Case 1:17-cv-01843-LPS Document 103 Filed 03/28/19 Page 1 of 25 PageID #: 2371
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CITRIX SYSTEMS, INC.,
`
`Plaintiff,
`
`v.
`
`AVI NETWORKS, INC.,
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`Defendant.
`
`C.A. No. 17-1843-LPS
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`JURY TRIAL DEMANDED
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`CITRIX’S OPENING CLAIM CONSTRUCTION BRIEF
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`Douglas E. McCann (#3852)
`Robert M. Oakes (#5217)
`FISH & RICHARDSON P.C.
`222 Delaware Avenue, 17th Floor,
`P.O. Box 1114
`Wilmington, DE 19801
`Telephone: (302) 652-5070
`dmccann@fr.com; oakes@fr.com
`
`Ruffin B. Cordell
`Indranil Mukerji
`Laura C. Whitworth
`FISH & RICHARDSON P.C.
`1000 Maine Avenue SW, Suite 1000
`Washington, D.C. 20024
`Telephone: (202) 783-5070
`cordell@fr.com; mukerji@fr.com;
`whitworth@fr.com
`
`Adam J. Kessel
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210-1878
`Telephone: 617-542-5070
`kessel@fr.com
`
`Dated: March 28, 2019
`
`Katherine Reardon
`FISH & RICHARDSON P.C.
`601 Lexington Avenue, 52nd Floor
`New York, NY 10022-4611
`Telephone: 212-765-5070
`reardon@fr.com
`
`John-Paul Fryckman
`FISH & RICHARDSON P.C.
`12390 El Camino Real
`San Diego, CA 92130
`Telephone: 858-678-5070
`fryckman@fr.com
`
`Benjamin K. Thompson
`FISH & RICHARDSON P.C.
`1180 Peachtree Street NE
`21st Floor
`Atlanta, GA 30309
`Telephone: (404) 892-5005
`BThompson@fr.com
`
`ATTORNEYS FOR PLAINTIFF
`CITRIX SYSTEMS, INC
`
`1
`
`CITRIX 2006
`Avi Networks v. Citrix Systems
`IPR2019-00844
`IPR2019-00845
`
`

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`Case 1:17-cv-01843-LPS Document 103 Filed 03/28/19 Page 2 of 25 PageID #: 2372
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`TECHNOLOGY BACKGROUND .................................................................................... 1
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`SUMMARY OF THE PATENTS ...................................................................................... 5
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`LEGAL STANDARDS FOR CLAIM CONSTRUCTION ................................................ 7
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`CLAIM CONSTRUCTION ................................................................................................ 9
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`A. “request” ............................................................................................................................. 9
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`B. “response” ......................................................................................................................... 14
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`C. “transport layer connection” ............................................................................................. 16
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`CONCLUSION ................................................................................................................. 20
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Abbott Labs. v. Dey L.P.,
`287 F.3d 1097 (Fed. Cir. 2002)................................................................................................11
`
`ActiveVideo Networks, Inc. v. Verizon Comm’n, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)......................................................................................9, 10, 17
`
`Amgen, Inc. v. Ariad Pharms., Inc.,
`577 F. Supp. 2d 724 (D. Del. 2008) .........................................................................................18
`
`Baldwin Graphic Sys., Inc. v. Siebert, Inc.,
`512 F.3d 1338 (Fed. Cir. 2008)................................................................................................13
`
`Dealertrack, Inc. v. Huber,
`674 F.3d 1315 (Fed. Cir. 2012)..................................................................................................8
`
`Goldenberg v. Cytogen, Inc.,
`373 F.3d 1158 (Fed. Cir. 2004)................................................................................................11
`
`Interactive Gift Express, Inc. v. Compuserve Inc.,
`256 F.3d 1323 (Fed. Cir. 2001)..................................................................................................8
`
`KCJ Corp. v. Kinetic Concepts, Inc.,
`223 F.3d 1351 (Fed. Cir. 2002)................................................................................................13
`
`Mallinckrodt IP Unlimited Co. v. B. Braun Medical Inc.,
`No. 17-365-LPS, No. 17-660-LPS, 2018 WL 2684105 (D. Del. June 5, 2018) ......................13
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., Ltd.,
`521 F.3d 1351 (Fed. Cir. 2008)..................................................................................................9
`
`Omega Eng’g, Inc., v. Raytek Corp.,
`334 F.3d 1314 (Fed. Cir. 2003)..........................................................................................12, 18
`
`On-Line Techs. v. Bodenseewerk Perkin-Elmer GmBH,
`386 F.3d 1133 (Fed. Cir. 2004)..........................................................................................13, 19
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ....................................................................... passim
`
`Smith Int’l, Inc. v. Baker Hughes Inc.,
`No. 16-0056, 2018 WL 3381299 (D. Del. July 11, 2018) .......................................................13
`
`ii
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`3
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`Case 1:17-cv-01843-LPS Document 103 Filed 03/28/19 Page 4 of 25 PageID #: 2374
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`Sorensen v. Int’l Trade Comm’n,
`427 F.3d 1375 (Fed. Cir. 2005)..................................................................................................9
`
`SRI Int’l, Inc. v. Cisco Sys., Inc.,
`No. 2017-2223, slip op. (Fed. Cir. March 20, 2019) ...............................................................12
`
`Teleflex, Inc. v. Ficosa N. Am. Corp.,
`299 F.3d 1313 (Fed. Cir. 2002)................................................................................................12
`
`Thorner v. Sony Computer Entertainment Am., LLC,
`669 F.3d 1362 (Fed. Cir. 2012)..................................................................................................8
`
`Transcenic, Inc. v. Google Inc.,
`7 F. Supp. 3d 405 (D. Del. 2013) .............................................................................................13
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)....................................................................................................8
`
`Other Authorities
`
`37 CFR § 42.100(b) .......................................................................................................................20
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`iii
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`Case 1:17-cv-01843-LPS Document 103 Filed 03/28/19 Page 5 of 25 PageID #: 2375
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`
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`INTRODUCTION
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`Plaintiff Citrix Systems, Inc. (“Citrix”) is a pioneer in the networking technology that
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`enables the modern Internet. Citrix has sought and obtained thousands of patents globally for its
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`inventions in this space. Defendant Avi Networks, Inc. (“Avi”) recently entered the market, and
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`competes directly with Citrix. In addition to claims for false advertising, unfair competition, and
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`deceptive trade practices, Citrix accuses Avi of infringing U.S. 9,148,493 (“the ’493 patent”) and
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`8,631,120 (“the ’120 patent”) (collectively, the “Asserted Patents”) which relate to network
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`connection reuse and share a common specification. The three claim terms at issue—“request,”
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`“response,” and “transport layer connection”—do not require construction, as the plain and
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`ordinary meaning is sufficient. Indeed, Avi does not argue that any of these terms would not be
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`readily understood by one of skill in the art. Instead, Avi seeks to graft on extraneous limitations
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`purportedly based on an undifferentiated list of every substantive office action response in the
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`file histories of these two patents and others. But Avi’s proposed constructions depart from the
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`cardinal rules of claim construction: they are not, in fact, supported by the file histories; they
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`would read out preferred embodiments; and they advance meanings that are inconsistent with the
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`technical facts. The Court should thus reject Avi’s results-driven positions.
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`TECHNOLOGY BACKGROUND
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`Servers on the Internet store information accessible by clients. Generally, a client sends a
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`request for data to a server, such as a web server, and the server responds with the requested
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`data. Information can be organized, for example, as webpages and exchanged using Hypertext
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`Transfer Protocol (HTTP), a standard that specifies how requests for data (e.g., webpages), and
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`responses to those requests are formatted.1 Jones Decl. ¶29.
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`Users typically access data on a webpage using a browser by specifying the uniform
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`resource locator (URL) of a desired page. See, e.g., ’493 at 1:42-44. For example, a user may
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`want to browse data at “https://www.supremecourt.gov,” which is the public URL for the United
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`States Supreme Court website. Once the user specifies a URL, a client (e.g., the web browser)
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`transmits an HTTP request message (e.g., a “GET request”) indicating the desired URL to the
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`web server, and the server transmits back a response message containing a copy of data at the
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`corresponding webpage. See, e.g., id. at 1:47-54. See also id. at FIG. 7, 7:54-55 (“GET request
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`from client C1 specifying a path name of /sales/forecast.html”), and 7:61 (“Server S responds
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`with the requested web page”).
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`HTTP messages, in general, contain a header, and may also contain a payload. In the
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`simple but common example discussed above, the HTTP request message utilizes a “GET
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`method” by including the term (called a “token” in the HTTP standard) “GET” in the “header”
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`portion of the message. Jones Decl. ¶30. The GET method request message in this example does
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`not have a “payload,” however, because it is only requesting data from the server. Id. If the GET
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`method request succeeds (i.e., the requested data resource is located), the HTTP response
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`message will typically have both a header and a payload, where the payload includes the
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`requested data (i.e., data at the requested webpage). Id.
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`Many protocols other than HTTP are also often used to access data on the Internet, such
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`as File Transfer Protocol (“FTP”) and the suite of protocols that enable email. See, e.g., ’493 at
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`5:35-37. For example, FTP is a protocol used to transfer files. Unlike HTTP, the messages that
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`1 The disclosed inventions and asserted claims cover protocols other than HTTP, each of which
`presents technical distinctions. Citrix focuses on HTTP to explain the background and inventions
`since web browsing will be familiar to the Court and is adequate to illustrate relevant principles.
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`constitute FTP requests and responses have neither a “header” nor a “payload.” Jones Decl. ¶42.
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`Computer networking has long utilized a conceptual framework known as a “layered”
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`model to characterize the communication functions of a network without regard to its underlying
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`internal structure and technology. One common example is the Open Systems Interconnection
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`model (typically referred to as the “OSI model”).2 Jones Decl. ¶¶ 32-40. This and similar models
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`enabled various communication systems to interoperate based on standardized protocols, such as
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`on the Internet.
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`The OSI model partitions a communication system into seven “layers” (as shown below)
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`each handling different aspects of communications, arranged in a vertical stack.
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`L7
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`L6
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`L5
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`L4
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`L3
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`L2
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`L1
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`Application Layer
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`Presentation Layer
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`Session Layer
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`Transport Layer
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`Network Layer
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`Data Layer
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`Physical Layer
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`Jones Decl. ¶¶ 32-40. Each layer serves the layer above it and is served by the layer below it. For
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`example, a layer that provides communications across a network provides the path needed by an
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`application above it, while it calls the next lower layer to send and receive packets that include
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`the contents sent over that path.
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`While it is not necessary for present purposes to discuss all seven layers, the application
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`and transport layers are relevant background to the instant dispute. Id. The application layer,
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`depicted at the top of the stack, is closest (i.e., most directly exposed) to an end user.
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`2 Another common model called the Internet Protocol suite uses four layers.
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`Applications, such as a web browser, Skype (for telephony), or Outlook (for email) directly
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`interact with the end user at the application layer. Id. ¶¶37, 42. HTTP and its secure version
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`called HTTPS, both of which are used by web browsers, are examples of protocols operating at
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`an application layer to provide functionality that is directly accessible to an end user. Id. ¶¶32-
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`40. FTP and email also rely on protocols implemented at the application layer. Id. ¶42.
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`The transport layer, by contrast, is lower in the stack (and thus further from end-user
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`application interaction) and provides device-to-device communication services for applications.
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`Id. ¶¶32-40. The capabilities provided by this layer can include, e.g., connection-oriented
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`communication, reliability, flow control, and multiplexing. Id. The network layer, which works
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`closely with the transport layer in common network implementations, provides the means to
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`address various end-points on a network such as clients and servers. Id.
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`An application-layer protocol such as HTTP relies upon at least one protocol in a layer
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`below it in a network protocol stack to actually cause application messages to be transmitted
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`between devices. Id. ¶¶32-40. For example, HTTP messages are usually transmitted over a
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`TCP/IP connection, where the transmission control protocol (“TCP”) operates at a transport
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`layer, and the Internet Protocol (“IP”) operates at a network layer. Id.; see also ’493 at 5:35-37
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`(“The TCP/IP protocol suite supports many applications, such as Telnet, [FTP], e-mail, and
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`HTTP”). HTTP relies on TCP, at the transport layer, to establish an ongoing connection between
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`devices. Jones Decl. ¶¶ 38-42.
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`Often, a transport layer connection is established between a client and server for the
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`exchange of webpage data. In some web deployment scenarios at issue here, an intermediary
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`device is arranged between one or more clients and servers and acts to, inter alia, direct requests
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`and responses to their appropriate destinations. In such scenarios, a client-side TCP connection is
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`established between a client and an intermediary device, and a server-side TCP connection is
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`established between the intermediary device and a server. E.g., ’493 at FIG. 2.
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`A client’s HTTP request message and a server’s HTTP corresponding response message
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`at the application layer do not flow immediately due to overhead associated with lower layers,
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`such as the TCP transport layer. For example, establishing a TCP connection requires the
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`sequential exchange of three network packets between devices to establish the connection, and
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`the subsequent closing of the connection requires the exchange of up to four sequential network
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`packets. See, e.g., ’493 at 2:7-18; see also Jones Decl. ¶41.
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`As described below, the claimed inventions enable a transport layer connection, such as
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`that utilizing TCP, between an intermediary and a server to be reused to service multiple requests
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`from different clients, and thus avoid the time and processing overhead of setting up and taking
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`down that connection multiple times. See, e.g., ’493 at 1:23-28, 2:1-50, and 3:63-4:10. These
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`improvements, commercialized in Citrix’s NetScaler product line, have enabled thousands of
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`customers worldwide to upgrade their application performance and reliability and operate at a
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`scale necessary to service the modern Internet.
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`SUMMARY OF THE PATENTS
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`The ’493 and ’120 patents are both entitled “Apparatus, method and computer program
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`product for efficiently pooling connections between clients and servers.” Both claim priority to
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`an application filed on Oct. 18, 2000, and issued as U.S. Patent 7,801,978 (“the ’978 patent”).
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`The ’493 and ’120 patents, as well as the ’978 patent, share a common specification, and as such,
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`the ’493 patent is used herewith for citation purposes. These patents disclose technology related
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`to client-server applications such as HTTP applications where the efficient reuse of transport
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`layer connections between an intermediary device and one or more backend servers is important
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`in the handling of client requests and server responses. See, e.g., ’493 at 1:23-28, FIG. 2, 4:5-10;
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`see also Jones Decl. ¶43.
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`These patents describe a problem particular to servers in computer networks where
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`efficient utilization of computer and network resources are key technical concerns. See, e.g., ’493
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`at 1:23-28, 2:1-50. These concerns arise, for example, when client devices, such as personal
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`computers or smartphones, request content from a website hosted by a webserver. To
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`accommodate numerous clients requesting content from the same server in a short period of
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`time, a system administrator may configure a server farm where each server therein is capable of
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`handling the same content requests. See, e.g., ’493 at FIG. 2, 3:63-4:10. Incoming requests are
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`then distributed among the farm’s servers. Id. An intermediary device, also called a front-end
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`server or interface unit, is placed between the client devices and the server farm, and manages a
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`pool of one or more server-side connections with respective servers. Id. The intermediary device
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`is responsible for distributing requests efficiently and making sure the responses are relayed back
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`to the correct client.
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`As noted above, connections between client devices and web servers are established
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`using a transport layer connection, such as that utilizing TCP, which requires the overhead of
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`exchanging initializing network packets and local computing resources, such as processor time
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`and memory, to properly monitor and maintain the connection. See, e.g., ’493 at 2:1-50. Since
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`the front-end server acts as a go-between, the front-end server must commit resources to
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`maintain transport layer connections with clients as well as with the farm’s servers.
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`One source of increased efficiency is reusing the server-side connections to handle more
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`requests. Reusing an established connection avoids having to exchange the initial packets to
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`setup that connection. The inventors recognized that one key technical question for the
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`intermediary device is to determine when a server-side connection may be reused. One method
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`to make that determination is for the client to properly close its connection, which signals to the
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`intermediary that the client has received its requested data. However, there is a delay after the
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`client receives the last of its data before it closes the connection. In some cases, the delay is due
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`to “think time” where a web browser holds open a connection to handle other requests, e.g., if a
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`browser receives a web page, and then, after several seconds of a user reviewing, the user “clicks
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`on” a link contained in that web page that corresponds to resource data on the same webserver.
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`See, e.g., ’493 at 1:23-28 and 6:4-12. In other cases, the delay is due to the intermediary device
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`waiting to receive a close command from the client notwithstanding the client doing so
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`immediately after receiving webpage data. E.g., id. at 12:18-32. The specifications disclose that
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`such delay unnecessarily ties up a server-side connection. E.g., id. at 1:23-28, 4:67-5:2.
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`The inventors recognized that the intermediary device does not necessarily need to wait
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`for a close command from the client to know that the server is finished sending a response.
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`Information contained in the server’s response, such as a content-length parameter or a chunked
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`transfer encoding header, can be examined to detect server response message completion faster
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`than waiting for a close command from either the client or the server. The invention allows for
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`faster reuse of the connection between the intermediary device and the server to service other
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`client requests. See, e.g., id. at 6:3-12, 12:25-32. Further, this improved method reduces the need
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`to maintain more simultaneous server-side connections and more hardware or computing
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`resources at higher cost to support those connections.
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`
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`LEGAL STANDARDS FOR CLAIM CONSTRUCTION
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`Claim construction must focus on the claim language itself because it is a “bedrock
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`principle” that “the claims of a patent define the invention to which the patentee is entitled the
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`right to exclude.” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). Claim
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`terms “are generally given their ordinary and customary meaning” as understood by the skilled
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`artisan at the time of the invention in the context of the specification. Id. “There are only two
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`exceptions to this general rule: 1) when a patentee sets out a definition and acts as his own
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`lexicographer, or 2) when the patentee disavows the full scope of a claim term either in the
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`specification or during prosecution.” Thorner v. Sony Computer Entertainment Am., LLC, 669
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`F.3d 1362, 1365 (Fed. Cir. 2012). Where “the claim language is clear on its face, then [the]
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`consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from
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`the clear language of the claims is specified.” Interactive Gift Express, Inc. v. Compuserve Inc.,
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`256 F.3d 1323, 1331 (Fed. Cir. 2001).
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`Claim construction begins with the intrinsic evidence—namely, the claim language, the
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`specification, and the prosecution history. Phillips, 415 F.3d at 1312-17. The claims provide
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`important guidance both through “the context in which a term is used” and “differences among
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`claims.” Id. at 1314-15. The specification is “always highly relevant,” id. at 1315, and “may
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`reveal a special definition given to a claim term by the patentee that differs from the meaning it
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`would otherwise possess.” Id. at 1317. While it is improper to import limitations from a preferred
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`embodiment described in the specification into the claim, it is equally improper to define a term
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`that would exclude a preferred embodiment from the scope of the invention. Compare
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`Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1327 (Fed. Cir. 2012) (rejecting a construction that
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`narrowed the claim scope to the preferred embodiment) with Vitronics Corp. v. Conceptronic,
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`Inc., 90 F.3d 1576, 1583-84 (Fed. Cir. 1996) (rejecting a construction that would exclude a
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`preferred embodiment finding that “[s]uch an interpretation is rarely, if ever, correct and would
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`require highly persuasive evidentiary support.”). Likewise, the prosecution history may shed
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`light on what a term means, but “it often lacks the clarity of the specification and thus is less
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`useful for claim construction purposes,” id., and it will not limit claim scope unless it contains a
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`“clear and unmistakable” disclaimer. Sorensen v. Int’l Trade Comm’n, 427 F.3d 1375, 1378-79
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`(Fed. Cir. 2005).
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`The “construction that stays true to the claim language and most naturally aligns with the
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`patent’s description of the invention will be, in the end, the correct construction.” Phillips, 415
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`F.3d at 1316. And, “in some cases,” like this one, “the ordinary meaning of claim language as
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`understood by a person of skill in the art may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted
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`meaning of commonly understood words.” Id.
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`It is sometimes unnecessary to construe claim language at all. See, e.g., O2 Micro Int’l
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`Ltd. v. Beyond Innovation Tech. Co., Ltd., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[D]istrict
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`courts are not (and should not be) required to construe every limitation present in a patent’s
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`asserted claims.”). One way to appropriately resolve a dispute is to give the term its plain
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`meaning and reject a narrower alternative proposed by a party. See, e.g., ActiveVideo Networks,
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`Inc. v. Verizon Comm’n, Inc., 694 F.3d 1312, 1326 (Fed. Cir. 2012) (affirming “plain meaning”
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`construction which rejected construction that “erroneously reads limitations into the claims”).
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`
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`CLAIM CONSTRUCTION
`A.
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` “request”
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`Term
`“request”
`
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`’493: 1, 5, 7, 8, 9, 13,
`15, 16, 17, 18, 19, 20;
`’120: 1, 2, 4, 5, 6, 7, 8,
`9, 10, 12, 13, 14, 15, 16,
`17
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`Citrix’s Construction
`Plain and ordinary meaning. To the
`extent the Court finds construction
`helpful to assist the factfinder in
`applying the claim, the term’s
`plain and ordinary meaning is “a
`message for retrieving data”
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`Avi’s Construction
`“Application layer message
`requesting data from a server
`and consisting of a header
`and payload”
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`No construction of this term is necessary. The phrase “request” is easily understood by
`
`those of ordinary skill in the art, particularly given the clarity of the claim language and the
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`corresponding description in the specification. Jones Decl. ¶¶47-50. Tellingly, in its recent inter
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`partes review (IPR) petition filings against the ’493 and ’120 patents, Avi did not contend this
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`term needed any construction. See Avi’s ’493 and ’120 IPR Petitions at 7, which are attached as
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`Exhibits J and K in the Jones Decl.
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`The specification supports the plain and ordinary meaning, describing an exchange of
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`messages that includes a “request” and a “response.” See, e.g., ’493 at 2:7-18, 10:1-11:38, FIG.
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`8, 12:49-14:41, FIG. 10, 7:45-8:21, FIG. 7. A client sends a request to retrieve data. Id. at 2:9-10
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`(“client sends a URL (page) request”), 8:25-26 (“the client has retrieved all requested data”). As
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`one example, a client sends a request to retrieve sales forecast data from a website. Id. at 7:54-55
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`(“GET request from client C1 specifying a path name of /sales/forecast.html”). Because the
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`term’s meaning is plain, no further clarification is necessary. See ActiveVideo, 694 F.3d at 1326;
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`Phillips, 415 F.3d at 1314. Alternatively, “a message for retrieving data” is wholly consistent
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`with the plain and ordinary meaning of this term, to the extent the Court finds that a construction
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`would be useful to guide a factfinder.
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`Avi’s proposed construction should be rejected for several reasons. While both parties
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`agree that a “request” is a message for retrieving or requesting3 data, Avi seeks to further impose
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`unnecessary and incorrect technical limitations on the construction of this term, without support
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`from the claim language or specifications of the ’493 and ’120 patents. Avi’s construction, for
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`example, requires that the message must be an “application layer message.” The claim language
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`does not limit the request to a particular type of message (e.g., application layer). Nothing in the
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`specifications limits the claimed “request” to a particular type of message. Moreover, this
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`3 Citrix is not aware of any meaningful difference between “retrieve” or “request” in this context,
`but suggests “retrieving” in its proposed alternate construction to avoid any concern of
`circularity that would arise from using the word “request” in the construction of “request.”
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`Case 1:17-cv-01843-LPS Document 103 Filed 03/28/19 Page 15 of 25 PageID #: 2385
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`additional requirement does not appear to be material to any infringement or validity dispute, but
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`in any case is unnecessary, redundant, and potentially confusing to the jury because the claims
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`separately refer to “application data.” For example, claim 1 of the ’120 patent recites
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`“determining… via a content length parameter identified in application data of a first response
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`that a last byte of the application data has been transmitted from the server and the server has
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`completed communicating the first response to the first request over the second transport layer
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`connection.”
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`In the Joint Claim Chart, Avi identifies, among other things, the file histories of the two
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`Asserted Patents to support its construction, citing a laundry list of every substantive office
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`action response, interview summary, and notice of allowance, in the file histories as purported
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`support for all three of its proposed constructions. See D.I. 98. Moreover, Avi identifies the file
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`histories of the ’978 patent (a related Citrix patent corresponding to the priority patent
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`application for the Asserted Patents), and U.S. Patent 6,411,986 (an unrelated Citrix patent, the
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`specification of which is incorporated by reference in the Asserted Patents) (the “’986 patent”),
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`in addition to the file histories of the two Asserted Patents, to support its construction—again
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`citing a laundry list of every substantive paper. 4 See Id. at 2.
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`Avi’s laundry list of file history items provided in the Joint Claim Chart fails to explain
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`why or how it intends to import limitations into this term. While it would be impractical in view
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`of page constraints to walk through each of the 19 or more prosecution items to prove the
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`4 Avi’s reliance on the ’986 file history is also misplaced because the ’986 patent is unrelated to
`the ’493 and ’120 patents and does not support any priority claim from the Asserted Patents. See
`Goldenberg v. Cytogen, Inc., 373 F.3d 1158, 1167-68 (Fed. Cir. 2004) (finding statements in
`another patent or its prosecution history irrelevant to claim construction “[a]bsent a formal
`relationship or incorporation during prosecution” of the patent at issue); cf. Abbott Labs. v. Dey
`L.P., 287 F.3d 1097, 1104-05 (Fed. Cir. 2002) (finding arguments made during prosecution of a
`commonly-owned but unrelated patent did not create prosecution history estoppel).
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`Case 1:17-cv-01843-LPS Document 103 Filed 03/28/19 Page 16 of 25 PageID #: 2386
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`negative—i.e., that there was no disavowal or disclaimer—at a high level, the applicants
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`consistently argued that their invention distinguished over the prior art based on its improved
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`method of determining that a transport layer connection is available for reuse, specifically based
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`on the application data transmitted over that connection. Nothing in those arguments constituted
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`an admission that the applicants intended to re-define the claim terms, and none of these file
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`histories provide any disclaimer or claim scope disavowal that would support Avi’s proposed
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`limitations. Jones Decl. ¶49.
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`In particular, none of the evidence Avi points out arises to the standard of clear disavowal
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`to overturn the “heavy presumption that claim terms carry their full ordinary and customary
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`meaning.” Omega Eng’g, Inc., v. Raytek Corp., 334 F.3d 1314, 1323-25 (Fed. Cir. 2003) (“For a
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`prosecution disclaimer to attach, the alleged disavowing statements [must] be both so clear as to
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`show reasonable clarity and deliberateness, and so unmistakable as to be unambiguous evidence
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`of disclaimer.”) (internal citations omitted); see also SRI Int’l, Inc. v. Cisco Sys., Inc., No. 2017-
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`2223, slip op. at 12-13 (Fed. Cir. March 20, 2019) (rejecting argument that patentee had
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`disclaimed claim scope finding that “[t]o invoke argument-based estoppel, the prosecution
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`history must evince a clear and unmistakable surrender.”) (internal citations omitted); Teleflex,
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`Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325-26 (Fed. Cir. 2002) (requiring a patentee to
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`unequivocally impart a novel meaning to terms or expressly relinquished claim scope during
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`prosecution for claim scope disavowal to apply). Indeed, Citrix can identify no material in the
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`plethora of cited documents that purports to define or limit the “request” term at all.
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`Avi’s construction also improperly requires that the message must “consist[] of a header
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