Case 1:20-cv-00457-ADA Document 38 Filed 10/09/20 Page 1 of 36
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`Plaintiff/Counter-Defendant,
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`Intellectual Ventures II LLC,
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`v.
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`VMware, Inc.,
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`Defendant/Counter-Plaintiff.
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`
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`Civil Action No. 1:20-cv-00457-ADA
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`JURY TRIAL DEMANDED
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`PLAINTIFFS’ OPENING CLAIM CONSTRUCTION BRIEF
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`Hewlett Packard Enterprise Co. Ex. 1006, Page 1 of 36
`Hewlett Packard Enterprise Co. v. Intellectual Ventures II LLC
`IPR2021-01378
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`Case 1:20-cv-00457-ADA Document 38 Filed 10/09/20 Page 2 of 36
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`I.
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`II.
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`TABLE OF CONTENTS
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`Introduction ......................................................................................................................... 1
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`Legal Standards ................................................................................................................... 1
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`A. Claim Construction Generally ...................................................................................... 1
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`B. Means-Plus-Function Claim Construction Analysis ..................................................... 2
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`C. Indefiniteness ................................................................................................................ 2
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`III.
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`The Disputed Claim Terms ................................................................................................. 3
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`A. The ’963, ’546 and ’378 Patents ................................................................................... 3
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`i. “the invocation request identifying the client device and a server-based
`application” (‘963 patent, claim 2) ............................................................................... 5
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`ii. “application component” (’546 patent, claims 1, 7, 9, 16 and 19; ’378 patent,
`claims 1, 5, 9, 10, 16, 17, 19) ........................................................................................ 8
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`iii. “the determined environment” (’378 patent, claims 1 and 19)............................. 13
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` The ’217 Patent ........................................................................................................... 15
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`iv. “determine … the workspace for the at least one network accessible computer
`from the network accessible stored personal state” (’217 patent, claims 1, 14) ......... 16
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`v. “the network” (’217 patent, claims 1, 4) ................................................................ 19
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`vi. “the host computer” (’217 patent, claim 14) ......................................................... 20
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`C. The ’464 Patent ........................................................................................................... 21
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`vii. “user” (’464 patent, claims 1, 7) .......................................................................... 22
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`viii. “route statistics” (’464 patent, claims 1, 7) ........................................................ 24
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`ix. “said candidate routes” (’464 patent, claims 21, 22) ............................................ 25
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`x. “said quality measurement packets” (’464 patent, claims 1, 7, 12, 21, 22) ........... 27
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`Means-Plus-Function Terms (’464 patent, claims 7, 11-12, 22) ................................ 29
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`IV.
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`Conclusion ........................................................................................................................ 31
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`i
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`
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`Cases
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`TABLE OF AUTHORITIES
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`Energizer Holdings, Inc. v. Int’l Trade Comm’n,
`435 F.3d. 1366 (Fed. Cir. 2006) ......................................................................................... passim
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`Graphon Corp. v. Autotrader.com Inc.,
`2007 WL 1870622 (E.D. Tex. June 28, 2007) ................................................................... passim
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`Masco Corp. v. United States,
`303 F.3d 1316 (Fed. Cir. 2002) ................................................................................................... 2
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`Nautilus, Inc. v. Biosig Instruments, Inc.,
`134 S.Ct. 2120 (2014) ............................................................................................................... 20
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`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) .............................................................................................................. 3, 21
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`Novo Industries, L.P. v. Micro Molds Corp.,
`350 F.3d 1348 (Fed. Cir. 2003) ................................................................................................. 12
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`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ................................................................................... 1, 2, 10, 11
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`Sonix Tech. Co. v. Publ’ns Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017) ................................................................................................... 3
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`Thorner v. Sony Computer Entm’t Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012) ..................................................................................... 2, 7, 9, 10
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`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996) ..................................................................................................... 1
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`Watts v. XL Sys., Inc.,
`232 F.3d 877 (Fed. Cir. 2000) ..................................................................................................... 2
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`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015) ............................................................................................... 2, 9
`
`ii
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`Per the Court’s Order Governing Proceedings – Patent Case, Intellectual Ventures II LLC
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`(“IV”), respectfully submits this claim construction brief in support of its proposed constructions
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`for the disputed terms.
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`I.
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`INTRODUCTION
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`In this case IV alleges that five of its patents are infringed by VMware: United States
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`Patent Nos. 9,338,217 (“the ’217 patent”); 6,816,464 (“the ’464 patent”); 9,092,546 (“the ’546
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`patent”); 7,016,963 (“the ’963 patent”) and 9,686,378 (“the ’378 patent). IV’s patents teach a
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`range of inventions including platform-agnostic server-based application delivery (e.g., app.
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`virtualization); remote host machine management, access and usage schemes which allow
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`persistent state virtual workspaces; and automatic network path quality monitoring, scoring and
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`orchestration systems and methods. These innovations provide Software as a Service (SaaS)
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`foundations, which are now, more than ever, critical to so many VMware customers.
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`II.
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`LEGAL STANDARDS
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`A.
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`Claim Construction Generally
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`In resolving claim construction disputes, the Court considers three “intrinsic” sources: (1)
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`the claims; (2) the patent specifications; and (3) the prosecution histories. Vitronics Corp. v.
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`Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Courts may also rely on extrinsic
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`evidence, such as dictionaries or treatises. Phillips v. AWH Corp., 415 F.3d 1303, 1317 (Fed.
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`Cir. 2005). A trial court is not required to follow any set formula to construe disputed claim
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`terms “[n]or is the court barred from considering any particular sources or required to analyze
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`sources in any specific sequence . . .” Id. at 1324.
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`“The claims of a patent define the invention to which the patentee is entitled the right to
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`exclude.” Id. at 1312. “The words of a claim are generally given their ordinary and customary
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`1
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`meaning as understood by a person of ordinary skill in the art when read in the context of the
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`specification and prosecution history.” Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d
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`1362, 1365 (Fed. Cir. 2012). See also Phillips, 415 F.3d at 1315 (“In some cases, the ordinary
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`meaning of the claim language… may be readily apparent even to lay judges, and claim
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`construction in such cases involves little more than the application of the widely accepted
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`meaning of commonly understood words”). There are only two exceptions to the general rule
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`that claims are given their ordinary and customary meaning: “1) when a patentee sets out a
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`definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope of a
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`claim term either in the specification or during prosecution.” Thorner, 669 F.3d at 1365.
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`Extrinsic evidence may be consulted and used to construe claim terms only if such evidence does
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`not contradict the intrinsic evidence. Phillips, 415 F.3d at 1322-23.
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`B. Means-Plus-Function Claim Construction Analysis
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`Section 112, Paragraph 61 provides that a structure may be claimed as a “means…for
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`performing a specified function.” Masco Corp. v. United States, 303 F.3d 1316, 1326 (Fed. Cir.
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`2002). If the claim language does not include the word “means” then there is a rebuttable
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`presumption that § 112, ¶ 6 does not apply. Williamson v. Citrix Online, LLC, 792 F.3d 1339,
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`1348 (Fed. Cir. 2015). To overcome this presumption, it must be shown that the term at issue
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`fails to “recite sufficiently definite structure” or “function without reciting sufficient structure for
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`performing that function.” Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed. Cir. 2000).
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`C.
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`Indefiniteness
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`The Patent Act requires a claim to particularly point out and distinctly claim the subject
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`matter regarded as the invention. 35 U.S.C. § 112, ¶ 2. To satisfy this requirement, the claim
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`1 The Pre-AIA version of § 112, ¶ 6 applies to the claims in this case.
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`2
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`must be read in light of the intrinsic evidence to determine whether it informs one of skill in the
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`art at the time of the invention “about the scope of the invention with reasonable certainty.”
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`Nautilus, Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910-11 (2014). To establish that a claim
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`is indefinite, a patent challenger must prove indefiniteness by clear and convincing evidence.
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`Sonix Tech. Co. v. Publ’ns Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017).
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`III. THE DISPUTED CLAIM TERMS
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`A.
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`The ’963, ’546 and ’378 Patents
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`The ’963 patent was issued on March 21, 2006, the ’546 patent on July 28, 2015, and the
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`’378 patent on June 20, 2017. All three patents claim priority to a common application filed on
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`June 29, 2001, and also share a specification. The inventions described and claimed in the ’963,
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`’546 and ’378 patents enable the delivery of application interfaces on a client device (e.g.,
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`smartphones, tablets, and personal computers) for server-based applications, which interfaces are
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`tailored to that client device without requiring specifically programing the application to be
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`compatible with each client.
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`Because the prosecution history of this family has particular relevancy to the construction
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`of certain proposed claim terms, it merits a brief summary. The patent application that
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`eventually issued as the ’963 patent, was filed before the applications that eventually issued as
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`the ’546 and ‘378 patents. The ’546 patent is a continuation of the ’963 patent, while the ’378
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`patent is a continuation of U.S. Pat. No. 9,361,399, which itself is a continuation of the ’546
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`patent. As originally filed, the ’963 patent included 32 total claims. In July of 2004, the
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`examiner imposed a restriction requirement on the patentee by splitting the then pending claims
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`into two groups that covered very different inventions. Claims 19-22, 27, 29 and 30 (“Group I
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`Claims”) were directed to a “best-fit template for content requested by a client,” whereas, claims
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`3
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`31 and 32 (“Group II Claims”) were drawn to “invoking remote applications.” See Declaration
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`of Jonathan R. DeBlois (“DeBlois Decl.”) Ex. C, at 32-34.2 This dichotomy is reflected in the
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`specification, which includes portions directed to the transformation of website content using
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`various markup languages (i.e., pertaining to the Group I Claims), and other portions directed to
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`a platform-agnostic interface for server-based applications (i.e., pertaining to the Group II
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`Inventions). Compare Ex. C (’963 patent), at 14:44-15:12, with 15:13-16:6. The claims at issue
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`in this case are the Group II Claims. None of the Group I Claims are involved. Even though
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`relatively large portions of the specification pertain to the Group I Claims, and even though these
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`Group I portions are at times intermingled with portions of the specification pertaining to the
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`Group II Claims, it is important to note that these Group I specification portions are wholly
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`inapplicable to the parties’ claim construction analysis of the Group II Claims.
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`In addition, even as between the two issued claims3 in the ‘963 patent, there is an
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`important distinction regarding the claims’ respective support. Claim 1 specifically claims a
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`Standard Generalized Markup Language (SGML) based delivery mechanism for content
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`representing a server-based application’s interface, which is a claim that is not asserted in this
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`case. See Ex. C (’963 patent), at claim 1 (“receive an SGML-based application interface . . .
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`display the SGML-based application interface . . . receive an actuation . . . of said SGML-based
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`application interface”). Claim 2, which is asserted in this case, makes no mention of SGML, and
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`focuses on a platform-agnostic server-based application that can be interfaced by users utilizing
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`various client platforms. Id. at claim 2 (“receiving an invocation request . . . an application
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`interface particular to the client . . . invoking the server-based application”). The SGML-focused
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`2 Hereinafter, all citations to “Ex. _” refer to the exhibits attached to the Declaration of Jonathan R. DeBlois unless
`otherwise noted.
`3 When issued, claim 31 became claim 2 and claim 32 became claim 1.
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`4
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`claim 1, and the portions of the specification directed towards SGML content transformation, are
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`distinct from the server-based application focused claim 2. Accordingly, portions of the
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`specification relating to SGML and content transformation,4 relate to claims that are not asserted
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`in this suit and are irrelevant to asserted claim 2.
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`The foregoing invention distinctions were further perpetuated in the later filed
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`continuation applications leading to the ’546 and ’378 patents, which have claims exclusively
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`focused on the platform-agnostic server-based application inventions, that are devoid of any
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`notion of SGML, XML or other markup languages, or towards SGML content transformation.
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`See, e.g., Ex. F (’546 patent) claims 1, 9, 19; Ex. G (’378 patent) claims 1, 9, 19.5 In short, when
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`construing the asserted claims of the ’963, ’546 and ’378 patents, this Court should avoid reading
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`in limitations relating to embodiments from the distinct disclosures present in the specification
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`that are not encompassed by the claims at issue (namely the content transformation and
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`SGML/markup language embodiments).
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`i. “the invocation request identifying the client device and a server-based
`application” (’963 patent, claim 2)
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`IV’s Proposed Construction
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`VMware’s Proposed Construction
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`“plain and ordinary meaning”
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`“the invocation request identifying the
`application and client device in the same
`message”
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`4 It should be noted that there is a difference between the content transformation disclosed in the specification and
`the user interface or application interface content transformation also described. Content transformation as used in
`the specification refers to the conversion of website content, documents, markup language content, etc., to a
`different format. See, e.g., Ex. C at 1:19-21 (“[m]ore particularly, the transformation of content from one markup
`language format to the same or another markup language format”) (emphasis added). User interface or application
`interface transformation refers to the customization (i.e., supplementation) of an application or user interface based
`on client device environment. See, e.g., id. at 15:24-33 (“the client device invokes a server-based application by
`issuing a content request . . . identifies the specifics . . . invokes the application and produces a client specific
`application interface. The server engine then delivers content defining the application interface to the client
`device”) (emphasis added). As can be seen, while the term “content” may be used in both instances, it has a distinct
`meaning in each context, which has implications for this case; the former is not at issue, the latter is.
`5 For the sake of brevity only the independent claims have been cited, however, none of the dependent claims
`include SGML or XML, etc. either.
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`5
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`VMware asks the Court to construe this claim in a limiting manner not supported by the
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`intrinsic record. More specifically, VMware’s proposal would limit the term to identifying the
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`client device and the application in “the same message.”6 But nowhere does the specification or
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`file history limit the claimed “request” to a “message,” let alone require the two identifications to
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`be implemented in the same message. Rather, throughout the specification the term is used in a
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`manner consistent with its plain and ordinary meaning, which as understood by a POSITA at the
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`time of the invention, would not be limited in the manner proposed by VMware. See, e.g., Ex. C
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`(’963 patent) at 7:3-6; 15:24-33 (illustrating term used in its plain and ordinary meaning).
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`For example, the claimed invocation request is disclosed as the mechanism by which a
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`client device begins the process of using a server-based application. Id. at 15:24-25. Because
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`the claimed server-based application provides platform-agnostic access—i.e., any end user
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`platform can access the application and interact with it via an interface tailored to such
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`platform—the device environment and application desired must necessarily be known to the
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`server system. Id. at 15:16-23; 6:66-7:6 (“the server system obtains platform information from
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`the client”) (emphasis added). The disputed term simply discloses how this information is
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`known, namely, from “an invocation request,” without further limitation as to how that term is
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`understood by a POSITA. The specification further confirms this understanding by disclosing
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`that, in response to such a request, the server engine “identifies the specifics,” “invokes the
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`application” and delivers an application interface to the client. Id. at 15:24-33. Taken together
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`the claim language and patent specification illustrate that the disputed term means exactly what it
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`6 It’s worth noting that the antecedent basis for the disputed term is “an invocation request.” The Federal Circuit has
`made clear that the term “‘an’ can be ‘one or more’ and “the subsequent use of definite articles ‘the’ or ‘said’ in a
`claim to refer back to the same claim term does not change the general plural rule, but simply reinvokes that non-
`singular meaning.” See Baldwin Graphic Sys., Inc. v. Siebert, Inc, 512 F.3d 1338, 1342 (Fed. Cir. 2008) (internal
`citations omitted).
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`6
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`says: that the request to invoke a server-based application identifies the application and
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`requesting device, and nothing more, and nothing less. Because this is consistent with what a
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`POSITA would consider as the plain and ordinary meaning, the Court should adopt IV’s
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`proposal.
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`Examining VMware’s purported support does not alter this conclusion. VMware cites to
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`portions of the file history, specifically remarks made by the applicant in the 2005-08-29 Office
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`Action response. Ex. H; Ex. C, at 20-25. The applicant’s statements, however, do not support
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`limiting the request to a single message or that the claimed identifications must be within the
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`same single message. Ex. C, at 20-25. As an initial matter, this section of the file history is
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`inapplicable because the reference discussed was, according to the applicant, “not even related to
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`the technology area of the present invention,” a fact the examiner implicitly acknowledged by
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`allowing the claims without amendment thereafter. Id. at pp. 20, 24. Additionally, the portion of
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`the applicant’s statement that VMware apparently relies on simply confirms the claim language
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`itself, noting “Kagle does not describe, suggest or teach in any part of the specification the
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`element of receiving an invocation request that both identifies the client devicxe [sic] and a
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`server-based application.” Id. at 21 (emphasis added). Nothing in these statements can be
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`considered a disclaimer pertaining to a single message, let alone a disclaimer that rises to the
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`Federal Circuit’s threshold for a disclaimer that impacts claim scope. See Thorner, 669 F.3d at
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`1365 (noting disclaimer requires “a clear disavowal of claim scope” and is an “exacting”
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`standard).
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`It is undisputed that the claimed request identifies the client device and a server-based
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`application. There is no support, however, for such request to be limited to a message, never
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`mind a single message. In fact, the term “message” appears only two times in the entire
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`7
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`specification, both in a single sentence, and both completely unrelated to the term at issue. See
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`Ex. C (’963 patent), at 14:27-29. As was well-known in the art at the time, a request is merely a
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`transaction generated by a requestor to initiate an action on a responder without regard to a
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`specifically defined format and can take the form of one or many messages. The claim and
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`specification highlight that this is how the applicant used the term and nothing in the intrinsic
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`record (including the file history) compels the Court to find otherwise. Therefore, as noted
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`above the Court should decline to adopt VMware’s overly limiting construction, and instead
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`construe the disputed term according to its plain and ordinary meaning as IV proposes.
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`ii. “application component” (’546 patent, claims 1, 7, 9, 16 and 19; ’378 patent,
`claims 1, 5, 9, 10, 16, 17, 19)
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`IV’s Proposed Construction
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`VMware’s Proposed Construction
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` “plain and ordinary meaning”
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`or, in the alternative:
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`“source code module supporting user interface
`elements, such as menu drop downs, buttons, dialog
`boxes, pop-up windows, subroutines, etc.”
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`“a source code module within an
`application”
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`for claim 19 of the ’378 patent
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`“indefinite”:
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`The term “application component” is well-understood in the art and requires no
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`construction other than its plain and ordinary meaning because, (1) the scope and meaning as
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`disclosed from the claim language in light of the specification is clear and unambiguous, (2)
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`there are no limiting disclaimers or other disavowals present in the specification or file history,
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`and (3) extrinsic dictionary definitions confirm the term’s plain and ordinary meaning. Although
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`VMware apparently intends to argue otherwise, none of its claim construction positions for this
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`term are supportable,7 particularly given the exacting standard outlined in Thorner. See 669 F.3d
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`at 1365-66.
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`7 VMware has proposed that in all claims aside from claim 19 of the ’378 patent the disputed term means “source
`code module within an application,” and for claim 19 that the term is indefinite.
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`8
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`The determination of whether a term is required to be construed as something other than
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`its plain and ordinary meaning first focuses on the claim language and intrinsic record. Id. at
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`1365; Williamson, 792 F.3d at 1346-47). In this case there are no express or implied limitations
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`in the claim itself (or dependent claims) that compel a limiting construction. The claim uses
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`plain language to describe the scope of the disputed term, and that scope is entirely consistent
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`with the understanding of both a POSITA and the disputed term’s plain and ordinary meaning.
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`More specifically, the context provided by the surrounding claim language shows that
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`“application component” means exactly what one of skill in the art would expect: one component
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`of an application that includes multiple components. See, e.g., Ex. F (’546 patent), claim 1
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`(“application component of the application . . . selected from a plurality of versions . . . selected
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`for the client device based on at least one of the client variables . . . invoking . . . creating . . . an
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`application interface for the application component”).
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`The specification also confirms that the disputed term is well-understood and that it is
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`being used according to that understanding. For example, in the relevant portions of the
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`specification (i.e., the portions that discuss platform-agnostic server-based application delivery),
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`the applicant describes application components as supporting various application interface
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`elements such as, menu drop downs, buttons or other subroutines. Id. at 16:3-6. The
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`specification additionally discloses that the invention allows the presentation of a single server-
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`based application on numerous device platforms because user interface information is stored on
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`the server and then rendered to a format tailored to the particular device platform upon
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`invocation. Id. at 15:2-5. Not only is this consistent with the manner in which the term is used
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`in the claims, but it plainly reflects the definition that one of skill in the art would attribute to it,
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`i.e., plain and ordinary meaning.
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`9
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`Furthermore, the prosecution history buttresses this conclusion, particularly the
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`applicant’s characterizations of the invention and the meaning and purpose of the disputed term.
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`An illustrative example can be found in the file history of the ’546 patent, specifically, the
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`January 16, 2009 remarks made in an amendment. See generally, id. at 18-25. Therein the
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`applicant notes that an allegedly anticipatory reference is distinguishable because it “does not
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`describe, suggest or teach the elements of [then claim 11] related to provision of a client agnostic
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`interface to a server-based application.” Id. at 24. The applicant also describes the present
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`invention as operating to receive “actual user interface elements and converting them into an
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`interface that is compatible with the client,” which is distinct from simply invoking “an
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`application to aid or help render a user interface for the user.” Id. Importantly, these statements
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`confirm the use of the term in the claims, the description of the term in the specification, and the
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`ultimate context and light in which one of skill in the art would be determining the meaning of
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`the disputed term. See Phillips, 415 F.3d at 1313. In other words, the applicant’s own
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`statements regarding the scope and meaning of the disputed term illustrate that there is no
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`“clearly set forth definition . . . other than its plain and ordinary meaning” nor is there any “clear
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`and unmistakable disclaimer,” and therefore, the disputed term is being used as normally
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`understood in the art. Thorner, 669 F.3d at 1366-67.
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`Moreover, extrinsic dictionary definitions affirm what the intrinsic record already
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`establishes—that the disputed term is used according to its plain meaning to one of skill in the
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`art. By way of illustration, Barron’s Dictionary of Computer and Internet terms defines
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`‘component’ in the context of software applications as “re-usable parts of programs.” See Ex. I.
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`The IBM knowledge Center provides additional support by defining application components as
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`“reusable libraries that you can add to applications you develop,” which can include “various
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`10
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`Hewlett Packard Enterprise Co. v. Intellectual Ventures II LLC
`IPR2021-01378
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`Case 1:20-cv-00457-ADA Document 38 Filed 10/09/20 Page 14 of 36
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`elements such as . . . visual components . . . and user interface screen packages.” See Ex. J. That
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`is exactly how the term is used here, further highlighting plain and ordinary meaning as the
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`correct construction of the disputed term. See Phillips, 415 F.3d at 1316 (holding that “because
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`dictionaries, and especially technical dictionaries, endeavor to collect the accepted meanings of
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`terms used in various fields of science and technology” they are helpful in considering how one
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`of skill in the art would understand the terminology).
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`The above notwithstanding, should the Court be inclined to construe “application
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`component” as something other than its plain and ordinary meaning, IV’s alternate proposal
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`should be adopted because it is a direct quote from the portion of the specification discussing the
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`disputed term in the proper context. Specifically, the term should be construed as “source code
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`module supporting user interface elements, such as menu drop downs, buttons, dialog boxes,
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`pop-up windows, subroutines, etc.” Ex. F (’546 patent) at 16:3-5. While IV maintains that the
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`most appropriate construction is plain and ordinary meaning, IV’s alternate proposal remains
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`consistent with all the above while additionally mirroring the language of the specification.
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`Compared to VMware’s unhelpful alternative, the wording of the specification as supported by
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`the entire intrinsic and extrinsic record should be given deference.
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`Finally, VMware’s allegation that the disputed term as recited in claim 19 of the ’378
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`patent is indefinite is similarly misplaced. While VMware declined to provide a basis for its
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`position that the term renders the claim indefinite, IV presumes that its argument will rest on the
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`fact that the express antecedent basis for the disputed term is “an application element” rather
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`than “an application component.” Ex. G (’378 patent), claim 19. Despite this alleged
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`inconsistency, however, given the totality of the circumstances, there should be no question that
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`one of skill in the art would understand the meaning of the term and the scope of the claim. For
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`11
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`Hewlett Packard Enterprise Co. v. Intellectual Ventures II LLC
`IPR2021-01378
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`Case 1:20-cv-00457-ADA Document 38 Filed 10/09/20 Page 15 of 36
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`instance, claim 19 of the ’378 patent is identical to claim 1, with the exception of the preamble
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`and two or three other terms. See Ex. K (graphically comparing two claims). Significantly, the
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`core language surrounding the disputed term is identical and provides the necessary support for
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