Case 6:16-cv-00080-JRG Document 115 Filed 03/29/17 Page 1 of 46 PageID #: 2093
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`Implicit, LLC,
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`Plaintiff,
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`v.
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`Trend Micro, Inc.,
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`Defendant.
`
`Case No. 6:16-cv-80-JRG
`LEAD CASE
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`CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER
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`Before the Court is the opening claim construction brief of Implicit, LLC (“Plaintiff”) (Dkt.
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`No. 101, filed on January 17, 2017),1 the response of Trend Micro, Inc., Ericsson Inc., and Huawei
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`Technologies USA, Inc. (collectively “Defendants”) (Dkt. No. 103, filed on January 31, 2017),
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`and the reply of Plaintiff (Dkt. No. 106, filed on February 10, 2017). The Court held a hearing on
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`the issues of claim construction and claim definiteness on February 28, 2017. Having considered
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`the arguments and evidence presented by the parties at the hearing and in their briefing, the Court
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`issues this Order.
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`1 Citations to the parties’ filings are to the filing’s number in the docket (Dkt. No.) and pin cites
`are to the page numbers assigned through ECF.
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`Table of Contents
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`I.
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`BACKGROUND ............................................................................................................... 3
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`A.
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`The Demultiplexing Patents .................................................................................... 4
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`A-1. Technology ................................................................................................. 4
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`A-2. Related Litigation........................................................................................ 5
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`B.
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`The Applet Patents .................................................................................................. 6
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`II.
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`LEGAL PRINCIPLES ..................................................................................................... 9
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`A.
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`B.
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`Claim Construction ................................................................................................. 9
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`Departing from the Ordinary Meaning of a Claim Term ...................................... 11
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`III. AGREED CONSTRUCTIONS...................................................................................... 12
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`IV. CONSTRUCTION OF DISPUTED TERMS ............................................................... 13
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`A.
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`The Demultiplexing Patents .................................................................................. 13
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`A-1.
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`“sequence of routines” and “sequence of two or more routines” ............. 13
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`A-2.
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`“processing packets” and “process … packets”........................................ 20
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`A-3.
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`“create” ..................................................................................................... 23
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`A-4.
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`“the packet of the message” ...................................................................... 24
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`A-5.
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`“list of conversion routines” ..................................................................... 28
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`B.
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`The Applet Patents ................................................................................................ 30
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`B-1.
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`B-2.
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`B-3.
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`B-4.
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`B-5.
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`“form of the application” .......................................................................... 30
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`“resource” ................................................................................................. 34
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`“generating the identified form of the application from another
`form of the application” and “generated the identified form of the
`application from another form of the application” ................................... 37
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`“source code that is in a form based on the specified one or more
`client parameters for the first client computer” ........................................ 40
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`“a specific form of the particular applet that includes source code,
`based on the specified one or more parameters in the applet
`request, wherein the specific form complies with the specified one
`or more parameters” .................................................................................. 42
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`B-6.
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`“transformation operation” ....................................................................... 43
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`V.
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`CONCLUSION ............................................................................................................... 45
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`Case 6:16-cv-00080-JRG Document 115 Filed 03/29/17 Page 3 of 46 PageID #: 2095
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`I.
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`BACKGROUND
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`Plaintiff alleges infringement of five U.S. Patents: No. 6,324,685 (the “’685 Patent”), No.
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`8,694,683 (the “’683 Patent”), No. 8,856,779 (the “’779 Patent”), No. 9,270,790 (the “’790
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`Patent”), and No. 9,325,740 (the “’740 Patent”) (collectively, the “Asserted Patents”). The ’685
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`Patent is entitled “Applet Server That Provides Applets in Various Forms.” The application leading
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`to the ’685 Patent was filed on March 18, 1998 and the patent issued on November 27, 2001. The
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`’683 Patent is entitled “Method and System for Data Demultiplexing.” The application leading to
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`the ’683 Patent was filed on June 6, 2013 and the patent issued on April 8, 2014. The ’779 Patent
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`is entitled “Application Server for Delivering Applets to Client Computing Devices in a
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`Distributed Environment.” The application leading to the ’779 Patent was filed on October 10,
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`2011 and the patent issued on October 7, 2014. The ’790 Patent is entitled “Method and System
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`for Data Demultiplexing.” The application leading to the ’790 Patent was filed on March 31, 2014
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`and the patent issued on February 23, 2016. The ’740 Patent is entitled “Application Server for
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`Delivering Applets to Client Computing Devices in a Distributed Environment.” The application
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`leading to the ’740 Patent was filed on October 6, 2014 and the patent issued on April 26, 2016.
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`The Asserted Patents are part of two patent families: the Demultiplexing Patents (the ’683
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`Patent and the ’790 Patent) and the Applet Patents (the ’685 Patent, the ’779 Patent, and the ’740
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`Patent). With respect to the Demultiplexing Patents: The ’790 Patent claims priority to the ’683
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`Patent’s application as a continuation. Through a series of continuation applications, the ’790
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`Patent and the ’683 Patent each claim priority to an application filed on December 29, 1999 and
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`issued as U.S. Patent No. 6,629,163 (the “’163 Patent”). With Respect to the Applet Patents: The
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`’740 Patent claims priority to the ’779 Patent’s application as a continuation. The ’740 Patent and
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`the ’779 Patent each claim priority to the application that issued as the ’685 Patent, through a series
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`of continuation applications.
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`A.
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`The Demultiplexing Patents
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`A-1. Technology
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`The Demultiplexing Patents are generally directed to technology for computer message-
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`exchange processing and more specifically to technology for dynamically converting the form of
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`the messages as the messages are being exchanged.
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`The abstract of the ’683 Patent provides:
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`A method and system for demultiplexing packets of a message is provided. The
`demultiplexing system receives packets of a message, identifies a sequence of
`message handlers for processing the message, identifies state information
`associated with the message for each message handler, and invokes the message
`handlers passing the message and the associated state information. The system
`identifies the message handlers based on the initial data type of the message and a
`target data type. The identified message handlers effect the conversion of the data
`to the target data type through various intermediate data types.
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`The abstract of the ’790 Patent provides:
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`A method and system for demultiplexing packets of a message is provided. The
`demultiplexing system receives packets of a message, identifies a sequence of
`message handlers for processing the message, identifies state information
`associated with the message for each message handler, and invokes the message
`handlers passing the message and the associated state information. The system
`identifies the message handlers based on the initial data type of the message and a
`target data type. The identified message handlers effect the conversion of the data
`to the target data type through various intermediate data types.
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`Claim 1 of the ’683 Patent, provided here as an example, recites:
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`1. A first apparatus for receiving data from a second apparatus, the first
`apparatus comprising:
`a processing unit; and
`a memory storing instructions executable by the processing unit to:
`create, based on an identification of information in a received packet of a
`message, a path that includes one or more data structures that indicate a
`sequence of routines for processing packets in the message;
`store the created path; and
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`process subsequent packets in the message using the sequence of routines
`indicated in the stored path, wherein the sequence includes a routine that
`is used to execute a Transmission Control Protocol (TCP) to convert one
`or more packets having a TCP format into a different format.
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`Claim 8 of the ’790 Patent, provided here as an example, recites:
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`8. An apparatus, comprising:
`a processing unit; and
`a memory storing instructions executable by the processing unit to:
`receive one or more packets of a message;
`identify, using an IP address and one or more port addresses located in one
`of the received packets, a sequence of two or more routines for
`processing packets in the message; and
`process the one or more received packets using the identified sequence of
`routines, wherein the sequence includes a routine that is executable to
`perform a Transmission Control Protocol (TCP) to convert at least one
`of the packets of the message into a different format.
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`A-2. Related Litigation
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`Two of the Demultiplexing Patents have previously been litigated in the U.S. District Court
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`for the Northern District of California. That court construed the ’163 Patent in Implicit Networks,
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`Inc. v. F5 Networks, Inc., No. 3:10-cv-3365-SI, 2012 U.S. Dist. LEXIS 27238 (N.D. Cal. Feb. 29,
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`2012) (“F5 Networks I”). The California court later construed the ’683 Patent in Implicit L.L.C. v.
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`F5 Networks, Inc., No. 3:14-cv-2856-SI, 2015 U.S. Dist. LEXIS 60197 (N.D. Cal. May 6, 2015)
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`(“F5 Networks II”). The F5 Networks I and F5 Networks II constructions relate to the “sequence
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`of routines,” “sequence of two or more routines” and “list of conversion routines” limitations of
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`the Asserted Patents.
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`In F5 Networks I, the court construed the term “non-predefined sequence of components”
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`found in claims of the ’163 Patent. First, the court held that the term “components” was defined in
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`the ’163 Patent to mean “software routines.” 2012 U.S. Dist. LEXIS 27238, at *9–10. Then the
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`court determined that a description of the prior art found in the ’163 Patent and patent-owner
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`statements made during reexamination of the ’163 Patent amounted to disclaimer of preconfigured
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`sequences of software routines. Id. at *10–13. Thus, the court construed “non-predefined sequence
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`of components” as “a sequence of software routines that was not identified before the first packet
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`of a message was received.” Id. at *13.
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`In F5 Networks II, the court construed the terms “sequence of routines” and “list of
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`conversion routines” found in claims of the ’683 Patent. These terms are presently before the
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`Court, as is the similar term “sequence of two or more routines” from the ’790 Patent. The F5
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`Networks II court determined that the disclaimer of preconfigured sequences of software routines
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`was tied to the invention described in the ’163 Patent—and not limited to specific language recited
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`in the claims of the ’163 Patent. 2015 U.S. Dist. LEXIS 60197, at *9–12. F5 Networks II reiterated
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`its analysis of the description of the prior art in the ’163 and ’683 Patents and the patent owner’s
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`explanation of that disavowal in the reexamination of the ’163 Patent. Id. at *34–37 (noting that
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`the patent owner “devoted an entire section of its [reexamination] response to further explain these
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`prior art disavowals in the first column of the specification shared by the ’163 and ’683 patents”).
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`Ultimately, F5 Networks II held that the patent owner “made it definitively clear to the PTO and
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`the public that the sequence of routines (or ‘path’) as disclosed in the ’163 patent specification is
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`not configured before receiving the first packet of a message” and that this disclaimer applies
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`equally to the ’683 Patent. Id. at *37–39. The court construed “sequence of routines” and “list of
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`conversion routines” as “a sequence of software routines that was not identified (i.e., configured)
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`prior to receiving a first packet of the message” and “a list of software routines that was not
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`identified (i.e., configured) prior to receiving a first packet of the message,” respectively. Id. at
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`*42.
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`B.
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`The Applet Patents
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`In general, the Applet Patents are directed to server technology for providing applets and
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`applications to a client computer.
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`The abstract of the ’685 Patent provides:
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`The present invention is an applet server which accepts requests for applets from
`client computers. A request specifies the format in which an applet is to be delivered
`to the requesting client computer. The applet server has a cache which it uses to
`store applets for distribution to client computers. If the specified form of the
`requested applet is available in the cache, the applet server transmits the applet to
`the requesting client. If the applet is not available in the cache, the server will
`attempt to build the applet from local resources (program code modules and
`compilers) and transformer programs (verifiers and optimizers). If the applet server
`is able to build the requested applet, it will then transmit the applet to the requesting
`client computer. If the applet server is unable to build the requested applet, it will
`pass the request to another applet server on the network for fulfillment of the
`request.
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`The abstract of the ’779 Patent provides:
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`An applet server accepts requests for applets from client computers. A request
`specifies the format in which an applet is to be delivered to the requesting client
`computer. The applet server has a cache used to store applets for distribution to
`client computers. If the specified form of the requested applet is available in the
`cache, the applet server transmits the applet to the requesting client. If the applet is
`not available in the cache, the server will attempt to build the applet from local
`resources (program code modules and compilers) and transformer programs
`(verifiers and optimizers). If the applet server is able to build the requested applet,
`it will transmit the applet to the requesting client computer. If the applet server is
`unable to build the requested applet, it will pass the request to another applet server
`on the network for fulfillment of the request.
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`The abstract of the ’740 Patent provides:
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`An applet server accepts requests for applets from client computers. A request
`specifies the format in which an applet is to be delivered to the requesting client
`computer. The applet server has a cache used to store applets for distribution to
`client computers. If the specified form of the requested applet is available in the
`cache, the applet server transmits the applet to the requesting client. If the applet is
`not available in the cache, the server will attempt to build the applet from local
`resources (program code modules and compilers) and transformer programs
`(verifiers and optimizers). If the applet server is able to build the requested applet,
`it will transmit the applet to the requesting client computer. If the applet server is
`unable to build the requested applet, it will pass the request to another applet server
`on the network for fulfillment of the request.
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`Claim 1 of the ’685 Patent, provided here as an example, recites:
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`1. A method in a server computer for providing applications to client
`computers, the method comprising:
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`receiving a request from a client computer, the request identifying an
`application and identifying a form of the application, the identified form
`being one of a plurality of available forms;
`in response to receiving the request,
`generating the identified form of the application from another form of the
`application; and
`sending the identified form of the application to the client computer; and
`caching the identified form of the application so that when another request is
`received for the application in the identified form, the identified form of the
`application can be sent without regenerating the identified form of the
`application.
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`Claim 12 of the ’779 Patent, provided here as an example, recites:
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`12. A non-transitory computer-readable storage medium having stored thereon
`instructions that are executable to cause a computer system to perform
`operations comprising:
`receiving an applet request from a first client computer for a particular applet,
`wherein the applet request specifies one or more parameters for the particular
`applet that are based on one or more characteristics of the client computer;
`acquiring a specific form of the particular applet that includes source code,
`based on the specified one or more parameters in the applet request, wherein
`the specific form complies with the specified one or more parameters; and
`sending the specific form of the particular applet to the first client computer in
`response to the applet request.
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`Claim 1 of the ’740 Patent, provided here as an example, recites:
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`1. A non-transitory computer-readable storage medium having stored thereon
`instructions that are executable to cause a computer system to perform
`operations comprising:
`receiving, at the computer system, a first HTTP request from a first client
`computer for a resource, wherein the resource includes source code;
`producing, by the computer system, the resource for the first client computer,
`wherein the producing includes:
`conveying, by the computer system, a request for the resource to an
`external network;
`receiving, at the computer system, the resource from the external network;
`and
`performing, by the computer system, a transformation operation on the
`resource; and
`sending, by the computer system, the produced resource to the first client
`computer in response to the first HTTP request.
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`II.
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`LEGAL PRINCIPLES
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`A.
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`Claim Construction
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`“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to
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`which the patentee is entitled the right to exclude.’” Phillips v. AWH Corp., 415 F.3d 1303, 1312
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`(Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc.,
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`381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by
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`considering the intrinsic evidence. Id. at 1313. The intrinsic evidence includes the claims
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`themselves, the specification, and the prosecution history. Id. at 1314. The general rule—subject
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`to certain specific exceptions discussed infra—is that each claim term is construed according to
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`its ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time
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`of the invention in the context of the patent. Id. at 1312–13; see also Azure Networks, LLC v. CSR
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`PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption that claim terms carry
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`their accustomed meaning in the relevant community at the relevant time.”) (vacated on other
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`grounds).
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` “[I]n all aspects of claim construction, ‘the name of the game is the claim.’” Apple Inc. v.
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`Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362,
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`1369 (Fed. Cir. 1998)). First, a term’s context in the asserted claim can be instructive. Phillips,
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`415 F.3d at 1314. Other asserted or unasserted claims can also aid in determining the claim’s
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`meaning, because claim terms are typically used consistently throughout the patent. Id. Differences
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`among the claim terms can also assist in understanding a term’s meaning. Id. For example, when
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`a dependent claim adds a limitation to an independent claim, it is presumed that the independent
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`claim does not include the limitation. Id. at 1314–15.
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`“[C]laims [also] ‘must be read in view of the specification, of which they are a part.’” Id.
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`(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).
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`“[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is
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`dispositive; it is the single best guide to the meaning of a disputed term.’” Id. (quoting Vitronics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). However, “‘[a]lthough the
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`specification may aid the court in interpreting the meaning of disputed claim language, particular
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`embodiments and examples appearing in the specification will not generally be read into the
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`claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting
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`Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also
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`Phillips, 415 F.3d at 1323. “[I]t is improper to read limitations from a preferred embodiment
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`described in the specification—even if it is the only embodiment—into the claims absent a clear
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`indication in the intrinsic record that the patentee intended the claims to be so limited.” Liebel-
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`Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
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`The prosecution history is another tool to supply the proper context for claim construction
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`because, like the specification, the prosecution history provides evidence of how the U.S. Patent
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`and Trademark Office (“PTO”) and the inventor understood the patent. Phillips, 415 F.3d at 1317.
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`However, “because the prosecution history represents an ongoing negotiation between the PTO
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`and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the
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`specification and thus is less useful for claim construction purposes.” Id. at 1318; see also Athletic
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`Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution
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`history may be “unhelpful as an interpretive resource”).
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`Although extrinsic evidence can also be useful, it is “‘less significant than the intrinsic
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`record in determining the legally operative meaning of claim language.’” Phillips, 415 F.3d at
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`1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a
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`court understand the underlying technology and the manner in which one skilled in the art might
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`Case 6:16-cv-00080-JRG Document 115 Filed 03/29/17 Page 11 of 46 PageID #: 2103
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`use claim terms, but they may provide definitions that are too broad or may not be indicative of
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`how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in
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`understanding the underlying technology and determining the particular meaning of a term in the
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`pertinent field, but an expert’s conclusory, unsupported assertions as to a term’s definition are not
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`helpful to a court. Id. Thus, extrinsic evidence is typically “less reliable than the patent and its
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`prosecution history in determining how to read claim terms.” Id. The Supreme Court recently
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`explained the role of extrinsic evidence in claim construction:
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`In some cases, however, the district court will need to look beyond the patent’s
`intrinsic evidence and to consult extrinsic evidence in order to understand, for
`example, the background science or the meaning of a term in the relevant art during
`the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546 (1871)
`(a patent may be “so interspersed with technical terms and terms of art that the
`testimony of scientific witnesses is indispensable to a correct understanding of its
`meaning”). In cases where those subsidiary facts are in dispute, courts will need to
`make subsidiary factual findings about that extrinsic evidence. These are the
`“evidentiary underpinnings” of claim construction that we discussed in Markman,
`and this subsidiary factfinding must be reviewed for clear error on appeal.
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`Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015).
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`B.
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`Departing from the Ordinary Meaning of a Claim Term
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`There are “only two exceptions to [the] general rule” that claim terms are construed
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`according to their plain and ordinary meaning: “1) when a patentee sets out a definition and acts
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`as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term either
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`in the specification or during prosecution.”2 Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d
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`1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362,
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`1365 (Fed. Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309
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`2 Some cases have characterized other principles of claim construction as “exceptions” to the
`general rule, such as the statutory requirement that a means-plus-function term is construed to
`cover the corresponding structure disclosed in the specification. See, e.g., CCS Fitness, Inc. v.
`Brunswick Corp., 288 F.3d 1359, 1367 (Fed. Cir. 2002).
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`Case 6:16-cv-00080-JRG Document 115 Filed 03/29/17 Page 12 of 46 PageID #: 2104
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`(Fed. Cir. 2014) (“[T]he specification and prosecution history only compel departure from the
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`plain meaning in two instances: lexicography and disavowal.”). The standards for finding
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`lexicography or disavowal are “exacting.” GE Lighting Solutions, 750 F.3d at 1309.
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`To act as his own lexicographer, the patentee must “clearly set forth a definition of the
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`disputed claim term,” and “clearly express an intent to define the term.” Id. (quoting Thorner, 669
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`F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must appear
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`“with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.
`
`To disavow or disclaim the full scope of a claim term, the patentee’s statements in the
`
`specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis
`
`Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009). “Where an applicant’s
`
`statements are amenable to multiple reasonable interpretations, they cannot be deemed clear and
`
`unmistakable.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
`
`III. AGREED CONSTRUCTIONS
`
`The parties have agreed to the following constructions set forth in their Joint Claim
`
`Construction Chart Statement (Dkt. No. 107).
`
`“message”
`
`Term3
`
`
`
`
`’683 Patent Claims 1, 10, 24
`’790 Patent Claims 8, 15
`
`“applet”
`
`
`
`
`’685 Patent Claims 18, 49
`’779 Patent Claims 1, 12, 18
`
`Agreed Construction
`a collection of data that is related in some
`way, such as a stream of video or audio data
`or an email message
`
`program instructions provided as a self-
`contained program or as a code fragment
`associated with a larger application
`
`
`3 For all term charts in this order, the claims in which the term is found are listed with the term
`but: (1) only the highest-level claim in each dependency chain is listed, and (2) only asserted claims
`identified in the parties’ Joint Claim Construction Chart Statement (Dkt. No. 107) are listed.
`
`
`
`12
`
`Juniper Ex. 1027-p. 12
`Juniper v Implicit
`
`

`

`Case 6:16-cv-00080-JRG Document 115 Filed 03/29/17 Page 13 of 46 PageID #: 2105
`
`
`
`
`
`“application”
`
`Term3
`
`
`
`
`’685 Patent Claims 1, 3, 15, 18, 34, 49
`’740 Patent Claim 11
`
`“cache”
`
`
`
`
`’685 Patent Claims 15, 34
`’779 Patent Claims 4, 5, 6
`
`“caching”
`
`
`
`
`’685 Patent Claims 1, 15
`’779 Patent Claim 19
`
`“source code”
`
`
`
`
`’779 Patent Claim 1, 12, 18
`’740 Patent Claims 1, 19
`
`“optimizing”
`
`
`
`
`’779 Patent Claim 20
`’740 Patent Claim 15
`
`Agreed Construction
`program designed to assist in the performance
`of a specific task
`
`temporary memory for storing an
`application/applet or a portion thereof
`
`temporarily storing in memory an
`application/applet or a portion thereof
`
`code in the form of a higher level language
`such as C, C++, Java, Visual Basic, ActiveX,
`Fortran, and Modula
`
`making improvements to applets by
`substituting functionally equivalent code
`
`Having reviewed the intrinsic and extrinsic evidence of record, the Court agrees with and
`
`hereby adopts the parties’ agreed constructions.
`
`IV. CONSTRUCTION OF DISPUTED TERMS
`
`A.
`
`The Demultiplexing Patents
`
`A-1. “sequence of routines” and “sequence of two or more routines”
`
`Disputed Term
`
`“sequence of routines”
`
`
`
`’683 Patent Claims 1, 24
`
`Plaintiff’s Proposed
`Construction
`an ordered arrangement of
`software routines
`
`“sequence of two or more
`routines”
`
`an ordered arrangement of
`two or more software routines
`
`
`
`’790 Patent Claim 8
`
`Defendants’ Proposed
`Construction
`an ordered arrangement of
`software routines that was not
`identified (i.e., configured)
`prior to receiving a first
`packet of the message
`an ordered arrangement of
`two or more software routines
`that was not identified (i.e.,
`configured) prior to receiving
`a first packet of the message
`
`
`
`13
`
`Juniper Ex. 1027-p. 13
`Juniper v Implicit
`
`

`

`Case 6:16-cv-00080-JRG Document 115 Filed 03/29/17 Page 14 of 46 PageID #: 2106
`
`
`
`
`
`Because the parties’ arguments and proposed constructions with respect to these terms are
`
`related, the Court addresses the terms together.
`
`The Parties’ Positions
`
`Plaintiff submits the claim constructions in Implicit Networks, Inc. v. F5 Networks, Inc.,
`
`No. 3:10-cv-3365-SI, 2012 U.S. Dist. LEXIS 27238 (N.D. Cal. Feb. 29, 2012) (“F5 Networks I”)
`
`and Implicit L.L.C. v. F5 Networks, Inc., No. 3:14-cv-2856-SI, 2015 U.S. Dist. LEXIS 60197 (N.D.
`
`Cal. May 6, 2015) (“F5 Networks II”) are not binding on Plaintiff or the Court. Dkt. No. 101 at
`
`10–11. Plaintiff argues that the plain and ordinary meanings of these terms govern and that there
`
`was no disclaimer of preconfigured sequences. Id. at 11–13. According to Plaintiff, F5 Networks
`
`II erred in holding disclaimer and the basis of this error was conflating “sequence” with “path.”
`
`Id. at 11–13. Plaintiff argues that, in the Demultiplexing Patents, a “path is a sequence of sessions,
`
`each session having associated with it its own sequence of conversion routines.” Id. at 11. Plaintiff
`
`further argues that the patents explain that while sessions are dynamically configured (i.e., they
`
`are not preconfigured), the sequences of the dynamically generated sessions may be preconfigured.
`
`Id. at 11–12.
`
`In addition to the claims themselves, Plaintiff cites the following intrinsic and extrinsic
`
`evidence to support its position: Intrinsic evidence: ’683 Patent figs.5, 15, col.2 ll.44–49, col.3
`
`ll.9–12, col.3 ll.34–35, col.3 ll.43–53, col.3 ll.62–67, col.6 ll.24–29, col.10 ll.46–49, col.11 ll.1–3,
`
`col.11 ll.19–21. Extrinsic evidence: Authoritative Dictionary of IEEE Standards Terms, “routine”
`
`and “sequence,” (6th ed. 1996); Microsoft Press Computer Dictionary, “routine” (1997).
`
`Defendants respond that: (1) the statements made in reexamination of the ’163 Patent
`
`constitut