Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 1 of 8 PageID #: 2402
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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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`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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`§
`§
`§
`§
`§
`§ CIVIL ACTION NO. 6:15-CV-660-JRG
`§
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`§
`JURY TRIAL DEMANDED
`§
`§
`§
`§
`§
`§
`§
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`INTELLECTUAL VENTURES I LLC AND INTELLECTUAL VENTURES II LLC’S
`OBJECTIONS TO
`MAGISTRATE MITCHELL’S REPORT AND RECOMMENDATION
`
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 1 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 1 of 8
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`

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`Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 2 of 8 PageID #: 2403
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`INTRODUCTION
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`Pursuant to Local Rule CV-72(b), Plaintiffs respectfully object to, and request
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`reconsideration of, two parts of Magistrate Judge Mitchell’s Report and Recommendation issued
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`on August 26, 2016. (Dkt. 102, “Magistrate Report”) Plaintiffs request reconsideration of the
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`recommended constructions for the terms “packet” from the ’442 Patent and “agent” from the
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`’752 Patent.
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`CONSTRUCTION OF “PACKET” FROM THE ’442 PATENT
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`Plaintiffs proposed a plain and ordinary construction for the term “packet” and
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`Defendants proposed a construction of “a basic unit of transport over a channel including a
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`header, a payload, and an error correction code.” The Court recommended adoption of
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`Defendants’ proposed construction. Plaintiffs respectfully disagree.
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`The plain and ordinary meaning of “packet” is undisputed by the parties. Nowhere in
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`Defendants’ briefing materials, nor at the claim construction hearing, did Defendants challenge
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`the plain and ordinary meaning of packet. The Court did not address the plain and ordinary
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`meaning of the term, and the Magistrate Report acknowledged “that the Court generally
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`presumes terms possess their ordinary meaning, this presumption can be overcome by statements
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`of clear disclaimer.” Magistrate Report at 3 citing SciMed Life Sys., Inc. v. Advanced
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`Cardiovascular Sys., Inc., 242 F.3d 1337, 1343-44 (Fed. Cir. 2001). There is no clear disclaimer
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`of the plain and ordinary meaning of the term packet, and as a result the plain and ordinary
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`meaning should still apply.
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`The claim language of the two independent claims in which the term appears do not
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`require the inclusion of error correcting codes. As shown below, claims 1 and 24 both contain
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 2 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 2 of 8
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`Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 3 of 8 PageID #: 2404
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`claim elements related to error correction of information contained within the patents, not the
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`specific use of error correction codes to perform that correction:
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`1. A shared-memory multi-processor system comprising:
`a switch fabric configured to switch packets containing data;
`a plurality of channels configured to transfer the packets;
`a plurality of switch interfaces configured to exchange the packets with the switch
`fabric, exchange the packets over the channels, and perform error correction of
`the data in the packets exchanged over the channels;
`a plurality of microprocessor interfaces configured to exchange the data with a
`plurality of microprocessors, exchange the packets with the switch interfaces over
`the channels, and perform error correction of the data in the packets exchanged
`over the channels; and
`a memory interface configured to exchange the data with a memory device,
`exchange the packets with the switch interfaces over the channels, and perform
`error correction of the data in the packets exchanged over the channels.
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`24. A method of operating a shared-memory multi-processor system, the method
`comprising:
`exchanging data between a plurality of microprocessors and a plurality of
`microprocessor interfaces;
`exchanging packets containing the data between the microprocessor interfaces
`and a plurality of switch interfaces over channels;
`exchanging the packets between the switch interfaces through a switch fabric;
`exchanging the packets between the switch interfaces and a memory interface
`over the channels;
`exchanging the data between the memory interface and a memory device; and
`in the interfaces, performing error correction of the data in the packets exchanged
`over the channels.
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`U.S. Patent 6,516,442 Claims 1 and 24 (emphasis added). The language in the independent
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`claims requires error correction of the data in the packets, not the inclusion of error correcting
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`codes. Nowhere in Defendants’ briefing materials, nor at the claim construction hearing, did
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`Defendants show a clear requirement that independent claims require the inclusion of error
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`correcting codes within the term “packets.” Neither did the Court cite to such a requirement.
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`Further, the claim construction selected by the Court is incompatible with dependent
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`claims at issue in the case. Dependent claims 2 and 25 require the addition of error correction
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`codes to the packet. If the Court’s recommended construction for the term packet is inserted into
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 3 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 3 of 8
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`

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`Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 4 of 8 PageID #: 2405
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`these claims, the result is two sets of error correction codes contained within each packet, which
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`is never disclosed by the ’442 Patent. This language is shown below:
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`2. The shared-memory multi-processor system of claim 1 wherein the interfaces
`are configured to add error correction codes to the [a basic unit of transport
`over a channel including a header, a payload, and an error correction code]s
`being transferred over the channels to check the error correction codes in the [a
`basic unit of transport over a channel including a header, a payload, and an
`error correction code]s being received over the channels and to transfer a retry
`request if one of the [a basic unit of transport over a channel including a
`header, a payload, and an error correction code]s being received has an error.
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`25. The method of claim 24 wherein performing error correction of the data in the
`[a basic unit of transport over a channel including a header, a payload, and
`an error correction code]s exchanged over the channels comprises:
`adding error correction codes to the [a basic unit of transport over a channel
`including a header, a payload, and an error correction code]s being
`transferred over the channels;
`checking the error correction codes in the [a basic unit of transport over a
`channel including a header, a payload, and an error correction code]s being
`received over the channels; and
`transferring a retry request if one of the [a basic unit of transport over a
`channel including a header, a payload, and an error correction code]s being
`received has an error.
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`U.S. Patent 6,516,442 Claims 2 and 25 (emphasis and claim construction language added).
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`Nowhere in Defendants’ briefing materials, nor at the claim construction hearing, did Defendants
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`show any disclosure of two sets of error correcting codes being utilized simultaneously. Neither
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`did the Court cite to such any such disclosure, because none exists, and a person skilled in the art
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`would know to reject a construction of the term “packets” with such a requirement.
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`The Court’s construction is incorrect because it conflates generalized error correction
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`with a specific type of error correction involving the implementation of error correction codes.
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`This approach improperly reads a limitation from a preferred embodiment into the claim
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`language. The claim language as cited by the Court in the Magistrate Report refers to error
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`correction generally, not the specific inclusion of error codes: “claims 1 and 24 of the ’442
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`Patent recite that the interfaces perform ‘error correction of the data in the packets exchanged
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 4 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 4 of 8
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`

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`Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 5 of 8 PageID #: 2406
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`over the channels.’” Magistrate Report at 13. A person skilled in the art would know that error
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`correction can be performed by other methods other than the inclusion of error correcting codes.
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`Nowhere in Defendants’ briefing materials, nor at the claim construction hearing, did Defendants
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`show an explicit requirement that a packet contain error correction codes. Since the Court did
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`not cite to such any such disclosure either, it should not attempt to amend the plain and ordinary
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`meaning of the term packet with additional requirements pulled from the preferred embodiment.
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`CONSTRUCTION OF “AGENT” FROM THE ’752 PATENT
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`Plaintiffs proposed a plain and ordinary construction for the term “agent” and Defendants
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`proposed a construction of “a process that occupies a place and that is mobile, i.e., can move
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`from a first place to a second place.” Defendants’ argument was based in an incorporation by
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`reference of another patent that included the definition of agent proffered by Defendants. The
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`Court recommended adoption of Defendants’ proposed construction. Plaintiffs respectfully
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`disagree.
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`To reach its conclusion, the Court made a number of incorrect assumption regarding the
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`incorporation of the other patent and the references to agent contained within the specification of
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`the ’752 Patent. As noted by the Court, “[a]n exemplary construction for an agent system is
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`taught by U.S. Pat. No. 5,603,031, issued to the Assignee of the present invention, the text of
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`which is incorporated herein by reference.” Magistrate Report at 25 citing ’752 Patent at 5:27-
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`31. The Court fails to analyze what language is incorporated by reference, as the reference is not
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`incorporated in its entirety. When the Patentee sought to incorporate a reference in its entirety, it
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`explicitly did so, as when the Patentee sought to incorporate two earlier continuations:
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`The present application is a continuation of U.S. patent application Ser. No.
`09/712,712, filed Nov. 14, 2000, allowed, which is a continuation of application
`Ser. No. 09/178,366, filed Oct. 23, 1998, now U.S. Pat. No. 6,163,794, each of
`which is incorporated herein by reference in its entirety.
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 5 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 5 of 8
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`Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 6 of 8 PageID #: 2407
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`U.S. Patent 7,949,752 (emphasis added). As a result, the entire text of the patent is not
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`incorporated by reference, just the text which would provide “[a]n exemplary construction for an
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`agent system.” This does not indicate that a definition for agent should be incorporated as well,
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`and the language “[a]n exemplary construction for an agent system” shows that any such
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`incorporation of language is useful to show a certain type of agent system, and should not serve
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`as a limitation upon the construction of agent. As the Court acknowledged, the construction for
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`“agent” is pulled from a section of the ’031 patent serving as a glossary of terms (Magistrate
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`Report at 26) and is not explicitly linked to describing the operation of an agent system.
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`Moreover, the Court fails to adequately consider the references to agent within the
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`specification. The Court acknowledges that Plaintiffs argued that “the use of the word ‘may’ and
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`‘in one embodiment’ indicates that the agent may or may not be mobile.” Magistrate Report at
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`25. In its analysis, the Court states that “may” allows for the agent to be mobile, without
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`addressing the possibility that “may” additionally allows for the agent to be not mobile. Id.
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`Further, the Court fails to account for the “in one embodiment” references to agent in the
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`specification that show the use of agent was not intended to be limiting. The Court should not
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`adopt a more limiting construction of “agent” while ignoring the circumstances of incorporation
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`and references to the term within the specification of the ’752 Patent.
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`CONCLUSION
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`For the reasons stated above, Plaintiffs respectfully request reconsideration of the two
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`parts of Magistrate Judge Mitchell’s Report and Recommendation related to the recommended
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`constructions for the terms “packet” from the ’442 Patent and “agent” from the ’752 Patent and
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`adoption of plain and ordinary meaning for both terms.
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`
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 6 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 6 of 8
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`Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 7 of 8 PageID #: 2408
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`Respectfully submitted,
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`/s/ Jason Blackstone
`_________________________________
`DEREK GILLILAND
`ATTORNEY-IN-CHARGE
`TEXAS STATE BAR NO. 24007239
`dgilliland@nixlaw.com
`NIX PATTERSON & ROACH, L.L.P.
`205 Linda Dr.
`Daingerfield, Texas 75638
`Telephone: (903) 645-7333
`Facsimile: (903) 645-5389
`
`BEN KING
`TEXAS STATE BAR NO. 24048592
`benking@nixlaw.com
`NIX PATTERSON & ROACH, L.L.P.
`2900 St. Michael Dr., Ste. 500
`Texarkana, Texas 75503
`Telephone: (903) 223-3999
`Facsimile: (903) 223-8520
`
`KIRK VOSS
`TEXAS STATE BAR NO. 24075229
`kirkvoss@me.com
`WINN CUTLER
`TEXAS STATE BAR NO. 24084364
`winncutler@nixlaw.com
`CHRISTIAN HURT
`TEXAS STATE BAR NO. 24059987
`christianhurt@nixlaw.com
`ROSS LEONOUDAKIS
`TEXAS STATE BAR NO. 24087915
`rossl@nixlaw.com
`JASON BLACKSTONE
`Texas State Bar No. 24036227
`jblackstone@nixlaw.com
`NIX PATTERSON & ROACH, L.L.P.
`1845 Woodall Rodgers Frwy., Ste. 1050
`Dallas, Texas 75021
`Telephone: (972) 831-1188
`Facsimile: (972) 444-0716
`
`Counsel for Intellectual Ventures I LLC
`and Intellectual Ventures II LLC
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 7 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 7 of 8
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`Case 6:15-cv-00660-JRG-KNM Document 110 Filed 09/09/16 Page 8 of 8 PageID #: 2409
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the above and foregoing document has
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`been delivered to all counsel of record via the Court’s CM/ECF service on this 9th day of
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`September, 2016.
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`/s/ Jason Blackstone
`_________________________________
`NIX PATTERSON & ROACH, L.L.P.
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`Plaintiffs’ Objections to Magistrate Mitchell’s Report and Recommendation
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`Page 8 of 8  
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`VMware - Exhibit 1010
`VMware v. IV I - IPR2020-00470
`Page 8 of 8
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