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Implicit, LLC v. Trend Micro, Inc.

United States District Court, E.D. Texas, Tyler Division

March 29, 2017

Implicit, LLC, Plaintiff,
v.
Trend Micro, Inc., Defendant.

          CLAIM CONSTRUCTION MEMORANDUM OPINION AND ORDER

          RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE

         Before the Court is the opening claim construction brief of Implicit, LLC (“Plaintiff”) (Dkt. No. 101, filed on January 17, 2017), [1] the response of Trend Micro, Inc., Ericsson Inc., and Huawei Technologies USA, Inc. (collectively “Defendants”) (Dkt. No. 103, filed on January 31, 2017), and the reply of Plaintiff (Dkt. No. 106, filed on February 10, 2017). The Court held a hearing on the issues of claim construction and claim definiteness on February 28, 2017. Having considered the arguments and evidence presented by the parties at the hearing and in their briefing, the Court issues this Order.

         Table of Contents

         I. BACKGROUND ............................................................................................................... 3

         A. The Demultiplexing Patents .................................................................................... 4

         A-1. Technology ................................................................................................. 4

         A-2. Related Litigation ........................................................................................ 5

         B. The Applet Patents .................................................................................................. 6

         II. LEGAL PRINCIPLES ..................................................................................................... 9

         A. Claim Construction ................................................................................................. 9

         B. Departing from the Ordinary Meaning of a Claim Term ...................................... 11

         III. AGREED CONSTRUCTIONS ...................................................................................... 12

         IV. CONSTRUCTION OF DISPUTED TERMS ............................................................... 13

         A. The Demultiplexing Patents .................................................................................. 13

         A-1. “sequence of routines” and “sequence of two or more routines” ............. 13

         A-2. “processing packets” and “process … packets” ........................................ 20

         A-3. “create” ..................................................................................................... 23

         A-4. “the packet of the message” ...................................................................... 24

         A-5. “list of conversion routines” ..................................................................... 28

         B. The Applet Patents ................................................................................................ 30

         B-1. “form of the application” .......................................................................... 30

         B-2. “resource” ................................................................................................. 34

         B-3. “generating the identified form of the application from another form of the application” and “generated the identified form of the application from another form of the application” ................................... 37

         B-4. “source code that is in a form based on the specified one or more client parameters for the first client computer” ........................................ 40

         B-5. “a specific form of the particular applet that includes source code, based on the specified one or more parameters in the applet request, wherein the specific form complies with the specified one or more parameters” .................................................................................. 42

         B-6. “transformation operation” ....................................................................... 43

         V. CONCLUSION ............................................................................................................... 45

         I. BACKGROUND

         Plaintiff alleges infringement of five U.S. Patents: No. 6, 324, 685 (the “'685 Patent”), No. 8, 694, 683 (the “'683 Patent”), No. 8, 856, 779 (the “'779 Patent”), No. 9, 270, 790 (the “'790 Patent”), and No. 9, 325, 740 (the “'740 Patent”) (collectively, the “Asserted Patents”). The '685 Patent is entitled “Applet Server That Provides Applets in Various Forms.” The application leading to the '685 Patent was filed on March 18, 1998 and the patent issued on November 27, 2001. The '683 Patent is entitled “Method and System for Data Demultiplexing.” The application leading to the '683 Patent was filed on June 6, 2013 and the patent issued on April 8, 2014. The '779 Patent is entitled “Application Server for Delivering Applets to Client Computing Devices in a Distributed Environment.” The application leading to the '779 Patent was filed on October 10, 2011 and the patent issued on October 7, 2014. The '790 Patent is entitled “Method and System for Data Demultiplexing.” The application leading to the '790 Patent was filed on March 31, 2014 and the patent issued on February 23, 2016. The '740 Patent is entitled “Application Server for Delivering Applets to Client Computing Devices in a Distributed Environment.” The application leading to the '740 Patent was filed on October 6, 2014 and the patent issued on April 26, 2016.

         The Asserted Patents are part of two patent families: the Demultiplexing Patents (the '683 Patent and the '790 Patent) and the Applet Patents (the '685 Patent, the '779 Patent, and the '740 Patent). With respect to the Demultiplexing Patents: The '790 Patent claims priority to the '683 Patent's application as a continuation. Through a series of continuation applications, the '790 Patent and the '683 Patent each claim priority to an application filed on December 29, 1999 and issued as U.S. Patent No. 6, 629, 163 (the “'163 Patent”). With Respect to the Applet Patents: The '740 Patent claims priority to the '779 Patent's application as a continuation. The '740 Patent and the '779 Patent each claim priority to the application that issued as the '685 Patent, through a series of continuation applications.

         A. The Demultiplexing Patents

         A-1. Technology

         The Demultiplexing Patents are generally directed to technology for computer message-exchange processing and more specifically to technology for dynamically converting the form of the messages as the messages are being exchanged.

         The abstract of the '683 Patent provides:

A method and system for demultiplexing packets of a message is provided. The demultiplexing system receives packets of a message, identifies a sequence of message handlers for processing the message, identifies state information associated with the message for each message handler, and invokes the message handlers passing the message and the associated state information. The system identifies the message handlers based on the initial data type of the message and a target data type. The identified message handlers effect the conversion of the data to the target data type through various intermediate data types.

         The abstract of the '790 Patent provides:

A method and system for demultiplexing packets of a message is provided. The demultiplexing system receives packets of a message, identifies a sequence of message handlers for processing the message, identifies state information associated with the message for each message handler, and invokes the message handlers passing the message and the associated state information. The system identifies the message handlers based on the initial data type of the message and a target data type. The identified message handlers effect the conversion of the data to the target data type through various intermediate data types.

         Claim 1 of the '683 Patent, provided here as an example, recites:

1. A first apparatus for receiving data from a second apparatus, the first apparatus comprising:
a processing unit; and
a memory storing instructions executable by the processing unit to:
create, based on an identification of information in a received packet of a message, a path that includes one or more data structures that indicate a sequence of routines for processing packets in the message; store the created path; and
process subsequent packets in the message using the sequence of routines indicated in the stored path, wherein the sequence includes a routine that is used to execute a Transmission Control Protocol (TCP) to convert one or more packets having a TCP format into a different format.

         Claim 8 of the '790 Patent, provided here as an example, recites:

8. An apparatus, comprising:
a processing unit; and
a memory storing instructions executable by the processing unit to:
receive one or more packets of a message; identify, using an IP address and one or more port addresses located in one of the received packets, a sequence of two or more routines for processing packets in the message; and
process the one or more received packets using the identified sequence of routines, wherein the sequence includes a routine that is executable to perform a Transmission Control Protocol (TCP) to convert at least one of the packets of the message into a different format.

         A-2. Related Litigation

         Two of the Demultiplexing Patents have previously been litigated in the U.S. District Court for the Northern District of California. That court construed the '163 Patent in Implicit Networks, Inc. v. F5 Networks, Inc., No. 3:10-cv-3365-SI, 2012 U.S. Dist. LEXIS 27238 (N.D. Cal. Feb. 29, 2012) (“F5 Networks I”). The California court later construed the '683 Patent in Implicit L.L.C. v. F5 Networks, Inc., No. 3:14-cv-2856-SI, 2015 U.S. Dist. LEXIS 60197 (N.D. Cal. May 6, 2015) (“F5 Networks II”). The F5 Networks I and F5 Networks II constructions relate to the “sequence of routines, ” “sequence of two or more routines” and “list of conversion routines” limitations of the Asserted Patents.

         In F5 Networks I, the court construed the term “non-predefined sequence of components” found in claims of the '163 Patent. First, the court held that the term “components” was defined in the '163 Patent to mean “software routines.” 2012 U.S. Dist. LEXIS 27238, at *9-10. Then the court determined that a description of the prior art found in the '163 Patent and patent-owner statements made during reexamination of the '163 Patent amounted to disclaimer of preconfigured sequences of software routines. Id. at *10-13. Thus, the court construed “non-predefined sequence of components” as “a sequence of software routines that was not identified before the first packet of a message was received.” Id. at *13.

         In F5 Networks II, the court construed the terms “sequence of routines” and “list of conversion routines” found in claims of the '683 Patent. These terms are presently before the Court, as is the similar term “sequence of two or more routines” from the '790 Patent. The F5 Networks II court determined that the disclaimer of preconfigured sequences of software routines was tied to the invention described in the '163 Patent-and not limited to specific language recited in the claims of the '163 Patent. 2015 U.S. Dist. LEXIS 60197, at *9-12. F5 Networks II reiterated its analysis of the description of the prior art in the '163 and '683 Patents and the patent owner's explanation of that disavowal in the reexamination of the '163 Patent. Id. at *34-37 (noting that the patent owner “devoted an entire section of its [reexamination] response to further explain these prior art disavowals in the first column of the specification shared by the '163 and '683 patents”). Ultimately, F5 Networks II held that the patent owner “made it definitively clear to the PTO and the public that the sequence of routines (or ‘path') as disclosed in the '163 patent specification is not configured before receiving the first packet of a message” and that this disclaimer applies equally to the '683 Patent. Id. at *37-39. The court construed “sequence of routines” and “list of conversion routines” as “a sequence of software routines that was not identified (i.e., configured) prior to receiving a first packet of the message” and “a list of software routines that was not identified (i.e., configured) prior to receiving a first packet of the message, ” respectively. Id. at *42.

         B. The Applet Patents

         In general, the Applet Patents are directed to server technology for providing applets and applications to a client computer.

         The abstract of the '685 Patent provides:

The present invention is an applet server which accepts requests for applets from client computers. A request specifies the format in which an applet is to be delivered to the requesting client computer. The applet server has a cache which it uses to store applets for distribution to client computers. If the specified form of the requested applet is available in the cache, the applet server transmits the applet to the requesting client. If the applet is not available in the cache, the server will attempt to build the applet from local resources (program code modules and compilers) and transformer programs (verifiers and optimizers). If the applet server is able to build the requested applet, it will then transmit the applet to the requesting client computer. If the applet server is unable to build the requested applet, it will pass the request to another applet server on the network for fulfillment of the request.

         The abstract of the '779 Patent provides:

An applet server accepts requests for applets from client computers. A request specifies the format in which an applet is to be delivered to the requesting client computer. The applet server has a cache used to store applets for distribution to client computers. If the specified form of the requested applet is available in the cache, the applet server transmits the applet to the requesting client. If the applet is not available in the cache, the server will attempt to build the applet from local resources (program code modules and compilers) and transformer programs (verifiers and optimizers). If the applet server is able to build the requested applet, it will transmit the applet to the requesting client computer. If the applet server is unable to build the requested applet, it will pass the request to another applet server on the network for fulfillment of the request.

         The abstract of the '740 Patent provides:

An applet server accepts requests for applets from client computers. A request specifies the format in which an applet is to be delivered to the requesting client computer. The applet server has a cache used to store applets for distribution to client computers. If the specified form of the requested applet is available in the cache, the applet server transmits the applet to the requesting client. If the applet is not available in the cache, the server will attempt to build the applet from local resources (program code modules and compilers) and transformer programs (verifiers and optimizers). If the applet server is able to build the requested applet, it will transmit the applet to the requesting client computer. If the applet server is unable to build the requested applet, it will pass the request to another applet server on the network for fulfillment of the request.

         Claim 1 of the '685 Patent, provided here as an example, recites:

1. A method in a server computer for providing applications to client computers, the method comprising:
receiving a request from a client computer, the request identifying an application and identifying a form of the application, the identified form being one of a plurality of available forms; in response to receiving the request,
generating the identified form of the application from another form of the application; and
sending the identified form of the application to the client computer; and caching the identified form of the application so that when another request is received for the application in the identified form, the identified form of the application can be sent without regenerating the identified form of the application.

         Claim 12 of the '779 Patent, provided here as an example, recites:

12. A non-transitory computer-readable storage medium having stored thereon instructions that are executable to cause a computer system to perform operations comprising:
receiving an applet request from a first client computer for a particular applet, wherein the applet request specifies one or more parameters for the particular applet that are based on one or more characteristics of the client computer; acquiring a specific form of the particular applet that includes source code, based on the specified one or more parameters in the applet request, wherein the specific form complies with the specified one or more parameters; and sending the specific form of the particular applet to the first client computer in response to the applet request.

         Claim 1 of the '740 Patent, provided here as an example, recites:

1. A non-transitory computer-readable storage medium having stored thereon instructions that are executable to cause a computer system to perform operations comprising:
receiving, at the computer system, a first HTTP request from a first client computer for a resource, wherein the resource includes source code; producing, by the computer system, the resource for the first client computer, wherein the producing includes:
conveying, by the computer system, a request for the resource to an external network;
receiving, at the computer system, the resource from the external network; and performing, by the computer system, a transformation operation on the resource; and sending, by the computer system, the produced resource to the first client computer in response to the first HTTP request.

         II. LEGAL PRINCIPLES

         A. ...


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