Case 1:19-cv-01075-ADA Document 63 Filed 04/10/20 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`Intellectual Ventures I LLC and
`Intellectual Ventures II LLC,
`
`Civil Action No. 1:19-cv-01075-ADA
`
`Plaintiffs,
`
`v.
`
`VMware, Inc.,
`
`Defendant.
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`PLAINTIFFS’ REPLY CLAIM CONSTRUCTION BRIEF
`
`EX2010
`VMware v. IV
`IPR2020-00470
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`Case 1:19-cv-01075-ADA Document 63 Filed 04/10/20 Page 2 of 30
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`TABLE OF CONTENTS
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`Introduction ....................................................................................................................................1
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`I. Disputed Terms in the ’686 Patent...................................................................................... 2
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`A. Modif[y/ied] [a] resource allocation / modify[ing] [the] computer resources
`allocated to a virtual server (’686 patent claims 5-7) ..........................................................2
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`B. “resource unavailable messages” / “denied requests to modify a resource
`allocation” (’686 patent claims 5-7) ....................................................................................3
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`C. “determination that a virtual server is overloaded” (’686 patent claims 5-7) ...............4
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`D. “virtual server” (’686 patent claims 5-7) .......................................................................5
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`E. “determining that a second physical host can accommodate the requested
`modified resource allocation” (’686 patent claims 5-7) ......................................................7
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`II. Disputed Terms in the ’726 Patent...................................................................................... 9
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`A. “resource denials” (’726 patent claims 1, 4-5 & 8) .......................................................9
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`B. “quality of service guarantee” (’726 patent claims 1 & 4) ............................................9
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`III. Alleged Means Plus Function Terms for the ’726 and ’686 Patents ................................ 10
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`A. ’686 patent claim 7 “component” terms (i.e., clauses 1-3 of Ex. A) ...........................10
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`B. ’726 patent claim 1, 3, 4, 5 & 7 (i.e., clauses 4-8 of Ex. A) ........................................12
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`The ’752 Patent ............................................................................................................................12
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`IV. Disputed Terms in the ’752 Patent.................................................................................... 13
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`A. “exhausted” (’752 patent claims 1, 9 and 24) ..............................................................13
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`B. “consumed” (’752 patent claims 1, 9 and 24) ..............................................................13
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`C. “service” (’752 patent claims 1, 3, 9 and 24) ...............................................................14
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`D. Means-Plus-Function Terms ........................................................................................14
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`V. Disputed Terms in the ’051 Patent.................................................................................... 15
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`A. “virtual server” (claims 1, 3, and 6) .............................................................................15
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`B. “physical interface[s]” (claims 1 and 3) .......................................................................16
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`C. “storing . . .” / “storing . . .” / “receiving . . .” / “determining . . .” /
`“determining . . .” / “sending . . .” / “using . . .” (claims 1 and 3) .....................................17
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`D. “customer forwarding [table(s)/information]” (claims 1 and 3) ..................................18
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`VI. Disputed Terms in the ’818 Patent.................................................................................... 19
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`A. “hierarchical token bucket resource allocation” / “token(s)” (claims 1, 17, 30, 32
`and 42) ...............................................................................................................................19
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`B. “enforcing . . .” / “receiv[e/ing] . . .” / “classify[ing] . . .” / “compar[e/ing] . . .”
`/ “forward[ing] . . .” / “buffer[ing] . . .” (claims 1, 17, 30, 32, 33, 37-39, 42) ...................21
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`C. “maintain[ing] a connection over a network fabric” (claims 1, 17, 30, 32, 42) ..........22
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`D. “virtual [network/storage network] interface layer of an application server”
`(claims 1, 17, 32, 42) .........................................................................................................23
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`E. Alleged Means Plus Function Elements (claim 17) (individually set forth in
`Ex. C) .................................................................................................................................24
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`Conclusion ....................................................................................................................................25
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`Case 1:19-cv-01075-ADA Document 63 Filed 04/10/20 Page 4 of 30
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`Cases
`
`TABLE OF AUTHORITIES
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`Accent Packaging, Inc. v. Leggett & Platt, Inc.,
`707 F.3d 1318 (Fed. Cir. 2013) ................................................................................................. 20
`
`Graphon Corp. v. Autotrader.com, Inc.,
`Case No. 2:05-cv-530 (TJW), 2007 WL 1870622 (E.D. Tex. June 28, 2007) ........................... 7
`
`Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,
`381 F. 3d 1111 (Fed. Cir. 2004) .................................................................................................. 2
`
`Netfuel, Inc. v. F5 Networks, Inc.,
`2017 WL 2834538 (N.D. Ill. June 29, 2017) ............................................................................ 11
`
`Zeroclick, LLC v. Apple Inc.,
`2018 WL 2450496 (Fed. Cir. Aug. 20, 2019) ........................................................................... 11
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`Introduction
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`IV’s Opening and Responsive briefs demonstrate that its proposed constructions align
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`with the use of the disputed terms in the context of the claims in light of the specification, and
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`consistent with the prosecution history of each patent. That these constructions are correct
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`becomes even more evident in the context of each disclosed invention, which sprang from
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`companies at the cutting-edge of their technical fields. Three of the patents-in-suit, RE 44,686
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`(“the ’686 patent”), RE 42,726 (“the ’726 patent”) and RE 43,051 (“the ’051 patent”), were
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`invented at Ensim Corporation, where the inventors were all highly experienced in the fields of
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`cloud computing and virtualization. Dkt. No. 9 at par. 27, 31. General Magic, the original
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`assignee of U.S. Patent No. 7,949,752 (“the ’752 patent), was a pioneer in cloud computing. Id.
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`at ¶ 20. 3Leaf Systems, Inc., where the inventions taught by U.S. Patent No. RE 44, 818 (“the
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`’818 patent”) were developed, was at the forefront of network virtualization. Id. at ¶ 35.
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`The extensive briefing has also revealed VMware’s strategic approach to claim
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`construction. Rather than filter each term through established claim construction canons,
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`VMware employs creative arguments in the hopes of fostering non-infringement positions. For
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`instance, the term “virtual server” is at issue in the ’686 and ’726 patents as well as the ’051
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`patent. Despite the fact that the ’051 patent is unrelated to the other two patents (which are
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`related), VMware asks the Court to consider evidence from both the ’051 patent and a patent
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`incorporated by reference therein in construing the ’686 and ’726 patents. With respect to the
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`’752 patent, VMware asks the Court to wholesale disregard previous constructions of the very
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`same terms made by an experienced Magistrate Judge in a prior Report and Recommendation.
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`VMware takes the term of art “hierarchical token bucket” from the ’818 patent and argues that it
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`should be limited to a specific, prior art algorithm that is not referenced by the patent’s written
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`description. And on two occasions, VMware touts a citation as being from a paragraph and
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`sentence without the word “embodiment”—while not disclosing that the preceding paragraphs
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`explicitly characterize those cites as preferred embodiments. These techniques do not result in
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`1
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`Case 1:19-cv-01075-ADA Document 63 Filed 04/10/20 Page 6 of 30
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`proper claim constructions and should be rejected. Instead, the disputed terms should be given
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`their proper scope as read in light of the intrinsic record.
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`I.
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`Disputed Terms in the ’686 Patent
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`A. Modif[y/ied] [a] resource allocation / modify[ing] [the] computer
`resources allocated to a virtual server (’686 patent claims 5-7)
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`IV’s Proposed Construction
`“modif[y/ied] set of functions and features of a
`physical host used in implementing tasks for the
`virtual server” / “modify[ing] a set of the
`functions and features of a physical host used in
`implementing tasks for the virtual server”
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`VMware’s Proposed Construction
`“modif[y/ied] [a] quality of service guarantee” /
`“modify[ing] [the] quality of service guarantee of
`a virtual server”
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`
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`In its Responsive Brief, VMware confirms that its construction reads the term “quality of
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`service guarantee” from the preamble of two claims in the ’726 patent into these disputed terms
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`for every asserted claim of both the ’726 and ’686 patents. See VMware Resp. Br. at 1, 12. In
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`doing so, VMware asks the Court to ignore the inference that the patentee “intended his choice
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`of different terms to reflect a differentiation in the meaning of those terms.” See Innova/Pure
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`Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F. 3d 1111, 1119 (Fed. Cir. 2004). VMware
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`argues this inference should be overcome because the reissue application may have been
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`prosecuted by an affiliate of IV and not the original applicants. To start, what entity prosecuted
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`the patent has no bearing on claim construction. Moreover, the same PTO examiner evaluated
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`the original application and the reissue application and agreed with the amendments made in the
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`reissue patent, including those which replaced “quality of service guarantee” with the disputed
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`terms.
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`This strange argument attempts to obfuscate the real issue at hand, namely, that VMware
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`is asking the Court to significantly narrow the disputed terms by reading in a phrase that (a)
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`appears in only select claims, (b) was amended out of most claims during prosecution and
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`replaced with the disputed terms, (c) refers to a single exemplary embodiment, and (d) is a
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`disputed term itself being separately proposed for construction. Accordingly, VMware’s
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`proposed construction should be rejected and, as detailed in IV’s Responsive Brief Section 1(A),
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`IV’s proposal should be adopted.
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`2
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`VMware’s attacks on IV’s proposed construction are unavailing. VMware again
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`misstates IV’s proposed construction claiming that IV “concedes” that it is asking the Court to
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`construe ‘resource allocation’ as ‘resource.’ VMware Resp. Br. at 11. This misses the point. As
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`more fully explained in IV’s Responsive Brief at 6, IV has not and is not asking the Court to read
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`out ‘allocation’ from the disputed term but, instead, recognizes the term is accounted for because
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`in order for any resource to be used by a virtual server that resource must necessarily already be
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`allocated. Indeed, IV’s proposal would not have a different scope if it were to include the term:
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`“modify an allocated set of functions and features . . . .”
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`B. “resource unavailable messages” / “denied requests to modify a resource
`allocation” (’686 patent claims 5-7)
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`IV’s Proposed Construction
`“an indication that a request by the virtual server
`cannot be immediately serviced” / “a request by
`the virtual server that cannot be immediately
`serviced”
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`VMware’s Proposed Construction
`“indications that requests by the virtual server for
`additional resources are either implicitly or
`explicitly denied, resulting from denied requests
`to modify a resource allocation”
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`see also construction of “modify a resource
`allocation”
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`After two briefs on these terms, VMware has yet to provide a single intrinsic record cite
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`supporting its proposed constructions. VMware Br. at 7-8; Resp. Br. at 3-4. Instead, VMware
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`continues to confusingly construe two constituent terms as one and incorporate the second term
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`verbatim into its proposed construction. This is particularly important here because, as discussed
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`at pages 7-9 of IV’s Responsive Brief, the claim requires these terms to have distinct meanings
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`and be read in their proper sequence. VMware, however, changes the sequence of the claim
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`elements and renders the latter half of the term superfluous. More specifically, rather than
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`account for the fact that denied requests to modify a resource allocation are the things that
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`generate resource unavailable messages which are in turn used to determine whether a virtual
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`server is overloaded and that both collectively equate to ‘resource denials’ as described in the
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`specification, VMware’s proposal ignores the second half of the disputed term.
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`IV’s proposed constructions on the other hand recognize that ‘resource unavailable
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`messages’ and ‘denied requests to modify a resource allocation’ are related but distinct, and
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`attributes to each the appropriate scope based on the teachings of the specification. See IV Resp.
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`Br. at 6-9. For example, the claims require that the disputed terms result in a determination that
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`a virtual server is overloaded, which is described in the specification as being accomplished
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`through monitoring resource denials. Id. at 8-9. The term ‘resource denials’ is further defined in
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`the specification as “any request by the virtual server that cannot be immediately serviced.” Id.
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`When compared to the claims of the related ’726 patent—which use the term ‘resource denials’
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`in place of the two disputed terms discussed here—it is evident that the term denied requests to
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`modify a resource allocation equates to a request by the virtual server that cannot be
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`immediately serviced, while the term resource unavailable messages equates to an indication of
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`the same. Id. Thus, by examining the sequence of elements and the specification’s disclosures,
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`it is apparent that rather than reading out portions of the disputed terms, IV’s proposal provides a
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`complete and consistent definition that should be adopted.
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`C. “determination that a virtual server is overloaded” (’686 patent
`claims 5-7)
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`IV’s Proposed Construction
`Plain and ordinary meaning
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`VMware’s Proposed Construction
`“determination that an average number of
`resource denials for a virtual server is beyond a
`pre-configured threshold”
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`See also construction of “resource denials”
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`VMware claims that its proposal is drawn from “a clear definition of this term in the
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`specification.” VMware Resp. Br. at 5. Knowing that it is improper to read limitations into the
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`claim from preferred embodiments, VMware tries to bolster its sole supporting specification cite
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`by stating that it does not use the word ‘embodiment’ in the sentence (or the paragraph) in which
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`the definition is found.” Id. VMware, however, omits the fact that the paragraph it cites as
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`support is immediately preceded by one that starts with “FIG. 2A is a flowchart of an
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`embodiment of the overall process for dynamically modifying the resources of a virtual server.”
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`See Ex. E at 5:29-30. VMware’s citation is obviously a continuation of the explanation of the
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`preferred embodiment in Figure 2A as it moves through the flow chart depicted therein from step
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`210 to step 220. VMware’s argument to the contrary mischaracterizes the specification. In
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`4
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`short, the Court should not accept VMware’s invitation to read a preferred embodiment into the
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`claim.
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`VMware’s criticisms of IV’s well-supported position that this term should be given its
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`plain and ordinary meaning are unpersuasive. As an example, VMware takes issue with IV’s
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`proposed construction of plain and ordinary meaning because “similar” terms like “virtual server
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`overload signal” and “indication that a first physical host is overloaded” have been proposed for
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`construction and IV is not arguing that those be construed as plain and ordinary. VMware Resp.
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`Br. at 4-5. VMware does not cite—and IV is not aware of—any support for such a position. The
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`disputed term is different than the other ‘similar’ terms that VMware cites, and unlike many
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`similar terms, is understood by one of skill in the art as being used in its plain and ordinary
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`meaning. Contrasted with VMware’s construction based on one exemplary embodiment from
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`the specification, IV’s proposal is consistent with the intrinsic record. IV Br. at 18-20; IV Resp.
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`Br. at 10-11.
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`D. “virtual server” (’686 patent claims 5-7)
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`IV’s Proposed Construction
`Plain and ordinary meaning, in the alternative
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`“a virtual machine that resides on a physical
`server and uses the physical server’s resources but
`has the appearance of being a separate dedicated
`machine”
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`VMware’s Proposed Construction
`“a process executing on a host computer that
`accepts communication requests, and that is
`capable of receiving a quality of service guarantee
`from a physical host”
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`Finding no support for its construction of this term as being “a process” in the ’686
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`patent, the very first line of VMware’s Responsive Brief focuses the Court on the use of “virtual
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`server” in the ’051 patent. See VMware Resp. Br. at 6. VMware then invokes a chain of alleged
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`evidence that spans an unrelated patent, art incorporated by reference into that unrelated patent,
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`and an examiner’s characterization of prior art from the patent that the ’686 patent reissued from.
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`Even this artfully crafted chain of ‘evidence,’ however, cannot overcome the reality that
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`VMware’s proposed construction is entirely unsupported by the intrinsic record and contrary to
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`the teachings of the ’686 and ’726 patents.
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`5
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`VMware’s characterization of a single citation as a “clear definition from the
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`specification” is taken from the paragraph titled “DETAILED DESCRIPTION OF THE
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`PREFERRED EMBODIMENTS”—which makes no mention of the virtual server being a
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`‘process.’ See Ex. E at 3:46-58. Furthermore, far from being a “clear definition,” this isolated
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`statement describes what a virtual server is “capable” of doing in the context of the
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`specification’s preferred embodiments; it does not pretend to encompass the full scope of what a
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`virtual server is. The two citations from VMware’s expert’s declaration used as support are also
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`unpersuasive. The first refers the Court to the declaration’s section regarding the unrelated ’051
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`patent, and the second covers five pages of conclusory allegations as to the ’051 patent,
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`supported by unrelated patents or inapplicable prior art. VMware Resp. Br. at Ex. 2, 13-14, 42-
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`42.1
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`Similarly, VMware overreads the discussion surrounding the Yu reference during
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`prosecution of the ’937 patent, which actually supports IV’s proposed construction. Yu
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`disclosed a type of prior art virtual server that operated in a different manner and for a different
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`purpose than the virtual servers in the ’686 and ’726 patents. See VMware Resp. Br. Ex. 46 at
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`1:20-29. VMware’s selected quotation is not the applicant characterizing his invention, rather, it
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`is the examiner simply reciting the teachings of Yu. See VMware Resp. Br. Ex. 49.
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`VMware additionally attempts to overcomplicate the issue at hand by capitalizing on the
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`fact that a virtual machine is software which is necessarily a flexible construct, and it is often
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`difficult to conceptualize the point where software ends and something tangible like hardware
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`begins. VMware uses this inherent flexibility to reduce the disputed term to the simplest
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`example, a single process, and attempts to bolster that by pointing to prior art like Yu. But it
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`cannot escape the fact that a process alone is merely a set of instructions being executed by a
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`computer, something that by its very nature is not capable of performing all of the features of the
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`claimed virtual server.
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`1 These page numbers are VMware’s cites to the ECF page numbers.
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`Finally, VMware’s attempt to paint IV’s alternate construction as unsupported disregards
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`the intrinsic record. While a plain and ordinary meaning construction is the most appropriate
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`here, IV’s alternate proposal finds support throughout the specification starting with the title
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`itself. The title of the patents—Dynamically Modifying the Resources of a Virtual Server—
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`illustrates both the failings of VMware’s proposed construction and the merits of IV’s alternate
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`proposal. A typical process alone is not capable of having resources. It uses resources while
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`executing, but does not have ‘its own’ resources, particularly not dynamically modifiable
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`resources. Furthermore, a typical process cannot perform many of the basic functions of the
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`virtual server described in the Abstract, let alone the claims. A process cannot become
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`overloaded based on resource denials, its resources cannot be dynamically modified to respond
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`to changing resource requirements, it can’t even be ‘hosted’ on a physical server never mind
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`transferred from one host to another if resources on the first host are insufficient. See generally
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`Ex. R at 39-41; Ex. E at 2:48-3:20. These are all features of a fully virtualized machine, i.e. a
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`virtual machine. It is undisputed that a virtual machine (1) resides on a physical server and uses
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`that physical server’s resources, and (2) appears as a separate dedicated machine. Therefore,
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`IV’s alternate proposal captures what is described as a virtual server in the ’686 and ’726 patents,
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`whereas VMware’s construction primarily relies on its (faulty) arguments regarding the
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`unrelated ’051 patent.
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`E. “determining that a second physical host can accommodate the requested
`modified resource allocation” (’686 patent claims 5-7)
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`IV’s Proposed Construction
`Plain and ordinary meaning; in the alternative:
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`“determining that a second physical host can
`accommodate the requests by the virtual server
`that could not be immediately serviced”
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`VMware’s Proposed Construction
`Indefinite, or in the alternative “determining that a
`second physical host can accommodate the denied
`request to modify a resource allocation”
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`VMware alleges this term is indefinite due to a lack of antecedent basis. There is no such
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`issue because the scope of the disputed term is readily ascertainable by one of skill in the art.
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`See Graphon Corp. v. Autotrader.com, Inc., Case No. 2:05-cv-530 (TJW), 2007 WL 1870622, at
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`*11 (E.D. Tex. June 28, 2007). See also Akl Decl. at ¶ 32. More specifically, VMware’s
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`7
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`indefiniteness theory hinges on the fact that “the requested modified resource allocation” term is
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`singular while the antecedent basis for that term is plural, and thus, according to VMware, the
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`claim offers “no guidance as to which one” of the denied requests to modify a resource allocation
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`the disputed term is referencing. VMware Resp. Br. at 9. But reading the claim elements in their
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`proper sequence demonstrates that while the preceding reference to “denied requests to modify a
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`resource allocation” is plural, it is part of a larger element that results in a singular “indication
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`that a first physical host is overloaded.” First the claim element in question requires ‘denied
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`requests to modify a resource allocation’ which result in ‘one or more resource unavailable
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`messages.’ The one or more messages are used to make a determination that the virtual server is
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`overloaded, which in turn is used to determine whether a physical host is overloaded and send an
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`‘indication’ regarding the same. It is only after this indication is received that the system looks
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`to determine whether another physical host can accommodate the overloaded virtual server. See,
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`e.g., Ex. E. at claim 5(a).
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`This reading of the claim language is consistent with the patent’s written description.
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`One of ordinary skill in the art reading the claim and specification would see that resource
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`denials are monitored by selective interception of system calls. Id. at 5:31-33. The interception
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`of these calls allows the system to gauge the current resource usage with respect to a particular
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`virtual server resource, including at what point the current allocation is fully used. Id. at 5:33-37.
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`When a virtual server needs an amount of a particular resource, but has reached the maximum of
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`its current allocation, a resource denial is generated. Id. Since the current allocation amount is
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`known to the system, the amount requested in excess of that allocation is also known. Id. at
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`5:43-47. The specification describes various techniques to account for multiple denials, such as
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`taking the average within a specific time window. Id. The amount above the current allocation
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`is then used to check against the corresponding amount of that resource held unallocated by the
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`virtual server’s physical host. Id. at 5:51-64. If the physical host does not have enough
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`additional resources unallocated to satisfy the difference then an indication of a physical host
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`overload is sent to the system and the system attempts to locate another physical host with
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`Case 1:19-cv-01075-ADA Document 63 Filed 04/10/20 Page 13 of 30
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`enough of the requested resource unallocated such that it could support the overloaded virtual
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`server. Id. Accordingly, when determining a second physical host that can accommodate the
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`requested modified resource allocation one of skill in the art would know that the antecedent
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`basis for that term refers to the previous ‘requests’ as processed per the claim elements and
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`reflected in the singular indication of a physical host overload, and also understand that the
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`disputed term is being used according to its plain and ordinary meaning. See Akl Decl. at ¶ 32.
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`II.
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`Disputed Terms in the ’726 Patent2
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`A. “resource denials” (’726 patent claims 1, 4-5 & 8)
`
`IV’s Proposed Construction
`“indications that requests by the virtual server
`cannot be immediately serviced”
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`VMware’s Proposed Construction
`“indications that requests by the virtual server for
`additional resources are either implicitly or
`explicitly denied”
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`
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`As it did with the ‘686 patent’s “determination that a virtual server is overloaded” term,
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`VMware argues its sole specification support is “definitional.” VMware Resp. Br. at 14. And,
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`again, VMware misleadingly tries to support that argument by saying “[n]either the sentence nor
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`the paragraph in the specification from which VMware’s proposed construction is drawn uses the
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`language ‘embodiment’.” Id. But that cite is clearly regarding a preferred embodiment as
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`explicitly described in the immediately preceding paragraph. See Ex. F at 7:41-61 (“FIG 3
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`shows an embodiment of one process for determining whether an individual resource in a
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`virtual server has reached its resource limit.”). The following paragraph from which VMware
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`garners its support continues describing Figure 3 and even a cursory read shows it’s still
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`discussing a single preferred embodiment. Id. Something that is “an embodiment” of “one
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`process” can hardly be said to be a clear definitional statement.
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`B. “quality of service guarantee” (’726 patent claims 1 & 4)
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`IV’s Proposed Construction
`“a guaranteed resource allotment which can be
`dynamically increased/modified”
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`VMware’s Proposed Construction
`“information that specifies a guaranteed amount
`of an assigned resource, and that can be
`dynamically increased/modified”
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`2 The ’726 patent terms that overlap with ’686 terms discussed above can be found in Exhibit 7 to VMware’s
`Opening Brief. These claim terms should be construed as IV proposes for the reasons stated above with respect to
`the corresponding ’686 patent terms.
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`Case 1:19-cv-01075-ADA Document 63 Filed 04/10/20 Page 14 of 30
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`The dispute between the parties with respect to this term first centers on VMware’s
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`proposed “information that specifies” limitation. VMware’s argument insisting that “quality of
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`service guarantee” must be “information” conflates two distinct concepts. Because the ‘quality
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`of service guarantee’ is implemented in a computer system with respect to a virtual server at least
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`partially implemented via software it must at some level be represented by some type of
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`information. The fact remains, however, that the disputed term is not a message, or indication as
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`is the case with some of the other disputed terms, and therefore, should not be construed
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`according to how a quality of service guarantee is represented, rather, the construction should
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`describe what a quality of service guarantee is. See, e.g., Ex. F at 2:18-40. VMware’s
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`construction glosses over this important distinction.
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`The parties’ second dispute with respect to this term relates to VMware’s “assigned
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`resource” limitation. VMware challenges IV’s claim that the specification does not describe
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`“quality of service guarantee” as “an assigned resource” and cites to column 2 lines 5 through 13
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`of the ’726 patent which notes that a virtual server is “typically assigned a fixed level of
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`resources . . . .” VMware Resp. Br. at 15-16. This portion of the specification, however, is
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`describing the prior art, specifically, the short comings of the prior art that the applicant’s
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`invention is designed to overcome. Thus, the specification does not describe the invention’s
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`quality of service guarantee as being an assigned resource. This makes sense since the term
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`assignment implies a fixed level of resources that is inconsistent with the invention’s teaching of
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`dynamic resources. In fact, this limitation also renders VMware’s proposed construction
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`internally inconsistent as it recognizes the dynamic nature of the invention. Id. at 15.
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`III. Alleged Means Plus Function Terms for the ’726 and ’686 Patents
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`A. ’686 patent claim 7 “component” terms (i.e., clauses 1-3 of Ex. A)
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`Case 1:19-cv-01075-ADA Document 63 Filed 04/10/20 Page 15 of 30
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`As discussed in IV’s Opening Brief § III(B)(10)(i),3 the structural disclosure of the first
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`element and preamble include sufficient structure linked to the “component” terms that VMware
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`alleges trigger the application of § 112 ¶ 6. See Zeroclick, LLC v. Apple Inc., 2018 WL 2450496,
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`*3-4 (Fed. Cir. Aug. 20, 2019). VMware argues that there is no link between the structure IV
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`points to in the claim and the claimed “component.” VMware Resp. Br. at 10-11. This is not so.
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`VMware fails to account for the fact that the term “component” is generally understood to mean
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`“a constituent part.” See Netfuel, Inc. v. F5 Networks, Inc., 2017 WL 2834538, at *5-8 (N.D. Ill.
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`June 29, 2017). The structural elements preceding the component terms claim well-known
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`structural components such as a ‘virtual server operating in a first physical host of multiple
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`physical hosts,’ and at least one processor and memory. Therefore, when subsequently claiming
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`a component configured to . . . that component is necessarily a constituent part of the previously
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`disclosed structure. The previously disclosed structure here including, having a processor and
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`memory and being situated in a system containing physical servers and virtual machines, both of
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`which the component must interact with in order to perform the claimed function. This position
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`is bolstered by looking to the language of each component element. For example, clause 1 of Ex.
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`A claims that the component must receive an indication of a first physical host overload, i.e.