defendants’ Proposed
`Construction/Support
`explain how Defendants’ proposed
`constructions are supported by
`intrinsic evidence, extrinsic evidence,
`and/or the education and experience
`of a person of ordinary skill in the art
`relevant to the patents in suit. Their
`declarations and testimony may also
`respond to Plaintiffs’ proposed
`constructions and supporting
`evidence.
`
`Drs. Heppe and/or Akl may explain
`that the specification lacks an
`adequate written description of
`structure for performing the recited
`functions, including by failing to link
`the disclosed algorithms to the recited
`changing functions. Further, Drs.
`Heppe and/or Akl may explain that
`the specification’s description of an
`optimization process, including that
`the clients choose hop-by-hop routes
`to a server and that the server updates
`routes based on hop-by-hop routes
`provided to it from clients, which
`does not involve “changing” of routes
`as claimed.
`
`
`This term requires construction
`under 112(f).
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 9 of 114 PageID #:
` 2984
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`‘314 patent, claim 14;
`
`
`Plaintiffs’ Proposed
`Construction/Support
`Intrinsic support:
`
`‘314 patent, 4:26-35; 5:55-61; 6:9-
`10; 8:44-9:2; 9:12-21; 9:12-21; 9:44-
`51; 10:63-11:5; 11:39-12:16; 14:50-
`16:32;
`
`Extrinsic Support:
`
`Expert Testimony re
`understanding of this term by a
`POSA. See Exhibit D.
`
`
`Defendants’ Proposed
`Construction/Support
`
`Function: updating the map of
`transmission paths to reflect route
`updates made by a client.
`
`Structure: Microprocessor 42
`implementing algorithms of Fig. 5
`(esp. at 86, 88, and 90) and Fig. 18
`(esp. at 388 and 392) and
`corresponding discussion in
`specification.
`
`Alternatively, specification lacks an
`adequate written description of
`structure for performing the
`recited functions
`
`Intrinsic support:
`
`See ‘062 patent specification, col. 5,
`ln. 23-24; algorithms of Fig. 5 (esp. at
`86, 88, and 90) and Fig. 18 (esp. at
`388 and 392) and corresponding
`discussion in specification; see also
`Col. 13, ln. 9-27; Col. 9, ln. 44-66
`(tree structures); Fig. 4 as described
`at Col. 13, ln. 9-19; see also col.
`5:23-23, 5:54-6:6, 8:59-9:16, 9:26-
`35, 9:59-67, 11:5-17, 11:25-28,
`11:63-12:7, 12:14-21; ‘062 Reexam
`Appeal Brief (4/16/09), p. 26; Reply
`
`-9-
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 10 of 114 PageID #:
` 2985
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-10-
`
`Defendants’ Proposed
`Construction/Support
`Brief (5/17/10), p. 35; ‘062 Decision
`Granting IPR (2/4/14), p. 8; Oct. 14,
`2008 Proposed After Final
`Amendment in ‘062 patent
`reexamination and associated
`Advisory Action (Dec. 16, 2008);
`claims and proposed amendments
`from application 09/492,933
`(including Preliminary Amendment
`at 2-6, and U.S. Pat. No. 7,054,271
`(Preliminary Amendment at 3-6,
`7/7/05 at 2-8).
`
`Extrinsic Support:
`IP CO., LLC v. Schneider Elec.
`Bldgs. Americas, Inc., 6:11cv439,
`Plaintiff IP CO., LLC’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, pp. 9-
`10 (E.D. Tex. Jan. 11, 2013) (“the
`specification contemplates the client
`‘preferably’ choosing the “best” path
`to the server. ‘062 Patent, Col. 5, ll.
`36-38. But in the example given, the
`path chosen is the path with the least
`number of ‘hops’ to the server. ‘062
`Patent, Col. 8, l. 65 – Col. 9, l. 17.”).
`
`IP CO., LLC v. Sensus USA, Inc.,
`2:09-cv-037-DF, Plaintiff’s Opening
`Markman Brief in Support of its
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 11 of 114 PageID #:
` 2986
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-11-
`
`Defendants’ Proposed
`Construction/Support
`Proposed Claim Constructions, p. 3
`(E.D. Tex. June 1, 2010) (“As new
`clients join or leave the network, or
`as conditions such as traffic or client
`speed change, the clients modify their
`paths to the server in order to
`optimize the network.”).
`
`November 17, 2005 Deposition of
`Edwin Brownrigg, including but not
`limited to pgs. 149-54; 190-93.
`
`March 29, 2006 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 150-60; 171-75; 190-92; 196-
`97.
`
`June 18, 2013 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 111-114; 119; 124; 131.
`
`Drs. Heppe and/or Akl may be asked
`to provide evidence regarding the
`changing recitations. In opining about
`the meaning or lack thereof, their
`declarations and testimony may
`explain how Defendants’ proposed
`constructions are supported by
`intrinsic evidence, extrinsic evidence,
`and/or the education and experience
`of a person of ordinary skill in the art
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 12 of 114 PageID #:
` 2987
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`
`
`5
`
`
`changing the transmission path from the client to the
`gateway
`
`‘516 patent, claims 1, 10;
`
`
`
`
`No construction necessary.
`
`Intrinsic support:
`
`‘516 patent, 4:39-48; 6:2-7; 6:23-25;
`8:66-9:5; 9:6-25; 9:35-40; 9:42-45;
`10:1-9; 11:14-11:26; 11:58-12:36;
`
`-12-
`
`Defendants’ Proposed
`Construction/Support
`relevant to the patents in suit. Their
`declarations and testimony may also
`respond to Plaintiffs’ proposed
`constructions and supporting
`evidence.
`
`Drs. Heppe and/or Akl may explain
`that the specification lacks an
`adequate written description of
`structure for performing the recited
`functions, including by failing to link
`the disclosed algorithms to the recited
`changing functions. Further, Drs.
`Heppe and/or Akl may explain that
`the specification’s description of an
`optimization process, including that
`the clients choose hop-by-hop routes
`to a server and that the server updates
`routes based on hop-by-hop routes
`provided to it from clients, which
`does not involve “changing” of routes
`as claimed.
`
`
`This term requires construction
`under 112(f).
`
`Function: updating the map of
`transmission paths to reflect route
`updates made by a client.
`
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 13 of 114 PageID #:
` 2988
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`15:6-16:58; 16:20-33;
`
`Extrinsic Support:
`
`Expert Testimony re
`understanding of this term by a
`POSA. See Exhibit D.
`
`
`Defendants’ Proposed
`Construction/Support
`Structure: Microprocessor 42
`implementing algorithms of Fig. 5
`(esp. at 86, 88, and 90) and Fig. 18
`(esp. at 388 and 392) and
`corresponding discussion in
`specification.
`
`Alternatively, specification lacks an
`adequate written description of
`structure for performing the
`recited functions
`
`Intrinsic support:
`
`See ‘062 patent specification, col. 5,
`ln. 23-24; algorithms of Fig. 5 (esp. at
`86, 88, and 90) and Fig. 18 (esp. at
`388 and 392) and corresponding
`discussion in specification; see also
`Col. 13, ln. 9-27; Col. 9, ln. 44-66
`(tree structures); Fig. 4 as described
`at Col. 13, ln. 9-19; see also col.
`5:23-23, 5:54-6:6, 8:59-9:16, 9:26-
`35, 9:59-67, 11:5-17, 11:25-28,
`11:63-12:7, 12:14-21; ‘062 Reexam
`Appeal Brief (4/16/09), p. 26; Reply
`Brief (5/17/10), p. 35; ‘062 Decision
`Granting IPR (2/4/14), p. 8; Oct. 14,
`2008 Proposed After Final
`Amendment in ‘062 patent
`reexamination and associated
`
`-13-
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 14 of 114 PageID #:
` 2989
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-14-
`
`Defendants’ Proposed
`Construction/Support
`Advisory Action (Dec. 16, 2008);
`claims and proposed amendments
`from application 09/492,933
`(including Preliminary Amendment
`at 2-6, and U.S. Pat. No. 7,054,271
`(Preliminary Amendment at 3-6,
`7/7/05 at 2-8).
`
`Extrinsic Support:
`IP CO., LLC v. Schneider Elec.
`Bldgs. Americas, Inc., 6:11cv439,
`Plaintiff IP CO., LLC’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, pp. 9-
`10 (E.D. Tex. Jan. 11, 2013) (“the
`specification contemplates the client
`‘preferably’ choosing the “best” path
`to the server. ‘062 Patent, Col. 5, ll.
`36-38. But in the example given, the
`path chosen is the path with the least
`number of ‘hops’ to the server. ‘062
`Patent, Col. 8, l. 65 – Col. 9, l. 17.”).
`
`IP CO., LLC v. Sensus USA, Inc.,
`2:09-cv-037-DF, Plaintiff’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, p. 3
`(E.D. Tex. June 1, 2010) (“As new
`clients join or leave the network, or
`as conditions such as traffic or client
`speed change, the clients modify their
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 15 of 114 PageID #:
` 2990
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-15-
`
`Defendants’ Proposed
`Construction/Support
`paths to the server in order to
`optimize the network.”).
`
`November 17, 2005 Deposition of
`Edwin Brownrigg, including but not
`limited to pgs. 149-54; 190-93.
`
`March 29, 2006 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 150-60; 171-75; 190-92; 196-
`97.
`
`June 18, 2013 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 111-114; 119; 124; 131.
`
`Drs. Heppe and/or Akl may be asked
`to provide evidence regarding the
`changing recitations. In opining about
`the meaning or lack thereof, their
`declarations and testimony may
`explain how Defendants’ proposed
`constructions are supported by
`intrinsic evidence, extrinsic evidence,
`and/or the education and experience
`of a person of ordinary skill in the art
`relevant to the patents in suit. Their
`declarations and testimony may also
`respond to Plaintiffs’ proposed
`constructions and supporting
`evidence.
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 16 of 114 PageID #:
` 2991
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`
`
`6
`
`
`changing the transmission path from the second node to
`the first node
`
`‘314 patent, claim 14;
`
`
`
`
`No construction necessary.
`
`Intrinsic support:
`
`‘314 patent, 4:26-35; 5:55-61; 6:9-
`10; 8:44-9:2; 9:12-21; 9:12-21; 9:44-
`51; 10:63-11:5; 11:39-12:16; 14:50-
`16:32;
`
`Extrinsic Support:
`
`Definition of "node," McGraw-
`
`-16-
`
`Defendants’ Proposed
`Construction/Support
`
`Drs. Heppe and/or Akl may explain
`that the specification lacks an
`adequate written description of
`structure for performing the recited
`functions, including by failing to link
`the disclosed algorithms to the recited
`changing functions. Further, Drs.
`Heppe and/or Akl may explain that
`the specification’s description of an
`optimization process, including that
`the clients choose hop-by-hop routes
`to a server and that the server updates
`routes based on hop-by-hop routes
`provided to it from clients, which
`does not involve “changing” of routes
`as claimed.
`
`
`This term requires construction
`under 112(f).
`
`Function: updating the map of
`transmission paths to reflect route
`updates made by a client.
`
`Structure: Microprocessor 42
`implementing algorithms of Fig. 5
`(esp. at 86, 88, and 90) and Fig. 18
`(esp. at 388 and 392) and
`corresponding discussion in
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 17 of 114 PageID #:
` 2992
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`Hill Dictionary of Scientific and
`Technical Terms, Fifth Edition,
`1994
`
`Expert Testimony re
`understanding of this term by a
`POSA. See Exhibit D.
`
`Defendants’ Proposed
`Construction/Support
`specification.
`
`Alternatively, specification lacks an
`adequate written description of
`structure for performing the
`recited functions
`
`Intrinsic support:
`
`See ‘062 patent specification, col. 5,
`ln. 23-24; algorithms of Fig. 5 (esp. at
`86, 88, and 90) and Fig. 18 (esp. at
`388 and 392) and corresponding
`discussion in specification; see also
`Col. 13, ln. 9-27; Col. 9, ln. 44-66
`(tree structures); Fig. 4 as described
`at Col. 13, ln. 9-19; see also col.
`5:23-23, 5:54-6:6, 8:59-9:16, 9:26-
`35, 9:59-67, 11:5-17, 11:25-28,
`11:63-12:7, 12:14-21; ‘062 Reexam
`Appeal Brief (4/16/09), p. 26; Reply
`Brief (5/17/10), p. 35; ‘062 Decision
`Granting IPR (2/4/14), p. 8; Oct. 14,
`2008 Proposed After Final
`Amendment in ‘062 patent
`reexamination and associated
`Advisory Action (Dec. 16, 2008);
`claims and proposed amendments
`from application 09/492,933
`(including Preliminary Amendment
`at 2-6, and U.S. Pat. No. 7,054,271
`
`-17-
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 18 of 114 PageID #:
` 2993
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-18-
`
`Defendants’ Proposed
`Construction/Support
`(Preliminary Amendment at 3-6,
`7/7/05 at 2-8).
`
`Extrinsic Support:
`IP CO., LLC v. Schneider Elec.
`Bldgs. Americas, Inc., 6:11cv439,
`Plaintiff IP CO., LLC’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, pp. 9-
`10 (E.D. Tex. Jan. 11, 2013) (“the
`specification contemplates the client
`‘preferably’ choosing the “best” path
`to the server. ‘062 Patent, Col. 5, ll.
`36-38. But in the example given, the
`path chosen is the path with the least
`number of ‘hops’ to the server. ‘062
`Patent, Col. 8, l. 65 – Col. 9, l. 17.”).
`
`IP CO., LLC v. Sensus USA, Inc.,
`2:09-cv-037-DF, Plaintiff’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, p. 3
`(E.D. Tex. June 1, 2010) (“As new
`clients join or leave the network, or
`as conditions such as traffic or client
`speed change, the clients modify their
`paths to the server in order to
`optimize the network.”).
`
`November 17, 2005 Deposition of
`Edwin Brownrigg, including but not
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 19 of 114 PageID #:
` 2994
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-19-
`
`Defendants’ Proposed
`Construction/Support
`limited to pgs. 149-54; 190-93.
`
`March 29, 2006 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 150-60; 171-75; 190-92; 196-
`97.
`
`June 18, 2013 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 111-114; 119; 124; 131.
`
`Drs. Heppe and/or Akl may be asked
`to provide evidence regarding the
`changing recitations. In opining about
`the meaning or lack thereof, their
`declarations and testimony may
`explain how Defendants’ proposed
`constructions are supported by
`intrinsic evidence, extrinsic evidence,
`and/or the education and experience
`of a person of ordinary skill in the art
`relevant to the patents in suit. Their
`declarations and testimony may also
`respond to Plaintiffs’ proposed
`constructions and supporting
`evidence.
`
`Drs. Heppe and/or Akl may explain
`that the specification lacks an
`adequate written description of
`structure for performing the recited
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 20 of 114 PageID #:
` 2995
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`
`
`7
`
`
`changing each transmission path from on[e] of the plurality
`of said second nodes to the first node
`
`‘314 patent, claim 12;
`
`
`
`
`No construction necessary.
`
`Intrinsic support:
`
`‘314 patent, 4:26-35; 5:55-61; 6:9-
`10; 8:44-9:2; 9:12-21; 9:12-21; 9:44-
`51; 10:63-11:5; 11:39-12:16; 14:50-
`16:32;
`
`Extrinsic Support:
`
`Definition of "node," McGraw-
`Hill Dictionary of Scientific and
`Technical Terms, Fifth Edition,
`1994
`
`Expert Testimony re
`
`-20-
`
`Defendants’ Proposed
`Construction/Support
`functions, including by failing to link
`the disclosed algorithms to the recited
`changing functions. Further, Drs.
`Heppe and/or Akl may explain that
`the specification’s description of an
`optimization process, including that
`the clients choose hop-by-hop routes
`to a server and that the server updates
`routes based on hop-by-hop routes
`provided to it from clients, which
`does not involve “changing” of routes
`as claimed.
`
`
`This term requires construction
`under 112(f).
`
`Function: updating the map of
`transmission paths to reflect route
`updates made by a client.
`
`Structure: Microprocessor 42
`implementing algorithms of Fig. 5
`(esp. at 86, 88, and 90) and Fig. 18
`(esp. at 388 and 392) and
`corresponding discussion in
`specification.
`
`Alternatively, specification lacks an
`adequate written description of
`structure for performing the
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 21 of 114 PageID #:
` 2996
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`understanding of this term by a
`POSA. See Exhibit D.
`
`Defendants’ Proposed
`Construction/Support
`recited functions
`
`Intrinsic support:
`
`See ‘062 patent specification, col. 5,
`ln. 23-24; algorithms of Fig. 5 (esp. at
`86, 88, and 90) and Fig. 18 (esp. at
`388 and 392) and corresponding
`discussion in specification; see also
`Col. 13, ln. 9-27; Col. 9, ln. 44-66
`(tree structures); Fig. 4 as described
`at Col. 13, ln. 9-19; see also col.
`5:23-23, 5:54-6:6, 8:59-9:16, 9:26-
`35, 9:59-67, 11:5-17, 11:25-28,
`11:63-12:7, 12:14-21; ‘062 Reexam
`Appeal Brief (4/16/09), p. 26; Reply
`Brief (5/17/10), p. 35; ‘062 Decision
`Granting IPR (2/4/14), p. 8; Oct. 14,
`2008 Proposed After Final
`Amendment in ‘062 patent
`reexamination and associated
`Advisory Action (Dec. 16, 2008);
`claims and proposed amendments
`from application 09/492,933
`(including Preliminary Amendment
`at 2-6, and U.S. Pat. No. 7,054,271
`(Preliminary Amendment at 3-6,
`7/7/05 at 2-8).
`
`Extrinsic Support:
`IP CO., LLC v. Schneider Elec.
`
`-21-
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 22 of 114 PageID #:
` 2997
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-22-
`
`Defendants’ Proposed
`Construction/Support
`Bldgs. Americas, Inc., 6:11cv439,
`Plaintiff IP CO., LLC’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, pp. 9-
`10 (E.D. Tex. Jan. 11, 2013) (“the
`specification contemplates the client
`‘preferably’ choosing the “best” path
`to the server. ‘062 Patent, Col. 5, ll.
`36-38. But in the example given, the
`path chosen is the path with the least
`number of ‘hops’ to the server. ‘062
`Patent, Col. 8, l. 65 – Col. 9, l. 17.”).
`
`IP CO., LLC v. Sensus USA, Inc.,
`2:09-cv-037-DF, Plaintiff’s Opening
`Markman Brief in Support of its
`Proposed Claim Constructions, p. 3
`(E.D. Tex. June 1, 2010) (“As new
`clients join or leave the network, or
`as conditions such as traffic or client
`speed change, the clients modify their
`paths to the server in order to
`optimize the network.”).
`
`November 17, 2005 Deposition of
`Edwin Brownrigg, including but not
`limited to pgs. 149-54; 190-93.
`
`March 29, 2006 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 150-60; 171-75; 190-92; 196-
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 23 of 114 PageID #:
` 2998
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`-23-
`
`Defendants’ Proposed
`Construction/Support
`97.
`
`June 18, 2013 Deposition of Edwin
`Brownrigg, including but not limited
`to pgs. 111-114; 119; 124; 131.
`
`Drs. Heppe and/or Akl may be asked
`to provide evidence regarding the
`changing recitations. In opining about
`the meaning or lack thereof, their
`declarations and testimony may
`explain how Defendants’ proposed
`constructions are supported by
`intrinsic evidence, extrinsic evidence,
`and/or the education and experience
`of a person of ordinary skill in the art
`relevant to the patents in suit. Their
`declarations and testimony may also
`respond to Plaintiffs’ proposed
`constructions and supporting
`evidence.
`
`Drs. Heppe and/or Akl may explain
`that the specification lacks an
`adequate written description of
`structure for performing the recited
`functions, including by failing to link
`the disclosed algorithms to the recited
`changing functions. Further, Drs.
`Heppe and/or Akl may explain that
`the specification’s description of an
`
`

`

`Case 6:15-cv-00907-RWS-KNM Document 107-3 Filed 07/14/16 Page 24 of 114 PageID #:
` 2999
`EXHIBIT C: REMAINING TERMS IN DISPUTE
`
`
`No. Claim Term
`
`Plaintiffs’ Proposed
`Construction/Support
`
`
`
`8
`
`
`implements changes to upgrade the selected transmission
`path
`
`‘314 patent, claim 1;
`
`
`
`
`No construction necessary.
`Alternatively:
`"causing changes to a
`transmission
`path to an alternative path that is
`a
`more viable transmission path"
`
`Intrinsic support:
`
`‘314 patent, 4:26-35; 5:55-61; 6:9-
`10; 8:44-9:2; 9:12-21; 9:12-21; 9:44-
`51; 10:63-11:5; 11:39-12:16; 14:50-
`16:32;
`
`Extrinsic Support:
`
`Expert Testimony re
`understanding of this term by a
`POSA. See Exhibit D.
`
`-24-
`
`Defendants’ Proposed
`Construction/Support
`optimization process, including that
`the clients choose hop-by-hop routes
`to a server and that the server updates
`routes based on hop-by-hop routes
`provided to it from clients, which
`does not involve “changing” of routes
`as claimed.
`
`
`This term requires construction
`under 112(f).
`
`Function: updating the map of
`transmission paths to reflect route
`updates made by a client.
`
`Structure: Microprocessor 42
`implementing algorithms of Fig. 5
`(esp. at 86, 88, and 90) and Fig. 18
`(esp. at 388 and 392) and
`corresponding discussion in
`specification.
`
`Alternatively, specification