Case 6:17-cv-00182-JRG Document 101 Filed 03/06/18 Page 1 of 30 PageID #: 1767
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`THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`IMPLICIT, LLC,
`
`v.
`
`HUAWEI TECHNOLOGIES USA, INC.,
`et al.,
`
`§
`§
`§
`§
`§
`§
`
` CASE NO. 6:17-CV-182-JRG
` LEAD CASE
`
`CLAIM CONSTRUCTION
`MEMORANDUM OPINION AND ORDER
`
`Before the Court is Plaintiff Implicit, LLC’s (“Plaintiff’s or “Implicit’s”) Opening Claim
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`Construction Brief (Dkt. No. 76). Also before the Court is Defendant Palo Alto Networks, Inc.’s
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`(“Defendant’s or “PAN’s”) Responsive Claim Construction Brief (Dkt. No. 78) and Plaintiffs’
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`reply (Dkt. No. 81).
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`The Court held a claim construction hearing on February 23, 2018.
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`Table of Contents
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`I. BACKGROUND ....................................................................................................................... 2
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`II. LEGAL PRINCIPLES ........................................................................................................... 3
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`III. AGREED TERMS................................................................................................................. 8
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`IV. DISPUTED TERMS .............................................................................................................. 9
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`A. “message” ............................................................................................................................. 9
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`B. “process/processing . . . packets” ........................................................................................ 15
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`C. “state information” .............................................................................................................. 16
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`D. “key [value]” ....................................................................................................................... 23
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`E. “removing [an / the resulting] outermost header” ............................................................... 24
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`F. “resource” ............................................................................................................................ 29
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`V. CONCLUSION...................................................................................................................... 30
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`I. BACKGROUND
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`
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`Plaintiff brings suit alleging infringement of patents that the parties have classified into
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`two groups: the “Demultiplexing Patents” (United States Patents No. 8,694,683 (“the ’683
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`Patent”), 9,270,790 (“the ’790 Patent”), and 9,591,104 (“the ’104 Patent”)); and the “Applet
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`Patent” (United States Patent No. 9,325,740 (“the ’740 Patent”)). (See Dkt. No. 76, Exs. 1–4;
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`see also Dkt. No. 76, at 2–4; Dkt. No. 78, at 1–2 & 19.)
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`
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`The ’683 Patent, for example, titled “Method and System for Data Demultiplexing,”
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`issued on April 8, 2014, and bears an earliest priority date of December 29, 1999. Plaintiff
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`submits that this group of patents relates to “processing messages, comprised of packets, flowing
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`through a network.” (Dkt. No. 76, at 2.) The ’790 Patent is a continuation of the ’683 Patent.
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`The ’104 Patent, in turn, is a continuation of the ’790 Patent. Plaintiff submits that all three of
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`these patents share a common specification. (Id.) The Abstract of the ’683 Patent states:
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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.
`
`The ’740 Patent, titled “Application Server for Delivering Applets to Client Computing
`
`
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`Devices in a Distributed Environment,” issued on April 26, 2016, and bears an earliest priority
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`date of March 18, 1998. Plaintiff submits that the ’740 Patent relates to “generation and
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`deployment of resources to a client machine at the direction of a server machine, based on a
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`request by the client machine.” (Dkt. No. 76, at 4.) The Abstract of the ’740 Patent states:
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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
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`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.
`
`The Court previously construed terms in the ’683 Patent, the ’790 Patent, and the ’740
`
`
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`Patent in Implicit, LLC v. Trend Micro, Inc., No. 6:16-CV-80, Dkt. No. 115, 2017 WL 1190373
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`(E.D. Tex. Mar. 29, 2017) (Gilstrap, J.) (“Trend Micro”). The ’683 Patent has also been the
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`subject of claim construction in the Northern District of California in Implicit Networks, Inc. v.
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`F5 Networks, Inc., No. 3:14-CV-2856, Dkt. No. 57, 2015 WL 2194627 (N.D. Cal. May 6, 2015)
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`(Illston, J.) (“F5 Networks II”). Further, the Northern District of California has also construed
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`terms in a related patent, United States Patent No. 6,629,163 (“the ’163 Patent”)1 in Implicit
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`Networks, Inc. v. F5 Networks, Inc., No. 3:10-CV-3365, Dkt. No. 93, 2012 WL 669861 (N.D.
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`Cal. Feb. 29, 2012) (Illston, J.) (“F5 Networks I”).
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`II. LEGAL PRINCIPLES
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`
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`It is understood that “[a] claim in a patent provides the metes and bounds of the right
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`which the patent confers on the patentee to exclude others from making, using or selling the
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`protected invention.” Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed.
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`Cir. 1999). Claim construction is clearly an issue of law for the court to decide. Markman v.
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`Westview Instruments, Inc., 52 F.3d 967, 970–71 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370
`
`(1996).
`
`
`1 The Demultiplexing Patents all resulted from continuations of the ’163 Patent.
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`
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`“In some cases, however, the district court will need to look beyond the patent’s intrinsic
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`evidence and to consult extrinsic evidence in order to understand, for example, the background
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`science or the meaning of a term in the relevant art during the relevant time period.” Teva
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`Pharms. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841 (2015) (citation omitted). “In cases
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`where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings
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`about that extrinsic evidence. These are the ‘evidentiary underpinnings’ of claim construction
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`that we discussed in Markman, and this subsidiary factfinding must be reviewed for clear error
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`on appeal.” Id. (citing 517 U.S. 370).
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`
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`To ascertain the meaning of claims, courts look to three primary sources: the claims, the
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`specification, and the prosecution history. Markman, 52 F.3d at 979. The specification must
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`contain a written description of the invention that enables one of ordinary skill in the art to make
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`and use the invention. Id. A patent’s claims must be read in view of the specification, of which
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`they are a part. Id. For claim construction purposes, the description may act as a sort of
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`dictionary, which explains the invention and may define terms used in the claims. Id. “One
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`purpose for examining the specification is to determine if the patentee has limited the scope of
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`the claims.” Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed. Cir. 2000).
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`
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`Nonetheless, it is the function of the claims, not the specification, to set forth the limits of
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`the patentee’s invention. Otherwise, there would be no need for claims. SRI Int’l v. Matsushita
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`Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). The patentee is free to be his own
`
`lexicographer, but any special definition given to a word must be clearly set forth in the
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`specification. Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1992).
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`Although the specification may indicate that certain embodiments are preferred, particular
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`embodiments appearing in the specification will not be read into the claims when the claim
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`language is broader than the embodiments. Electro Med. Sys., S.A. v. Cooper Life Sciences, Inc.,
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`34 F.3d 1048, 1054 (Fed. Cir. 1994).
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`
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`This Court’s claim construction analysis is substantially guided by the Federal Circuit’s
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`decision in Phillips v. AWH Corporation, 415 F.3d 1303 (Fed. Cir. 2005) (en banc). In Phillips,
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`the court set forth several guideposts that courts should follow when construing claims. In
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`particular, the court reiterated that “the claims of a patent define the invention to which the
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`patentee is entitled the right to exclude.” Id. at 1312 (quoting Innova/Pure Water, Inc. v. Safari
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`Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To that end, the words used
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`in a claim are generally given their ordinary and customary meaning. Id. The ordinary and
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`customary meaning of a claim term “is the meaning that the term would have to a person of
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`ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date
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`of the patent application.” Id. at 1313. This principle of patent law flows naturally from the
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`recognition that inventors are usually persons who are skilled in the field of the invention and
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`that patents are addressed to, and intended to be read by, others skilled in the particular art. Id.
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`
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`Despite the importance of claim terms, Phillips made clear that “the person of ordinary
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`skill in the art is deemed to read the claim term not only in the context of the particular claim in
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`which the disputed term appears, but in the context of the entire patent, including the
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`specification.” Id. Although the claims themselves may provide guidance as to the meaning of
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`particular terms, those terms are part of “a fully integrated written instrument.” Id. at 1315
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`(quoting Markman, 52 F.3d at 978). Thus, the Phillips court emphasized the specification as
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`being the primary basis for construing the claims. Id. at 1314–17. As the Supreme Court stated
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`long ago, “in case of doubt or ambiguity it is proper in all cases to refer back to the descriptive
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`portions of the specification to aid in solving the doubt or in ascertaining the true intent and
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`meaning of the language employed in the claims.” Bates v. Coe, 98 U.S. 31, 38 (1878). In
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`addressing the role of the specification, the Phillips court quoted with approval its earlier
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`observations from Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1250 (Fed. Cir.
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`1998):
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`Ultimately, the interpretation to be given a term can only be determined and
`confirmed with a full understanding of what the inventors actually invented and
`intended to envelop with the claim. The construction that stays true to the claim
`language and most naturally aligns with the patent’s description of the invention
`will be, in the end, the correct construction.
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`Phillips, 415 F.3d at 1316. Consequently, Phillips emphasized the important role the
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`specification plays in the claim construction process.
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`
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`The prosecution history also continues to play an important role in claim interpretation.
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`Like the specification, the prosecution history helps to demonstrate how the inventor and the
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`United States Patent and Trademark Office (“PTO”) understood the patent. Id. at 1317. Because
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`the file history, however, “represents an ongoing negotiation between the PTO and the
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`applicant,” it may lack the clarity of the specification and thus be less useful in claim
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`construction proceedings. Id. Nevertheless, the prosecution history is intrinsic evidence that is
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`relevant to the determination of how the inventor understood the invention and whether the
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`inventor limited the invention during prosecution by narrowing the scope of the claims. Id.; see
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`Microsoft Corp. v. Multi-Tech Sys., Inc., 357 F.3d 1340, 1350 (Fed. Cir. 2004) (noting that “a
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`patentee’s statements during prosecution, whether relied on by the examiner or not, are relevant
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`to claim interpretation”).
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`
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`Phillips rejected any claim construction approach that sacrificed the intrinsic record in
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`favor of extrinsic evidence, such as dictionary definitions or expert testimony. The en banc court
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`condemned the suggestion made by Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193
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`(Fed. Cir. 2002), that a court should discern the ordinary meaning of the claim terms (through
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`dictionaries or otherwise) before resorting to the specification for certain limited purposes.
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`Phillips, 415 F.3d at 1319–24. According to Phillips, reliance on dictionary definitions at the
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`expense of the specification had the effect of “focus[ing] the inquiry on the abstract meaning of
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`words rather than on the meaning of claim terms within the context of the patent.” Id. at 1321.
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`Phillips emphasized that the patent system is based on the proposition that the claims cover only
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`the invented subject matter. Id.
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`
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`Phillips does not preclude all uses of dictionaries in claim construction proceedings.
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`Instead, the court assigned dictionaries a role subordinate to the intrinsic record. In doing so, the
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`court emphasized that claim construction issues are not resolved by any magic formula. The
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`court did not impose any particular sequence of steps for a court to follow when it considers
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`disputed claim language. Id. at 1323–25. Rather, Phillips held that a court must attach the
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`appropriate weight to the intrinsic sources offered in support of a proposed claim construction,
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`bearing in mind the general rule that the claims measure the scope of the patent grant.
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`
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`In general, prior claim construction proceedings involving the same patents-in-suit are
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`“entitled to reasoned deference under the broad principals of stare decisis and the goals
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`articulated by the Supreme Court in Markman, even though stare decisis may not be applicable
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`per se.” Maurice Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779,
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`at *4 (E.D. Tex. June 21, 2006) (Davis, J.); see TQP Development, LLC v. Intuit Inc., No. 2:12-
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`CV-180, 2014 WL 2810016, at *6 (E.D. Tex. June 20, 2014) (Bryson, J.) (“[P]revious claim
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`constructions in cases involving the same patent are entitled to substantial weight, and the Court
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`has determined that it will not depart from those constructions absent a strong reason for doing
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`so.”); see also Teva, 135 S. Ct. at 839–40 (“prior cases will sometimes be binding because of
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`issue preclusion and sometimes will serve as persuasive authority”) (citation omitted); Finisar
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`Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1329 (Fed. Cir. 2008) (noting “the importance of
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`uniformity in the treatment of a given patent”) (quoting Markman v. Westview Instruments, Inc.,
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`517 U.S. 370, 390 (1996)).
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`III. AGREED TERMS
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`
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`In their December 22, 2017 Joint Claim Construction Chart and Prehearing Statement
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`(Dkt. No. 73, at 1) and their February 22, 2018 Second Amended Joint Claim Construction Chart
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`(Dkt. No. 94, Ex. A), the parties set forth agreements as to the following terms in the patents-in-
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`suit:
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`Term
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`“sequence of [two or more] routines”
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`(’683 Patent, Claims 1, 4, 24;
`’790 Patent, Claims 1, 8, 10, 12, 15;
`’104 Patent, Claims 1, 3, 10, 13, 16)
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`“application”
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`(’740 Patent, Claim 11)
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`“source code”
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`(’740 Patent, Claims 1, 12, 13, 19, 20)
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`“transformation operation”
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`(’740 Patent, Claims 1, 16, 19, 20)
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`“fix”
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`(’740 Patent, Claim 20)
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`
`
`
`
`
`Agreement
`
`“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”
`
`“program designed to assist in the
`performance of a specific task”
`
`“code in the form of a higher level language
`such as C, C++, Java, Visual Basic, ActiveX,
`Fortran, and Modula”
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`“operation that modifies code”
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`“for”
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`IV. DISPUTED TERMS
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`A. “message”
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`Plaintiff’s Proposed Construction
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`Defendant’s Proposed Construction
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`“a collection of data that is related in some
`way, such as a stream of video or audio data
`or an email message”
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`“a collection of application data that is related
`in some way, such as a stream of video or
`audio data or an email message”
`
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`(Dkt. No. 73, Ex. A, at 1; Dkt. No. 76, at 5; Dkt. No. 78, at 2 (emphasis Defendant’s); Dkt.
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`No. 94, Ex. A, at 5.) The parties submit that this term appears in Claims 1, 24, and 25 of the
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`’683 Patent, Claims 1, 8, 13, and 15 of the ’790 Patent, and Claims 1, 10, and 16 of the ’104
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`Patent. (Dkt. No. 73, Ex. A, at 1; Dkt. No. 76, at 5; Dkt. No. 78, at 2; Dkt. No. 94, Ex. A, at 5–
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`9.)
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`
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`In Trend Micro, the parties in that case agreed that “message” in the ’683 Patent and the
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`’790 Patent means “a collection of data that is related in some way, such as a stream of video or
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`audio data or an email message.” Trend Micro at 12.
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`(1) The Parties’ Positions
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`Plaintiff argues that Defendant’s proposal of requiring “application” data should be
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`rejected because the patentee set forth a clear lexicography that controls the meaning of the term
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`“message.” (Dkt. No. 76, at 6.) Alternatively, Plaintiff urges that the plain meaning of
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`“message” is not limited to “application” data.” (Id., at 6–7.)
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`
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`Defendant responds that its proposal of “application” data is necessary because, in the
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`Trend Micro case, “Implicit appeared to stretch the construction so that it could argue that TCP
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`handshake packets used to establish a connection between two devices are part of a ‘message.’”
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`(Dkt. No. 78, at 2–3.) Defendant urges that “a ‘message’ is the data that is of interest to the users
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`of the claimed invention . . . .” (Id., at 3.) Defendant argues that “[t]he specification (to which
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`Implicit concedes we must look) repeatedly and exclusively discloses the invention as being
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`directed to user data.” (Id., at 4.)
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`
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`Plaintiff replies that the patentee’s lexicography is unambiguous and “[t]his ends the
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`inquiry.” (Dkt. No. 81, at 1.) As to the stated definition itself, Plaintiff argues that “there is
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`simply no ambiguity as to whether the words explicitly used by the patentee are limited to
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`application data—they are not.” (Id., at 2.) Further, Plaintiff submits that “as a matter of plain
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`English, the use of an exemplary list, introduced by ‘such as,’ does not limit the scope of the
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`broader category preceding it.” (Id.)
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`(2) Analysis
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`Claim 1 of the ’683 Patent, for example, recites (emphasis added):
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`1. A first apparatus for receiving data from a second apparatus, the first apparatus
`comprising:
`
`a processing unit; and
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`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
`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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`Defendant has not shown that anything in this claim language requires limiting
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`“message” to “application data.” Further, Plaintiff submits that the specification sets forth a
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`lexicography that defines the term “message.”
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`
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`“The patentee’s lexicography must, of course, appear with reasonable clarity,
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`deliberateness, and precision before it can affect the claim.” Renishaw, 158 F.3d at 1249
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`(citation and internal quotation marks omitted); see Intellicall, 952 F.2d at 1388; Thorner v. Sony
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`Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (“To act as its own
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`lexicographer, a patentee must clearly set forth a definition of the disputed claim term other than
`
`its plain and ordinary meaning.”) (citation and internal quotation marks omitted).
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`
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`Here, the specification discloses:
`
`A method and system for converting a message that may contain multiple packets
`from an [sic] source format into a target format. When a packet of a message is
`received, the conversion system in one embodiment searches for and identifies a
`sequence of conversion routines (or more generally message handlers) for
`processing the packets of the message by comparing the input and output formats
`of the conversion routines. (A message is a collection of data that is related in
`some way, such as [a]2 stream of video or audio data or an email message.) The
`identified sequence of conversion routines is used to convert the message from the
`source format to the target format using various intermediate formats.
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`’683 Patent at 2:42–53 (emphasis added). This statement, which appears near the beginning of
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`the Detailed Description section of the specification, sets forth a definition of “message” with
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`“reasonable clarity, deliberateness, and precision” so as to be a lexicography. Renishaw, 158
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`F.3d at 1249.
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`
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`Defendant argues, however, that its proposal of “application data” is consistent with the
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`specification as a whole. At the February 23, 2018 hearing, Defendant urged that the remainder
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`of the specification is still relevant even in the presence of a lexicography. See Renishaw, 158
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`F.3d at 1250 (“Ultimately, the interpretation to be given a term can only be determined and
`
`confirmed with a full understanding of what the inventors actually invented and intended to
`
`envelop with the claim.”).
`
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`2 The parties appear to have agreed upon this insertion of the word “a” before “stream.” (See
`Dkt. No. 76, at 6 & n.2; see also Dkt. No. 78, at 3.)
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`
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`As a threshold matter, Plaintiff does not appear to contest that the above-reproduced
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`examples of “[a] stream of video or audio data or an email message” refer to application data.
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`But these examples are just that, examples, as is evident from their being introduced by the
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`phrase “such as.”
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`
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`The remaining issue, then, is whether Defendant has presented sufficient indications,
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`particularly in the intrinsic evidence, to warrant interpreting the above-reproduced lexicography
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`so as to limit the term “message” to “application data.” Several of the claims refer to
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`“application layer,” “application layer protocols,” “application-level protocols,” and
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`“application-level routines,” but none of these recitals of “application” appears to be relevant to
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`the meaning of “message.” See ’683 Patent at Cls. 12, 15, 26 & 27; see also ’790 Patent at Cls.
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`3, 4, 10, 18 & 19; ’104 Patent at Cls. 3 & 13.
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`
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`Defendant has also cited disclosure of an example in which various format conversions
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`may be necessary to communicate data stored in a bitmap format:
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`[W]hen data is generated on one computer system and is transmitted to another
`computer system to be displayed, the data may be converted in many different
`intermediate formats before it is eventually displayed. For example, the
`generating computer system may initially store the data in a bitmap format. To
`send the data to another computer system, the computer system may first
`compress the bitmap data and then encrypt the compressed data. The computer
`system may then convert that compressed data into a TCP format and then into an
`IP format. The IP formatted data may be converted into a transmission format,
`such as an ethernet format. The data in the transmission format is then sent to a
`receiving computer system. The receiving computer system would need to
`perform each of these conversions in reverse order to convert the data in the
`bitmap format. In addition, the receiving computer system may need to convert
`the bitmap data into a format that is appropriate for rendering on output device.
`
`’683 Patent at 1:27–44. This disclosure, however, does not refer to “application” data and does
`
`not expressly address the meaning of the term “message.”
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`Case 6:17-cv-00182-JRG Document 101 Filed 03/06/18 Page 13 of 30 PageID #: 1779
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`
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`Defendant has also cited disclosure regarding “multiple messages with different source
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`and target formats”:
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`The conversion system stores the identified sequence so that the sequence can be
`quickly found (without searching) when the next packet in the message is
`received. When subsequent packets of the message are received, the conversion
`system identifies the sequence and queues the packets for pressing [sic] by the
`sequence. Because the conversion system receives multiple messages with
`different source and target formats and identifies a sequence of conversion
`routines for each message, the conversion systems [sic] effectively
`“demultiplexes” the messages. That is, the conversion system demultiplexes the
`messages by receiving the message, identifying the sequence of conversion
`routines, and controlling the processing of each message by the identified
`sequence.
`
`Id. at 2:55–3:1. Defendant has not shown how this disclosure regarding various different source
`
`and target formats, and processing “the next packet in the message” by the “identified sequence,”
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`necessarily shows that a “message” is “application” data.
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`
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`As to extrinsic evidence, Defendant has submitted a technical dictionary definition of
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`“message” as meaning “a logical grouping of information at the Application Layer (Layer 7) of
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`the OSI Reference Model.” (Dkt. No. 78, Ex. B, Novell’s Dictionary of Networking 360 (1997).)
`
`On one hand, “[b]ecause dictionaries, and especially technical dictionaries, endeavor to collect
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`the accepted meanings of terms used in various fields of science and technology, those resources
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`have been properly recognized as among the many tools that can assist the court in determining
`
`the meaning of particular terminology to those of skill in the art of the invention.” Phillips, 415
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`F.3d at 1318.
`
`
`
`On the other hand, this extrinsic evidence is necessarily of somewhat limited weight. See
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`id. at 1322 (“[T]he authors of dictionaries or treatises may simplify ideas to communicate them
`
`most effectively to the public and may thus choose a meaning that is not pertinent to the
`
`understanding of particular claim language.”). Also, whereas this extrinsic definition of
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`Case 6:17-cv-00182-JRG Document 101 Filed 03/06/18 Page 14 of 30 PageID #: 1780
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`“message” appears to be specific to “Layer 7” of the “OSI Reference Model,” the intrinsic
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`evidence contains no indication that this particular definition is appropriate as to the claimed
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`invention. See id. at 1321 (“heavy reliance on the dictionary divorced from the intrinsic
`
`evidence risks transforming the meaning of the claim term to the artisan into the meaning of the
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`term in the abstract, out of its particular context, which is the specification”).
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`
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`On balance, Defendant has failed to demonstrate that the patentee’s above-noted
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`lexicography should be modified or that any evidence otherwise warrants limiting the data to
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`“application” data. Indeed, the word “application” does not appear in the written description in
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`any relevant context.
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`
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`Defendant has urged that the construction should be limited to “application” data
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`because, in the Trend Micro litigation, Plaintiff attempted to read the term “message” so as to
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`include “handshake” packets that contain no application data. (See Dkt. No. 78, at 2–3 & 5.)
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`Defendant reiterated this argument at the February 23, 2018 hearing, arguing that because the
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`specification discloses that all packets of a message are processed using the same particular
`
`sequence, and because handshake packets are necessarily processed differently than application
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`data packets, handshake packets cannot be part of a “message.” Yet, Defendant’s argument
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`appears to bear upon other claim language rather than on the meaning of the term “message.”
`
`For example, above-reproduced Claim 1 of the ’683 Patent recites: “process subsequent packets
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`in the message using the sequence of routines indicated in the stored path.”3
`
`
`
`Thus, any dispute in this regard would appear to present questions of fact for the finder of
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`fact regarding infringement rather than necessarily any question of law for claim construction.
`
`
`3 Claims 24 and 25 of the ’683 Patent and Claims 1, 10, and 16 of the ’104 Patent contain similar
`recitals.
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`
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`Case 6:17-cv-00182-JRG Document 101 Filed 03/06/18 Page 15 of 30 PageID #: 1781
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`See Acumed LLC v. Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007) (“The resolution of some
`
`line-drawing problems . . . is properly left to the trier of fact.”) (citing PPG Indus. v. Guardian
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`Indus. Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) (“after the court has defined the claim with
`
`whatever specificity and precision is warranted by the language of the claim and the evidence
`
`bearing on the proper construction, the task of determining whether the construed claim reads on
`
`the accused product is for the finder of fact”)); see also Eon Corp. IP Holdings v. Silver Spring
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`Networks, 815 F.3d 1314, 1318–19 (Fed. Cir. 2016) (citing PPG).4
`
`
`
`The Court therefore hereby construes “message” to mean “a collection of data that is
`
`related in some way, such as a stream of video or audio data or an email message.”
`
`B. “process/processing . . . packets”
`
`Plaintiff’s Proposed Construction
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`Defendant’s Proposed Construction
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`“apply/applying one or more conversion
`routines to a packet”
`
`“apply/applying one or more routines to
`packets”
`
`Alternatively:
`“apply/applying one or more routines to a
`packet, where at least one such routine is a
`conversion routine”
`
`
`
`
`4 F5 Networks I reached the same conclusions as to the related ’163 Patent:
`
`In the specification, plaintiff defined message as: “a collection of data tha