Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 1 of 25
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MIDLAND/ODESSA DIVISION
`
`VIRTAMOVE, CORP.,
`
`Plaintiff,
`
`Case No. 7:24-CV-00033-ADA-DTG
`
`v.
`
`GOOGLE LLC
`
`Defendant.
`
`PLAINTIFF’S RESPONSIVE
`CLAIM CONSTRUCTION BRIEF
`
`1
`
`Google Exhibit 1067
`Google v. VirtaMove
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`

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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 2 of 25
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`TABLE OF CONTENTS
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`I.
`
`II.
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`Terms Primarily Appearing in U.S. Patent No. 7,519,814 ..................................................4
`“servers” (’814 claim 1) .................................................................................................4
`“operating system” (’814 claims 1, 10; ’058 claim 1) “kernel”/“operating system
`kernel” (’814 claim 1; ’058 claim 1) ..............................................................................7
`“disparate computing environments” (’814 claim 1) .....................................................8
`“service” (’814 claims 1, 14) .........................................................................................9
`“container” (’814 claims 1, 2, 4, 6, 9, 10, 13, 14) ........................................................10
`“at least some of the different operating systems/at least some of the plurality of
`different operating systems” (’814 claim 1)
`“memory accessible to at least some of the servers” (’814 claim 1) ...........................12
`“local kernel residing permanently on one of the servers” (’814 cl. 1) .......................13
`“secure containers of application software” (’814 claim 1) .........................................14
`“an operating system’s root file system” (’814 claim 1) .............................................15
`U.S. Patent No. 7,784,058..................................................................................................16
`“critical system elements” (claim 1) ............................................................................16
`“shared library” (claim 1) ............................................................................................18
`“some of the SLCSEs stored in the shared library….are accessible to some of the
`plurality of software applications / accessed by one or more of the plurality of
`software applications it” (‘058 cl. 1) ............................................................................20
`“functional replicas of OSCSEs” (claim 1) .................................................................22
`
`A.
`B.
`
`C.
`D.
`E.
`F.
`
`G.
`H.
`I.
`
`A.
`B.
`C.
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`D.
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 3 of 25
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`TABLE OF AUTHORITIES
`
`Cases
`i4i Ltd. v. Microsoft Corp.,
`598 F.3d 831 (Fed. Cir. 2010)................................................................................................... 13
`Interval Licensing LLC v. AOL, Inc.,
`766 F.3d 1364 (Fed. Cir. 2014)................................................................................................. 22
`JVW Enters., Inc. v. Interact Accessories,
`424 F.3d 1324 (Fed. Cir. 2005)................................................................................................... 6
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008)................................................................................................... 8
`OSRAM GmbH v. Int'l Trade Comm’n,
`505 F.3d 1351 (Fed.Cir.2007)................................................................................................... 17
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)............................................................................................. 9, 17
`Provisur Techs., Inc. v. Weber, Inc.,
`No. 2021-1851, 2022 WL 17688071 (Fed. Cir. Dec. 15, 2022) ............................................... 13
`Sonix Tech. Co. v. Publications Int’l, Ltd.,
`844 F.3d 1370 (Fed. Cir. 2017)................................................................................................. 22
`Thorner v. Sony Computer Ent. Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012)............................................................................................. 6, 11
`Statutes
`35 U.S.C. § 112, ¶ 6 ...................................................................................................................... 23
`
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 4 of 25
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`VirtaMove and Google offer not just competing claim-construction proposals, but very
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`different approaches to claim construction. In a case involving two patents and 15 asserted claims,
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`Google demands construction of a matrix of 13 individual claim terms. In some cases, Google
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`proposes inserting dozens of words taken from a popular dictionary, with no basis in the intrinsic
`
`record. In other cases, Google asserts indefiniteness, without providing clear and convincing
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`evidence of invalidity as required by Federal Circuit law. In other cases, Google cherry-picks
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`“lexicography” from the patent specification, distorting the patentee’s good faith efforts to inform
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`the scope and meaning of the invention. In each case, Google’s proposal should be rejected.
`
`I.
`
`Terms Primarily Appearing in U.S. Patent No. 7,519,814
`
`A.
`
`“servers” (’814 claim 1)
`
`Plaintiff’s Proposed Construction
`No construction necessary; plain and ordinary
`meaning.
`
`Defendant’s Proposed Construction
`physical servers
`
`The parties dispute whether the term “server” extends to all computers that a POSITA
`
`would describe as a “server”—i.e., the term’s plain and ordinary meaning—or whether the term
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`somehow excludes servers that incorporate virtual machine technology. See Dkt. 63 at 3-4 (arguing
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`against an infringement theory where containers run on “virtual machines”). VirtaMove believes
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`that no construction is necessary for two reasons.
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`First, the claim already makes clear that the claimed “servers” are hardware (because they
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`include hardware components such as a “processor”). Specifically, the claim recites “a plurality of
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`servers… wherein each server includes a processor….” ’814 Patent at cl. 1. A “virtual” system
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`cannot include hardware “a processor,” such that construing “server” to mean “physical server” is
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`simply redundant with other claim requirements.
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 5 of 25
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`Second, Google’s attempt to exclude a system where a container is running on a virtual
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`machine (even where that virtual machine is implemented on a physical server) is unsupported by
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`either the claim language or any other evidence. Google’s implied “no virtual machines”
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`construction has no basis in the intrinsic or extrinsic record and should be rejected.
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`Google’s key, if not only, evidence is the following passage from the patent specification:
`
`There are existing solutions that address the single use nature of computer systems.
`These solutions each have limitations, some of which this invention will address.
`Virtual Machine technology, pioneered by VmWare, offers the ability for multiple
`application/operating system images to effectively co-exist on a single compute
`platform. The key difference between the Virtual Machine approach and the
`approach described herein is that in the former an operating system, including files
`and a kernel, must be deployed for each application while the latter only requires
`one operating system regardless of the number of application containers deployed.
`The Virtual Machine approach imposes significant performance overhead.
`Moreover, it does nothing to alleviate the requirement that an operating system
`must be licensed, managed and maintained for each application. The invention
`described herein offers the ability for applications to more effectively share a
`common compute platform, and also allow applications to be easily moved between
`platforms, without the requirement for a separate and distinct operating system
`for each application.
`
`’814 Patent at 1:51-2:3.1 This passage does not support Google’s conclusion. The specification
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`describes the inability of conventional virtual machine technology, on its own, to solve the
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`problem of containerizing application sets. Specifically, putting each application set in its own
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`virtual machine, as was conventional, has significant downsides, including the requirement to
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`include an entire operating system for each individual application. The patented invention, on the
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`other hand, allows the use of “one operating system regardless of the number of application
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`containers deployed.” Id. at 2:60-61.
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`These are the distinctions over conventional virtual machine technology that are claimed
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`in the ’814 Patent. In particular, claim 1 requires that each claimed server has an operating system
`
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`1 All emphasis added unless otherwise noted.
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 6 of 25
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`with an operating system kernel, that each secure container of application software comprises
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`application software for use with a local kernel residing permanently on one of the servers, and—
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`critically—that the containers of application software cannot include a kernel. These limitations
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`exclude the conventional virtual machine solution described at 1:51-2:3, because in the
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`conventional solution each virtual machine contains its own operating system and its own kernel
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`and thus cannot be a “secure container of application software” as claimed.
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`But it is not prohibited for the server to contain its own operating system, and indeed that
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`is required. Nothing in the claim language or the specification precludes an embodiment where the
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`claimed server corresponds to a computer using virtual machine technology, with a processor and
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`operating system and kernel as claimed, and where a plurality of secure containers of application
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`software as claimed (without their own operating system and kernel, also as claimed) are stored
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`within the server’s memory. Such an embodiment is entirely consistent with the claim context and
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`the specification, because it continues to exclude the need for a separate and distinct operating
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`system for each application, application set, or container. And even if this embodiment does not
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`use a virtual machine, that incidental aspect of the embodiment cannot become a claim limitation
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`without lexicography or disclaimer, which are absent here. JVW Enters., Inc. v. Interact
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`Accessories, 424 F.3d 1324, 1335 (Fed. Cir. 2005) (Without clear and unambiguous disclaimer or
`
`lexicography, courts “do not import limitations into claims from examples or embodiments
`
`appearing only in a patent’s written description, even when a specification describes very specific
`
`embodiments of the invention or even describes only a single embodiment.”). “Mere criticism of
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`a particular embodiment encompassed in the plain meaning of a claim term is not sufficient to rise
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`to the level of clear disavowal” sufficient to define claim scope. Thorner v. Sony Computer Ent.
`
`Am. LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012).
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 7 of 25
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`Google also states that the specification teaches that virtual machine technology “provides
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`virtual hardware.” Dkt. 63 at 3. This statement has no textual support. The phrase “virtual
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`hardware” does not appear in the patent, nor is there any plausible reference to “virtual hardware”
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`in the cited passage or anywhere else in the specification. Again, the parties agree that a physical
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`processor is required. In sum, Google does not and cannot explain why the inclusion of additional
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`virtual machine technology in its servers negates infringement. Notably, Google does not allege
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`that any of the intrinsic evidence it relies on constitutes disclaimer, which would be required for
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`Google’s attempt to deviate from plain and ordinary meaning in contending that if a container is
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`implemented on a virtual machine which is itself implemented by a server, that container does not
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`reside on any “server.”
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`B.
`
`
`“operating system” (’814 claims 1, 10; ’058 claim 1)
`“kernel”/“operating system kernel” (’814 claim 1; ’058 claim 1)
`
`Plaintiff’s
`Proposed
`Construction
`No construction
`necessary; plain
`and ordinary
`meaning.
`
`Defendant’s Proposed Construction
`
`“operating system”: “The software that controls the allocation and usage of
`hardware resources such as memory, central processing unit (CPU) time,
`disk space, and peripheral devices.”
`“kernel”/“operating system kernel”: “The core of an operating system—
`the portion of the system that manages memory, files, and peripheral
`devices; maintains the time and date; launches applications; and allocates
`system resources.”
`
`Each of these terms has a plain and ordinary meaning, and the specification and claims of
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`both the ’814 and ’058 Patents uses the terms in their plain and ordinary sense. Google admits that
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`“the asserted patents use ‘operating system’ and ‘kernel’/‘operating system kernel’ according to
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`their conventional meanings.” Dkt. 63 at 4. There is no reason to engage in redundant, unhelpful
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`construction of these terms.
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 8 of 25
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`Google’s basic argument is that construction is necessary because VirtaMove does not
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`agree to Google’s demand to insert additional, redundant, confusing language glossed from a
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`Microsoft publication. That is not the law. The Court’s obligation is to resolve actual disputes
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`“regarding the proper scope of these claims.” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
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`521 F.3d 1351, 1360 (Fed. Cir. 2008) (emphasis added). Google does not and cannot identify any
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`dispute regarding the scope of either of these terms. VirtaMove opposes construction because these
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`are poor definitions that will be confusing, not helpful, to a jury. For example, the extraneous non-
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`limiting examples (“such as…”; “memory, files, and peripheral devices…”) provide, at best,
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`context rather than defining the metes and bounds of the claim scope. As another example, it is
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`well known that software other than operating systems can “control the allocation and usage of
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`hardware resources such as memory,” as it is common for individual applications to have their
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`own memory management capabilities. Because these terms have a plain meaning, and further
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`because Google’s proposals fail to accurately capture this plain meaning, Google’s proposed
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`constructions should be rejected.
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`C.
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`“disparate computing environments” (’814 claim 1)
`
`Plaintiff’s Proposed Construction
`Environments run by standalone or unrelated
`computers
`
`Defendant’s Proposed Construction
`indefinite
`
`Google argues that this phrase is indefinite because the definition refers to “unrelated”
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`computers while the claim requires, in Google’s own contention, the computers must be “related,”
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`creating a contradiction. This does not show indefiniteness.
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`As Google acknowledges, the claim context does not allow for two computers to be
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`“unrelated” because they must be “part of a single ‘system.’” In other words, Google acknowledges
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`that the “unrelated” portion of the specification’s description of “disparate computing
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 9 of 25
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`environments” cannot fit into the broader context of the claim language. Because the claim as a
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`whole undisputedly cannot extend to “unrelated” computers, only the “standalone” portion of that
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`description could be relevant to the scope of the claims as a whole. See Phillips v. AWH Corp.,
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`415 F.3d 1303, 1313 (Fed. Cir. 2005) (“Importantly, the person of ordinary skill in the art is
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`deemed to read the claim term … in the context of the particular claim in which the disputed term
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`appears….”).
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`Accordingly, the only relevant inquiry (in the context of the claim as a whole) is whether
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`environments run by standalone computers is indefinite. Google presents no evidence that a
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`POSITA would be unable to understand the boundaries of standalone computers, which is a
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`common phrase used to indicate the ability of computers to operate independently of each other.
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`Google’s narrow focus on computers being “unrelated” (a scenario that Google acknowledges is
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`simply inapplicable in the context of the asserted claims) ignores whether “standalone” computers
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`can be understood to a POSITA, and Google presents no evidence at all that standalone computers
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`would not be understood.
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`D.
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`“service” (’814 claims 1, 14)
`
`Plaintiff’s Proposed Construction
`No construction necessary; plain and ordinary
`meaning.
`
`Defendant’s Proposed Construction
`“specialized, software-based functionality
`provided by network servers and comprised
`of one or more applications”
`
`As with “operating system,” Google again simply demands to insert a redundant definition
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`of the ordinary word “service,” taken from a commercial publication from Microsoft, without
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`identifying any reason for the construction.
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`“specialized”: There is no basis to limit the scope of “service” to only “specialized”
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`services. It is not clear what Google believes “specialized” means here, but the patent specification
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`plainly discloses that the invention extends to all services, not merely specialized services. The
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 10 of 25
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`patent specification states that “Examples of specific services include but are not limited to CRM
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`(Customer Relation Management) tools, Accounting, and Inventory” (’814 Patent at 7:16-51);
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`other examples in the specification include the remote login service “ssh” (id. at 10:49-50), and an
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`“accounting/payroll service” (id. at 16:11-16). None of these are necessarily “specialized.”
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`“provided by network servers”: This phrase is confusing at best. “Servers” is a claim term,
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`and the existing claim language recites a specific relationship between servers, containers,
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`applications, and services.
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`“comprised of one or more applications”: Setting aside the nonstandard usage “comprised
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`of,” this phrase confuses the claimed relationship between applications and services. The claim
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`recites that each container comprises one or more executable applications, that the applications are
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`“related to a service,” and that the applications “each include an object executable… for
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`performing a task related to the service.” ’814 Patent cl. 1. It is the container, not the service, that
`
`comprises applications.
`
`E.
`
`“container” (’814 claims 1, 2, 4, 6, 9, 10, 13, 14)
`
`Plaintiff’s Proposed
`Construction
`An aggregate of files required
`to successfully execute a set of
`software applications on a
`computing platform. Each
`container for use on a server is
`mutually exclusive of the other
`containers, such that read/write
`files within a container cannot
`be shared with other containers.
`
`Defendant’s Proposed Construction
`
`An aggregate of files required to successfully execute a set
`of software applications on a computing platform is referred
`to as a container. A container is not a physical container
`but a grouping of associated files, which may be stored in
`a plurality of different locations that is to be accessible to,
`and for execution on, one or more servers. Each container
`for use on a server is mutually exclusive of the other
`containers, such that read/write files within a container
`cannot be shared with other containers; or above and 2:32-
`42
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`The ’814 Patent specification includes a broad explanation of how a “container” fits within
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`the context of the claimed invention. Although described as a “definition,” in substance the
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`patentee provided an encyclopedia entry, which cannot reasonably be interpreted as pure
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 11 of 25
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`lexicography, and which would serve only to confuse the jury by substituting a single word in a
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`claim with nearly 100 words of redundant examples of how containers may be implemented.
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`Indeed, Google itself omits entire sentences from the supposed “definition” set forth in the
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`specification, confirming that a POSITA would not understand the entirety of its discussion of
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`“container” to be lexicography.
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`Nor could Google have shown that the “exacting” standard for lexicography is met. “To
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`act as its own lexicographer, a patentee must ‘clearly set forth a definition of the disputed claim
`
`term’ other than its plain and ordinary meaning.” Thorner v. Sony Computer Ent. Am. LLC, 669
`
`F.3d 1362, 1365 (Fed. Cir. 2012). And “[t]he standard for disavowal of claim scope is similarly
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`exacting. Id. The fact that high bar for lexicography is not met here is confirmed not only by the
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`non-definitional nature of the specification’s discussion of a “container,” but also by the fact that
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`two different defendants attempt to apply the alleged “lexicography” in completely different ways.
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`In particular, the Amazon defendants apply the alleged “lexicography” of the specification
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`to provide a substantially different proposed “definition” of “container.” VirtaMove Corp. vs.
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`Amazon.com, Inc, et al., Case No. 7:24-cv-00030-DC-DTG, Dkt. No. 71 at 5-6 (W.D. Tex. Oct.
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`22, 2024). The only overlap between Google’s and Amazon’s proposed constructions is the first
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`sentence “An aggregate of files…” and the sentence “Each container for use on a server is mutually
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`exclusive….” Id. These disagreements confirm that the entire specification’s explanation of
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`containers need not be part of the construction of “container” Regardless of how the Court
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`construes “container,” Plaintiff requests that the Court enter identical constructions in both the
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`Google and Amazon actions. Plaintiff believes that the plain and ordinary meaning of “container”
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`applies and is generally consistent with the only two sentences that both Google and Amazon have
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`both proposed as being definitional.
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 12 of 25
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`Google also argues that, without construction, “container” could include “operating
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`systems, kernels, or, by its terms, any files that are collectively needed to run any set of applications
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`on a computer. Dkt. 63 at 10. That is textually false. Claim 1 expressly recites “the containers of
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`application software excluding a kernel,” which specifically prevents identifying either a kernel
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`or an operating system (which, by definition, includes a kernel) as the claimed “container.” ’814
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`Patent cl. 1.
`
`F.
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`“at least some of the different operating systems/at least some of the plurality
`of different operating systems” (’814 claim 1)
`
`“memory accessible to at least some of the servers” (’814 claim 1)
`
`Term
`
`At least some of the
`different operating
`systems/At least some of
`the plurality of different
`operating systems
`Memory accessible to at
`least some of the servers
`
`Plaintiff’s Proposed
`Construction
`No construction necessary;
`plain and ordinary meaning.
`
`memory that at least some of
`the servers can read from or
`write to
`
`Defendant’s Proposed
`Construction
`at least two or more of the
`different operating systems / at
`least two or more of the
`plurality of different operating
`systems
`memory that at least two or
`more of the servers can read
`from or write to
`
`Google’s own dictionary definition of the pronoun “some” confirms its plain and ordinary
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`meaning as “an indefinite quantity or indefinite number of people or things.” Dkt. 63-7 at 6.
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`“Indefinite quantity” does not mean “a quantity of two or more.” Furthermore, the same dictionary
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`entry, under the adjectival sense of the word, confirms that “some” modifies “a person or persons
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`not specified” or “one or several of a number of unspecified alternatives,” expressly confirming
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`the basic understanding that “some” means “one or more,” not “two or more.” Id.
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`Rejecting the plain and ordinary meaning of “some,” Google seeks to limit the claim scope
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`to “two or more.” This narrowing is unsupported. Google seizes on a statement in the specification
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`that the invention beneficially allows portability between platforms. Dkt. 63 at 11 (quoting ’814
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 13 of 25
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`Patent at 1:65-2:3). But it is black-letter law that “not every benefit flowing from an invention is a
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`claim limitation.” i4i Ltd. v. Microsoft Corp., 598 F.3d 831, 843 (Fed. Cir. 2010). And specifically,
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`statements in the specification “touting the benefits of the invention” cannot limit the claim scope
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`unless they “provide a definition or constitute a clear and unmistakable disclaimer.” Provisur
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`Techs., Inc. v. Weber, Inc., No. 2021-1851, 2022 WL 17688071, at *3 (Fed. Cir. Dec. 15, 2022).
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`Google does not contend, and cannot show, that the specification excerpt provides a definition of
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`“some” or constitutes clear and unmistakable disclaimer.
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`G.
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`“local kernel residing permanently on one of the servers” (’814 cl. 1)
`
`Plaintiff’s Proposed Construction
`No construction necessary; plain and ordinary
`meaning.
`
`Defendant’s Proposed Construction
`local kernel in one of the server’s memory
`that is not lost when power is removed from it
`
`Again, here Google seeks to add extraneous words and concepts that are not present in the
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`claim language or specification. Google’s repeated reference to “the intrinsic evidence” merely
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`highlights that Google does not and cannot identify any actual intrinsic support for its construction.
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`See Dkt. 63 at 12-13 (no citations to the patent, file history, etc.). Google does not even use a
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`dictionary definition of “permanent,” instead making up an attorney-drafted pseudo-definition
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`without either intrinsic or extrinsic support (“persistent or nonvolatile memory”, id. at 13) and then
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`looking to unrelated dictionary definitions to shore up its creativity. The concept of removing
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`power from a server’s memory appears nowhere in the patent claims or specification; nor do the
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`terms or concepts “volatile” and “nonvolatile.” The claims do not recite any “server’s memory”;
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`is Google referring to the claimed “memory accessible to at least some of the servers”? If not,
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`Google is apparently inserting a new structural limitation. “Permanent” is a plain and ordinary
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`word used in its plain and ordinary sense, and it does not need redefinition.
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 14 of 25
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`Moreover, Google’s definition potentially requires some prediction about what will happen
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`when “power is removed” from a system, with no guidance as to how the power is removed or
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`under what circumstances. As Google’s own evidence shows, a POSITA would generally know
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`the difference between “permanent” and “temporary” storage, such that the plain meaning of
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`“permanently residing” should be applied.
`
`H.
`
`“secure containers of application software” (’814 claim 1)
`
`Plaintiff’s Proposed Construction
`Containers where each application set
`appears to have individual control of some
`critical system resources and/or where data
`within each application set is insulated from
`effects of other application sets
`
`Defendant’s Proposed Construction
`environments where each application set
`appears to have individual control of some
`critical system resources and/or where data
`within each application set is insulated from
`effects of other application sets
`
`The phrase “secure containers of application software” provides the antecedent basis for
`
`all appearances of “container” throughout the claims. Google demands to replace the word
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`“container” with “environment.” But “container” is also itself a claim term that Google is asking
`
`the Court to construe. If a “secure container” is not a “container,” then the Court should not
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`construe “container” at all; and if the Court construes “container,” it should not remove that word
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`from the claim.
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`Google’s appeal to lexicography does not require the Court to introduce a new textual
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`inconsistency into the claim. The parties agree on the substance of the lexicography, i.e., the
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`patent’s description about control of resources and insulation from the effects of other containers.
`
`And in context, a “secure application container” is certainly a type of “container.” The patentee
`
`defined a “secure application container” as a particular type of environment, i.e., an environment
`
`where application sets have certain relationships. This simply confirms that a secure application
`
`container is a type of environment, consistent with the rest of the specification and claim language;
`
`it does not mean that a secure application container is not a container. Consider a counterfactual
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 15 of 25
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`definition of “secure operating system” as “software where security breaches are prevented.”
`
`Clearly “software” is broader than “operating system,” but that does not mean that a “secure
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`operating system” can be satisfied by software that is not an operating system.
`
`I.
`
`“an operating system’s root file system” (’814 claim 1)
`
`Plaintiff’s Proposed Construction
`No construction necessary; plain and ordinary
`meaning.
`
`Defendant’s Proposed Construction
`Indefinite
`
`The claim recites “In a system having a plurality of servers with operating systems that
`
`differ… each of the containers ha[ving] a unique root file system that is different than an operating
`
`system’s root file system.” As VirtaMove explained during the meet and confer with Google, this
`
`term only has one possible meaning—it means that the root file system of each container must be
`
`different than each operating system’s root file system.
`
`This is the only plausible interpretation of the claim language because a POSITA would
`
`readily understand that each operating system has a different root file system. For example, five
`
`different operating systems might have root file systems “A,” “B,” C,” “D,” and “E,” respectively.
`
`If we ask whether a given container has a root file system different from any of those root file
`
`systems A-E, the answer will always be “yes.” For example, if the container had root file system
`
`“A,” it would be different from root file systems B-E. Likewise, if the container had root file
`
`system “E,” it would be different from root file systems A-D. And if the container had root file
`
`system “F,” it would be different from root file systems A-E.
`
`A POSITA would readily understand, in context, that if a container’s unique root file
`
`system is the same as an operating system’s root file system” (i.e., it is the same as any operating
`
`system’s root file system), that container’s root file system is not “different from an operating
`
`system’s root file system.” This is the only way to give meaning to this limitation. For example,
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`Case 7:24-cv-00033-DC-DTG Document 65 Filed 11/12/24 Page 16 of 25
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`Google does not allege that the claims identify a single operating system’s root file system that
`
`must be examined. And Google cannot dispute that if a container’s root file system had to be
`
`different from “at least one” of an operating system’s root file system, then that limitation would
`
`always be satisfied. Accordingly, this claim term is not indefinite. If the Court believes a
`
`construction is necessary, it should be construed to mean “each of the containers has a unique root
`
`file system that is not the same as any operating system’s root file system.”
`
`II.
`
`U.S. Patent No. 7,784,058
`
`A.
`
`“critical system elements” (claim 1)
`
`Plaintiff’s Proposed Construction
`Any service or part of a service, “normally” supplied
`by an operating system, that is critical to the operation
`of a software application.
`
`Defendant’s Proposed Construction
`Indefinite
`
`Contrasting with Google’s other “lexicography” proposals, the ’058 Patent does provide
`
`an unambiguous definition of the phrase “critical system element[s],” stating what a CSE is rather
`
`than providing examples or embodiments. There are two elements: that the CSE is “‘normally’
`
`supplied by an operating system” and that it is “critical to the operation of a software application.”
`
`Regarding “normal,” the patent specification provides further context, explaining: “It is
`
`traditionally the task of an operating system to provide mechanisms to safely and effectively
`
`control access to shared resources. In some instances the centralized control of elements, critic