VirnetX Holding Corp (VHC)

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Virnetx v Microsoft patent infringement Document 247 8/19/09



APPLICATIONS INTERNATIONAL
CORP., § CIVIL ACTION NO. 6:07-CV-80 (LED)
Plaintiffs,
JURY TRIAL
V.
MICROSOFT CORPORATION,
Defendant.
MOTION FOR CLARIFICATION AND TO AMEND APPENDIX B TO CLAIM
CONSTRUCTION OPINION
Microsoft respectfully moves to clarify and amend the Court's definition of
"virtual private network" in Appendix B to the claim construction order [Docket #246] to include
language from the Court's opinion that "privately" in the VPN construction requires ensuring
"both data security and anonymity."
At claim construction, one of the primary disputes between the parties on the term
"virtual private network" ("VPN") was over whether a VPN requires both anonymity and data
security as in a private network, or simply data security. The Court ruled that a VPN requires
both. See Claim Construction Opinion at 9 ("Accordingly, the Court construes "virtual private
network" as requiring both data security and anonymity."). While the Court resolved the
dispute clearly, the Court implemented this portion of its construction in Appendix B through the
word "privately":
virtual private network: a network of computers which privately
communicate with each other by encrypting traffic on insecure
communication paths between the computers.
Id. at 35 (Appendix B). The word "privately" in this construction is the focal point for what it
means for a virtual private network to provide security on insecure communication paths, and
Case 6:07-cv-00080-LED Document 247 Filed 08/19/2009 Page 1 of 5
will be the crux of any argument over whether a particular network meets the Court's
requirements for a VPN. However, "privately" is a word that a lay juror may not understand has
the precise meaning given the term by the Court in resolving this dispute between the parties.
Additionally, that term was originally proposed by VimetX as part of its claim construction
position for "VPN," and VimetX has argued that its construction does not require anonymity,
contrary to the Court's construction.
To assist the jury and prevent any confusion at trial, Microsoft proposes adding to
Appendix B the definition of "privately" that the Court set forth in its opinion for the word
"private" in the VPN context. The Court specified that "private' in 'virtual private networks'
means both data security and anonymity." Id. at 8. The Appendix B definition would thus read
(with the new language underlined):
virtual private network: a network of computers which privately
communicate with each other by encrypting traffic on insecure
communication paths between the computers. "Privately" means
ensuring both data security and anonymity.
The Federal Circuit has recently emphasized the necessity of assigning "fixed
meaning" to terms within constructions as part of the process of assigning unambiguous meaning
to the claims. See Every Penny Counts, Inc. v. Am. Express Co., 563 F.3d 1378, 1383 (Fed. Cir.
2009). In Every Penny Counts, the Federal Circuit affiiiiied the district court's claim
construction of the term "excess cash," which required the district court to define a phrase, -sale
price," that had been proposed as part of the "excess cash" construction by the plaintiff. Id.
The Court dismissed the plaintiffs attempt to criticize the district court's clarification of "sale
price," noting that "f the court had adopted [plaintiffs] proposed construction without first
assigning a fixed meaning to this construction, then it would quite clearly have failed to assign a
fixed, unambiguous, legally operative meaning to the claim." Id. (quotation omitted).
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Case 6:07-cv-00080-LED Document 247 Filed 08/19/2009 Page 2 of 5
Here, the definition of "virtual private network" in Appendix B should be
clarified and amended to include the fixed meaning of "privately" given to that term by the Court
in the text of its opinion.'
Dated: August 19, 2009 Respectfully submitted,
/s/ Jared Bobrow
Jared Bobrow (Pro Hac Vice)
Lead Attorney
Matthew D. Powers
Paul Ehrlich (Pro Hac Vice)
Thomas B. King (Pro Hac Vice)
L. Okey Onyejekwe Jr. (Pro Hac Vice)
WEIL„GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
650-802-3000 (Telephone)
650-802-3100 (Facsimile)
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Elizabeth Stotland Weiswasser (Pro Hac Vice)
Timothy E. DeMasi (Pro Hac Vice)
GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153-0119
2 12-3 10-873 5 (Telephone)
212-310-8007 (Facsimile)
[e-mail]
[e-mail]
Daniel Booth (SBN: 24055196)
WEIL, GOTSHAL & MANGES LLP
700 Louisiana, Suite 1600
Houston, TX 77002
713-546-5000 (Telephone)
Microsoft does not waive its prior positions on the construction of "virtual private network"
and other claim terms.
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Case 6:07-cv-00080-LED Document 247 Filed 08/19/2009 Page 3 of 5
713-224-9511 (Facsimile)
[e-mail]
Eric H. Findlay (SBN: 00789886)
FINDLAY CRAFT, LLP
6760 Old Jacksonville Highway, Suite 101
Tyler, TX 75703
903-534-1100 (Telephone)
903-534-1137 (Facsimile)
[e-mail]
ATTORNEYS FOR DEFENDANT
MICROSOFT CORPORATION
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Case 6:07-cv-00080-LED Document 247 Filed 08/19/2009 Page 4 of 5
CERTIFICATE OF SERVICE
This is to certify that all counsel of record who are deemed to have consented to
electronic service are being served with a copy of this document via the Court's CM/ECF system
per Local Rule CV-5(a)(3) on August 19, 2009.
/s/ Paul T Ehrlich
Paul T. Ehrlich
CERTIFICATE OF CONFERENCE
The undersigned hereby certifies that pursuant to Local Rule CV-7(h), counsel for the
parties met and conferred telephonically regarding this motion on August 12, 2009. Microsoft
was represented by Paul Ehrlich. VirnetX was represented by Jason Cassady. Follow-up was
conducted via e-mail, and no agreement could be reached. VirnetX opposes this motion. An
agreement could not be reached because VirnetX took the position that no clarification is
necessary and that the proposed clarification does not accurately reflect the Court's order,
whereas Microsoft believes that the Court's clear statements concerning the scope of its
construction should be included in Appendix B to assist the jury by giving the jury an accurate
and precise view of the construction. Microsoft is accordingly seeking clarification and
amendment of Appendix B.
/s/ Paul T. Ehrlich
Paul T. Ehrlich
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