Case 6:15-cv-00660-JRG-KNM Document 79 Filed 05/25/16 Page 1 of 13 PageID #: 1314
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`§
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`§ CIVIL ACTION NO. 6:15-CV-660-JRG
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`§ JURY TRIAL DEMANDED
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`PLAINTIFFS INTELLECTUAL VENTURES I LLC AND INTELLECTUAL
`VENTURES II LLC’S REPLY CLAIM CONSTRUCTION BRIEF
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`Intellectual Ventures I LLC and
`Intellectual Ventures II LLC,
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`Plaintiffs,
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`v.
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`HCC Insurance Holdings, Inc.,
`HCC Life Insurance Company,
`HCC Specialty Insurance Company,
`HCC Specialty Underwriters, Inc.,
`Houston Casualty Company, and
`Professional Indemnity Agency, Inc.,
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`Defendants.
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`PLAINTIFFS’ REPLY CLAIM CONSTRUCTION BRIEF
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`Page 1 of 13
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`INTELLECTUAL VENTURES EX. 2008
`EMC v. Intellectual Ventures
`IPR2016-01106
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`Case 6:15-cv-00660-JRG-KNM Document 79 Filed 05/25/16 Page 2 of 13 PageID #: 1315
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`The Court should reject the Defendants’ embodiment-first approach to construing the
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`disputed claim terms. Defendants fail to identify any lexicography or disclaimer to justify limiting
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`these claim terms beyond their ordinary meaning. Further, Defendants’ complaints that Intellectual
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`Ventures has failed to identify the plain and ordinary meaning of disputed claim terms are
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`incorrect. In fact, Intellectual Ventures expressly recited the ordinary meaning of the claim terms
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`in its Opening Brief. See, e.g., Dkt. No. 75 at 7 (“error correction code”); id. at 9 (“error code”);
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`id. at 15 (“packet”); id. at 18 (“agent”); id. at 21 (“consumed”). For some terms, Defendants
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`concede there is no material dispute. But the purpose of claim construction is to resolve disputes,
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`not necessarily to construe every term. See O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co.,
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`521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict courts are not (and should not be) required to
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`construe every limitation present in a patent's asserted claims.”). For these reasons, Intellectual
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`Ventures respectfully requests that the Court enter its proposed constructions.
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`Potential users (Claim 16 of the ’177 Patent)
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`A.
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`This term is not indefinite. Defendants largely recycle the arguments that this Court
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`rejected in the Bitco case. Intellectual Ventures II LLC v. BITCO Gen. Ins. Corp., No. 6:15-cv-59,
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`2016 U.S. Dist. LEXIS 3299, at *50–51 (E.D. Tex. Jan. 11, 2016) (“Bitco”). There, the defendants
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`similarly argued that the phrase “centralized access point of the particular user” was indefinite
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`because it did not specify which of the “one or potential users” could be “the particular user.” Id.
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`at *46–49. The Court held that “the claim [was] not required to make such an identification” to
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`avoid indefiniteness: “[a]s presented in the claim, the ‘particular user’ is merely one of the ‘one or
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`more potential users.” Id. at *51.
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`Undeterred, Defendants argue that because the Patent does not “provide any criteria for
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`distinguishing ‘potential’ users from ‘actual’ users[,] . . . Claim 16 fails to provide adequate notice
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`of the scope of the claimed method.” Dkt. No. 78 at 6. The Court should reject that argument again.
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`Next, Defendants conclude (without any support) that “potential user” is a subjective term.
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`That is incorrect. Claim 16 shows that the term is objective. It recites that potential users are users
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`that may gain access to a centralized access point to access selected content. ’177 Patent, claim 16.
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`The specification is in accord. See ’177 Patent at 38:56–59 (“By displaying the size of the waitlist
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`via user waitlist number display 390 within the screen display of FIG. 30, user demand is plainly
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`made visible to a potential contributor, as well as to other potential users.”) (emphasis added); id.
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`at 5:6–8 (“FIG. 30 is a diagram of a screen display for a content detail page having a waitlist and
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`showing a potential contributor that they can earn money for making this contribution.) (emphasis
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`added). The ability to access computer network software does not depend on subjective opinion.
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`See Gonzalez v. Infostream Group, Inc., Case No. 2:14-cv-906-JRG-RSP, 2015 U.S. Dist. LEXIS
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`125387, at *50 (E.D. Tex. Sept. 21, 2015) (concluding that the “effective use” of website label
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`data was not a subjective term).
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`B.
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`Selecting the file based on whether content of the file matches a file type
`indicated by a name of the file (Claims 1, 10, and 16 of the ’298 Patent)
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`There is no reason to limit the “name of a file” to only one part of the filename—the file
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`extension. Defendants begin with their embodiments-first approach, arguing that “in the context
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`of the of ’298 patent, the ‘filename extension’ is the portion of the file name that ‘indicates’ the
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`type of file at issue.” Dkt. No. 78 at 8. But they do not point to lexicography or disavowal, and
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`there is none. In that instance, the plain meaning of a file name—which undisputedly includes the
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`portions before and after the “.”—controls. See, e.g., Hynix Semiconductor Inc. v. Rambus Inc.,
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`645 F.3d 1336, 1349–53 (Fed. Cir. 2011) (construing the term “bus” to cover both multiplexed
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`busses and non-multiplexed busses, even though the specification only disclosed multiplex buses).
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`Further, despite spending four pages to brief the term, Defendants admit that this term does
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`not have a “material bearing on any validity or infringement issues but seeks to clarify the plain
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`and ordinary meaning of the term.” Dkt. No. 78 at 7 n.4. They should drop the term. See Jang v.
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`Bos. Scientific Corp., 532 F.3d 1330, 1336 (Fed. Cir. 2008) (declining to resolve claim
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`construction issues that “do not actually affect the infringement controversy between the parties”).
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`C. Error correction code / Error correction (Claims 2, 25 of the ’442 Patent)
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`The plain meaning of “error correction” does not require a code, which appears undisputed.
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`Indeed, the Defendants’ cited dictionary definition supporting their “code” requirement is for the
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`term “error-correction coding,” not “error correction.” See Dkt. 78, at 13 (arguing that error
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`correction “uses a code (an ‘encoding’)” because of the definition of “error correction coding”).
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`Defendants again have not cited any lexicography, disclaimer, or disavowal to deviate from the
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`terms’ plain and ordinary meanings. This should end the analysis.
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`Defendants outlay several “problems” with Intellectual Ventures’ position. First, they
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`argue that using the principle of claim differentiation is illogical because “error correction”
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`necessarily requires the use of a code. Dkt. No. 78 at 15. That argument is circular. And the claims
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`indicate otherwise. All claims 1 and 24 require is that “error correction” must occur—they do not
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`restrict it to one type of error correction. And even if codes are the only embodiment disclosed in
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`the ’442 Patent, that is not a reason to incorporate them into every claim. See Liebel-Flarsheim
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`Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (a sole embodiment should not be read
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`into claims absent a clear intention to limit the claim scope). The patentee knew how to claim error
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`correction codes, see claims 2 and 25, and it declined to do so for claims 1 and 24.
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`Second, Defendants argue that claim 2 only specifies where the “code” is added. Dkt. No.
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`78 at 15. But again, that wrongly assumes that an error correction code is necessarily included in
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`claim 1. Claim 25 (which Defendants do not address) also shows that Defendants misread the
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`claims. That claim expressly adds “adding error correction codes to the packets being transferred
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`over the packets” and “checking the error corrections codes in the packets.” Those limitations are
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`absent from claims 1 and 24. And that difference strongly implies that error correction codes are
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`not required in those claims.
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`Finally, Defendants argue that claim 2 is not performing “error correction” because it
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`recites a “retry request” that supposedly only makes sense if there is no “error correction.” Dkt.
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`No. 78 at 15. That reading violates Section 112. 35 U.S.C. § 112(d) (“A claim in dependent form
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`shall be construed to incorporate by reference all the limitations of the claim to which it refers.”).
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`Claim 2 depends on claim 1, which expressly recites that the interfaces “perform error correction
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`of the data in the packets over the channels.” ’442 Patent at Claim 1 (emphasis added).
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`D. Microprocessor / Memory / Switch interface (Claims 1, 24 of the ’442
`Patent)
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`The parties agree the terms themselves do not need construction. Instead, Defendants seek
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`that the interfaces are “distinct” from each other, which is an attempt to have the trial court
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`improperly resolve a fact question as a matter of claim construction. Cellular Communs. Equip.
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`LLC v. Samsung Elecs. Co., No. 6:14-cv-759, 2016 U.S. Dist. LEXIS 42361, at *26 (E.D. Tex.
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`Mar. 29, 2016). Moreover, the supposed “distinctions” Defendants point to—how many interfaces
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`are required, what data is exchanged, and what each interface is connected to—are already detailed
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`in the claim language. See ’442 Patent, claim 1, 24. The Court should decline to add an extraneous
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`gloss to the “interface” claim terms.
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`E. In the interfaces (Claim 24 of ’442 Patent)
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`While ostensibly preserving their indefiniteness arguments, Defendants now agree with
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`Intellectual Ventures that the “the interfaces” applies to each of the interfaces. Dkt. No. 78 at 18.
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`There is thus no meaningful claim dispute for the Court to resolve on this term.
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`F. Packet (Claims 1, 24 of the ’442 Patent)
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`Defendants’ argument for “packet” is linked to whether “error correction” requires
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`“codes.” The ’442 Patent describes a packet as “a basic unit of transport” over a channel, without
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`reference to an error correction code. ’442 Patent at 6:53–54. The only hook that Defendants rely
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`on is a disclosure of the preferred embodiment. Dkt. No. 78 at 16. But Defendants have not pointed
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`to any disclaimer or lexicography to limit the term “packet” to the preferred embodiment.
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`Instead, Defendants rely on the unsupported syllogism that “error correction” necessarily
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`requires an “error correction code,” and therefore a “packet” must necessarily contain an “error
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`correction code.” But again, the premise of that argument is incorrect—error correction codes are
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`not necessarily required for error correction. See, e.g., ’442 Patent at claim 16 (dependent claim
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`reciting “adding error correction codes to the packets”). Defendants also ignore extrinsic evidence
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`that indicates that a packet need not include “error correction codes.” See Dkt. No. 75 at 15
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`(discussing IEEE dictionary definition showing a “packet” could “possibly” contain “error control
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`information”). Their construction should be rejected.
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`G. Transaction controller (Claims 9, 10 of the ’442 Patent)
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`Defendants limit the “transaction controller” to an embodiment without clear lexicography,
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`disclaimer, or disavowal. Consistent with its plain meaning as used in the claims, the “transaction
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`controller” is simply a “system configured to control transactions.”
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`The claims detail the operations of the transaction controller. In claim 9, it is configured to
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`“maintain an order of data transactions between the microprocessors and the memory device based
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`on a cache coherency protocol.” ’442 Patent, claim 9. In claim 10, the controller is configured for
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`a different operation: “maintain a duplicate set of cache tags for the microprocessors and maintain
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`an order of cache tag updates for the microprocessors.” Id. at claim 10.
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`Defendants ignore the operations in the claims and instead require the transaction controller
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`to perform every operation of the “transaction controller” in the preferred embodiment. ’442 Patent
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`at 3:55–4:7 (describing “transaction controller 400” in Fig. 3); id. at 2:1–9 (explaining that Fig. 3
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`is an expanded drawing of Fig. 2, a “a drawing of a preferred embodiment symmetric shared-
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`memory multiprocessor system”). But those limitations do not appear in the claims and cause them
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`to conflict. Compare id. at claim 9 (reciting “maintain an order of data transactions”) and claim 10
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`(reciting maintenance relating to cache tags, but not data transactions) with Defendants’
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`construction (“ensuring that all transactions in the system happen in a defined order”). Thus,
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`Defendants are improperly re-writing the claimed “transaction controller” with the preferred
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`embodiment, absent a disclaimer. See Conversant Intellectual Prop. Mgmt. v. Xilinx, Inc., No.
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`6:12-cv-847, 2015 U.S. Dist. LEXIS 2374, at *47–50 (E.D. Tex. Jan. 9, 2015) (where specification
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`and claims both described differing operation of “power manager,” the claims controlled).
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`H. Agent (Claims 1, 7, 9, 24 of the ’752 Patent)
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`This term presents a narrow dispute: if a glossary in a separate patent that the ’752 Patent
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`refers to as an “exemplary” agent system acts to clearly disavow the broader use of the term
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`“agent” in the ’752 Patent. It does not. Defendants do not dispute that the plain-and-ordinary
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`meaning of “agent” is not limited to one type of agent, namely, a mobile agent.
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`The exacting standard to find lexicography is not met here. GE Lighting Solutions, LLC v.
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`AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014). The ’752 Patent discloses that the agent may
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`be mobile, which indicates that it does not have to be: “In one embodiment, agents 22 may travel
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`throughout the environment of computer based system 30. That is, each agent 22 may move to the
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`servers and other computers . . . .” ’752 Patent at 14:10–14 (emphases added). The use of the word
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`“may” and “in one embodiment” indicates the opposite of Defendants’ construction—that in other
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`embodiments, the agent may not be mobile. See TracBeam, L.L.C. v. AT&T, Inc., No. 6:11-cv-96-
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`LED, 2013 U.S. Dist. LEXIS 10103, at *41 (E.D. Tex. Jan. 23, 2013) (using the word “may”
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`indicates that the specification is permissive, should not be restricted to one embodiment, and
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`implies that the patentee contemplated other embodiments).
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`Defendants fail to grapple with that disclosure. Instead, they rely on the glossary of the
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`’031 Patent. But the ’752 expressly identifies the ’031 Patent as “an exemplary construction for an
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`agent system.” ’752 Patent at 5:27–31 (emphasis added). An exemplary construction for an agent
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`system, in which the agent is mobile, does not limit the claims to only that example system. See
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`Cellular Communs. Equip. LLC v. LG Elecs., Inc., No. 6:14-cv-982, 2016 U.S. Dist. LEXIS 63781,
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`at *21–22 (E.D. Tex. May 13, 2016) (holding that term defined in an embodiment only “pertain[ed]
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`to an embodiment” and did not limit the claims). That is especially true given the broader
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`disclosure in the ’752 Patent that suggests that an agent may—or may not—be mobile. See Biogen
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`Idec, Inc. v. GlaxoSmithKline LLC, 713 F.3d 1090, 1097 (Fed. Cir. 2013) (term defined in
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`incorporated patent does not “necessarily reflect how a person of ordinary skill in the art would
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`understand the disputed term” in the host patent); TomTom, Inc. v. Adolph, 790 F.3d 1315, 1328–
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`29 (Fed. Cir. 2015) (holding that the district court erroneously limited the claims to an embodiment
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`where nothing in the claims required that limitation and “one portion of the specification”
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`contained a broader disclosure).
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`I. Consumed (Claims 1, 7, 9, 24 of the’752 Patent)
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`Defendants argue that a single sentence, using the disjunctive “or” defines “consumed” as
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`“used up”: “As described herein computational resources 21 may be ‘consumed’ or ‘used up’
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`during the operation of network system 2.” Dkt. No. 78 at 24. But nothing in that sentence defines
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`“consumed.” At most, the use of the disjunctive “or” indicates that “consumed” and “used up” are
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`similar terms—not that one defines the other. If that cited sentence is definitional, then so are the
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`sentences that Defendants ignore—which explain that resources are “used” or “consumed.” See,
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`e.g., ’752 Patent at 9:31–36 (“[A]gents 22 may use or consume various computational resources
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`21); id. at 14:17–20 (“computational resources 21 which may be expended, consumed, or used
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`during the operation”); id. at 16:51–55 (“monitor the amount of respective service resources 25
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`expended, used, or otherwise consumed by one or more agents 22 which have been authorized to
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`access the service 24”); id. at 25:14–16 (“the amount of each service resource 25 actually
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`consumed or used to execute the instruction.”) (all emphases added).
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`J. Service resource (Claims 1, 7, 9, 24 of the ’752 Patent)
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`Defendants argue “service resource” is indefinite because the patent allegedly provides “no
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`guidance to those of skill in the art as to how one can determine with reasonable certainty whether
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`a particular resource is a service resource, a computation resource, both, or neither.” Dkt. No. 78
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`at 25. But, Defendants have provided no evidence that one of skill in the art could not determine
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`what is meant by a “service resource.” That is unsurprising given the ’752 Patent explains what
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`“service resources” are. See ’752 Patent at 10:61–63 (“In general, a service resource 25 is a
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`resource which enables a service to be performed.”). This is a “fundamentally simple term that
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`[Defendants have] gone to great lengths to make complicated and present as indefinite.” Abstrax,
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`Inc. v. Hewlett-Packard Co., 2015 U.S. Dist. LEXIS 3384, at *49 (E.D. Tex. Jan. 12, 2015).
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`Defendants have provided no authority that different claim limitations cannot refer to
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`overlapping subject matter. And there is none. Bancorp Servs., L.L.C. v. Hartford Life Ins. Co.,
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`359 F.3d 1367, 1373 (Fed. Cir. 2004) (different words can be used to express similar concepts).
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`Here, “service resources” may be the same matter as “computational resources.” See Dkt. No. 76
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`at 22–23 (showing “memory” as both claimed resource types in the ’752 Patent). Thus, the ’752
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`Patent objectively defines the scope of the “service resources,” and the claim term is definite.
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`K. a URL defining a type of (predetermined) event and identifying the
`network-based agent (Claims 1, 7, 9, 24 of the ’752 Patent)
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`Defendants argue that the claimed webpage URL is the only embodiment disclosed, and
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`therefore the claims should be limited as such. But that embodiment-first approach is contrary to
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`black-letter law. See Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906 (Fed. Cir. 2004) (a
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`sole embodiment should not be read into claims absent a clear intention to limit the claim scope).
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`Defendants provide no justification to replace the claim language—“defining” and
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`“identifying”—with different words—“includes.” Nothing in the claim language requires that the
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`URL “include” the “network-based agent”—the claim only requires identification. Claim
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`construction is not an exercise in construing every word.
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`L. Exhausted (Claims 1, 7, 9, 24 of the ’752 Patent)
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`The patentee’s statements during prosecution of the ’752 Patent are not a clear and
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`unmistakable disclaimer. Defendants isolate one statement in the prosecution history, but the
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`proper analysis turns on the prosecution history as a whole. Ecolab, Inc. v. FMC Corp., 569 F.3d
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`1335, 1342 (Fed. Cir. 2009) (“Even if an isolated statement appears to disclaim subject matter, the
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`prosecution history as a whole may demonstrate that the patentee committed no clear and
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`unmistakable disclaimer.”). Defendants attempt to distinguish Ecolab by arguing that there is no
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`corresponding “legal impediment” here and that the examiner “merely disagreed with the
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`patentee.” But Ecolab is directly on point—it turns on a disputed claim term in which the examiner
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`rejected a patentee’s erroneous claim interpretation.
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`In Ecolab, the Federal Circuit concluded that the patentee had not disclaimed subject matter
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`during prosecution. 569 F.3d at 1343-44. The patent-at-issue in Ecolab concerned a chemical
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`product containing an antimicrobial compound peracetic acid (“PAA”) used to sanitize meat
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`processing facilities. Id. at 1340-41. In the first office action, the examiner rejected all claims as
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`anticipated and obvious in light of prior art. Id. at 1343. The patentee in response argued that “[t]he
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`peracetic acid is the sole antimicrobial agent in the sanitizing solution. . . . [the prior art] do not
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`teach the use of peracetic acid alone as a sanitizer.” Id. (internal citations omitted) (emphasis in
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`original). The examiner remarked that the claims of the patent were directed to a composition
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`“which consists essentially of” PAA, and concluded that the patent was not limited to compositions
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`containing PAA as the only microbial agent, despite the patentee’s response. Id. The patentee never
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`again repeated the statements or purported to disavow the use of multiple PAA agents. Instead, the
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`patentee argued that the patent at issue was not rendered anticipated or obvious on alternate
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`grounds. Id. The Federal Circuit ultimately concluded that the prosecution history as a whole did
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`not indicate a clear and unmistakable disclaimer:
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`A reasonable reader of this prosecution history could conclude that [the patentee’s]
`initial statements that PAA is the sole antimicrobial agent used in its claimed
`method were hyperbolic or erroneous, that the Examiner corrected [the patentee’s]
`error in the following communication, that [the patentee] recognized its error and
`never again repeated or relied upon the erroneous rationale, and that the claims were
`allowed for reasons independent of the allegedly disclaiming statements.
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`Id. Here, a reasonable reader of the prosecution history would reach the same result. The ’752
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`patentee never again proffered its erroneous statements regarding “exhaustion” after the
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`examiner’s correction. See Dkt No. 75-4 at 3 (“[T]he applicant’s arguments on page 13 that the
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`amended claim language is somehow different than what is taught by Chou because in Chou the
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`cartridges are reused is misleading. In the applicant’s invention, resources are reused.”) (emphasis
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`added). Further, the ’752 Patent’s claims were allowed for reasons independent of the allegedly
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`disclaiming statements. Dkt. No 75 at 26. Consequently, there is no prosecution history disclaimer.
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` Respectfully submitted,
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`
`
`
` Kirk Voss
`
`
`/s Kirk Voss/
`
`
`
`DEREK GILLILAND
`STATE BAR NO. 24007239
`KIRK VOSS
`STATE BAR NO. 24075229
`WINN CUTLER
`STATE BAR NO. 24084364
`CHRISTIAN J. HURT
`STATE BAR NO. 24059987
`ROSS LEONOUDAKIS
`STATE BAR NO. 24087915
`NIX PATTERSON & ROACH, L.L.P.
`1845 Woodall Rodgers Fwy., Suite 1050
`Dallas, Texas 75201
`972.831.1188 (telephone)
`972.444.0716 (facsimile)
`dgilliland@nixlaw.com
`kirkvoss@nixlaw.com
`winncutler@nixlawfirm.com
`christianhurt@nixlaw.com
`rossl@nixlaw.com
`
`BEN KING
`STATE BAR NO. 24048592
`NIX PATTERSON & ROACH, L.L.P.
`2900 St. Michael Drive, Suite 500
`Texarkana, Texas 75503
`903.223.3999 (telephone)
`903.223.8520 (facsimile)
`benking@nixlawfirm.com
`
`
`
`
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`
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`
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`ATTORNEYS FOR PLAINTIFFS
`INTELLECTUAL VENTURES I LLC and
` INTELLECTUAL VENTURES II LLC
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`PLAINTIFFS’ REPLY CLAIM CONSTRUCTION BRIEF Page 11 of 12
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`Page 12 of 13
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`Case 6:15-cv-00660-JRG-KNM Document 79 Filed 05/25/16 Page 13 of 13 PageID #: 1326
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
`compliance with Local Rule CV-5(a) and served via the Court’s electronic filing system on all
`counsel who have consented to electronic service on this the 25th day of May, 2016.
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`/s Kirk Voss/
`NIX PATTERSON & ROACH, L.L.P.
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`PLAINTIFFS’ REPLY CLAIM CONSTRUCTION BRIEF Page 12 of 12
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`Page 13 of 13