ROY S. PAYNE, Magistrate Judge.
On August 4, 2016, the Court held a hearing to determine the proper construction of disputed claim terms in United States Patents No. 7,475,274, 8,190,714, 8,335,909, and 9,037,833. Having reviewed the arguments made by the parties at the hearing and in their claim construction briefing (Dkt. Nos. 57, 67, and 71),
Plaintiff has alleged infringement of United States Patents No. 7,475,274 ("the '274 Patent"), 8,190,714 ("the '714 Patent"), 8,335,909 ("the '909 Patent"), and 9,037,833 ("the '833 Patent"), which Plaintiff submits "relate to high performance computing (`HPC') technology, i.e., supercomputers." [Dkt. # 57] at 1.
The '274 Patent, titled "Fault Tolerance and Recovery in a High-Performance Computing (HPC) System," issued on January 6, 2009, and bears a filing date of November 17, 2004. The Abstract of the '274 Patent states:
The '714 Patent, titled "System and Method for Computer Cluster Virtualization Using Dynamic Boot Images and Virtual Disk," issued on May 29, 2012, and bears a filing date of April 15, 2004. The Abstract of the '714 Patent states:
The '909 Patent, titled "Coupling Processors to Each Other for High Performance Computing (HPC)," issued on December 18, 2012, and bears a filing date of April 15, 2004. The '833 Patent is a continuation of the '909 Patent, and "[a]s such, the '909 and '833 patents share a specification." [Dkt. 67] at 2. The Abstract of the '909 Patent states:
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with preliminary constructions with the aim of focusing the parties' arguments and facilitating discussion. Those preliminary constructions are set forth below within the discussion for each term.
"It is a `bedrock principle' of patent law that `the claims of a patent define the invention to which the patentee is entitled the right to exclude.'" Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). Claim construction is clearly an issue of law for the court to decide. Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). "In some cases, however, the district court will need to look beyond the patent's intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period." Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 841 (2015) (citation omitted). "In cases where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that extrinsic evidence. These are the `evidentiary underpinnings' of claim construction that we discussed in Markman, and this subsidiary factfinding must be reviewed for clear error on appeal." Id. (citing 517 U.S. 370).
To determine the meaning of the claims, courts start by considering the intrinsic evidence. See Phillips, 415 F.3d at 1313; see also C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc'ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R. Bard, 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the entire patent. Phillips, 415 F.3d at 1312-13; accord Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1368 (Fed. Cir. 2003).
The claims themselves provide substantial guidance in determining the meaning of particular claim terms. Phillips, 415 F.3d at 1314. First, a term's context in the asserted claim can be very instructive. Id. Other asserted or unasserted claims can aid in determining the claim's meaning because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term's meaning. Id. For example, when a dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.
"[C]laims `must be read in view of the specification, of which they are a part.'" Id. at 1315 (quoting Markman, 52 F.3d at 979 (en banc)). "[T]he specification `is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'" Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); accord Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own terms, give a claim term a different meaning than the term would otherwise possess, or disclaim or disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor's lexicography governs. Id. The specification may also resolve the meaning of ambiguous claim terms "where the ordinary and accustomed meaning of the words used in the claims lack sufficient clarity to permit the scope of the claim to be ascertained from the words alone." Teleflex, 299 F.3d at 1325. But, "[a]lthough the specification may aid the court in interpreting the meaning of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims." Comark Commc'ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); accord Phillips, 415 F.3d at 1323.
The prosecution history is another tool to supply the proper context for claim construction because a patent applicant may also define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan, Inc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) ("As in the case of the specification, a patent applicant may define a term in prosecuting a patent."). "[T]he prosecution history (or file wrapper) limits the interpretation of claims so as to exclude any interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance." Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985).
Although extrinsic evidence can be useful, it is "less significant than the intrinsic record in determining the legally operative meaning of claim language." Phillips, 415 F.3d at 1317 (citations and internal quotation marks omitted). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert's conclusory, unsupported assertions as to a term's definition are entirely unhelpful to a court. Id. Generally, extrinsic evidence is "less reliable than the patent and its prosecution history in determining how to read claim terms." Id.
The parties reached agreement on constructions as stated in their May 19, 2016 Joint Claim Construction and Prehearing Statement. [Dkt. # 55] at 2-3. Those agreements are set forth in Appendix A to the present Claim Construction Memorandum and Order.
[Dkt. # 55] at 3, 5; [Dkt. # 57] at 4; [Dkt. # 67] at 3; [Dkt. # 71] at 1. The parties submit that this disputed term appears in Claims 1, 4, 9, 12-14, and 23-32 of the '909 Patent, Claims 1, 8, 11, 15, and 18-19 of the '833 Patent, Claims 1-3, 5-10, 12-18, 20-25, 27-29, 31-36, and 38 of the '274 Patent, and Claims 1-9, 11-23, 25-37, and 39-42 of the '714 Patent. [Dkt. # 55] at 3, 5.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "computing devices." At the August 4, 2016 hearing, the parties agreed to the Court's preliminary construction.
The Court therefore construes
[Dkt. # 55] at 3-4, 6; [Dkt. # 57] at 6; [Dkt. # 67] at 5; [Dkt. # 71] at 3. The parties submit that these disputed terms appear in Claims 1, 15, and 23 of the '909 Patent and Claims 1, 16, 27, and 38 of the '274 Patent. [Dkt. # 55] at 3-4, 6.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (reject defendant's proposed `same motherboard' and `without the use of daughterboards' limitations)."
Plaintiff submits that Defendant's proposed construction is contrary to the disclosure of daughterboards, and Plaintiff argues that Defendant cannot show any prosecution disclaimer. [Dkt. # 57] at 7-8; see id. at 19. Plaintiff also highlights that Figure 3B and the accompanying description disclose a switch that is integrated to, but not within, the motherboard. Id. at 7.
[Dkt. # 67] at 5. Defendant also cites prosecution history. Id. at 5-6. Finally, Defendant argues that Plaintiff's proposal of "mechanically and electrically connected to" has no support in the intrinsic evidence. Id. at 6.
Plaintiff replies that "fabricated" "is not defined or found anywhere in the patents," and Plaintiff reiterates that the specification discloses the use of daughterboards integrated to the motherboard of an HPC system. [Dkt. # 71] at 3.
At the August 4, 2016 hearing, Defendant urged that the patentee's arguments during prosecution foreclose whatever additional scope the patentee may have originally attempted to encompass with Figure 3B.
The '909 Patent likewise discloses that a switch can be "integrated" with a blade, and these disclosures include a switch that is illustrated as being separate from the motherboard:
'909 Patent at 7:57-62 (emphasis added). Figure 3B of the '909 Patent illustrates "N-Port Switch 345" as separate from the motherboard and is reproduced here:
Further, Figure 3C of the '909 Patent illustrates a blade 315 with a "Daughter Board," but the specification nonetheless states that "[b]lade 315 is an integrated fabric architecture." '909 Patent at 7:57 (emphasis added). Figure 3C is reproduced here:
Defendant has cited prosecution history of the '909 Patent in which the patentee argued that the "Osten" reference failed to disclose utilizing a single board. Dec. 5, 2006 Response [Dkt. # 67-7] at 13-14. The claims at issue, however, recited "integrated on" or "integrated with," not integrated "to" or integrated "onto." Id. at 6-7, 9 & 13. Also, the patentee's arguments centered on components being separated by a backplane slot connector. See id. at 12-14. On balance, Defendant has failed to show that the patentee made any definitive statement as to the disputed terms. See Omega Eng'g v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003) ("As a basic principle of claim interpretation, prosecution disclaimer promotes the public notice function of the intrinsic evidence and protects the public's reliance on definitive statements made during prosecution.") (emphasis added); see also Golight, Inc. v. Wal-Mart Stores, Inc., 355 F.3d 1327, 1332 (Fed. Cir. 2004) ("Because the statements in the prosecution history are subject to multiple reasonable interpretations, they do not constitute a clear and unmistakable departure from the ordinary meaning of the term. . . .").
Later, during the same prosecution, the patentee argued that in the "Karpoff" reference "the CPUs and the switch reside on opposite sides of a server boundary, which clearly teaches away from the CPUs and the switch in Karpoff being integrated on the same motherboard, as independent Claim 1 recites." May 29, 2007 Response [Dkt. # 67-9] at 7. Here again, the claim language at issue recited integrated "on" or "with," not integrated "to" or "onto," see id. at 2-3 & 5, and the patentee focused on the distinction of a server boundary. See Omega Eng'g, 334 F.3d at 1324; see also Golight, 355 F.3d at 1332.
Finally, above-reproduced Claim 1 of the '274 Patent recites "a fabric coupling a plurality of nodes in an HPC system to each other, each node comprising a switching fabric integrated to a card." This recital of a fabric that connects multiple nodes but that is nonetheless "integrated to a card" reinforces that a structure need not be fabricated as part of whatever structure it is "integrated to."
The Court therefore expressly rejects Defendant's proposal of "fabricated on the same motherboard without the use of daughterboards or other components." Nonetheless, "[t]he Court believes that some construction of the disputed claim language will assist the jury to understand the claims." See TQP Dev., LLC v. Merrill Lynch & Co., Inc., No. 2:08-CV-471, 2012 WL 1940849, at *2 (E.D. Tex. May 29, 2012) (Bryson, J.). As to Plaintiff's alternative proposal of "mechanically and electrically connect[ed/ing] to/onto," however, the word "connected" is potentially overbroad because it might be interpreted as allowing for many intermediate layers of connections. Instead, the word "affixed" more appropriately conveys the required degree of directness, particularly in light of surrounding claim language reciting that components are integrated to or onto a card or motherboard.
The Court therefore construes
[Dkt. # 55] at 4; [Dkt. # 57] at 9; [Dkt. # 67] at 7; [Dkt. # 71] at 3. The parties submit that this disputed term appears in Claims 1 and 8 of the '833 Patent. [Dkt. # 55] at 4.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (reject defendant's argument that `associated with' has the same meaning as `integrated onto').'"
Plaintiff argues that "[t]he use of the `integrated' terms in claims of the 02bc909 patent demonstrates that `associated with' means `related with,' which is a separate and distinct meaning from the `integrated' terms." [Dkt. # 57] at 10. Plaintiff also argues that Defendant's proposal would improperly exclude a disclosed embodiment. Id. at 10-11.
Defendant responds that "[t]he entirety of the intrinsic record makes clear that `associated with' carries the same meaning as `integrated onto.'" [Dkt. # 67] at 7. Defendant urges that Plaintiff's proposal should be rejected because it is inconsistent with the prosecution history and because "the specification nowhere uses the term `associated with' to describe the relationship between processors, switches, and motherboards." Id. at 9.
Plaintiff replies that different terms are presumed to have different meanings, and "other than attorney argument that the (nonexistent) prosecution disclaimer of `integrated' in the '909 patent attaches to `associated' in the '833 patent, [Defendant] alleges no other support for limiting `associated with' as [Defendant] proposes." [Dkt. # 71] at 4.
As a threshold matter, Defendant's proposed construction should be rejected for substantially the same reasons as discussed regarding the "integrated" terms, above, particularly as to the prosecution history cited by Defendant.
As to Plaintiff's argument that "associated with" must have a meaning different from "integrated onto," Claim 1 of the '833 Patent for example recites "configuring at least two first processors to be associated with a first motherboard" and "configuring a first switch to be associated with the first motherboard and coupling the first switch to the first processors." Plaintiff argues that different terms are presumed to have different meanings, but Plaintiff has not shown any instance in which "associated with" and "integrated with" appear in claims of the same patent, let alone within the same claim.
Nonetheless, the specification uses "associated" as well as "integrated," and Defendant has not demonstrated that the terms are used interchangeably. See, e.g., '833 Patent at 4:33-34 ("management node 105 may periodically poll agent 132 to determine the status of the associated node 115"), 7:25-27 ("virtual cluster 220 may be associated with one research group, a department, a lab, or any other group of users likely to submit similar jobs 150") & 16:53-55 ("Cluster management engine 130 then determines if a job 150 is associated with failed node 115 at decisional step 815."); see also id. at 8:48-50 ("PCI channel 325 comprises any high-speed, low latency link designed to increase the communication speed between integrated components.").
The Court therefore expressly rejects Defendant's proposal that "associated with" has the same meaning as "integrated onto." No further construction is necessary. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) ("Claim construction is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the claims, for use in the determination of infringement. It is not an obligatory exercise in redundancy."); see also O2 Micro Int'l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) ("[D]istrict courts are not (and should not be) required to construe every limitation present in a patent's asserted claims."); Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197, 1207 (Fed. Cir. 2010) ("Unlike O2 Micro, where the court failed to resolve the parties' quarrel, the district court rejected Defendants' construction."); ActiveVideo Networks, Inc. v. Verizon Commcn's, Inc., 694 F.3d 1312, 1326 (Fed. Cir. 2012); Summit 6, LLC v. Samsung Elecs. Co., Ltd., 802 F.3d 1283, 1291 (Fed. Cir. 2015).
The Court accordingly construes
[Dkt. # 55] at 4; [Dkt. # 57] at 11; [Dkt. # 67] at 10. The parties submit that this disputed term appears in Claims 1, 15, and 23 of the '909 Patent. [Dkt. # 55] at 4.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (reject defendant's proposal that communication must occur `through locally connected cache or memory')." At the August 4, 2016 hearing, the parties agreed to the Court's preliminary construction.
The Court therefore expressly rejects Defendant's proposal that communication must occur "through locally connected cache or memory," and the Court construes
[Dkt. # 55] at 4; [Dkt. # 57] at 12; [Dkt. # 67] at 11; [Dkt. # 71] at 4. The parties submit that this disputed term appears in Claims 1 and 8 of the '833 Patent. [Dkt. # 55] at 4.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (apart from the court's construction of the constituent term `nodes,' which is addressed separately above)."
Plaintiff argues that the meaning of this term is evident from surrounding claim language. [Dkt. # 57] at 12. Plaintiff submits that Defendant's proposal "departs from the plain claim language" and "wholly omits the claim phrase `for each of the n>8 interconnected nodes.'" Id. Further, Plaintiff argues that the specification discloses each node has an integrated switch and explains the benefits of using a node with its own switch. Id. at 12-13. Plaintiff urges that "there is no support in the specification that each switch works exclusively with only one node, as [Defendant] proposes." Id. at 13 (citation and alterations omitted).
Defendant responds: "By the plain claim language, `each' node `has its own switch.' In other words, if there are 24 nodes, there must be 24 switches." [Dkt. # 67] at 12. Defendant argues that this interpretation is consistent with the specification, and Defendant also cites prosecution history. Id.
Plaintiff replies that "[t]he plain language of the claims defines `routerless manner,' which is reflected in the `such that' portion of the claim." [Dkt. # 71] at 4. Plaintiff also argues that neither the specification nor the prosecution history contain any statement requiring a one-to-one correlation between nodes and switches. Id.
'833 Patent at 7:63-67 (emphasis added); see id. at 8:16-24 ("Each node 115 is configured with an integrated switch."). Also, during prosecution, the patentee distinguished the "Thorson" reference as having switching functionality that is centralized to routers when there are more than eight nodes. See Mar. 19, 2014 Amendment [Dkt. # 67-13] at 8-9.
Defendant's proposed construction, however, essentially merely restates the "routerless" and "has its own switch" limitations that are already set forth in the disputed term. At the August 4, 2016 hearing, Defendant emphasized that there must be at least as many switches as nodes because each node must have at least one switch. Because this is already evident from the "has its own switch" language on its face, this requirement need not be reiterated.
Finally, nothing in this claim language is contrary to allowing for a node that has its own switch to also be connected to another switch. See, e.g., Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1371 (Fed. Cir. 2005) ("The word `comprising' transitioning from the preamble to the body signals that the entire claim is presumptively openended."). To whatever extent Defendant has suggested to the contrary, the Court expressly rejects any such negative limitation.
The Court therefore rejects Defendant's proposed construction. No further construction is necessary. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d at 1362; Finjan, 626 F.3d at 1207; ActiveVideo, 694 F.3d at 1326; Summit 6, 802 F.3d at 1291.
At the August 4, 2016 hearing, the parties also presented some disagreement as to how to determine whether a node has "its own" switch or, in other words, whether a particular switch belongs to a particular node. Ultimately, this issue depends upon details of particular implementations and is a question of fact regarding infringement rather than a question of law for claim construction. See Acumed LLC v. Stryker Corp., 483 F.3d 800, 806 (Fed. Cir. 2007) ("The resolution of some line-drawing problems . . . is properly left to the trier of fact.") (citing PPG Indus. v. Guardian Indus. Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) ("after the court has defined the claim with whatever specificity and precision is warranted by the language of the claim and the evidence bearing on the proper construction, the task of determining whether the construed claim reads on the accused product is for the finder of fact")); see EON Corp. IP Holdings LLC v. Silver Springs Networks, Inc., 815 F.3d 1314, 1318-19 (Fed. Cir. 2016) (citing PPG).
The Court therefore construes
[Dkt. # 55] at 4-5; [Dkt. # 57] at 13; [Dkt. # 67] at 13. The parties submit that this disputed term appears in Claims 5 and 12 of the '833 Patent. [Dkt. # 55] at 4-5.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "a device which communicates with the processors and controls communications with memory, a PCI bus, level 2 cache, or any other related components (reject defendant's proposal of requiring a physically separate `device')." At the August 4, 2016 hearing, the parties agreed to the Court's preliminary construction.
The Court accordingly rejects Defendant's argument that a "Northbridge" must be a physically separate device, and with that understanding the Court construes
[Dkt. # 55] at 5; [Dkt. # 57] at 14; [Dkt. # 67] at 14. The parties submit that this disputed term appears in Claim 9 of the '909 Patent and Claim 15 of the '833 Patent. [Dkt. # 55] at 5.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (reject def[endant]'s proposal of referring to motherboards)." At the August 4, 2016 hearing, the parties agreed to the Court's preliminary construction.
The Court accordingly rejects Defendant's proposal of limiting this disputed term to motherboards, and the Court construes
[Dkt. # 55] at 5; [Dkt. # 57] at 15; [Dkt. # 67] at 14. The parties submit that this disputed term appears in Claim 11 of the '909 Patent. [Dkt. # 55] at 5.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "topology of nodes in which a node at the physical edge of the interconnected nodes is connected to a corresponding node at the axial edge." At the August 4, 2016 hearing, the parties agreed to the Court's preliminary construction.
The Court therefore construes
[Dkt. # 55] at 5-6; [Dkt. # 57] at 16; [Dkt. # 67] at 15; [Dkt. # 71] at 5. The parties submit that this disputed term appears in Claims 1-2, 5-8, 11-12, 15-16, 19-22, 25-26, 29-30, 33-34, and 39-40 of the '714 Patent. [Dkt. # 55] at 5-6.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "a single instance of an application running across more than one node."
Plaintiff argues that its proposed construction is supported by the specification as well as by the ordinary understanding of the disputed term in the relevant art. [Dkt. # 57] at 17. Plaintiff argues that Defendant's proposed construction is contrary to the specification, fails to cover applications that are collaborative rather than client-server, and relies upon an inapplicable dictionary definition. Id.
Defendant responds that its proposal is consistent with the specification as well as with the opinion of Plaintiff's expert. [Dkt. # 67] at 16.
Plaintiff replies that Defendant's proposals of "single instance" and "appears to a client as a single application" have no support in the intrinsic evidence, and "[Defendant's] only alleged support is the declaration of its expert and [Defendant's] mischaracterization of an out-of-context statement by [Plaintiff's] expert." [Dkt. # 71] at 5.
At the August 4, 2016 hearing, Plaintiff argued that the disputed term could encompass multiple instances of the same application running on multiple nodes. Defendant responded that Plaintiff's position in that regard is inconsistent with the specification, such as Figure 1 of the '714 Patent, which illustrates applications 114a and 114b with lines that emanate therefrom having arrows pointing to multiple nodes 108. Defendant argued that application 114a, for example, represents a single instance of an application and that the lines illustrate the single instance running across multiple nodes. Plaintiff replied that there is no disclosure that supports Defendant's interpretation of Figure 1, which Plaintiff argues could just as easily be interpreted such that each line emanating from application 114a represents a different instance of that application. Of note in this regard, the specification does not use reference numerals 114a and 114b but rather refers simply to "applications 114." See '714 Patent at 2:16-18.
Even setting aside Figure 1, however, the specification discusses "distributed application 114" in the context of using multiple nodes:
'714 Patent at 7:62-8:17 (emphasis added); see also id. at 3:58-60 ("Nodes 108 comprises [sic] any computer, blade, or server operable to execute at least a portion (such as a task or process) of application 114.") (emphasis added) & Fig. 1.
Also, as to the term "the distributed application is operable to execute at a subset of the plurality of nodes" (which is no longer disputed, as noted below), Defendant had proposed that the corresponding structure is "a database management system (DBMS) or financial software." Plaintiff's expert opined: "There are many more distributed applications in this world than just DBMS and financial software programs. [Defendant] limits its construction to two types of distributed applications, but ignores that the distributed application may be any suitable software to run a single instance on more than one node." Scherson Decl. (May 19, 2016) [Dkt. # 57-5] at ¶ 202 (emphasis added) (citing '714 Patent 4:19-22). Although Plaintiff argues that Defendant has cited this statement out of context,
Defendant further submits the following extrinsic definition: "A distributed system is a collection of independent computers that appears to its users as a single coherent system." Andrew S. Tanenbaum, et al., Distributed Systems: Principles & Paradigms (2007) [Dkt. # 67-24] at 2.
On balance, in light of the above-discussed intrinsic and extrinsic evidence, Defendant has adequately supported its proposal that, in the context of an application, the term "distributed" requires that the application is a single instance running across more than one node rather than, as Plaintiff has suggested, multiple instances of an application being run separately by different nodes. Plaintiff's proposal in that regard fails to give meaning to the constituent term "distributed" and is therefore rejected.
Defendant's proposal of "appears to a client computer as a single application," however, lacks adequate support, is potentially redundant, and would tend to confuse rather than clarify the scope of the claims.
The Court therefore construes
[Dkt. # 55] at 6; [Dkt. # 57] at 17; [Dkt. # 67] at 16; [Dkt. # 71] at 5. The parties submit that this disputed term appears in Claims 1, 16, 27, and 38 of the '274 Patent. [Dkt. # 55] at 6.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "a network of switches and links between switches."
Plaintiff argues that its proposal is consistent with surrounding claim language as well as the specification. [Dkt. # 57] at 18.
Defendant responds that "[t]he intrinsic record demonstrates that `switching fabric' is more than simply switches, as [Plaintiff] contends, but rather includes the hardware and software connecting the processors of different nodes." [Dkt. # 67] at 17.
Plaintiff replies that Defendant's proposal ignores the phrase "on a fabric" and "ignores [Plaintiff's] explanation that the term `fabric' refers to the network that allows communications between nodes." [Dkt. # 71] at 5. Plaintiff also argues that Defendant's proposals of "combination of hardware and software components" and "connects . . . to the adjacent nodes" are "each unsupported by the claims and the specification." Id. at 5-6.
The specification discloses: "Each node 115 is configured with an integrated switch." '274 Patent at 4:64-65. Also, the specification discloses: "In particular embodiments, the network fabric of HPC server 102 includes switches 166 coupled to each other according to a topology encompassing a three dimensional torus, as described above." Id. at 62:46-49; see id. at Abstract ("[a] fabric coupling the multiple nodes to each other and coupling the multiple nodes to storage accessible to each of the multiple nodes").
At the August 4, 2016 hearing, Plaintiff argued that including the links would be inconsistent with the recital in the claims that the "switching fabric" is "integrated to a card" because the links cannot be built into a card. Claim 1 of the '274 Patent, for example, recites (emphasis added):
The Court separately addresses the term "integrated to," above. Regardless of the Court's construction of that term, however, Plaintiff has not shown that finding that a link is part of something that is "integrated to a card" would require that the entire link is integrated rather than merely a portion or terminus thereof. Also of note, the above-reproduced claim itself uses the term "fabric" to refer to couplings between a plurality of nodes (rather than merely the switches at the nodes).
On balance, the above-quoted portions of the specification, together with the context of the above-reproduced claim, demonstrate that the term "switching fabric" refers to a network of switches and links between switches. Further, this interpretation is consistent with the extrinsic definition submitted by Defendant ([Dkt. # 67-14] ("The term is sometimes used to mean collectively all switching hardware and software in a network.")), and is also consistent with the opinion of Plaintiff's expert that "switching fabric" refers to switches and "a set of links" (Scherson Decl. (May 19, 2016) [Dkt. # 57-5] ¶ 143).
Finally, Defendant's proposed reference to "processors on the card" is rejected as tending to confuse rather than clarify and as being redundant of other claim language requiring a "card."
The Court therefore construes
[Dkt. # 55] at 6; [Dkt. # 57] at 19; [Dkt. # 67] at 18; [Dkt. # 71] at 6. The parties submit that this disputed term appears in Claims 1, 6-7, 12, 16, 21-22, 27, 32-33, and 38 of the '274 Patent. [Dkt.#. 55] at 6.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "operating system."
Plaintiff argues that whereas its proposed construction is consistent with the specification, Defendant's proposal "imposes unnecessary, unsupported limitations. In particular, defining `hosts' as only `services' contradicts the specification which describes `hosts' as `a thread or process.'" [Dkt. # 57] at 19 (citing 02bc274 Patent at 7:57-60).
Defendant responds that "[a]lthough `host' is not defined in the '274 patent, [Defendant's] proposal captures the disclosures in the intrinsic record." [Dkt. # 67] at 18. Defendant also argues that Plaintiff's proposed construction "is contrary to the patent's disclosures" because "[t]he specification never equates hosts with applications/programs; in fact, it refers to them separately." Id. at 19 (citing '274 Patent at 62:40-42).
Plaintiff argues that "there is no disclosure of a `host' being `physical' or being a `computing system' anywhere in the specification or claims," and "limiting `hosts' to only `services' is contrary to the specification, which teaches that hosts could also refer to the `processes' of a distributed application." [Dkt. # 71] at 6 (citing '274 Patent at 7:57-60).
At the August 4, 2016 hearing, the parties' dispute crystallized into whether a "host" must include an operating system. Defendant was amenable to the Court's preliminary construction of "host" as meaning "operating system," but Defendant argued that the preliminary construction was incomplete because additional structures are required for running an operating system. Nonetheless, Defendant stated that construing "host" as "operating system" would adequately resolve the parties' dispute in the present case. Defendant also noted that the parties agreed to the Court's preliminary construction of "boot image" (addressed below) as "operating system data that is used to initialize a node."
Plaintiff responded that a "host" need not include an operating system. Plaintiff emphasized dependent Claim 12 of the '274 Patent, which recites limitations as to what a "host" includes but which does not recite an operating system. In response to Defendant's arguments, however, Plaintiff stated that it would be amenable to construing "host" to mean "program that creates an execution environment."
Claims 1 and 12 of the '274 Patent, for example, recite (emphasis added):
The specification appears to distinguish between "hosts" and "applications." See, e.g., '274 Patent at 62:40-42 ("Centralized storage 540 includes application data including data on hosts and applications executable at nodes 115 in grid 110, as described below.") (emphasis added) & 65:7-10 ("restart the host and the application at a second node 115 in grid 110").
The specification further discloses that hosts can be "instantiated": "Instantiation manager 534 may interact with one or more components of cluster management engine 130 (such as, for example, physical manager 505, virtual manager 510, or both) to dynamically instantiate one or more hosts at one or more nodes 115 in response to a connection request from a client 120, according to particular needs." Id. at 61:19-24 (emphasis added).
Id. at 61:60-67 (emphasis added).
As to Defendant's proposal of "providing one or more services," the specification discloses that a node may perform merely a portion of a task. See '274 Patent at 7:58-61 ("A node 115 includes any computing device in any orientation for processing all or a portion, such as a thread or process, of one or more jobs 150.").
As to Defendant's proposal of a "computing system," the above-quoted claim refers to booting a host on a node or at a node. The specification is similar. See id. at 2:10, 63:9-21, 64:20-21, 68:64-65 & Abstract. The specification is also consistent with Defendant's proposal of something more than merely a program. See, e.g., '274 Patent at 61:25-62:17. Also, the opinion of Defendant's expert that "one would not use the verb `boot' to refer to software" is persuasive to the extent that what is booted is not merely a program but rather is something capable of running a program. See Livny Decl. (June 30, 2016) [Dkt. # 67-3] ¶ 25 n.1.
As to extrinsic evidence, Defendant has submitted dictionary definitions of "host" as meaning: "An intelligent device attached to a network" (Newton's Telecom Dictionary (16th ed. 2000) [Dkt. # 67-18] (CRAY00021621)); and "A computer containing data or programs that another computer can access over a network or by modem" (Dictionary of Computer Words 133 (1995) [Dkt. # 67-19]). These definitions thus reinforce Defendant's proposal that a "host" is not merely a program but rather is something that can execute a program.
On balance, Defendant has persuasively shown that a "host" is an environment in which programs can be executed, and therefore a host includes an operating system. See, e.g., '274 Patent at 7:34 ("Cluster management engine 130 may also manage and provide a unique execution environment for each allocated node of virtual cluster 220."). Indeed, at the August 4, 2016 hearing, Plaintiff alternatively proposed that a "host" is a "program that creates an execution environment."
The Court therefore construes
[Dkt. # 55] at 6; [Dkt. # 57] at 19; [Dkt. # 67] at 20; [Dkt. # 71] at 6. The parties submit that this disputed term appears in Claim 12 of the '274 Patent and Claims 1, 2, 4, 8, 10-11, 15-18, 22, 24, 29-32, 36, and 38-39 of the '714 Patent. [Dkt. # 55] at 6.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "operating system data that is used to initialize a node." At the August 4, 2016 hearing, the parties agreed to the Court's preliminary construction.
The Court therefore construes
[Dkt. # 55] at 7; [Dkt. # 57] at 23; [Dkt. # 67] at 21; [Dkt. # 71] at 8. The parties submit that these disputed terms appear in Claims 1, 15, and 29 of the '714 Patent. [Dkt. # 55] at 7.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (reject def[endant]'s proposal of `changing')."
Plaintiff argues that whereas its proposed construction "is consistent with the understanding of a POSITA [(person of ordinary skill in the art at the time of the invention)] in view of the specification," "[Defendant] improperly limits resetting a boot image to changing the selected node's form, image, pointer, or reference, a proposed construction improperly imported from the specification." [Dkt. # 57] at 23.
Defendant responds that because "reset" is used in the specification in two different contexts, namely resetting a node and resetting a boot image, "the term `reset' as used in the patent lacks clarity, and should be construed in the context of its use in the disputed claim term." [Dkt. # 67] at 21. Defendant argues that "the `resetting' step does not merely mean that a boot image is reapplied to a node; the node must be reset using a different boot image." Id. at 22.
Plaintiff replies that "the specification passage [Defendant] cites . . . indicates that a different boot image is possible, but not required." [Dkt. # 71] at 8 (citing '714 Patent at 3:31-35).
The specification discloses embodiments in which resetting a node involves selecting a different boot image:
'714 Patent at 3:29-35 (emphasis added).
Id. at 8:51-66 (emphasis added); see id. at 8:25-28.
The Court has addressed the constituent term "boot image" separately, above. As to Defendant's argument that "resetting" means that a different boot image must be used, Defendant has not adequately justified such a limitation. No such lexicography or disclaimer is evident. Although Defendant has argued that the context of surrounding claim demonstrates that "resetting" occurs only if a different boot image is needed, no such limitation is apparent in the claims at issue. See '714 Patent at Claims 1, 15 & 29.
Instead, this is a specific feature of particular embodiments that should not be imported into the claims. See Comark, 156 F.3d at 1187; see also Phillips, 415 F.3d at 1323. Also, analogously, the specification discloses "recover[ing] server 102 from single hardware component failures by automatically replacing and dynamically rebooting a replacement node 108 for the failed node 108." '714 Patent at 3:51-54 (emphasis added). From this disclosure can be inferred the potential desirability of restarting a failed node using the same boot image rather than a different boot image.
The Court therefore expressly rejects Defendant's proposed construction. No further construction is necessary. See U.S. Surgical, 103 F.3d at 1568; see also O2 Micro, 521 F.3d at 1362; Finjan, 626 F.3d at 1207; ActiveVideo, 694 F.3d at 1326; Summit 6, 802 F.3d at 1291.
The Court therefore construes "
[Dkt. # 55] at 7; [Dkt. # 57] at 21; [Dkt. # 67] at 22; [Dkt. # 71 at 7. The parties submit that this disputed term appears in Claims 1, 15, and 29 of the '714 Patent. [Dkt. # 55] at 7.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "one or more parameters that define the required characteristics of a node in order to run the distributed application."
Plaintiff argues that whereas its proposed construction is consistent with the specification, "[Defendant's] construction improperly ties `policy' to `the required characteristics of a node' rather than a `distributed application'" and "is overly-narrow because it limits `set of variables' to `information related to a boot image and a virtual disk image.'" [Dkt. # 57] at 21.
Defendant responds that their proposed construction "takes into account the context of the claims, which reflects that the policy contains information concerning the boot image and virtual disk." [Dkt. # 67] at 22. Defendant also cites prosecution history. Id. at 22-23. Further, Defendant submits that its proposed construction "does not limit the contents of the policy to any particular information; rather, it includes any content whatsoever as long as it includes the two types of information the inventors considered mandatory given the focus of the claims." Id. at 23.
Plaintiff replies that "[Defendant] fails to explain why its proposal is more helpful [than] just using the word `requirements,'" and "[t]he prosecution history also does not support [Defendant's] proposal." [Dkt. # 71] at 7.
Claim 1 of the '714 Patent, for example, recites (emphasis added):
Surrounding claim language thus provides that the "policy associated with the distributed application" pertains to selecting an appropriate boot image and virtual disk image based on characteristics that are necessary for running the distributed application. Such limitations, however, are set forth by the surrounding claim language. Defendant has not demonstrated that such limitations are inherent features of the "policy."
'714 Patent at 5:45-48; see id. at 5:45-6:18. The specification thus better supports referring to "parameters" rather than Defendant's proposal of "variables."
Jan. 27, 2011 Response [Dkt. # 67-20] at 13; see July 15, 2011 Pre-Appeal Brief Request for Review [Dkt. # 67-21] at 2 (similar); see also Sept. 26, 2011 Appeal Brief [Dkt. # 67-22] at 19-20 (similar).
On balance, this passage does not give rise to a clear disclaimer so as to require that the policy must include information related to a boot image and a virtual disk image. See Omega Eng'g, 334 F.3d at 1324 ("As a basic principle of claim interpretation, prosecution disclaimer promotes the public notice function of the intrinsic evidence and protects the public's reliance on definitive statements made during prosecution.") (emphasis added); see also Golight, 355 F.3d at 1332 ("Because the statements in the prosecution history are subject to multiple reasonable interpretations, they do not constitute a clear and unmistakable departure from the ordinary meaning of the term. ..."). In particular, Defendant has not shown that selecting a boot image or a virtual disk image based on a policy necessarily means that the policy itself contains information about a boot image or a virtual disk image. Instead, this prosecution history merely sets forth limitations that appear in surrounding claim language.
Finally, whereas Defendant has proposed construing this disputed term with reference to "characteristics of a node," the specification discloses that an application may need multiple nodes. See '714 Patent at 5:45-48 (quoted above); see also id. at 5:61-63 ("policies table 132 may store individual virtual cluster policies including: i) minimum/maximum number of nodes 108 assigned to an application environment;. ..."). The construction should therefore refer instead to an "execution environment." The Court rejects Plaintiff's argument that the policy refers to characteristics of an application because, in the above-cited prosecution history, the patentee distinguished the policy in the Lortz reference as not having "anything to do with a boot image or a virtual disk image." Jan. 27, 2011 Response [Dkt. # 67-20] at 13; see Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376, 1381 (Fed. Cir. 2011) ("The patentee is bound by representations made and actions that were taken in order to obtain the patent.").
The Court therefore construes
[Dkt. # 55] at 7; [Dkt. # 57] at 22; [Dkt. # 67] at 23; [Dkt. # 71] at 7. The parties submit that these disputed terms appear in Claims 1, 5, 15, 19, 29, and 33 of the '714 Patent. [Dkt. # 55] at 7.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "[selecting/select] a node at least in part at run-time based on one or more variables."
Plaintiff argues that "`[d]ynamically' is explicitly defined by the patent." [Dkt. # 57] at 22 (citing '714 Patent at 2:33-35, 3:10-14, 3:49-57, 7:34-49 & 7:62-66). Plaintiff submits that Defendant's proposal is inconsistent with that express definition, and Plaintiff argues that "by `excluding manually selecting nodes,' [Defendant] improperly reads out an embodiment allowing for manually selecting nodes on-the-fly." [Dkt. # 57] at 22.
Defendant responds that the specification and the prosecution history distinguish between dynamic selection and manual selection. [Dkt. # 67] at 23-24. Defendant also argues that Plaintiff has failed to demonstrate that Defendant's proposal reads out any disclosed embodiments. Id. at 24.
Plaintiff replies that "[Defendant's] proposed limitation finds no support in the specification or any `clear and unmistakable' disavowal in the prosecution history." [Dkt. # 71] at 8.
The parties appear to agree that the following passage sets forth a definition for "dynamically" or, at least, that the following specified attributes of "dynamically" should be included in the construction of the disputed term:
'714 Patent at 2:29-35.
The remaining dispute is whether "dynamically" excludes "manually." On one hand, the specification contrasts the terms "dynamically" and "manually" as follows:
Id. at 8:34-41 (emphasis added).
On the other hand, the specification discloses that an administrator may make changes:
Id. at 7:34-41 (emphasis added). Moreover, the term "automatically" is specifically described apart from "dynamically," which demonstrates that the '714 Patent does not use "dynamically" to mean "automatically":
Id. at 2:33-41. In addition, this passage further counsels against Defendant's proposed negative limitation by noting that even the term "automatically" can encompass some amount of "user or administrator interaction." Id. The intrinsic evidence thus demonstrates that, in the '714 Patent, "dynamically" merely means at least in part at run-time.
Finally, Defendant has also cited prosecution history, but no definitive statements in this regard are apparent. See Sept. 26, 2011 Appeal Br. [Dkt. # 67-22] at 20-21; see also Oct. 27, 2011 Office Action [Dkt. # 67-23] at 5-6; Omega Eng'g, 334 F.3d at 1324.
The Court therefore construes
[Dkt. # 55] at 7; [Dkt. # 57] at 23; [Dkt. # 67] at 25. The parties submit that these disputed terms appear in Claims 1, 15, and 29 of the '714 Patent. [Dkt. # 55] at 7.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "[providing/provide] the selected node with a pointer or other reference to a virtual disk drive." At the August 4, 2016 hearing, the parties agreed to the Court's preliminary construction.
The Court therefore construes
[Dkt. # 55] at 7-8; [Dkt. # 57] at 24; [Dkt. # 67] at 27; [Dkt. # 71] at 9. This disputed term appears in Claims 6, 20, and 34 of the '714 Patent. [Dkt. # 55] at 7; [Dkt. # 72-2] at 7.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (not indefinite)."
Plaintiff argues that the claims and the specification provide context for understanding this relative term. [Dkt. # 57] at 24. Plaintiff also argues that Defendant's indefiniteness argument should be rejected because it is "made without any extrinsic or testimonial support" and because "[t]he specification shows that low utilization means a node that is doing less work than other currently-running nodes." Id. at 25 (citing '714 Patent at 9:4-10).
Defendant argues that this disputed term is indefinite because "[i]t is a subjective determination of the user," and "[e]ven the metric is unclear." [Dkt. # 67] at 27.
Plaintiff replies that "[t]he cases that [Defendant] cites deal with the concept of `low' (i.e., low angle or low-efficiency) in the absolute sense, and not in the relative sense that is used in the '714 patent." [Dkt. # 71] at 10.
The Supreme Court of the United States has "read [35 U.S.C.] § 112, ¶ 2 to require that a patent's claims, viewed in light of the specification and prosecution history, inform those skilled in the art about the scope of the invention with reasonable certainty." Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120, 2129 (2014). "A determination of claim indefiniteness is a legal conclusion that is drawn from the court's performance of its duty as the construer of patent claims." Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347 (Fed. Cir. 2005) (citations and internal quotation marks omitted), abrogated on other grounds by Nautilus, 134 S.Ct. 2120.
The specification demonstrates that the term "low utilization" refers to a relative degree of utilization:
'714 Patent at 9:4-10 (emphasis added).
Defendant's expert opines that "[t]here are many different ways to measure the `utilization' or `use' of a computer system," such as "what portion of processor time is spent executing non-idle threads," "the amount of available physical or virtual memory," "the current network load," "number of concurrent processes, or the number of current users logged in." June 30, 2016 Livny Decl. [Dkt. # 67-3] ¶ 65.
Yet, Defendant's expert acknowledges that "a particular measure of utilization assessed at one system can be compared with the same measure assessed at another system" and "can be used to determine which system has a higher level of utilization and which has a lower level of utilization." Id. at ¶ 66. Because the claim language and the specification, as set forth above, demonstrate that "low utilization" is used as a relative term rather than an absolute term, Defendant has not demonstrated that the claims at issue fail to "inform those skilled in the art about the scope of the invention with reasonable certainty." Nautilus, 134 S. Ct. at 2129; see Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370 (Fed. Cir. 2014) ("We do not understand the Supreme Court to have implied in Nautilus, and we do not hold today, that terms of degree are inherently indefinite.").
The Court therefore expressly rejects Defendant's indefiniteness argument, and the Court construes
[Dkt. # 55] at 8; [Dkt. # 57] at 25. The parties submit that this term appears in Claims 2 and 30 of the '714 Patent. [Dkt. # 55] at 8.
Plaintiff argued that this disputed term is not a means-plus-function term because it "merely further limits `distributed application'—a term the parties separately construed and agreed was not subject to 35 U.S.C. § 112 ¶ 6—to having operability to execute at a subset of the plurality of nodes." [Dkt. # 57] at 25 (citations omitted). Alternatively, Plaintiff argued that "[Defendant's] identification of alternative structures, DBMS or financial software, is overly-narrow because the specification provided those alternative structures only as non-limiting examples." Id. at 26 (citing 02bc714 Patent at 4:17-22). In other words, Plaintiff argued that "[Defendant's] identification of alternative structures unduly limits the distributed application to two types and fails to provide structure that would allow a distributed application to run on a subset of nodes." [Dkt. # 57] at 27.
Defendant responds that it "no longer seeks construction of this term." [Dkt. # 67] at 28; see [Dkt. # 72-2] 3 n.1. The Court therefore does not further address this term.
[Dkt. # 55] at 8-9; [Dkt. # 57] at 27; [Dkt. # 67] at 28; [Dkt. # 71] at 10; [Dkt. # 72-1] at 3. The parties submit that this disputed term appears in Claim 1 of the '274 Patent. [Dkt. # 55] at 8.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "plain meaning (not subject to 35 U.S.C. § 112 ¶ 6)."
Plaintiff argues that Defendant cannot overcome the presumption against means-plus-function treatment, and "[o]nce the court resolves the construction of disputed terms in this phrase, e.g., `node,' the meaning of the [disputed term] is clear." [Dkt. # 57] at 27. Alternatively, Plaintiff argues that the specification discloses a "management node" as performing the claimed function. Id. at 27-28. Plaintiff also urges that Defendant's proposal should be rejected because "[Defendant's] identification contradicts the specification because the management node may run other modules than a daemon to monitor the system's health." Id. at 28 (citation, alteration, and internal quotation marks omitted).
Defendant responds that the presumption against means-plus-function treatment is overcome because although "the inventor used the word `manager,' . . . the specification makes clear that the term is simply a name given to any number of software modules in the patented system." [Dkt. # 67] at 29.
Plaintiff replies: "[Defendant] does not define the structure based on any specification passages cited in its brief. Instead, [Defendant] relies only on its expert's declaration." [Dkt. # 71] at 10.
At the August 4, 2016 hearing, Defendant urged that even if "manager" is deemed to be a structural term because of its recitation as being "coupled to the fabric," the "manager" is nonetheless a generic "black box" that lacks any boundaries.
Title 35 U.S.C. § 112, ¶ 6 provides: "An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof."
"[T]he failure to use the word `means' . . . creates a rebuttable presumption . . . that § 112, para. 6 does not apply." Williamson v. Citrix Online LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015) (citations and internal quotation marks omitted). "When a claim term lacks the word `means,' the presumption can be overcome and § 112, para. 6 will apply if the challenger demonstrates that the claim term fails to recite sufficiently definite structure or else recites function without reciting sufficient structure for performing that function." Id. at 1349 (citations and internal quotation marks omitted).
Williamson, in an en banc portion of the decision, abrogated prior statements that the absence of the word "means" gives rise to a "strong" presumption against means-plus-function treatment. Id. (citation omitted). Williamson also abrogated prior statements that this presumption "is not readily overcome" and that this presumption cannot be overcome "without a showing that the limitation essentially is devoid of anything that can be construed as structure." Id. (citations omitted). Instead, Williamson found, "[h]enceforth, we will apply the presumption as we have done prior to Lighting World. . . ." Id. (citing Lighting World, Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1358 (Fed. Cir. 2004)). In a subsequent part of the decision not considered en banc, Williamson affirmed the district court's finding that the term "distributed learning control module" was a means-plus-function term that was indefinite because of lack of corresponding structure, and in doing so Williamson stated that "`module' is a well-known nonce word." Id. at 1350.
The term "manager" as used here is distinguishable from the word "module" in Williamson. Id. at 1348 ("What is important is . . . that the term, as the name for structure, has a reasonably well understood meaning in the art.") (quoting Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583 (Fed. Cir. 1996)). Defendant has cited disclosures in the specification that "[p]hysical manager 505 is any software, logic, firmware, or other module operable to . . ." and "[v]irtual manager 510 is any software, logic, firmware, or other module operable to. . . ." '274 Patent at 13:4-5 & 13:15-16. Although the determination of whether 35 U.S.C. § 112, ¶ 6 applies is performed in the context of the specification, the ultimate inquiry is whether the claim term at issue is structural, not whether a particular embodiment is characterized in the specification as potentially being a "module." See id. Further, the specification also refers to other managers without referring to a "module." See '274 Patent at 61:8-12 & 62:33-37; see also Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1296 (Fed. Cir. 2014) ("[W]e must construe the claim limitation to decide if it connotes `sufficiently definite structure' to a person of ordinary skill in the art, which requires us to consider the specification (among other evidence)."), abrogated on other grounds by Williamson, 792 F.3d 1339.
In finding that 35 U.S.C. § 112, ¶ 6 does not apply, the Court applies long-standing principles articulated prior to the abrogated Lighting World decision. See, e.g., Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1320 (Fed. Cir. 2004) ("when the structure-connoting term `circuit' is coupled with a description of the circuit's operation, sufficient structural meaning generally will be conveyed to persons of ordinary skill in the art, and § 112 ¶ 6 presumptively will not apply"; noting "language reciting [the circuits'] respective objectives or operations"); Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364, 1372 (Fed. Cir. 2003) ("While we do not find it necessary to hold that the term `circuit' by itself always connotes sufficient structure, the term `circuit' with an appropriate identifier such as `interface,' `programming' and `logic,' certainly identifies some structural meaning to one of ordinary skill in the art."); Personalized Media Commc'ns, LLC v. Int'l Trade Comm'n, 161 F.3d 696, 705 (Fed. Cir. 1998) ("Even though the term `detector' does not specifically evoke a particular structure, it does convey to one knowledgeable in the art a variety of structures known as `detectors.' We therefore conclude that the term `detector' is a sufficiently definite structural term to preclude the application of § 112, ¶ 6."); Greenberg, 91 F.3d at 1583 (finding that "detent mechanism" was not a means-plus-function term because it denotes a type of device with a generally understood meaning in the mechanical arts).
No further construction is necessary. Indeed, Defendant has not proposed any alternative construction.
The Court therefore construes
[Dkt. # 55] at 9-10; [Dkt. # 57] at 28; [Dkt. # 67] at 29-30; [Dkt. # 72-1] at 22. The parties submit that this disputed term appears in Claim 38 of the '274 Patent. [Dkt. # 55] at 9.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "structure: `(1) fault tolerance and recovery manager 538 and a daemon or other software component at node 115 providing a heartbeat or checkpointing mechanism, and equivalents thereof; or (2) physical manager 505 and agents 132, and equivalents thereof.'"
Plaintiff submits that the parties agree that this is a means-plus-function term, but the parties dispute the corresponding structure. [Dkt. # 57] at 28. Plaintiff argues that "[a] POSITA would understand that the disclosed corresponding structure is the `management node,' which may include software for monitoring currently running nodes, such as a fault tolerance and recovery manager." Id. Plaintiff urges that "[Defendant's] proposed identified structure improperly excludes other disclosed embodiments, including the embodiment where the management node may run modules other than a daemon, such as `a fault tolerance and recovery manager 538' to monitor the HPC system's health." Id. at 29 (citing 02bc274 Patent at 62:31-54).
Defendant responds that the corresponding structure must be an algorithm and that its proposed construction "identifies the patent's disclosures of the algorithm for performing the claimed function." [Dkt. # 67] at 30.
Plaintiff replies: "As with the previous term, [Defendant] relies only on its expert's declaration for its proposed ¶ 6 structures. [Defendant's] proposals based only on extrinsic evidence should be rejected." [Dkt. # 71] at 10 (citation omitted).
When it applies, 35 U.S.C. § 112, ¶ 6 limits the scope of the functional term "to only the structure, materials, or acts described in the specification as corresponding to the claimed function and equivalents thereof." Williamson, 792 F.3d at 1347.
Construing a means-plus-function limitation involves multiple steps. "The first step . . . is a determination of the function of the means-plus-function limitation." Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). Here, the parties agree that the claimed function is to "monitor a currently running node in an HPC system comprising a plurality of nodes."
"[T]he next step is to determine the corresponding structure disclosed in the specification and equivalents thereof." Id. A "structure disclosed in the specification is `corresponding' structure only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim." Id. The focus of the "corresponding structure" inquiry is not merely whether a structure is capable of performing the recited function, but rather whether the corresponding structure is "clearly linked or associated with the [recited] function." Id. The corresponding structure "must include all structure that actually performs the recited function." Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir. 2005). However, § 112 does not permit "incorporation of structure from the written description beyond that necessary to perform the claimed function." Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).
The specification discloses a "management node 15" that includes a "fault tolerance and recovery manager 538." '274 Patent at 62:30-32. "Fault tolerance and recovery manager 538 includes a hardware, software, or embedded logic component or a combination of two or more such components for detecting faults at nodes 115 in grid 110 and initiating recovery from such faults." Id. at 62:32-36 (emphasis added). The specification then provides additional detail regarding a "heartbeat mechanism":
Id. at 63:22-63:53 (emphasis added); see id. at 63:54-64:12.
This above-quoted passage discloses that structures for monitoring a currently running node are the "fault tolerance and recovery manager 538" as well as "a daemon or other software component at node 115 providing a heartbeat mechanism." See id. at 63:25-28. The specification also discloses a "checkpoint" mechanism, wherein instead of simply receiving a heartbeat mechanism the fault tolerance and recovery manager 538 actively requests information from nodes. Id. at 64:65-65:16.
Nonetheless, Defendant's proposal that "the management node forces a node to idle or power down, reboots the node, or prevents communication to the node by updating one or more routing tables or updating software or other logic at centralized storage" is rejected as not linked to, or necessary to perform, the claimed function. See, e.g., Northrop Grumman Corp. v. Intel Corp., 325 F.3d 1346, 1352 (Fed. Cir. 2003) ("Under section 112, paragraph 6, structure disclosed in the specification is `corresponding' structure only if the specification or the prosecution history clearly links or associates that structure to the function recited in the claim. . . . A court may not import into the claim features that are unnecessary to perform the claimed function.") (citations and internal quotation marks omitted).
Finally, the specification also discloses a "[p]hysical manager 505" and "agents 132" that interact so as to "determine the physical health" of nodes:
'274 Patent at 13:4-14 (emphasis added). A patent may disclose multiple "alternative structures for performing the claimed function," and the Court may identify those alternatives rather than attempt to formulate a single claim interpretation to cover multiple alternatives. Ishida Co., Ltd. v. Taylor, 221 F.3d 1310, 1316 (Fed. Cir. 2000).
The Court therefore finds that
[Dkt. # 55] at 10-11; [Dkt. # 57] at 29; [Dkt. # 72-1] at 23. The parties submit that this disputed term appears in Claim 38 of the '274 Patent. [Dkt. # 55] at 10.
Shortly before the start of the August 4, 2016 hearing, the Court provided the parties with the following preliminary construction: "fault tolerance and recovery manager 538; and equivalents thereof."
Plaintiff submits that the parties agree that this is a means-plus-function term, but the parties dispute the corresponding structure. [Dkt. # 57] at 29. Plaintiff argues that "[Defendant's] proposed construction improperly omits meaningful structures from its construction and should be rejected." Id. at 30.
Defendant responds that the corresponding structure must be an algorithm and that its proposed construction "identifies the patent's disclosures of the algorithm for performing the claimed function." [Dkt. # 67] at 30.
Plaintiff replies: "As with the previous term, [Defendant] relies only on its expert's declaration for its proposed ¶ 6 structures. [Defendant's] proposals based only on extrinsic evidence should be rejected." [Dkt. # 71] at 10 (citation omitted).
Legal principles regarding 35 U.S.C. § 112, ¶ 6 are set forth as to the term "means for monitoring a currently running node in an HPC system comprising a plurality of nodes," above.
As to the present disputed term, the parties agree that the claimed function is: "if a fault occurs, discontinuing operation of the currently running node and booting the host at a free node from storage."
'274 Patent at 63:42-64:45; see id. at 63:14-18 ("To boot the host, fault tolerance and recovery manager 538 may use one or more of Wake-On LAN, Intelligent Platform Management Interface (IPMI), Preboot Execution Environment (PXE), and Dynamic Host Configuration Protocol (DHCP).").
The Court therefore finds that
The Court adopts the constructions set forth in this opinion for the disputed terms of the patents-in-suit. The parties are ordered to not refer to each other's claim construction positions in the presence of the jury. Likewise, in the presence of the jury, the parties are ordered to refrain from mentioning any portion of this opinion, other than the actual definitions adopted by the Court. The Court's reasoning in this order binds the testimony of any witnesses, but any reference to the claim construction proceedings is limited to informing the jury of the definitions adopted by the Court.
[Dkt. # 55] at 2-3.
