Trials@uspto.gov
`571-272-7822
`
`PUBLIC VERSION
` Paper: 55
`
` Entered: September 25, 2023
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CODE200, UAB, TESO LT, UAB, METACLUSTER LT, UAB,
`OXYSALES, UAB, AND CORETECH LT, UAB,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`____________
`
`IPR2021-014931
`Patent 10,484,510 B2
`____________
`
`
`
`Before THOMAS L. GIANNETTI, SHEILA F. McSHANE, and
`RUSSELL E. CASS, Administrative Patent Judges.
`
`McSHANE, Administrative Patent Judge.
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`Granting Motion to Seal
`35 U.S.C. § 318(a); 37 C.F.R. § 42.14
`
`
`
`1 The Petitioners in IPR2022-00862 were joined to this case, with IPR2022-
`00862 then terminated. See Paper 24, 35–38.
`
`
`
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`571-272-7822
`
`PUBLIC VERSION
` Paper: 55
`
` Entered: September 25, 2023
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CODE200, UAB, TESO LT, UAB, METACLUSTER LT, UAB,
`OXYSALES, UAB, AND CORETECH LT, UAB,
`Petitioner,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`____________
`
`IPR2021-014931
`Patent 10,484,510 B2
`____________
`
`
`
`Before THOMAS L. GIANNETTI, SHEILA F. McSHANE, and
`RUSSELL E. CASS, Administrative Patent Judges.
`
`McSHANE, Administrative Patent Judge.
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`Granting Motion to Seal
`35 U.S.C. § 318(a); 37 C.F.R. § 42.14
`
`
`
`1 The Petitioners in IPR2022-00862 were joined to this case, with IPR2022-
`00862 then terminated. See Paper 24, 35–38.
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`I. INTRODUCTION
`We have jurisdiction to hear this inter partes review under 35 U.S.C.
`§ 6. This Final Written Decision is issued pursuant to 35 U.S.C. § 318(a).
`For the reasons discussed herein, we determine that Petitioner has shown by
`a preponderance of the evidence that challenged claims 1, 2, 6–11, 13, and
`15–24 (the “challenged claims”) of U.S. Patent No. 10,484,510 B2
`(Ex. 1001, “the ’510 patent”) are unpatentable.
`A. Procedural Background
`In IPR2022-00862, Code200, UAB; Teso LT, UAB; Metacluster LT,
`UAB; Oxysales, UAB; and Coretech LT, UAB (collectively, “Code200” or
`“Petitioner”) filed a Petition requesting inter partes review of claims 1, 2, 6–
`11, 13, and 15–24 of the ’510 patent, along with the supporting Declaration
`of Keith J. Teruya. IPR2022-00862, Paper 1 (“Pet.”); IPR2022-00862,
`Ex. 1005 (“Teruya Decl.”). Bright Data Ltd.2 (“Patent Owner”) filed a
`Preliminary Response to the Petition. IPR2022-00862, Paper 15. With the
`Petition, Petitioner also filed a Motion for Joinder with this case, IPR2021-
`01493. IPR2022-00862, Paper 7, Paper 13.
`On July 25, 2022, we issued a Decision in IPR2022-00862 exercising
`discretion to deny institution based on an assessment of factors set forth in
`General Plastic Industrial Co. Ltd. v. Canon Kabushiki Kaisha, IPR2016-
`01357, Paper 19 (PTAB Sept. 6, 2017) (precedential as to § II.B.4.i)
`(General Plastic). IPR2022-00862, Paper 17. Our Decision also denied
`joinder of the parties in IPR2022-00862 to this case, IPR2021-01493. Id. at
`
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`2 Bright Data Ltd. was formerly known as Luminati Networks Ltd. See PO
`Resp. 68.
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`17. The Director reviewed our Decision sua sponte, vacated the Decision,
`and remanded the case to the panel, with orders that our Decision denying
`institution and joinder be reconsidered consistent with the review. IPR2022-
`00862, Paper 18 (“Remand Decision”).
`Pursuant to and consistent with the Remand Decision, we considered
`the Petition, Joinder Motion, and Preliminary Response in IPR2022-00862,
`instituted inter partes review, and granted joinder of the parties to this case.
`Paper 24 (“Inst. Dec.”). More specifically, we instituted inter partes review
`based on the following grounds:
`
`Claims Challenged
`1, 6, 7, 135, 15, 16,
`18–24
`
`35 U.S.C. §3
`102(b)
`
`Reference(s)/Basis4
`Crowds6
`
`
`3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011), amended 35 U.S.C. §§ 102 and 103, effective
`March 16, 2013. Because the ’510 patent claims priority to a provisional
`application that was filed before this date, with Petitioner not contesting that
`priority, the pre-AIA versions of §§ 102 and 103 apply. See Ex. 1001, code
`(60); Pet. 17.
`4 Petitioner’s obviousness challenges additionally refer to the “[k]nowledge
`of [a person of ordinary skill in the art].” Pet. 10. We understand this to
`refer to a person of ordinary skill in the art’s understanding of the applied
`references and not to supplying missing limitations or incorporating an
`unspecified disclosure by reference to supply missing claim limitations.
`5 The Petition includes assertions for claim 13 under the Crowds anticipation
`ground. Pet. 33. Accordingly, we include this claim in the summary table,
`although not included in the Petition’s summary table. Id. at 10.
`6 Michael K. Reiter, Crowds: Anonymity for Web Transactions, ACM
`Transactions on Information and System Security, Vol. 1, No. 1, November
`1998, at 66–92 (Ex. 1006).
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`35 U.S.C. §3
`103(a)
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`102(b)
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`103(a)
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`102(b)
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`103(a)
`
`Reference(s)/Basis4
`Crowds, RFC 26167
`
`Claims Challenged
`1, 2, 6–11, 13, 15, 16,
`18–24
`1, 6, 10, 15–20, 23,
`24
`1, 6, 8–11, 13, 15–20,
`22–24
`1, 6–8, 13, 15, 16,
`18–24
`1, 2, 6–11, 13, 15, 16,
`18–24
`Pet. 10; Inst. Dec. 510, 38.
`Patent Owner filed a Patent Owner Response (“PO Resp.”), along
`with the Declaration of Tim Williams, Ph.D. Paper 30; Ex. 2065. Petitioner
`filed a Reply (“Pet. Reply”) to the Patent Owner Response. Paper 40.
`Patent Owner filed a Sur-reply (“PO Sur-reply”). Paper 41.
`An oral hearing was conducted on June 9, 2023. A transcript of the
`hearing is included in the record. Paper 51 (“Tr.”).
`B. Related Matters
`The ’510 patent has been the subject of numerous proceedings in
`district court and the Board. Pet. 3–5; IPR2022-00862, Paper 10, 1–5. In
`particular, the parties identify four district court proceedings involving the
`
`7 Hypertext Transfer Protocol—HTTP/1.1, Network Working Group, RFC
`2616, The Internet Society, 1999 (Ex. 1013).
`8 U. S. Patent No. 6,795,848, issued September 21, 2004 (Ex. 1012).
`9 Marc Rennhard, MorphMix—A Peer-to-Peer-based System for
`Anonymous Internet Access (2004) (Ph.D. dissertation, Swiss Federal
`Institute of Technology) (Ex. 1008).
`10 In the Institution Decision, the summary table inadvertently includes claim
`22 in the Border anticipation ground, which Petitioner did not challenge
`under this ground. See Pet. 10; Inst. Dec. 5.
`
`Border8
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`Border, RFC 2616
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`MorphMix9
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`MorphMix, RFC 2616
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`’510 patent and a related patent (U.S. Patent No. 10,257,319 (“the ’319
`patent”)):
`Bright Data Ltd. v. NetNut Ltd., No. 2:21-cv-225 (E.D. Tex.)
`(pending);
`Luminati Networks Ltd. v. Teso LT, UAB, et al., No. 2:19-cv395 (E.D.
`Tex.) (pending) (“the Teso litigation”);
`Luminati Networks Ltd. v. BI Science (2009) Ltd., No. 2:19-cv397
`(E.D. Tex.) (dismissed); and
`Luminati Networks Ltd. v. Tefincom S.A., No. 2:19-cv-414
`(E.D. Tex.) (pending).
`Pet. 3; IPR2022-00862, Paper 10, 2–3.
`The ’510 patent has also been before the Board in IPR2020-00138 and
`IPR2022-00916. Pet. 5; IPR2022-00862, Paper 10, 1–2.
`In addition, Patent Owner identifies ex parte reexaminations, Control
`No. 90/014,875 and Control No. 90/014,876, that have been ordered for U.S.
`Patent No. 10,257,319, a patent related to the ’510 patent, and for the ’510
`patent, respectively. IPR2022-00862, Paper 10, 2. Those reexaminations
`have been stayed. See IPR2021-01492, Paper 14; IPR2021-01493, Paper 13.
`C. The ’510 Patent
`The ’510 patent is titled “System Providing Faster and More Efficient
`Data Communication” and issued on November 19, 2019 from an
`application filed on February 17, 2019. Ex. 1001, codes (22), (45), (54).
`The patent is subject to a terminal disclaimer. Id. at code (*). The
`application for the ’510 patent claims priority to several applications,
`including U.S. Provisional Application No. 61/249,624, filed October 8,
`2009. Id. at code (60).
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`The ’510 patent is directed to addressing the “need for a new method
`of data transfer that is fast for the consumer, cheap for the content distributor
`and does not require infrastructure investment for ISPs.” Ex. 1001, 1:57–59.
`The ’510 patent states that other “attempts at making the Internet faster for
`the consumer and cheaper for the broadcaster,” such as proxy servers and
`peer-to-peer file sharing, have various shortcomings. Id. at 1:61–3:6. The
`’510 patent provides a system and method “for faster and more efficient data
`communication within a communication network,” such as in the network
`illustrated in Figure 3, reproduced below. Id. at 3:16–18, 4:5–7.
`
`
`Figure 3 is a schematic diagram depicting communication network 100
`including a number of communication devices. Ex. 1001, 4:56–48. Client
`102 is capable of communicating with peers 112, 114, and 116, as well as
`with one or more agents 122. Id. at 4:58–60. Web server 152 may be “a
`typical HTTP server, such as those being used to deliver content on any of
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`the many such servers on the Internet.” Id. at 4:65–5:2. Acceleration server
`162 includes an acceleration server storage device 164 with an acceleration
`server database, which “stores Internet Protocol (IP) addresses of
`communication devices within the communication network 100 having
`acceleration software stored therein.” Id. at 5:14–17.
`
`In operation, a client may request a resource on the network, for
`example, through the use of an Internet browser. Ex. 1001, 12:62–13:3. If
`server 152 is the target of the request, the client sends the IP address of
`server 152 to acceleration server 162. Id. at 13:8–15. Acceleration server
`162 then prepares a list of agents that can handle the request, which includes
`communication devices “that are currently online, and whose IP address is
`numerically close to the IP of the destination Web server 152.” Id. at
`13:19–29. The client then sends the original request to the agents in the list
`to find out which “is best suited to be the one agent that will assist with this
`request.” Id. at 13:31–36. The connection established between the agent
`and client may be a Transmission Control Protocol (“TCP”) connection. Id.
`at 17:61–64.
`Each agent responds to the client with information as to “whether the
`agent has seen a previous request for this resource that has been fulfilled,”
`and “which can help the client to download the request information from
`peers in the network.” Ex. 1001, 13:51–57. The client selects an agent
`based on a number of factors, and the selected agent determines whether
`data stored in its memory or the memory of the peers “still mirrors the
`information that would have been received from the server itself for this
`request.” Id. at 13:62–14:1, 14:35–38. If the selected agent does not have
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`the necessary information to service the request, it may “load the
`information directly from the server in order to be able to provide an answer
`to the requesting client.” Id. at 14:62–67.
`
`The ’510 patent has twenty-four claims. Claim 1, the only
`independent claim, is illustrative of the claimed subject matter and is
`reproduced below, with bracketed designations added to the limitations for
`reference purposes.
`1. [pre] A method for use with a web server that responds to
`Hypertext Transfer Protocol (HTTP) requests and stores a first content
`identified by a first content identifier, the method by a first client
`device comprising:
`[a] establishing a Transmission Control Protocol (TCP)
`connection with a second server;
`[b] sending, to the web server over an Internet, the first content
`identifier;
`[c] receiving, the first content from the web server over the
`Internet in response to the sending of the first content identifier;
`and
`[d] sending the received first content, to the second server over
`the established TCP connection, in response to the receiving of
`the first content identifier.
`Ex. 1001, 19:18–31.
`
`II. ANALYSIS OF PATENTABILITY OF CLAIMS 1, 2, 6–11, 13, AND
`15–24
`
`A. The Parties’ Arguments
`In our Decision on Institution, we concluded that the arguments and
`
`evidence advanced by Petitioner demonstrated a reasonable likelihood that at
`least one claim of the ’510 patent is anticipated or would have been obvious.
`Inst. Dec. 23–35. Here, we must consider whether Petitioner has established
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`by a preponderance of the evidence that claims 1, 2, 6–11, 13, and 15–24 of
`the ’510 patent are anticipated or would have been obvious. 35 U.S.C.
`§ 316(e). We previously instructed Patent Owner that “Patent Owner is
`cautioned that any arguments not raised in the response may be deemed
`waived.” Paper 25, 9; see also In re NuVasive, Inc., 842 F.3d 1376, 1379–
`82 (Fed. Cir. 2016) (holding patent owner waived an argument in the
`preliminary response by not raising the same argument in the patent owner
`response). Additionally, the Board’s Trial Practice Guide states that the
`Patent Owner Response “should identify all the involved claims that are
`believed to be patentable and state the basis for that belief.” Consolidated
`Trial Practice Guide (Nov. 2019)11 (“TPG”), 66.
`
`Patent Owner has chosen not to address certain arguments and
`evidence advanced by Petitioner to support its unpatentability contentions.
`In this regard, the record contains persuasive arguments and evidence
`presented by Petitioner regarding the manner in which the prior art discloses
`or teaches the corresponding limitations of claims 1, 2, 6–11, 13, and 15–24
`of the ’510 patent and the rationale for combining the asserted obviousness
`references.
`
`B. Level of Ordinary Skill in the Art
`
`According to Petitioner, a person of ordinary skill in the pertinent art
`“would have at least a bachelor’s degree in Computer Science or related
`field (or equivalent experience), and two or more years’ experience working
`with and programming networked computer systems as of the Priority Date.”
`
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`11 Available at https://www.uspto.gov/sites/default/files/
`documents/tpgnov.pdf?MURL=.
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`Pet. 15 (citing Teruya Decl. ¶¶ 25–27). Petitioner further states that “[s]uch
`a person would be familiar with the underlying principles of Web, Internet,
`or network communication, data transfer, and content sharing across
`networks, including the HTTP and TCP/IP protocols.” Id.
`
`Patent Owner submits that a person of ordinary skill in the art “would
`have a Master’s Degree or higher in the field of Electrical Engineering,
`Computer Engineering, or Computer Science or as of that time had a
`Bachelor’s Degree in the same fields and two or more years of experience in
`Internet Communications.” PO Resp. 2 (citing Ex. 2065 ¶ 25). Patent
`Owner states that “Patent Owner’s analysis herein does not change under the
`Board’s preliminary definition of a” person of ordinary skill in the art. Id. at
`2 (citing IPR2022-01493, Paper 11, 18; Ex. 2065 ¶ 26).
`In the Decision on Institution, we adopted the assessment of
`qualifications offered by Petitioner, which we also adopt here. Inst. Dec.
`14–15. The assessment offered by Petitioner is consistent with the ’510
`patent and the prior art before us. See Okajima v. Bourdeau, 261 F.3d 1350,
`1355 (Fed. Cir. 2001).
`
`
`
`C. Claim Construction
`In this inter partes review, claims are construed using the same claim
`construction standard that would be used to construe the claims in a civil
`action under 35 U.S.C. § 282(b). 37 C.F.R. § 42.100(b) (2021). Under the
`principles set forth by the Federal Circuit, the “words of a claim ‘are
`generally given their ordinary and customary meaning,’” as would be
`understood by a person of ordinary skill in the art in question at the time of
`the invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005)
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`(en banc) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582
`(Fed. Cir. 1996)). “In determining the meaning of the disputed claim
`limitation, we look principally to the intrinsic evidence of record, examining
`the claim language itself, the written description, and the prosecution
`history, if in evidence.” DePuy Spine, Inc. v. Medtronic Sofamor Danek,
`Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006) (citing Phillips, 415 F.3d
`at 1312–17).
`
`
`1. “client device”
`
`
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`a. Petitioner’s Assertions
`Petitioner asserts that the district court’s constructions in the Teso
`district court litigation should apply in this case. Pet. 15–20. In particular,
`Petitioner points to two claim construction orders in that case—an original
`order (Ex. 1017) and a supplemental order (Ex. 1020). Petitioner also relies
`on a claim construction order in Bright Data Ltd. v. Code200, UAB, Case
`No. 2:19-cv-00396 (E.D. Tex.) (“the Code200 Litigation”), which is directed
`to related patents. Pet. Reply 13 (citing Ex. 1112).
`As Petitioner notes, the magistrate judge construed “client device” as
`“communication device that is operating in the role of a client,” and found
`that “role-based construction applies ‘regardless of any additional role the
`device may serve, including as a server.’” Pet. Reply 13 (citing Ex. 1017,
`10–12; Ex. 1112, 13 (emphasis omitted)). Petitioner argues that the district
`court has repeatedly addressed and rejected Patent Owner’s arguments on
`the claim construction for this term. Id. (citing Ex. 1112). Petitioner
`indicates that the magistrate judge’s constructions were adopted by the
`district judge. Id. (citing Ex. 1113; Ex. 1114). Petitioner also refers to the
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`district court’s ruling that precluded Patent Owner from arguing that “a
`client device cannot be a server.” Id. (citing Ex. 1116, 4). Petitioner
`additionally refers to the claim construction order in Bright Data Ltd. v.
`NetNut Ltd., No. 2:21-cv-225 (E.D. Tex.) (“the NetNut litigation”), in which
`the district court rejected a proposed construction of the term “client device”
`as a “consumer computer.” Id. at 13 n.6 (citing Ex. 1115, 10–16). Petitioner
`refers to RFC 2616, which is referenced in the ’510 patent, and asserts that it
`“confirms that ‘client’ means ‘program that establishes connections for the
`purpose of sending requests,’” where “[a]ny given program may be capable
`of being both a client and a server; our use of these terms refers only to the
`role being performed by the program for a particular connection.” Id. at 15–
`16 (citing Ex. 1013, 8 (emphases omitted); Ex. 1001, 16:21–22.).
`In further support, Petitioner points to the ’510 patent Specification,
`where “a ‘client device’ is an entity that receives the content from the
`intermediate agent device.” Pet. 20 (citing Ex. 1001, 9:27–36). Petitioner
`asserts that “the same device [client device], thus acting as a ‘client’ for one
`content retrieval, can also act, in another content retrieval in the same
`system, as one the of the intermediate ‘agent’ nodes, and also operate in the
`role of a server,” which is consistent with the district court’s construction.
`Petitioner also refers to a mapping of Figure 3 of the ’510 patent
`showing the claimed elements, as shown in annotated Figure 3 below. Pet.
`18–19.
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`As shown in annotated Figure 3, above, Petitioner contends that the “second
`server” is marked in green (client 102), the “client device” is marked in red
`(agent 122), and the “first server” is marked in blue (web server 152), which
`is “a logical and reasonable mapping.” Pet. 18–19. Petitioner points out that
`this is the mapping that Patent Owner used in briefing in a related litigation.
`Id. (citing Ex. 1004, 19–20).
`
`Petitioner also asserts that under Patent Owner’s proposed claim
`construction a “client device” has to: (1) be a “consumer computer;” (2) be
`“typically portable and easily moved;” (3) be “not a dedicated network
`element;” (4) use single or relatively few connections;” (5) be “resource
`limited (e.g., bandwidth and storage), unlike a server;” (6) be “regularly
`switched off and taken offline;” (7) be “capable of processing only a limited
`number of requests at any given time;” and (8) have “lesser fault tolerance,
`lesser reliability, and lesser scalability, prioritizing value to client device
`users over system costs.” Pet. Reply 1–2 (citing PO Resp. 25–28; Ex. 2065
`¶¶ 120, 124–125; Ex. 1111, 53:24–54:8:1). Petitioner argues that these
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`characteristics are highly subjective, indefinite, and not supported by the
`Specification. Id. at 2–6.
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`b. Patent Owner’s Assertions
`Patent Owner asserts that a person of ordinary skill in the art would
`understand the term “client device” to mean “a consumer computer” or a
`“consumer communication device.” PO Resp. 23 (citing Ex. 2065 ¶ 114).
`Patent Owner argues that these constructions are consistent with the term’s
`plain and ordinary meaning, the Specification, the prosecution histories, and
`extrinsic evidence. See id. at 23–28. Patent Owner contends that the district
`court claim constructions should be applied, but argues that Petitioner has
`deviated from the district court’s construction of the term “client device”
`because there is no attribution of special meaning to the term
`“communication device.” Id. at 8. Patent Owner further asserts that in the
`NetNut litigation, the district court “expressly rejected removing the word
`‘communication’ from its construction of” the term “client device.” Id. at 10
`(citing Ex. 2021, 14) (emphases omitted)). Patent Owner argues that
`Petitioner only applies role-based constructions and “treat[s] client devices
`and servers as interchangeable general purpose computers.” Id. at 9.
`Instead, Patent Owner argues, the district court “found that a ‘client device’
`is a physical communication device, which has a special meaning in the
`context of the specification. A communication device . . . is not simply any
`device that communicates over the Internet.” Id. Patent Owner argues that
`purely role-based constructions “contradict the Court’s Orders because they
`refer to generic devices operating in a particular role,” and they “fail to
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`account for the physical/structural differences between client devices and
`servers.” Id. at 10.
`Patent Owner alleges that the Specification discloses how a
`communication device can be configured to be a client, agent, or peer so a
`person of ordinary skill in the art would understand client 102 and agent 122
`to both be client devices. PO Resp. 6 (citing Ex. 1001, 4:46–52, 5:23–31,
`9:14–51, 15:39–42, 15:51–52, Fig. 6; Ex. 2065 ¶¶ 56–58). Patent Owner
`contends that a person of ordinary skill “would understand that proxy server
`6 of Figure 1 could be inserted between client 102 and agent 122 of Figure
`3,” with the result being modified Figure 3, reproduced below. Id. at 7–8
`(citing Ex. 2065 ¶ 59).
`
`
`Patent Owner alleges that, as shown in modified Figure 3 above, a person of
`ordinary skill in the art would understand that client device ↔ second server
`↔ first client device ↔ web server would correspond to client 102 (purple)
`↔ proxy server 6 (green) ↔ agent 122 (red) ↔ web server 152 (blue) of
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`modified annotated Figure 3. PO Resp. 7–8 (citing Ex. 2065 ¶ 59). Patent
`Owner further argues that the Specification distinguishes between servers
`and client devices and “[u]nder Petitioners’ application of their purely role-
`based constructions, there would be nothing to distinguish intermediary
`proxy server 6 (which is a server) from intermediary agent 122 (which is a
`client device).” PO Sur-reply 8 (citing PO Resp. 14–18).
`Patent Owner further asserts that a person of ordinary skill in the art
`would understand that “a client device is typically portable and easily
`moved, like, for example, a laptop, desktop, tablet or smartphone.” PO
`Resp. 26 (citing Ex. 2065 ¶ 124). Patent Owner contends that a person of
`ordinary skill’s understanding is evidenced by extrinsic evidence, with “a
`definition of a client as ‘an application that runs on a personal computer or
`workstation and relies on a server to perform some operations.’” Id. at 27
`(citing Ex. 2035; Ex. 2036, 5; Ex. 2037, 7; Ex. 2065 ¶ 126). Patent Owner
`contends that a person of ordinary skill in the art would understand that a
`client device typically (a) is regularly switched off and taken offline; (b) is
`capable of processing only a limited number of requests; and (c) has lesser
`fault tolerance, lesser reliability, and lesser scalability. Id. (citing Ex. 2065
`¶ 125). Patent Owner argues that a person of ordinary skill in the art “would
`understand there are structural differences between client devices and
`servers in the context of the specification.” Id. at 28 (citing Ex. 2065 ¶ 128).
`Patent Owner contends that a person of ordinary skill in the art would be
`informed by statements made during prosecution that a client device is not a
`dedicated network device, typically uses a single or relatively few
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`connections, and is resource limited (e.g., bandwidth and storage), unlike a
`server. Id. at 26–27 (citing Ex. 2065 ¶ 124).
`Patent Owner acknowledges that the district court rejected Patent
`Owner’s construction equating “client device” with “consumer computer.”
`PO Resp. 23. Patent Owner argues, however, that the district court’s
`rejection of its proposed construction of a “client device” as “consumer
`computer” is wrong for three reasons. Id. at 23–25. First, Patent Owner
`asserts that, although the district court found that there was no express
`lexicography in the Specification, the Specification states that “computers of
`consumers” are “referred to herein as client devices.” Id. at 23 (citing
`Ex. 1001, 2:47–49). Patent Owner further contends that the Specification
`indicates a special meaning for the term and a person of ordinary skill in the
`art “would understand a ‘client device’ is a consumer computer in the
`context of the ‘510 Patent.” Id. at 23–24 (citing Kyocera Senco Indus.
`Tools, Inc. v. ITC, 22 F.4th 1369, 1379 (Fed. Cir. 2022)). Second, Patent
`Owner disagrees with the district court’s finding that in the Specification the
`term “consumer” refers to the consumer of content, as opposed to a
`broadcaster of content. Id. at 24 (citing Ex. 1017, 11). Rather, Patent
`Owner argues, the common understanding of “consumer” is “a person who
`buys goods or services for their own use” or “someone who buys goods or
`services for personal use.” Id. (citing Ex. 2030; Ex. 2031, 5; Ex. 2032, 4;
`Ex. 2033; Ex. 2034, 4; Ex. 2065 ¶ 121; 15 U.S.C. § 6809(9); 12 C.F.R.
`§ 332). Third, Patent Owner disagrees with the district court’s finding that
`the term “consumer” does not appear to be used in connection with the
`claimed invention, contending that the Specification refers to “computers of
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`consumers,” and that relevant statements were made in the prosecution
`history. Id. at 25 (citing Ex. 1017, 11).
`Patent Owner contends that in the context of the ’510 patent, “a client
`device is not a server.” PO Resp. 25. Patent Owner disagrees with the
`district court’s view that there was insufficient support for including a
`negative limitation in the construction of client device, namely, that a client
`device is unable to act as a server in all cases. Id. (citing Ex. 1017, 12).
`Patent Owner further asserts that the district court did not have the benefit of
`the detailed discussion provided by Patent Owner concerning Figures 1 and
`3. Id. (citing Ex. 2065 ¶ 131). Patent Owner submits that “under the purely
`role-based constructions, a client device may operate in the role of a server
`at some points in time, but that does not transform a physical client device
`into a physical server,” and a person of ordinary skill in the art would
`understand that a client device is not a server in view of the ’510 patent. Id.
`Patent Owner contends that, in view of the recited architecture of the
`’510 patent claims that distinguishes between client devices and servers, the
`use of three interchangeable devices in a pathway would not disclose that
`architecture. PO Resp. 13 (citing Ex. 2065 ¶¶ 75–76). Patent Owner also
`argues that the recited architecture in the ’510 patent claims, that is, a second
`server ↔ first client device ↔ web server architecture, also distinguishes the
`non-interchangeability and non-role-based nature of the devices, and these
`distinctions are consistent with an Alice12 order in the Teso district court
`litigation. Id. at 12–13 (citing Ex. 2065 ¶¶ 75–76, 80; Ex. 2024, 6–11); PO
`Sur-reply 6–7. Patent Owner refers to the district court’s finding that found
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`12 Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
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`that “it is not the individual steps of the method that render the Asserted
`Claims non-abstract, it is the network architecture as a whole.” Id. at 13
`(citing Ex. 2024, 9).
`Patent Owner also contends that, upon reviewing Figures 1 and 3 of
`the Specification, a person of ordinary skill in the art would have understood
`that proxy server 6 must be structurally different from agent 122 and that
`“a server is not a client device and that a client device is not a server.” PO
`Resp. 15 (citing Ex. 2065 ¶ 83). Patent Owner argues that under “purely
`role-based constructions, proxy server 6 of Figure 1 and agent 122 of Figure
`3 would be operating in the same roles at a given point in time,” so under the
`Board’s preliminary constructions “Figure 3 collapses onto Figure 1” and
`fails to account for structural differences between a proxy server and a client
`device. Id. More specifically, Patent Owner contends that, as shown in
`Figure 1, under role-based constructions, “proxy server 6 (i) receives
`requests from client devices 14, 16 and (ii) sends requests to web server 32,”
`so “proxy server 6 would be (i) operating in the role of a server and
`(ii) operating in the role of a client.” Id. at 16 (citing Ex. 2065 ¶ 86). Patent
`Owner asserts that for Figure 3, under role-based constructions, “agent 122
`(i) receives requests from client devices and (ii) sends requests to web server
`152,” so “agent 122 would be (i) operating in the role of a server and
`(ii) operating in the role of a client.” Id. at 17–18 (citing Ex. 2065 ¶¶ 91–
`92). Patent Owner argues that with proxy server 6 of Figure 1 and agent 122
`of Figure 3 operating in the same roles at a given point in time, “there is
`nothing to distinguish the architectures of Figures 1 and 3.” Id. at 18 (citing
`Ex. 2065 ¶ 93). Patent Owner asserts that “purely role-based constructions
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`are not appropriate because they fail to account for these structural
`differences between proxy servers and proxy client devices.” Id. at 18
`(citing Ex. 2065 ¶ 94).
`Patent Owner additionally refers to the prosecution history of U.S.
`Patent No. 10,069,936 (“the ’936 patent”), the grandparent of the ’510
`patent. PO Resp. 19–22. Patent Owner argues that this prosecution history
`“clearly distinguishes client devices from servers.” Id. at 19 (citing Ex. 2065
`¶ 97). Patent Owner asserts that during prosecution, the applicant
`“repeatedly argued that client devices are different from servers.” Id. (citing
`Ex. 2026, 163–164, 96–97). Patent Owner points to the applicant’s
`statement that “[t]here is a clear distinction in the art and as taught by the
`Garcia reference between clients and servers,” and “[c]lient devices, such as
`client 105 in the Garcia reference, are end-units that request information
`from servers, use client-related software such as Web browser software,
`communicate over the Internet using ISP connection, and are typically
`consumer owned and operated.” Id. at 20 ((citing Ex. 2026, 163) (emphases
`omitted)).
`Additionally, Dr. Williams refers to the examiner’s statement that
`“Garcia fails to teach a group of clients for data communication; (a) each of
`the devices sending its identifier to the first server; (b) the first server
`receiving and storing the identifiers of the devices; (d) the first server
`selecting one of the clients from the group; and (f) the selected client
`receiving the content from the web server; and (g) the requesting client
`receiving the content from the selected client.” Ex. 2065 ¶ 98 (citing
`Ex. 2026, 124). Dr. Williams testifies that “
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