Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 1 of 21 PageID #: 5338
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`BRIGHT DATA LTD.,
`Plaintiff,
`
`v.
`
`TEFINCOM S.A. D/B/A NORDVPN,
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`
`Civil Action No. 2:19-CV-00414-JRG
`
`DEFENDANT’S MOTION FOR SUMMARY JUDGMENT OF
`INVALIDITY OF THE ’319, ’510, AND ’511 PATENTS
`
`103104467.1
`
`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 1 of 21
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`

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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 2 of 21 PageID #: 5339
`TABLE OF CONTENTS
`
`I.
`INTRODUCTION .................................................................................................................. 1
`II. STATEMENT OF ISSUE TO BE DECIDED........................................................................ 2
`III.
`STATEMENT OF UNDISPUTED MATERIAL FACTS .................................................. 2
`A.
`The Court’s “Server” Claim Scope Orders ...................................................................... 2
`B.
`Undisputed Criteria for “Operating in the Role of a Server” ........................................... 4
`C.
`Crowds and Dr. Freedman’s Mapping of the Second/First Server .................................. 5
`D.
`It is Undisputed that Jondo “4” Meets Both Prongs of the Court’s Clarified “Second
`Server” and “First Server” Constructions ................................................................................... 7
`Dr. Rhyne’s Rebuttals are Irrelevant to the Court’s Clarified Constructions or Dr.
`E.
`Freedman’s Mappings Presented in This Motion ....................................................................... 8
`IV. CROWDS ANTICIPATES THE ASSERTED CLAIMS OF THE ’319, ’510 AND ’511
`PATENTS ....................................................................................................................................... 9
`A.
`Plaintiff Does Not Dispute Much of the Anticipation Mappings..................................... 9
`B.
`There is No Fact Dispute That Jondo “4” Meets Both Prongs of the Court’s Clarified
`“Second Server” (’319, ’510 Patents) and “First Server” (’511 Patent) Constructions ............ 10
`Plaintiff Cannot Avoid Summary Judgment by Raising Arguments Contrary to the
`C.
`Court’s Clarified Claim Constructions ..................................................................................... 12
`Plaintiff’s Criticisms of Dr. Freedman’s Prior Art Mapping of Dependent Claims are
`D.
`Contradicted by Plaintiff’s Infringement Mapping ................................................................... 13
`1.
`’319 Patent Claim 2 and ’510 Patent Claim 2 ............................................................ 13
`2.
`’319 Patent Claim 17 and ’510 Patent Claims 8-9 ..................................................... 14
`3.
`’511 Patent Claim 28 .................................................................................................. 15
`V. CONCLUSION ..................................................................................................................... 15
`
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`103104467.1
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`ii
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 2 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 3 of 21 PageID #: 5340
`TABLE OF EXHIBITS
`
`
`
`Exhibit
`A
`
`B
`
`C
`
`D
`
`E
`
`F
`
`G
`H
`I
`J
`
`K
`
`L
`
`M
`
`N
`
`O
`
`P
`
`Shorthand
`Tefincom CC
`Order
`O2 Micro
`Request
`
`Supplemental
`CC Order
`Rhyne Daubert
`Order
`Crowds
`
`ACM Dec.
`
`’319 Patent
`’510 Patent
`’511 Patent
`Freedman Rep.
`
`Freedman Rep.
`App’x A
`Freedman Rep.
`App’x E
`Freedman Rep.
`App’x M
`Rhyne Rebuttal
`Rep.
`Rhyne Tr.
`
`RFC 2616
`
`Description
`Order that claim construction orders from related cases shall
`apply in this case (ECF 63)
`Defendant’s Motion for Hearing Regarding O2 Micro Issue
`(ECF 444 in Bright Data Ltd. v. Teso lt, UAB et al., Case
`No. 2:19-cv-395 (“Teso”))
`Supplemental Claim Construction Order (ECF 453 in Teso)
`
`Excerpt of Order on Pretrial Motions and Motions in Limine
`in Teso (ECF 476 in Teso)
`Reiter and Rubin, Crowds: Anonymity for Web
`Transactions, ACM Transactions on Information and
`System Security, Vol. 1, No. 1, November 1998
`(NORDPA0002553)
`June 4, 2020 Declaration of Scott Delman of Association
`for Computing Machinery (ACM) regarding publication
`status of Crowds (NORDPA0002552)
`U.S. Patent No. 10,257,319
`U.S. Patent No. 10,484,510
`U.S. Patent No. 10,484,511
`Excerpts of August 19, 2021 Expert Report of Dr. Michael
`J. Freedman on behalf of Defendant
`Excerpts of Appendix A of the August 19, 2021 Expert
`Report of Dr. Michael J. Freedman on behalf of Defendant
`Excerpts of Appendix E of the August 19, 2021 Expert
`Report of Dr. Michael J. Freedman on behalf of Defendant
`Excerpts of Appendix M of the August 19, 2021 Expert
`Report of Dr. Michael J. Freedman on behalf of Defendant
`Excerpts of September 12, 2021 Rebuttal Expert Report of
`Dr. V. Thomas Rhyne on behalf of Plaintiff
`Excerpts of rough draft of September 20, 2021 Deposition
`of Dr. V. Thomas Rhyne
`Excerpts of RFC 2616 Hypertext Transfer Protocol --
`HTTP/1.1
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`103104467.1
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`iii
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 3 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 4 of 21 PageID #: 5341
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`
`TABLE OF AUTHORITIES
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`
`
`Page(s)
`
`Cases
`Little v. Liquid Air Corp.,
`37 F.3d, 1069, 1075 (5th Cir. 1994) ........................................................................................10
`
`103104467.1
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`iv
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 4 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 5 of 21 PageID #: 5342
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`
`I.
`
`INTRODUCTION
`
`Dr. Rhyne, Plaintiff’s rebuttal expert, disputes one—and only one—aspect of Defendant’s
`
`expert, Dr. Freedman’s, mappings of the sole independent claim of each of the ’319, ’510 and ’511
`
`Patents to the prior art reference, Crowds. Ex. N (Rhyne Rebuttal Rep.) at ¶¶ 173-185, 576-588.
`
`Dr. Rhyne asserts only that jondo “4” cannot be a “server.” Id. As discussed in the concurrently-
`
`filed Motion to Strike Dr. Rhyne, the Court’s prior claim construction orders have addressed and
`
`rejected the bases for Dr. Rhyne’s contention—that “a server cannot be a client device” and a user
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`computer cannot be “interchangeable” with a server. Setting those arguments aside, summary
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`judgment of invalidity follows directly.
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`There is no fact issue that Crowds’ jondo “4” is “operating in the role of a server,” which
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`the Court held is the “correct” criteria for determining if a device is a server. Ex. C (Supplemental
`
`CC Order) at 7-11. Dr. Rhyne’s report does not dispute Dr. Freedman’s analysis on this point.
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`And Dr. Rhyne provided matching testimony as to: (1) his view on what functionality is
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`“sufficient” to be a server and (2) the functionality of jondo “4” that he agrees Crowds discloses:
`
`
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`Functionality of jondo “4” that Dr. Rhyne
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`
`
`agrees Crowds discloses
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`
`
`
`
` Ex. O (Rhyne Tr.) at 117:4-17,
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`152:12-153:19.1
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`
`
`
`
`
`
`
`
` Id. at 152:12-
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`153:19.
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`1 All emphasis added unless otherwise indicated.
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 6 of 21 PageID #: 5343
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`Further, Dr. Rhyne raises only a handful of challenges to the mapping of any dependent
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`claims, and those are nothing more than inaccurate assertions that Defendant’s expert, Dr.
`
`Freedman, did not address an issue. Accordingly, the Court should grant summary judgment of
`
`invalidity.
`
`II.
`
`STATEMENT OF ISSUE TO BE DECIDED
`
`Whether the prior art Crowds reference anticipates the asserted claims of the ’319, ’510
`
`and ’511 Patents.
`
`III.
`
`STATEMENT OF UNDISPUTED MATERIAL FACTS
`
`A.
`
`1.
`
`The Court’s “Server” Claim Scope Orders
`
`Claim construction in this matter is governed by the Orders and final constructions
`
`entered in Bright Data Ltd. v. Teso lt, UAB et al., Case No. 2:19-cv-395 (“Teso”) and Bright Data
`
`Ltd. v. Code200, UAB et al., Case No. 2:19-cv-396 (“Code200”). Ex. A (Tefincom CC Order).
`
`2.
`
`Defendants in the Teso and Code200 cases filed a Motion for Rehearing Regarding
`
`O2 Micro Issue in which Defendants stated: “Oxylabs respectfully requests clarification that: (i)
`
`as already recited in the existing constructions, the claimed “server” is not the separately recited
`
`[first / requesting] client device, but can otherwise be a client device, and (ii) as the Court already
`
`ruled for another term (i.e., “client device”), the claimed “server” is a device operating in the role
`
`of a server and does not require any specific hardware.” Ex. B (O2 Micro Request) at 1 (emphasis
`
`in original).
`
`3.
`
`Oxylabs proposed the following clarifications shown in underline to the Court’s
`
`existing claim constructions:
`
`(cid:120)
`
`’319/’510 Patents (Teso): “second server” means “a device that is operating
`in the role of a server and that is not the first client device.”
`
`…
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
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`(cid:120)
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`’511 Patent (Code200): “first server” means “a device that is operating in
`the role of a server and that is not the first client device or the web server.”
`
`Id. (emphasis in original).
`
`4.
`
`In response, the Court issued a Supplemental Claim Construction Order
`
`summarizing the Court’s prior holdings in the Teso and Code200 claim construction Orders and
`
`concluding:
`
`The Court finds that the clarifications Defendants seek are not inconsistent with
`the Court’s previous findings about the nature of the client device, web server, first
`server and second server. Said previous findings have already been stated with
`respect to the constructions as they stand. Accordingly, the Court clarifies that
`Defendants’ understanding of the scope of the constructions, as represented by
`the requested clarifications in Defendants’ Motion for Hearing, is correct. The
`Court is not changing the construction of “first server” and “second server,” as this
`understanding is already embedded in those terms’ construction. Further, the Court
`is not now changing the scope of the terms in any way, but merely providing a
`clarification of the scope of the terms as they stand.
`
`Ex. C (Supplemental CC Order) at 7-11.
`
`5.
`
`The Court largely reached this conclusion by summarizing the prior Orders, and
`
`also addressed Bright Data’s argument regarding interchangeability:
`
`Plaintiff’s argument that Defendant seeks to treat client devices and servers
`interchangeably, citing to the Court’s statement that “[Defendants] deny that they
`will claim client devices and servers are interchangeable general user computers”
`is an oversimplification of the issue. It is not that Defendants seek to “reduc[e] the
`recited server ↔ client device ↔ web server architecture . . . and the recited client
`device ↔ server ↔ web server architecture . . . as an indistinguishable computer
`↔ computer ↔ computer architecture” as Plaintiffs argue. See Dkt. No. 242 at 4.
`Rather, a component can be configured to operate in different roles—so long as it
`does not “simultaneously serve as more than one of: the client device, the first
`server/second server, and the web server.” See Dkt. No. 97 at 13.
`
`Id. at 10.
`
`6.
`
`Finally, in a Daubert Order based on briefing submitted prior to the Court’s
`
`Supplemental Claim Construction Order, the Court “instructed that Dr. Rhyne was not to testify
`
`before the jury that a client device cannot be a server.” Ex. D (Rhyne Daubert Order) at 4.
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 7 of 21
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`7.
`
`Thus, applying the Court’s constructions and clarifications, “second server” as used
`
`in the ’319, ’510 Patents has two prongs: (1) “a device that is operating in the role of a server” and
`
`(2) “is not the first client device.” Ex. C (Supplemental CC Order) at 7-11. Likewise, “first server”
`
`as used in the ’511 Patent has two prongs: (1) “a device that is operating in the role of a server”
`
`and (2) “is not the first client device or the first web server.” Id.
`
`B.
`
`8.
`
`Undisputed Criteria for “Operating in the Role of a Server”
`
`Under Defendants’ requested clarifications, which the Court held “are correct,” a
`
`device is a “server” when it is “operating in the role of a server.” Ex. C (Supplemental CC Order)
`
`at 7-11. Arguments that any other properties are required for a device to either be a server or
`
`disqualify a device from being a server are contrary to the Court’s Order.
`
`9.
`
`There is no material dispute as to what “operating in the role of a server” entails to
`
`a POSITA as Dr. Freedman and Dr. Rhyne employed similar descriptions, all equally applicable
`
`to the art. All descriptions are similar to the definition of “server” provided by RFC 2616, the
`
`HTTP 1.1 specification cited by the asserted patents, of “[a]n application program that accepts
`
`connections in order to service requests by sending back responses.” Ex. J (Freedman Rep.) at
`
`¶ 136; Ex. P (RFC 2616) at § 1.3. Citing RFC 2616, Dr. Freedman concluded a device “fulfill(s)
`
`the typical role of a server” because it “receives web requests from” other devices “and provides
`
`information to other network devices.” Ex. J (Freedman Rep.) at ¶ 122. Dr. Freedman also
`
`elsewhere tracked the RFC 2616 language even more closely, concluding that a device is operating
`
`in the role of a server because it “accepted a connection” from a requesting device “in order to
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`send back a response.” Ex. K (Freedman Rep. App’x A) at 11.
`
`10.
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 9 of 21 PageID #: 5346
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`Ex. O (Rhyne Tr.) at 26:7-25.
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`
`
`
`
`
`
` Id. at 117:4-17.
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`C.
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`11.
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`Crowds and Dr. Freedman’s Mapping of the Second/First Server
`
`Crowds: Anonymity for Web Transactions (“Crowds”) is an article published in
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`1998, making it 102(b) prior art to each asserted patent. Ex. E (Crowds); see also Ex. F (ACM
`
`Dec) (ACM declaration confirming that Crowds was published in the November 1998 journal);
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`Ex. J (Freedman Rep.) at ¶ 113. Crowds was not before the Patent Office during prosecution of
`
`the patents. Ex. G (’319 Patent) at Cover; Ex. H (’510 Patent) at Cover; Ex. I (’511 Patent) at
`
`Cover.
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`12.
`
`The relevant disclosure of Crowds is not disputed. “‘Crowds’ describes a system
`
`comprised of groups (‘crowds’) of user computers that can interact with one or more web servers.”
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`Ex. N (Rhyne Rebuttal Rep.) at ¶ 166. “[A] user installs software on his/her computer to initiate
`
`a process called a ‘jondo.’” Id. In Crowds, when a user’s browser makes a web request, the jondo
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`software on that device will intercept the request and route the request through a path of jondos
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`(software running on the computer of other users of the system). Crowds discloses an embodiment
`
`in which messages travel over the path “5→4→6→server;” that is, jondo “5” → jondo “4” →
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`jondo “6” → web server “5.” See Ex. E (Crowds) at 73; Fig. 2. Dr. Freedman annotated this path
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`in green:
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
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`
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`Ex. K (Freedman Rep. App’x A) at 11.
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`13.
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`Dr. Freedman explained that in this embodiment “the initiator would be jondo ‘5,’
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`which would forward the web request to jondo ‘4’ on another user’s computer, which would
`
`forward the request to jondo ‘6,’ which would make the request to the target web server.” Ex. K
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`(Freedman Rep. App’x A) at 7. “As Crowds notes, ‘server replies traverse the same path as the
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`requests, only in reverse.’” Id. at 11.
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`
`
`
`
`
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` Ex. O (Rhyne Tr.) at 152:12-153:19.
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`14.
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`Dr. Freedman mapped the “5→4→6→server” embodiment of Crowds to the
`
`asserted claims of each of the ’319, ’510 and ’511 Patents. Ex. K (Freedman Rep. App’x A); Ex.
`
`L (Freedman Rep. App’x E); Ex. M (Freedman Rep. App’x M). For Claim 1 of each patent, Dr.
`
`Rhyne disputed one—and only one—aspect of Dr. Freedman’s mapping. Ex. N (Rhyne Rebuttal
`
`Rep.) at ¶¶ 173-185, 576-588. Dr. Rhyne disputed only that jondo “4” can be a “server” and, in
`
`particular, that it can be the claimed “second server” of the ’319 and ’510 Patents or the claimed
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`“first server” of the ’511 Patent. Id.
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 10 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 11 of 21 PageID #: 5348
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`D.
`
`It is Undisputed that Jondo “4” Meets Both Prongs of the Court’s Clarified
`“Second Server” and “First Server” Constructions
`
`15.
`
`Addressing the first prong of the Court’s clarified constructions, whether jondo “4”
`
`is operating in the role of a server, Dr. Freedman opined that jondo “4” operates in the role of a
`
`server because “jondo 4 receives web requests from preceding jondo 5 in the jondo path, and
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`provides information to other network devices, fulfilling the typical role of a server.” Ex. M
`
`(Freedman Rep. App’x M) at 5; see also Ex. K (Freedman Rep. App’x A) at 8 (“Crowds teaches
`
`that a jondo provides information to other jondos in response to the other jondos issuing requests
`
`to it, thereby fulfilling the typical role of a server”); Ex. L (Freedman Rep. App’x E) at 11 (same).
`
`16.
`
`Dr. Freedman provided further analysis, opining “that jondo ‘4’ in the above
`
`example is indeed a ‘server’ in the commonly understood sense of the word because jondo ‘4’
`
`accepted a connection from jondo ‘5’ in order to send back a response. As Crowds notes, ‘server
`
`replies traverse the same path as the requests, only in reverse.’” Ex. K (Freedman Rep. App’x A)
`
`at 11; Ex. L (Freedman Rep. App’x E) at 8 (same).
`
`17.
`
`Dr. Rhyne provided no rebuttal to this analysis. Dr. Rhyne argued without analysis:
`
`“Nor does Dr. Freedman provide any analysis as to whether Crowds discloses configuring jondo
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`‘4’ to operate in the role of a server.” Ex. N (Rhyne Rebuttal Rep.) at ¶ 177; id. at ¶ 584 (same).
`
`Dr. Rhyne is incorrect.
`
`18.
`
`Dr. Rhyne’s deposition testimony is in accord with Dr. Freedman’s analysis. Dr.
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`Rhyne testified that
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`Ex. O (Rhyne Tr.) at 117:4-17.
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
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`
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` Id. at 152:12-153:19.
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`19.
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`Addressing the second prong of the Court’s clarified constructions, for the ’319 and
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`’510 Patents, Dr. Freedman mapped jondo “6” to the claimed “first client device” and jondo “4”
`
`to the claimed “second server.” Ex. K (Freedman Rep. App’x A) at 7; Ex. L (Freedman Rep.
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`App’x E) at 8. Thus, jondo “4” is not the first client device. Id. For the ’511 Patent, Dr. Freedman
`
`mapped jondo “5” to the claimed “first client device,” jondo “4” to the claimed “first server,” and
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`web server “5” to the claimed “first web server.” Ex. M (Freedman Rep. App’x M) at 3. Thus,
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`jondo “4” is not the first client device or the first web server. Id. Dr. Rhyne did not assert
`
`otherwise.
`
`the first client
`device
`
`the first web server
`
`the first client device
`
`Not the first client device
`
`Not the first client device or the first web server
`
`
`
`
`
`’319 and ’510 Patents
`
`’511 Patent
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`
`
`E.
`
`Dr. Rhyne’s Rebuttals are Irrelevant to the Court’s Clarified Constructions
`or Dr. Freedman’s Mappings Presented in This Motion
`
`20. While disputing Dr. Freedman’s conclusion, no portion of Dr. Rhyne’s analysis of
`
`Dr. Freedman’s mapping of the independent claims of the ’319, ’510 and ’511 Patents to Crowds
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`rebuts any portion of Dr. Freedman’s analysis. For the ’319 and ’510 Patent, the first portion of
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 13 of 21 PageID #: 5350
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`Dr. Rhyne’s rebuttal asserted that “Crowds does not disclose the second server” for reasons not
`
`relevant and contrary to the Court’s construction. Ex. N (Rhyne Rebuttal Rep.) at ¶¶ 173-78
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`(arguing that “a server cannot be a client device” and “user computers” are not “interchangeable”
`
`with servers). And, the latter portion addressed Dr. Freedman’s alternative mappings (obviousness
`
`and disclosure of “specialized hardware” ultimately not required by the Court’s construction) not
`
`at issue in this Motion. Id. at ¶¶ 178-85.
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`21.
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`Likewise, for the ’511 Patent, the first portion of Dr. Rhyne’s rebuttal asserted
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`“Crowds does not disclose a first server” for reasons not relevant and contrary to the Court’s
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`construction. Ex. N (Rhyne Rebuttal Rep.) at ¶¶ 577-81 (arguing that “user computers” are not
`
`“servers” and “user computers” are not “interchangeable” with servers). And, the latter portion
`
`addressed Dr. Freedman’s alternative mappings (obviousness and disclosure of “specialized
`
`equipment” ultimately not required by the Court’s construction) not at issue in this Motion. Id. at
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`¶¶ 582-88.
`
`IV. CROWDS ANTICIPATES THE ASSERTED CLAIMS OF THE ’319, ’510 AND
`’511 PATENTS
`
`A.
`
`Plaintiff Does Not Dispute Much of the Anticipation Mappings
`
`It is undisputed that Crowds was published in 1998, over a decade before the earliest
`
`priority date of the ’319, ’510 and ’511 Patents in 2009, and is therefore 102(b) prior art. Ex. E
`
`(Crowds); Ex. F (ACM Dec); Ex. J (Freedman Rep.) at ¶ 113. Dr. Freedman has presented
`
`summary judgment evidence demonstrating how Crowds discloses each element of each asserted
`
`claim of the ’319, ’510 and ’511 Patents. Ex. J (Freedman Rep.) at ¶ 112-43; Ex. K (Freedman
`
`Rep. App’x A); Ex. L (Freedman Rep. App’x E); Ex. M (Freedman Rep. App’x M). Dr. Rhyne’s
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`challenges to Dr. Freedman’s analysis are limited:
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 13 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 14 of 21 PageID #: 5351
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`(cid:120) Dr. Rhyne does not challenge any aspect of Dr. Freedman’s mappings of Claim 1
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`of each patent except disputing that jondo “4” can be the claimed “second server”
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`of the ’319 and ’510 Patents or the claimed “first server” of the ’511 Patent. Ex. N
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`(Rhyne Rebuttal Rep.) at ¶¶ 173-185, 576-588.
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`(cid:120) Dr. Rhyne does not raise any challenge to Dr. Freedman’s mapping of dependent
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`claims 14, 15, 18, 21, 22, 24, 25, 26, or 27 of the ’319 Patent, dependent claims 10,
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`11, 13, 15, 16, 18, 19, 22, or 23 of the ’510 Patent, or dependent claims 14, 20, 21,
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`22, 23, 25, 27, 29, or 30 of the ’511 Patent other than a missing “second” / “first”
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`“server.” Id. at ¶¶ 186-97, 210-23, 589-99.
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`B.
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`There is No Fact Dispute That Jondo “4” Meets Both Prongs of the Court’s
`Clarified “Second Server” (’319, ’510 Patents) and “First Server” (’511
`Patent) Constructions
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`As discussed in Section III.A, above, the Court’s clarified construction of “second server”
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`as used in the ’319, ’510 Patents has two prongs: (1) “a device that is operating in the role of a
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`server” and (2) “is not the first client device.” Ex. C (Supplemental CC Order) at 7-11. Likewise,
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`“first server” as used in the ’511 Patent has two prongs: (1) “a device that is operating in the role
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`of a server” and (2) “is not the first client device or the first web server.” Id.
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`Addressing the first prong of “a device that is operating in the role of a server,” Dr. Rhyne
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`asserted only: “Nor does Dr. Freedman provide any analysis as to whether Crowds discloses
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`configuring jondo ‘4’ to operate in the role of a server.” Ex. N (Rhyne Rebuttal Rep.) at ¶ 177; id.
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`at ¶ 584 (same). This statement is incorrect and insufficient to overcome summary judgment. See
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`Little v. Liquid Air Corp., 37 F.3d, 1069, 1075 (5th Cir. 1994). As discussed in Section III.D,
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`above, Dr. Freedman provides such analysis, explaining “jondo 4 receives web requests from
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`preceding jondo 5 in the jondo path, and provides information to other network devices, fulfilling
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`103104467.1
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 14 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 15 of 21 PageID #: 5352
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`the typical role of a server.” Ex. M (Freedman Rep. App’x M) at 5; see also Ex. K (Freedman
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`Rep. App’x A) at 8 (“Crowds teaches that a jondo provides information to other jondos in response
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`to the other jondos issuing requests to it, thereby fulfilling the typical role of a server”); Ex. L
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`(Freedman Rep. App’x E) at 11 (same).
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`Not only does Dr. Rhyne’s report raise no rebuttal, his deposition makes clear he does not
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`dispute Dr. Freedman’s position. First, as discussed in Section III.B, above,
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`at 117:4-17. Second,
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` Ex. O (Rhyne Tr.)
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`
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` Dr. Rhyne agrees that jondo “4”
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`“forwards the traffic onto [jondo] 6 to the web server,” thereby requesting on behalf of a client
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`content from a target website and “and provide[s] that content to [jondo] 5,” thereby returning the
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`content back to the requesting client, jondo “5.” Id. at 152:12-153:19.
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`
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` Id. at 101:5-18, 98:18-99:2. Thus,
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`both under the Court’s construction and Dr. Rhyne’s view, the undisputed functionality of jondo
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`“4” operating in the role of a server makes jondo “4” conclusively a server.
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`Plaintiff does not dispute that the second prong is met. As illustrated graphically below,
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`jondo “4” “is not the first client device” in Dr. Freedman’s mapping of the ’319 and ’510 Patents
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`because Dr. Freedman maps jondo “6,” a distinct device, to the claimed “first client device. Ex.
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`K (Freedman Rep. App’x A) at 7; Ex. L (Freedman Rep. App’x E) at 8. Likewise, jondo “4” “is
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`103104467.1
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 15 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 16 of 21 PageID #: 5353
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`not the first client device or the first web server” in Dr. Freedman’s mapping of the ’511 Patent
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`because Dr. Freedman maps jondo “5,” a distinct device, to the claimed “first client device” and
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`web server “5” to the claimed “first web server.” Ex. M (Freedman Rep. App’x M) at 3.
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`the first client
`device
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`the first web server
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`the first client device
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`Not the first client device
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`Not the first client device or the first web server
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`’319 and ’510 Patents
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`’511 Patent
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`C.
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`Plaintiff Cannot Avoid Summary Judgment by Raising Arguments Contrary
`to the Court’s Clarified Claim Constructions
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`When an expert’s opinion “is clearly foreclosed by the district court’s claim construction”
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`“the district court is not obligated to credit an expert’s testimony” and such opinion is not sufficient
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`to avoid summary judgment. See Duncan Parking Techs., Inc. v. IPS Group, Inc., 914 F.3d 1347,
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`1363 (Fed. Cir. 2019) (affirming the district court’s grant of summary judgment). Such is the case
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`here as explained in Defendant’s Motion to Strike Dr. Rhyne’s “server” opinions. Dr. Rhyne
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`argues that jondo “4” cannot be a “server” because: (1) “a server cannot be a client device” and
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`(2) “user computers” are not “interchangeable” with servers and Crowds discloses an
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`“indistinguishable computer ↔ computer ↔ computer architecture.” Ex. N (Rhyne Rebuttal Rep.)
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`at ¶¶ 173-78, 577-81. Both arguments are “clearly foreclosed by the district court’s claim
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`construction.”
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`103104467.1
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 16 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 17 of 21 PageID #: 5354
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`As an initial matter, these arguments are contrary to the Court’s claim construction because
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`they seek to add limitations not found in the construction. Moreover, here the Court has
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`specifically rejected the limitations Dr. Rhyne seeks to add. Dr. Rhyne conceded in deposition
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`that the statement “a server cannot be a client device” is not “consistent with the Court’s rulings.”
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`Ex. O (Rhyne Tr.) at 95:4-96:18. And the Court specifically addressed and rejected Dr. Rhyne’s
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`“interchangeable” argument, holding “Plaintiff’s argument that Defendant seeks to treat client
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`devices and servers interchangeably as “an oversimplification of the issue,” quoting and rejecting
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`the same “indistinguishable computer ↔ computer ↔ computer architecture” language Dr. Rhyne
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`uses. Ex. C (Supp. CC Order) at 10.
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`D.
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`Plaintiff’s Criticisms of Dr. Freedman’s Prior Art Mapping of Dependent
`Claims are Contradicted by Plaintiff’s Infringement Mapping
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`As discussed above, Dr. Rhyne does not raise any challenge to Dr. Freedman’s mapping
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`of dependent Claims 14, 15, 18, 21, 22, 24, 25, 26, or 27 of the ’319 Patent, dependent Claims 10,
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`11, 13, 15, 16, 18, 19, 22, or 23 of the ’510 Patent, or dependent Claims 14, 20, 21, 22, 23, 25, 27,
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`29, or 30 of the ’511 Patent other than a missing “second” / “first” “server.” Ex. N (Rhyne Rebuttal
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`Rep.) at ¶¶ 186-97, 210-23, 589-99. Thus, the Court should grant summary judgment of invalidity
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`on those claims.
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`For ’319 Patent Claims 2 and 12, ’510 Patent Claim 2 and 8-9, and ’511 Patent Claim 27,
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`Dr. Rhyne offers only conclusory rebuttals that fail to acknowledge Dr. Freedman’s analysis.
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`1.
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`’319 Patent Claim 2 and ’510 Patent Claim 2
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`’319 Patent Claim 2 and ’510 Patent Claim 2 each recite a step of “sending, by the first
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`client device, during, as part of, or in response to, a start-up of the first client device, a first message
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`to the second server, and wherein the first messages comprises the first IP address, the MAC
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`address, or the hostname.” Ex. G (’319 Patent) at Claim 2; Ex. H (’510 Patent) at Claim 2. Dr.
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`103104467.1
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1076
`Page 17 of 21
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`Case 2:19-cv-00414-JRG Document 99 Filed 09/29/21 Page 18 of 21 PageID #: 5355
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`Rhyne challenged Dr. Freedman’s mapping, asserting in a single sentence without elaboration:
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`“Dr. Freedman identifies no disclosure from Crowds of the user computer sending its first IP
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`address, the MAC address, or the hostname ‘during, as part of, or in response to, a start-up or
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`power-up of the user computer.’” Ex. N (Rhyne Rebuttal Rep.) at ¶¶ 187, 211. The alleged basis
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`for Dr. Rhyne’s opinion, that “Dr. Freedman identifies no disclosure from Crowds,” is inaccurate.
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`Dr. Freedman identified disclosure in Crowds that “‘jondos will establish shared keys using Diffie-
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`Hellman key exchange’” where a “POSA would understand that Diffie-Hellman is a cryptographic
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`key-exchange protocol” such that “[t]he messages sent as part of that key exchange would include
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`the IP address of both sender and recipient, and thus the other jondo would receive a message from
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`the first jondo, during the first jondo’s initialization period, that includes the first jondo’s IP
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`address and port number.” Ex. K (Freedman Rep. App’x A) at 24-25; Ex. L (Freedman Rep.
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`App’x E) at 20-21. Dr. Rhyne provided no rebuttal of Dr. Freedman’s analysis. Ex. N (Rhyne
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`Rebuttal Rep.) at ¶¶ 187, 211.
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`2.
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`’319 Patent Claim 17 and ’510 Patent Claims 8-9
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`’319 Patent Claim 17 and ’510 Patent Claim 8 each recite “periodically communicating
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`[over the TCP connection] between the second server and the first client device.” Ex. G (’319
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`Patent) at Claim 17; Ex. H (’510 Patent) at Claim 8. Dr. Rhyne challenged Dr. Freedman’s
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`mapping, asserting in a single sentence without elaboration: “Dr. Freedman identifies no
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`disclosure from Crowds showing ‘periodically communicating’ between user computers.” Ex. N
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`(Rhyne Rebuttal Rep.) at ¶¶ 190, 212. The alleged basis for Dr. Rhyne’s opinion, that “Dr.
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`Freedman identifies no disclosure from Crowds,” is inaccurate. Dr. Freedman identifies disclosure
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`in Crowds that jondos “communicate via the HTTP protocol for the purpose of sending web
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`requests” and “the process of ‘periodically communicating’ was a standard and well-known feature
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`of devices communicating via HTTP.” Ex. K (Freedman Rep. App’x A) at 29-30; Ex. L (Freedman
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`103104467.1
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`- 14 -
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`Code200, UAB v. Bright Data Ltd.
`Code 200's Exhibit 1