SAM SPARKS, District Judge.
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled causes, and specifically Plaintiff Crossroads Systems, Inc. (Crossroads)'s Opening Claim Construction Brief [# 82];
This case is a patent infringement suit brought by Crossroads against Defendants. At issue are four patents: (1) United States Patent No. 6,425,035 (the '035 Patent); (2) United States Patent No. 7,934,041 (the '041 Patent); (3) United States Patent No. 7,051,147 (the '147 Patent); and (4) United States Patent No. 7,987,311 (the '311 Patent).
The Court has previously encountered this family of patents on multiple occasions and actually construed many of the claim telins at issue in the present case in those previous encounters. First, the Court construed the '972 Patent in Crossroads Systems, (Texas), Inc. v. Chaparral Network Storage, Inc., No. A-00-CA-217-SS (W.D. Tex. 2000) (the Chaparral Litigation). Second, the Court construed the '972 Patent and the '035 Patent in Crossroads Systems, (Texas), Inc. v. Dot Hill Systems Corporation, No. A-03-CA-754-SS (W.D. Tex. 2003) (the Dot Hill Litigation). Third, the Court construed the '035 Patent in Crossroads Systems, Inc. v. 3Par, Inc., No. 1:10-CV-652-SS (W.D. Tex. 2010) (the 3Par Litigation). In the 3Par Litigation, Special Master Karl Bayer (also appointed in the present case) issued a Report and Recommendation regarding the '147 Patent, but because the claims relating to that patent were dismissed prior to the Court's Markman order, the Court did not consider the proposed constructions relating to the '147 Patent. While they do not have preclusive effect, the Court's previous constructions are highly persuasive in the present case, especially where there is no new argument or evidence to justify a change in position. See Collegenet, Inc. v. XAP Corp., No. CV-03-1229, 2004 WL 2429843, at *6 (D. Or. Oct. 29, 2004) ("[T]o the extent neither party raises new arguments, I defer to the prior claim constructions . . . and even in the presence of new arguments . . . give `considerable weight' to my previous claim constructions") (citing KX Indus., L.P. v. PUR Water Purification Prods., Inc., 108 F.Supp.2d 380, 387 (D. Del. 2000), aff'd, 18 F. App'x 871 (Fed. Cir. 2001) (unpublished)).
The Court, through Special Master Bayer, held the Markman hearing on October 6-7, 2014. The Special Master issued his Report and Recommendation on claim construction on February 23, 2015. To the extent the parties have made specific objections to the Special Master's factual findings or legal conclusions, they are entitled to de novo review of those findings and conclusions. FED. R. Cry. P. 53(f).
When construing claims, courts begin with "an examination of the intrinsic evidence, i.e., the claims, the rest of the specification and, if in evidence, the prosecution history." CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002); see also Interactive Gift Express, Inc. v. Compuserve Inc., 256 F.3d 1323, 1327 (Fed. Cir. 2001).
The words in the claims themselves are of primary importance in the analysis, as the claim language in a patent defines the scope of the invention. SRI Int'l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en Banc). The words of a claim "are generally given their ordinary and customary meaning." Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). "[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application."
The specification also plays a significant role in the analysis. Id. at 1315. The Federal Circuit has repeatedly reaffirmed the principle that the specification "is always highly relevant. . . . Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). In interpreting the effect the specification has on the claim limitations, however, courts must pay special attention to the admonition that one looks "to the specification to ascertain the meaning of the claim term as it is used by the inventor in the context of the entirety of his invention, and not merely to limit a claim term." Interactive Gift, 256 F.3d at 1332 (internal quotation marks and citations omitted).
The final form of intrinsic evidence the Court may consider is the prosecution history. Although the prosecution history "represents an ongoing negotiation between the PTO and the applicant" and therefore "often lacks the clarity of the specification and thus is less useful for claim construction purposes," it can nonetheless "often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be." Phillips, 415 F.3d at 1317.
Aside from the intrinsic evidence, the Court may also consult "extrinsic evidence," which is "all evidence external to the patent and prosecution history, including expert and inventor testimony, dictionaries, and learned treatises." Id. While extrinsic evidence "can shed useful light on the relevant art," the Federal Circuit has explained it is "less significant than the intrinsic record in determining `the legally operative meaning of claim language.' Id, at 1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). Extrinsic evidence in the form of expert testimony may be useful to a court for "a variety of purposes, such as to provide background on the technology at issue, to explain how an invention works, to ensure that the court's understanding of the technical aspects of the patent is consistent with that of a person of skill in the art, or to establish that a particular term in the patent or the prior art has a particular meaning in the pertinent field." Id. at 1318. However, conclusory, unsupported assertions by an expert as to the definition of a claim tern" are not useful, and should be discounted. Id. In general, extrinsic evidence is considered "less reliable than the patent and its prosecution history in determining how to read claim tell is," although it may be helpful. Id.
The purpose of claim construction is to "`determin[e] the meaning and scope of the patent claims asserted to be infringed.' 02 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir. 1995), aff'd, 517 U.S. 370 (1996)). Thus, "[w]hen the parties raise an actual dispute regarding the proper scope of these claims, the court, not the jury, must resolve that dispute." Id. However, "district courts are not (and should not be) required to construe every limitation present in a patent's asserted claims." Id. at 1362. For example, no construction is required if the requested construction would be "`an obligatory exercise in redundancy,'" or if the "disputed issue [is] the proper application of a claim term to an accused process rather the scope of the term." Id. (quoting U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997)).
The Special Master's recommended constructions are as follows:
To the extent the parties have not objected to the Special Master's constructions of certain claim terms, the Court accepts the Special Master's recommendations as to those claim terms without further comment. These terms are: "first transport medium/first [Fibre Channel] transport medium"; "second transport medium/second [Fibre Channel] transport medium"; "LUN"; and "in a manner [that is] transparent to [. . .] the devices."
The Court now turns to the parties' specific objections.
The Special Master recommended this term be defined by the remainder of the claim and not be further construed. Defendants object and argue the term should be limited to the following definition: "A device that routes storage requests from initiator devices/workstations on one transport medium to target storage devices on the other transport medium and routes data between the initiator devices/workstations and target storage devices." Specifically, Defendants want the storage router to be limited to a "routing" function. The claims, however, clearly contemplate other functions. Moreover, Defendants' limitation is not supported by the specification, the prosecution history, or the Court's previous constructions of "storage router."
Defendants' arguments fundamentally are directed to questions of infringement. According to Defendants, the accused devices execute incoming commands from a workstation and then generate entirely new commands that are sent to a storage device. Defendants do not want Crossroads to be able to argue to the jury that devices that do not "route" commands are still covered by the claims. See Defs.' Opening Post-Markman Br. [# 101] at 4. The Court, however, thinks a jury will have no trouble finding the bounds of a "storage router" by simply consulting the claims and the specification, which do not limit storage routers to merely "routing" as Defendants insist. For instance, claim 1 of the '035 Patent claims a storage router and provides a list of a storage router's components and functions. '035 Patent, col. 9 ll. 13-31 (including "a buffer providing memory work space;" "a first controller operable to connect to and interface with a first transport medium;" "a second controller operable to connect to and interface with a second transport medium; and" "a supervisor unit" coupled to the previous three components, "the supervisor unit operable to map . . . to implement access controls . . . and to process data . . . to allow access . . . using [NLLBP]"). Similarly, the specification, while it contains language indicating storage routers "route" or act as a "bridge device," the specification also describes the storage router performing other functions beyond merely forwarding commands. See id., col. 5 ll. 34-45; id. col. 6 ll. 41-45 (describing the storage router as "a bridge device" but also describing other functions such as providing access controls, providing virtual local storage, and translating between SCSI-3 Fibre Channel Protocol (FCP) and SCSI-2 to allow access to legacy SCSI devices). In sum, the most important source of information—the patent—does not limit "storage routers" to simply "routing," "bridging," or "forwarding," but actually contemplates a variety of other actions.
In the Chaparral Litigation, the Court considered similar proposed constructions by the parties and rejected the defendants' attempt to define storage router as "a bridge device that connects a Fibre Channel link directly to a SCSI bus and enables the exchange of SCSI command set information between application clients on SCSI bus devices and the Fibre Channel Links." See Markman Order [# 27] at 11, the Chaparral Litigation. While the Court noted the defendants did not make any argument for their proposed definition in their brief, the Court still described the proposal as "disingenuous." Id. The Court observed the specification ascribes various functions to the "storage router" beyond simply being a bridge device and rejected the attempt to limit the term "to one of several descriptive sentences in the specification. . . ." Id. Furthermore, the Court concluded "storage router" was "adequately described by the additional language of the claims, which discloses in detail the various functions and/or qualities of the storage router." Id.
In the Dot Hill Litigation, the parties also disputed the meaning of "storage router." While Crossroads argued the term was defined by the claim language, Dot Hill proposed a construction similar to Defendants' current one: "A device which forwards data between an initiator device on one side of the router and a target storage device on the other side of the router." See Pl.'s Opening Claim Construction Br. [# 82-11] Ex. Fore-J (Report & Recommendation from the Dot Hill Litigation). Special Master Bayer recommended the following: "A data transmitting device that allows users to integrate different servers or work stations into a storage network." Id. The parties did not object to this recommendation, and the Court accepted it. See Markman Order [# 288] at 17, the Dot Hill Litigation. While this construction is different from both parties' current proposals, it clearly represents a rejection of Defendants' basic argument seeking a restriction to a "routing" or "forwarding" function. Indeed, Crossroads has indicated it would be satisfied with the Court's adoption of the same construction from the Dot Hill Litigation while Defendants are not amenable to the Court's previous construction as they find it too broad. Compare Pl.'s Opening Post-Markman Br. [# 100] at 4, with Defs.' Responsive Post-Markman Br. [# 102] at 3 n.4.
Defendants argue the prosecution history—and specifically the Reexamination of the '035 Patent—reflects Crossroads' disavowal of any storage router functions beyond "routing." In particular, Defendants focus on Crossroads' use of the preferred embodiment to explain how the storage router "routes" requests. Defendants represent that, according to Crossroads, this process involved: (1) receiving a Fibre Channel-encapsulated SCSI command at the storage router; (2) stripping off the Fibre-Channel encapsulation; and (3) forwarding the SCSI command to the storage device without any translation of the command. See Defs.' Opening Claim Construction Br. [# 83] at 15. The passage at issue, however, does not reflect any statement by Crossroads that the storage router forwards the command "without any translation." Instead, Crossroads represented the storage router forwards the command "without any high-to-low level translation." Id. (quoting '035 Patent Reexamination, Apr. 6, 2005 Reply to Office Action at 9-10). Defendants cite no portion of the record indicating Crossroads said anything during Reexamination about any other type of translation, namely low-to-low level translation. Instead, Crossroads distinguished the prior art references as involving high-to-low level translation. In fact, the example discussed by Defendants in the prosecution history is the SCSI-3 FCP to SCSI-2 embodiment, and the patent expressly calls for the storage router to translate commands from SCSI-3 to SCSI-2. '035 Patent col. 6 ll. 41-45 ("The storage router serves to translate command and status information and transfer data between SCSI-3 FCP and SCSI-2. . . ."). At the Markman hearing, counsel for Defendants agreed with Special Master Bayer that while there was a clear disavowal of high-to-low level translation, there was not a similar disavowal of low-to-low level translation. See Oct. 6, 2014 Hr'g Tr. [# 98] at 181:14-182:10; Defs.' Opening Post-Markman Br. [# 101] at 11 (acknowledging Crossroads did not disavow low-to-low level translation). After review of the prosecution history and the Reexamination proceedings, the Court finds Defendants have failed to show Crossroads made a deliberate and unambiguous disclaimer of "any translation of the command." See Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1177 (Fed. Cir. 2008) (citations omitted). Relatedly, the Court does not find the prosecution history reflects Crossroads binding itself to a definition of storage router whereby it can only "route" or "forward" storage requests.
In sum, the Court agrees with the Special Master that "storage router" be defined by the remainder of the claim and not be further construed. Distilled to the core, Defendants' proposed construction and arguments are the same ones the Court has previously rejected on multiple occasions. The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
The Special Master recommended this term be construed as: "indirectly connected through at least one serial network transport medium." Defendants object and propose: "indirectly connected through a storage router to enable network connections from [devices/Fibre Channel initiator devices/workstations] to storage devices at a distance greater than allowed by a conventional parallel interconnect." The parties agree "remote" requires a network, but they part ways on whether a network requires "at least one serial network transport medium." In the Dot Hill Litigation, the Court addressed, at length, the definition of "remote" and analyzed this same issue. See Markman Order [# 288] at 7-11, the Dot Hill Litigation. First, the Court established "the specification effectively equates network storage with remote storage." Id. at 6. Next, the Court considered and rejected Dot Hill's contention that the type of network interconnects that mediate between computer workstations and remote storage devices should not be limited exclusively to serial network interconnects but should also allow for "parallel network interconnects" like a SCSI interface. Id. at 7-8.
As the Court explained, Dot Hill's position was motivated by an invalidity argument premised on alleged prior art that only made use of SCSI connections. Id. at 8. But Dot Hill's position also directly contradicted the language in the specification, which "clearly distinguish[es] SCSI connections from network interconnects." Id. (citing '972 Patent, col. 1 ll. 12-49; '035 Patent, col. 1 ll. 23-60). While "a SCSI transport medium allows `for a relatively small number of devices to be attached over relatively short distances,'" "`[h]igh speed serial interconnects provide enhanced capability to attach a large number of high speed devices to a common storage transport medium over large distances.'" Id. (quoting '972 Patent, col. 1 ll. 12-20; '035 Patent, col. 1 ll. 23-31). In other words, the Court concluded "the patent specifications treat serial interconnects and network interconnects as being one and the same thing." Id. at 11 n.7. The Court ultimately adopted the Special Master's proposed construction: "indirectly connected through at least one serial network transport medium," which is the same construction proposed by Crossroads and recommended by Special Master Bayer in this case. In the 3Par Litigation, the parties stipulated to this same construction. See Markman Order [# 179] at 3, the 3Par Litigation.
Defendants urge the Court to arrive at a different conclusion this time around based on evidence presented by their expert, Dr. Katz, that was not previously before the Court. Specifically, Dr. Katz testified as to his personal experience designing a system called "RAID-2" in 1992 which did not use serial interconnects to enable connections to a remote storage device. In other words, Defendants rely on Dr. Katz's RAID-2 experience to argue a "network connection" does not require a "network interconnect" as he used a non-network parallel interconnect (HiPPI). The Court does not find this evidence sufficient to justify a change in position. First, the Court's primary focus is on the intrinsic record and the patent language in particular. As explained in the Dot Hill Markman Order, the specification equates network interconnects and serial interconnects. Dr. Katz's testimony as to his personal experiences does not alter that conclusion.
In addition, Defendants' argument appears to be an attempt to renew the invalidity argument identified by the Court in the Dot Hill Markman Order. Put differently, Defendants contend parallel interconnects can provide the "network" necessary for "remote" which would supposedly implicate some invalidating prior art. Yet Dr. Katz admitted "there is difficulty there in assigning to the concept of a parallel interconnect that it be a network." Oct. 7, 2014 Hr'g Tr. [# 99] at 127:23-24. This admission was notable in light of the fact Dr. Katz had stated in his original declaration that a parallel SCSI interconnect was an example of a "conventional parallel network interconnect," and his declaration had formed the basis of Defendants' original proposed construction. See Markman Hr'g Ex. D1 (Katz Decl.) ¶ 51. But networks are serial, not parallel, and Dr. Katz admitted SCSI is not a "conventional parallel network interconnect." Oct. 7, 2014 Hr'g Tr. [# 99] at 132:14-16. In fact, Dr. Katz stated at the Markman hearing there is actually no such thing as a "conventional parallel network interconnect." Id. at 128:23-24, 129:10-12.
In addition to the RAID-2 system, Defendants have also pointed to an embodiment in the specification as supposedly an example of network interconnects that do not rely on a serial standard. The specification describes four modes of operation for storage router 56: "The storage router has various modes of operation that are possible between FC and SCSI target and initiator combinations. These modes are: FC Initiator to SCSI Target; SCSI Initiator to FC Target; SCSI Initiator to SCSI Target; and FC Initiator to FC Target." `035 Patent, col. 6 ll. 19-23. Defendants argue the third mode, SCSI-to-SCSI, does not require a serial interconnect and therefore "serial" should not be part of the Court's construction. Defs.' Opening Claim Construction Br. [# 83] at 25-26.
The third mode, however, does not rule out serial interconnects. According to the patent, "[t]he third mode can involve two storage routers back to back and can serve primarily as a device to extend the physical distance beyond that possible via a direct SCSI connection." `035 Patent, col. 6 ll. 25-28. As explained by Crossroads' expert, Dr. Levy, one of ordinary skill in the art would understand that in order for the third mode to be "remote," it would involve connecting the two storage routers back-to-back with a Fibre Channel connection. See Oct. 7, 2014 Hr'g Tr. [# 99] at 101:24-103:23. At the same time, Dr. Levy conceded the patent does not explicitly describe connecting the two back-to-back storage routers with a serial interconnect. Id. at 115:25-116:7.
Dr. Katz, on the other hand, testified the third mode can involve one storage router or two storage routers back-to-back, but it does not require a serial transport. Id. at 138:23-139:25. When asked whether it had always been his opinion that the third mode does not require a serial connection, Dr. Katz testified: "Yes. As I can remember it now." Id. at 140:8-12. Dr. Katz, however, later admitted he had provided an expert opinion in the Dot Hill Litigation, in which he stated the only form of storage router disclosed in the '035 Patent required a Fibre Channel serial interconnect. Id. at 141:22-144:1. Moreover, Dr. Katz also admitted he opined in the Dot Hill Litigation that the third mode of operation actually required two storage routers connected by a Fibre Channel interconnect, i.e., the same position taken by Dr. Levy and Crossroads in this case. Id. at 143:18-144:13 ("It's clearly the case that I did say that [the two storage routers] are connected by a fiber channel interconnect. So I have had that opinion in the past.").
The Court agrees with Crossroads that the third mode does require a serial connection between two back-to-back storage routers. This interpretation is consistent with the patent and makes sense if the third mode is to be considered "remote" and capable of "serv[ing] primarily as a device to extend the physical distance beyond that possible via a direct SCSI connection." `035 Patent, col. 6 ll. 25-28. The Court did not find Dr. Katz consistent on this particular topic and found it notable that in the Dot Hill Litigation he held the same opinion promoted by Crossroads and Dr. Levy before taking an opposite stance in this case.
Finally, the parties dispute whether the construction should include language related to distance capability. Specifically, Defendants' proposed construction provides "at a distance greater than allowed by a conventional parallel interconnect." "Remoteness" is naturally a tricky concept, but by introducing the concept of "distance," Defendants create even more ambiguity. Defining a distance "greater than allowed by a conventional parallel interconnect" becomes a new question, the answer to which is unclear to the Court. For instance, according to Dr. Levy, there were many conventional parallel interconnects having different lengths at the time the patent was issued. See Oct. 7, 2014 Hr'g Tr. [# 99] at 107:5-25 (describing different parallel interconnects and their respective distance capabilities). In contrast, while the Special Master's recommendation does not solve the distance capability issue, it does more simply and clearly require an indirect connection through "at least one serial network transport medium." The specification describes the serial nature of the network interconnects as providing the capability to achieve longer distances than parallel interconnects, and the experts agree on this point. See '035 Patent, col. 1 ll. 28-36; col. 2 ll. 27-33; Markman Hr'g Ex. P10 (Levy Decl.) 54; Pl.'s Reply Claim Construction Br. [# 87-2] Ex. A (Katz Dep.) at 110:16-23. The Court finds it better to define "remote" in reference to the interconnects actually used ("at least one serial network transport medium") rather than those not used ("a distance greater than allowed by a conventional parallel interconnect").
In sum, the Court sees no reason to veer from its analysis and conclusion in the Dot Hill Litigation that "the patent specifications treat serial interconnects and network interconnects as being one and the same thing." See Markman Order [# 288] at 11 n.7, the Dot Hill Litigation. The Court rejects Defendants' contention that "remote," as described by the patents-in-suit, can be achieved by a "network connection" formed by "non-network interconnects." The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
The Special Master recommended this term be construed as: "any storage device, including, for example, a tape drive, CD-ROM drive, an optical drive or a hard disk drive." This construction is consistent with the Court's previous three claim construction orders on this family of patents. See Markman Order [# 27] at 9-10, the Chaparral Litigation (construing "SCSI storage devices" as "any storage device including, for example, a tape drive, CD-ROM drive, or hard disk drive that understands the SCSI protocol and can communicate using the SCSI protocol"); Stipulated Definition of Claim Terms [# 131] at 2, the Dot Hill Litigation (stipulating to the definition of "storage devices" as "any storage device, including, for example, a tape drive, CD-ROM drive, an optical drive or a hard disk drive"); Markman Order [# 288] at 17, the Dot Hill Litigation (adopting the parties' stipulations); Markman Order [# 179] at 3-4, the 3Par Litigation (adopting the parties stipulated terms, including "storage device(s)" as `any storage device, including, for example, a tape drive, CD-ROM drive, an optical drive or a hard disk drive").
Defendants do not disagree that tape drives, CD-ROM drives, optical drives, and hard disk drives are illustrative examples of storage devices. Defendants, however, believe "storage device" should be clarified as an "electronic device that stores data." The Court finds this qualification unsupported by any language in the patent and unnecessary. Defendants apparently intend to draw a distinction between drives and tapes or disks. See Defs.' Opening Post-Markman Br. [# 101] at 45. In other words, under Defendants' construction, a tape drive is not a storage device unless it has a tape in it, and a tape is not a storage device unless it is in a tape drive. Id. (describing a storage device "to be one that `stores data,' which is a function that (for example) a tape drive cannot perform without a tape in it" and storage devices should not include "isolated media") (emphasis in original). Yet Defendants' construction lists "tape drive" as an example of a "storage device" without reference to whether there is a tape in it or not. The Court declines to adopt a construction which would include a tape drive as a storage device when it has a tape in it but would cease to be a storage device once the tape is removed.
The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
The Special Master recommended these phrases not be construed. Defendants object and propose "interface between/with" means "directly connect between/with." Defendants argue "the '035 Patent is explicit that [t]he storage router
Where the patent actually does mention "interface with/between," neither the claim language nor the specification supports Defendants' position. For instance, claim 1 describes "a first controller operable to connect and interface with a first transport medium." `035 Patent, col. 9 ll. 18-19. Applying Defendants' construction, the phrase would read: "a first controller operable to connect and [directly connect] with a first transport medium." Such an outcome renders the first "to connect" superfluous, and the Court avoids constructions which make words unnecessary.
In addition, the specification includes descriptions of "direct connections," demonstrating the inventors knew how to distinguish between "connect" and "directly connect," and in fact, the inventors specifically distinguished between "directly connecting" and "interfacing with." For example, in one embodiment, the specification states "Management station 76 can connect directly to storage router
Defendants attempt to explain away this problem by arguing "[a] `direct' connection does not require literally
In the Chaparral Litigation, the parties originally disputed the meaning of "interface" before agreeing it needed no construction. The Court agreed, stating "[t]his term has a standard and ordinary meaning—even to a federal judge—and the Court will not further define it." See Markman Order [# 27] at 13-14, the Chaparral Litigation. Defendants' proposal, which is inconsistent with the patent's language, does not convince the Court to change its position. The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
The Special Master recommended this term be construed as: "a device comprising at least: (1) a microprocessor, incorporating independent data and program memory spaces; and (2) associated logic required to implement a standalone processing system and programmed to process data in a buffer in order to map between devices and which implements access controls." Crossroads objects and proposes: "a processing device that controls operation of the storage router, including handling mapping and access controls." The Court first construed "supervisor unit" in the Chaparral Litigation where it adopted Crossroads' proposed construction: "a microprocessor programmed to process data in a buffer in order to map between Fibre Channel devices and SCSI devices and which implements access controls." Id. at 9. The Court rejected the defendants' attempt to limit "supervisor unit" to a specific brand of microprocessor, "an Intel 80960RP." Id. The Court again construed "supervisor unit" in the Dot Hill Litigation where the Special Master recommended essentially the same construction proposed by Defendants and again recommended by the Special Master in this case. Crossroads did not object, and the Court adopted that construction. Markman Order [# 288] at 14-15, the Dot Hill Litigation. In the 3Par Litigation, the term was not identified for either stipulation or construction.
Claim 1 describes "supervisor unit" in terns of its operational capacity as follows:
'035 Patent, col. 9 ll. 22-31.
The specification also describes multiple implementations of a "supervisor unit." For instance, "[s]upervisor unit
Id. col. 6 ll. 3-10.
Crossroads objects to the Special Master's recommendation because it defines a supervisor unit as: (1) a "microprocessor"; (2) a microprocessor "incorporating independent data and program memory spaces"; and (3) "associated logic required to implement a standalone processing system." Crossroads' core objection is that the recommended construction improperly limits the term to one specific embodiment because the objected-to language derives from the specification's discussion of "one implementation."
First, the Court rejects Crossroads attempt to broaden "supervisor unit" beyond a "microprocessor" by calling it a "processing device." Crossroads proposed a construction in the Chaparral Litigation that included the "microprocessor" limitation, and the Court adopted it, ultimately sending it to a jury. See Jury Instructions [# 131] at 13, the Chaparral Litigation. In the Dot Hill Litigation, the Special Master recommended a construction with the "microprocessor" limitation, and Crossroads did not object. Now, Crossroads takes a different position than in previous cases in a clear attempt to broaden the term's scope but only relies on its expert's testimony for this shift in position. See Pl.'s Objections [# 111] at 10 (citing Dr. Levy's testimony that a "supervisor unit" could be accomplished through various types of "processing devices" other than just a microprocessor, including a "processor embedded in an ASIC, or you could have some other kind of processing devices"). Crossroads' expert's testimony does not provide a sound basis for altering its position, especially when the specification consistently describes a "supervisor unit" as a "microprocessor."
Second, concerning the "incorporating independent data and program memory spaces" and "associated logic required to implement a standalone processing system" limitations, the Court agrees their only basis is the passage in the specification describing "one implementation." The Court, however, does not agree that including them in the construction is improper. Crossroads cites the Court's claim construction order in the Chaparral Litigation, in which it declined to rely on the same passage to limit the term "supervisor unit" See id. at 6-7. In the Chaparral Litigation, the defendants tried to limit "supervisor unit" to an "Intel 80960RP processor." Here, Crossroads has presented no evidence that this is the only chip that would meet the Special Master's proposed construction of "supervisor unit." As such, the Special Master's recommendation is not inconsistent with the position taken in the Chaparral Litigation.
Notably, Crossroads fails to adequately address the Dot Hill Litigation, which occurred subsequent to the Chaparral Litigation, in which the Special Master, despite having previously declined to limit "supervisor unit" to an "Intel 80960RP processor" because it would have improperly limited the construction to a specific embodiment, did recommend "supervisor unit" be limited to: "(1) a microprocessor, incorporating independent data and program memory spaces; and (2) associated logic required to implement a stand-alone processing system." Markman Order [# 288] at 14-15, the Dot Hill Litigation. In fact, the Court specifically rejected Dot Hill's objection to the new proposal as inconsistent with the construction in the Chaparral Litigation, reasoning that while "the parties' dispute [in the Chaparral Litigation] revolved around whether the term `supervisor unit' covered only a particular brand of microprocessor, the issue in this case is whether the term is limited to a microprocessor alone, rather than a microprocessor along with other components." Id. at 17. Crossroads did not object to the Special Master's recommendation in the Dot Hill Litigation, which included the exact limitations Crossroads now claims are improper. Therefore, while Crossroads argues the Special Master's recommendation in this case is inconsistent with prior constructions, it is actually Crossroads who has staked out conflicting positions depending on whether it wanted a term construed broadly or narrowly for infringement purposes. The Special Master has maintained consistency with the Court's previous constructions.
The Court ACCEPTS the Special Master's recommendation, and OVERRULES Crossroads' objection.
The Special Master recommended the term be construed as: "to create a path from a device on one side of the storage router to a device on the other side of the router. A `map' contains a representation of devices on each side of the storage router, so that when a device on one side of the storage router wants to communicate with a device on the other side of the storage router, the storage router can connect the devices." In the Chaparral Litigation, Crossroads proposed essentially this same construction while the defendants argued the term meant "to translate addresses." See Markman Order [# 27] at 12, the Chaparral Litigation. Because the defendants only cited a dictionary definition and because the Court agreed with Crossroads that the specification language supported its construction, the Court adopted Crossroads' proposal. Id. The Court ultimately instructed the jury using this definition. See Jury Instructions [# 131] at 13, the Chaparral Litigation. In the Dot Hill Litigation, the parties agreed on the exact definition proposed by Crossroads and recommended by Special Master Bayer in the instant case. See Stipulated Definition of Claim Terms [# 131] at 3, the Dot Hill Litigation; Markman Order [# 288] at 17, the Dot Hill Litigation (adopting the parties' stipulations). After the Reexamination in which Crossroads presented the Court's construction from the Chaparral Litigation to the Examiner, the parties in the 3Par Litigation also stipulated to the construction of "map/mapping" that Crossroads is currently proposing. See Markman Order [# 179] at 3-4, the 3Par Litigation.
Defendants agree with much of Crossroads' proposal. They agree the term "map[ping]" refers to creating a path from a device on one side of the storage router to a device on the other side of the storage router. They also agree a "map" contains a representation of devices on each side of the storage router, so that when a device on one side of the storage router wants to communicate with a device on the other side of the storage router, the storage router can connect the devices. Defendants, however, argue for the following additional limitations: (1) the map must further provide the addressing information of an actual physical storage device; and (2) the addressing information provides block-level location information for the physical storage device. Crossroads opposes these limitations and argues it is not required that the map contain information about the actual physical storage device rather than merely a logical representation of physical storage.
With respect to Defendants' first desired limitation, the Court focuses on the most important source—the patent itself—and agrees with Crossroads. The specification does not require the physical storage device information be contained in the map and actually includes examples where the map only includes logical storage. For example, the specification describes the maps as allocating storage. See '035 Patent, col. 4 ll. 13-16 ("Storage router
Relatedly, the specification distinguishes the logical storage allocated in the map from physical storage:
Id. col. 4 ll. 36-43 (emphasis added). As indicated, the storage router allows the management station access to mapping tables that show how logical storage is allocated to the hosts, and the storage router shows the management station the storage devices as they exist physically rather than as they have been allocated as logical storage in the map.
Defendants fail to rebut these examples in the specification with any language in the patent stating the map must include physical storage device information. While Defendants claim "[t]he record is replete with evidence from the specification . . . that the map itself must specify a path to a
Lacking support in the patent, Defendants turn to the prosecution history, arguing the Reexamination proceedings confirm the map must specify a physical storage device, but the Court disagrees. During the Reexamination, the patentee distinguished the invention of the '035 Patent from two prior art references, Petal and Oeda, because the maps in Petal and Oeda were "virtualization" maps that did not include any information about the hosts/workstations. As Crossroads explained to the Examiner: "[T]he mapping of Petal only represents the virtualization mapping of storage devices and does not correlate or associate the storage devices (either virtual or physical) to particular Petal clients (e.g., workstations) on the other side of the Petal server." Pl.'s Reply Claim Construction Br. [# 87-2] Ex. B at 13. Notably, the patentee specifically pointed out the maps did not correlate workstations to any storage devices, either virtual or physical.
Similarly, with respect to Oeda, Crossroads stated:
Id. Ex. C at 31. As shown, Crossroads distinguished its claimed map from the prior art because Petal and Oeda did not include any reference to a host, and there is no indication Crossroads disclaimed a map that associates a host device with logical storage, as argued by Defendants. See Cordis, 511 F.3d at 1177 (explaining that "[f]or prosecution disclaimer to attach, [federal circuit] precedent requires that alleged disavowing actions or statements made during prosecution be both clear and unmistakable"). In fact, none of the prosecution history cited by Defendants even specifically discusses whether the map contains the physical storage device information. See Defs.' Opening Post-Markman Br. [# 101] at 22-26.
In contrast, Crossroads highlights portions of the prosecution history in which the patentee explicitly told the examiner the claimed map can associate hosts on the first transport medium with storage devices on the second transport medium by associating the hosts with virtual/logical representations of the storage in the map, and the map can potentially—but not necessarily—include physical storage device information:
Pl.'s Reply Claim Construction Br. [# 87-2] Ex. B at 12 (distinguishing Petal) (emphasis added); see also id. Ex. C at 29 ("[T]he map can include mapping a host workstation identifier . . . and a virtual representation of a storage device. . . .") (distinguishing Oeda).
Consistent with these representations to the examiner, the specification teaches that the storage router shows available storage to workstations as "FCP logical units" or LUNs. See '035 Patent, col. 5 ll. 50-53. In so doing, the storage router provides centralized access control, rebutting Defendants' contention the map must include physical storage device information by implication because if it did not, then the map could not provide centralized access control. See Defs.' Opening Post-Markman Br. [# 101] at 27-28. As described in the patent, "storage router
Oct. 6, 2014 Hr'g Tr. [# 98] at 199:21-200:5. As such, no physical device storage information is needed in the map to provide the centralized access controls. Id. at 200:20-24 ("Q: So in describing how the invention implements access controls using the map, I didn't hear you describe any physical storage device information like block address information or the physical storage. Why is that? A: Well, because it's not required to be in the map.").
Turning its attention to Defendants' second proposed limitation, the Court also agrees with Crossroads that the map does not need to create a path for the communication of "block addressed requests and data." According to Defendants, "[t]he claims require allowing access to storage devices `using native low level,
Defendants' interpretation, however, is misplaced. As an initial matter, pursuant to the parties' stipulated definitions, "NLLBP" is defined as: "A set of rules or standards that enable computers to exchange information and do not involve the overhead of high level protocols and file systems typically required by network servers." Stipulated Definitions [# 81] at 2. Notably absent from this definition is any mention of "block-addressed requests and data." In addition, including "block-addressed requests and data" would read out certain examples discussed in the patent. For instance, the specification discusses the example of a sequential access storage device. See '035 Patent, col. 6 ll. 39-41. But Read and Write commands for sequential access storage devices do not include block address information. Oct. 6, 2014 Hr'g Tr. [# 98] at 230:24-231:2 ("Q: For a sequential access device, say, a tape drive or a tape, do the read and write commands . . . include any block address information? Dr. Levy: No. They don't"); Oct. 7, 2014 Hr'g Tr. [# 99] at 41:25-42:12 (Dr. Katz agreeing there is no block address information in the sequential access Read and Write command descriptor blocks). Defendants attempt to counter this point by arguing Read and Write "are block-addressed in a relative fashion, based on the position of the tape." Defs.' Opening Post-Markman Br. [# 101] at 35. The Court is not persuaded by this argument.
In sum, the Court disagrees with Defendants' requested limitations. They do not find support in the specification nor the prosecution history, and both of these sources actually undermine Defendants' position. The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
The Special Master recommended this term be construed as: "controls which limit a [device/Fibre Channel initiator device/workstation]'s access to a specific subset of storage devices or sections of a single storage device according to a map." The parties do not dispute this construction is correct, but Defendants want to add to the end of the construction: "for the device." Defendants contend this language is necessary and consistent with their proposed construction for "map/mapping." See Defs.' Opening Claim Construction Br. [# 83] at 18. Specifically, Defendants argue "the `map' must specify the
The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
The Special Master recommended this phrase be construed as: "permit access using the native low level, block protocol of the virtual local storage without involving a translation from high level network protocols to a native low level block protocol request." This construction is consistent with the Court's construction in the 3Par Litigation. Prior to the 3Par Litigation, the Court construed "allow access" and "NLLBP" separately in the Dot Hill Litigation. During the Reexamination, Crossroads distinguished the invention of the '035 Patent from the prior art in part because the prior art disclosed servers that "allowed access" to storage by using protocols that included high level file system commands that the server translated into NLLBP requests to access storage (i.e., high-to-low level translation), informing what it means to "allow access . . . using NLLBP." See supra Part II(B)(1). After the Reexamination, in the 3Par Litigation, the defendants proposed "allow access . . . using NLLBP" be construed so that the "allowing of access" occurred "without . . . translation from one protocol to another." See Report & Recommendation [# 167-1] at 10, the 3Par Litigation. Crossroads proposed the following definition: "Permit or deny reading or writing of data using the NLLBP of the Virtual Local Storage without involving a translation from a high level file system command to a native low level, block protocol request." Id. Special Master Bayer sided with Crossroads, recommending the following modified construction: "Permit or deny access using the NLLBP of the Virtual Local Storage without involving a translation from high level network protocols or file system protocols to a native low level block protocol request." Id. The parties did not object to the Special Master's recommendation, and the Court adopted it. See Markman Order [# 179] at 7, the 3Par Litigation.
Here, Defendants object to the construction proposed by Crossroads and recommended by the Special Master, which is essentially the same as the one adopted by the Court in the 3Par Litigation, and propose: "to allow native low level block protocol requests to be routed from the [devices/Fibre Channel Initiator Devices] to the remote storage devices." The Court identifies two problems with Defendants' proposal. First, Defendants try to include the "routing" limitation previously discussed above in Part II(B)(1) in the context of the term "storage router." By including this limitation, Defendants appear to be attempting to rule out any translation, but as already discussed, the patentee did not disclaim all translation in the Reexamination. Instead, the patentee disclaimed high-to-low level translation. That limited disclaimer is reflected in the Special Master's current recommendation to the Court. In contrast, Defendants' proposal rules out translation altogether and is therefore inappropriate.
Second, the two parties' constructions for "allowing access . . . using NLLBP" differ in that Defendants focus on allowing NLLBPs be routed from the workstations to the remote storage devices while Crossroads more relevantly focuses on how the invention allows access, i.e., by using the NLLBP of the virtual local storage without involving a high-to-low level translation. The specification describes how the storage router controls the virtual local storage each workstation sees as its local drive, and because the virtual local storage appears as local storage, the workstation will access the virtual local storage using the NLLBP of the virtual local storage. See '035 Patent, col. 4 ll. 44-57, 24-26. After a workstation sends a request for access to the virtual local storage using the NLLBP associated with the virtual local storage, the storage router can process the requests according to the NLLBP of the virtual local storage to allow access to permitted storage. As such, the storage router allows access using the NLLBP of the virtual local storage.
In contrast, the specification describes the prior art network server which provided access to remote storage devices using "network protocols that the server must translate into low level requests to the storage device." Id. col. 1 ll. 51-56. Specifically, workstations accessed data "only through high level file system protocols" which were then translated into low level requests to storage devices. Id. col. 3 ll. 17-34. Unlike the prior art, an inventive aspect of the '035 Patent is that "storage access involves native low level, block protocols and does not involve the overhead of high level protocols and file systems required by network servers." Id. col. 5 ll. 1-5. In other words, the storage router receives NLLBP requests from workstations rather than network protocol requests and can permit access using the NLLBP "without involving a translation from high level network protocols to NLLBP requests."
Relatedly, while the specification describes a difference between the invention and the prior art with respect to how the workstations were allowed access, the specification also indicates there is no difference between the invention and the prior art regarding the mechanism for actually accessing the storage devices. According to the patent, the prior art network server of Figure 1 "uses a SCSI bus
The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
Defendant NetApp argues claim 1 of the '311 Patent is indefinite.
For example, in IPXL, the claim at issue read:
Id. The court found it was "unclear whether infringement of [the above claim] occurs when one creates a system that allows the user to change the predicted transaction information or accept the displayed transaction, or whether infringement occurs when the user actually uses the input means to change the transaction information or uses the input means to accept a displayed transaction." Id.
Here, NetApp argues claim 1, which is an apparatus claim, is indefinite because it incorporates method limitations found in claim 16, which is a method claim. Claim 1 recites, in relevant part:
'311 Patent, col. 9 ll. 34-64. NetApp argues the limitations following the "further comprising" phrase (i.e., identifying, presenting, and processing) recite the method steps of claim 16, and therefore claim 1 is both an apparatus and a method claim. According to NetApp, the patentee recited both a structure and the use of that structure, creating an ambiguity that fails to inform with reasonable certainty those skilled in the art about the scope of the invention as required by Nautilus.
The parties agree the relevant question is whether the "identifying, presenting, and processing" clauses describe user actions or, instead, describe capabilities of the apparatus. While NetApp is correct there is identical language from method claim 16 used in the apparatus claim 1, the language is used differently and, in the Court's view, describes capabilities rather than user actions. The structure of claim 1 provides for "a storage router . . . comprising . . . a processing device . . . configured to . . . control access, [the controlling access] further comprising . . . identifying . . . presenting . . . and processing. . . ." The "identifying, presenting, and processing" clauses are functional capabilities of "controlling access," which is a configuration of the processing device, which is a component of the storage router. They are not user actions.
Cases where the Federal Circuit has found the presence of user actions demonstrate why the "identifying, presenting, and processing" clauses are not examples of user actions. In IXPL, the claim held to be indefinite explicitly stated "the user uses the input means . . ." in the middle of an apparatus claim. IXPL, 430 F.3d at 1384. In In re Katz, the claim held to be indefinite covered an "interface means for providing automated voice messages . . . to certain of said individual callers, wherein said certain of said individual callers digitally enter data." In re Katz, 639 F.3d at 1318. Again, the claim explicitly described user action. Claim 1 of the '311 Patent, on the other hand, does not include a description of any user taking any action.
NetApp relies on HTC Corp. v. IPCom GmbH & Co., KG, 667 F.3d 1270 (Fed. Cir. 2012). The claim at issue in HTC Corp. was structured as follows:
Id. at 1274.
The Federal Circuit reversed the district court and held the claim valid, but noted in dicta (now relied upon by NetApp) that "[t]he claims would read in a disjointed manner if they were to recite the mobile station in the first paragraph, modify the mobile station with the six enumerated functions, and then, without a transition, recite the mobile station again in paragraph 7, followed by yet another modifier." Id. at 1275. In other words, the "disjointed" version would read "the mobile station comprising [six functions], the mobile station further comprising the [structure]." NetApp contends claim 1 of the '311 Patent "reads in exactly the `disjointed' manner outlined" in HTC Corp. NetApp's Additional Opening Post-Markman Br. [# 88] at 4. Claim 1, however, plainly does not have that structure. In other words, claim 1 does not recite the storage router and then "without transition, recite the [storage router] again . . ., followed by yet another modifier."
In sum, the Court finds claim 1's elements are directed to system capabilities rather than required methods of use or user actions. The claim conveys to the public when infringement occurs and is not indefinite. The Court ACCEPTS the Special Master's recommendation, and OVERRULES Defendants' objection.
The parties' objections to the Special Master's recommended constructions are OVERRULED, and the Special Master's recommended constructions are ACCEPTED. Additionally, the Court adopts each of the constructions agreed to in the parties' stipulation. See Stipulated Definitions of Claim Terms [# 81].
Accordingly,
Id. Crossroads cites this language to contend Dr. Katz agrees network connections are serial. See Pl.'s Opening Claim Construction Brief [# 82] at 22. Defendants dispute this characterization and argue "Dr. Katz's paper discusses network interconnects that `in general' (but do not universally) provide serial data. See Defs. Op. Br., Ex. N at 1239 ("While no statement we can make is universally true, in general, . . . [n]etworks . . . provide serial data. . . ." Defs.' Reply Claim Construction Br. [# 90] at 12 n.13. The Court agrees with Crossroads' plain citation of the relevant text instead of Defendants' more strained interpretation. The passage clearly indicates Dr. Katz's opinion that networks are serial.
