PATENT INFRINGEMENT PLAYS

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9/03/2009 UPDATE

MICROSOFT CORPORATION,
Defendant.
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CIVIL ACTION NO. 6:07CV80(LED)
JURY TRIAL
PLAINTIFF VIRNETX INC.’S RESPONSE TO DEFENDANT
MICROSOFT CORPORATION’S MOTION FOR CLARIFICATION
TO AMEND APPENDIX B TO CLAIM CONSTRUCTION OPINION
VirnetX, Inc. (“VirnetX) hereby opposes Microsoft Corporation’s (“Microsoft”) Motion
for Clarification to Amend Appendix B to Claim Construction Opinion (“Motion”) and would
show as follows.
The Court, in its Claim Construction Order and Opinion, construed “virtual private
network” (“VPN”) as “a network of computers which privately communicate with each other by
encrypting traffic on insecure communication paths between computers.” See Claim
Construction Opinion [Dkt. No. 246] at 10.1 Microsoft asks the Court to add the following
sentence to the end of this construction: “‘Privately’ means ensuring both data security and
anonymity.” See Motion at 2. Because Microsoft’s proposed revision takes a portion of the
1 As a initial matter, VirnetX opposes Microsoft’s Motion so as not to waive its objection to the
Court’s construction of the term “virtual private network” to the extent that the Court did not
adopt VirnetX’s proposed construction.
Court’s Opinion out-of-context and introduces ambiguity into the construction of virtual private
network, the Court should not adopt Microsoft’s proposal.
Although the Court’s Opinion states that a VPN “require[es] both data security and
anonymity,” Microsoft’s proposed revision to this construction fails to capture the reasoning
underlying the Court’s Claim Construction Opinion and takes a single sentence from the Court’s
thirty-two page opinion out-of-context. Microsoft ignores the context of this statement that (i)
compared the parties’ respective positions regarding anonymity; (ii) detailed the degree of
anonymity of various VPN systems; and (iii) evaluated multiple definitions of “VPN.” See id. at
4-10. Further, this sentence was not written for a lay audience. While the sentence is clearly
understood in the Court’s Opinion, it would introduce ambiguity if taken out of this context and
submitted to the jury.
For this reason, Microsoft’s reliance on Every Penny Counts, Inc. v. Am. Express Co.,
563 F.3d 1378 (Fed. Cir. 2009) is misplaced. Although the Federal Circuit has “emphasized the
necessity of assigning ‘fixed meaning’ to terms within constructions as part of the process of
assigning unambiguous meaning to the claims,” see Motion at 2, there is nothing fixed or
unambiguous about Microsoft’s proposed construction. Microsoft’s proposed construction
introduces ambiguity to the construction of VPN—through the terms “ensuring” and
“anonymity”—and offers no additional guidance to the jury.
Moreover, if the Court adopts Microsoft’s clarification, VirnetX fears that Microsoft will
attempt to exploit this ambiguity by re-arguing to the jury what the Court has already decided
during claim construction. Specifically, Microsoft may attempt to equate the “anonymity”
requirement of the Court’s construction to IP tunneling or the IP address hopping feature of the
preferred embodiments of the patents-in-suit, but both of these arguments have already been
rejected by the Court.
For all of these reasons, VirnetX respectfully requests that the Court deny Microsoft’s
Motion for Clarification and to Amend Appendix B to the Claim Construction Opinion..
DATED: September 3, 2009 Respectfully submitted,
McKOOL SMITH, P.C.
/s/ Sam Baxter
Sam F. Baxter
Texas State Bar No. 01938000
E-mail: [e-mail]
MCKOOL SMITH P.C.
104 East Houston, Suite 300
Marshall, Texas 75670
Telephone: [phone]
Telecopier: [phone]
Douglas A. Cawley
Texas State Bar No. 04035500
E-mail: [e-mail]
Theodore Stevenson, III
Texas State Bar No. 19196650
E-mail: [e-mail]
Luke F. McLeroy
Texas State Bar No. 24041455
E-mail: [e-mail]
Jason D. Cassady
Texas State Bar No. 24045625
E-mail: [e-mail]
J. Austin Curry
Texas State Bar No. 24059636
E-mail: [e-mail]
MCKOOL SMITH P.C.
300 Crescent Court, Suite 1500
Dallas, Texas 75201
Telephone: [phone]
Telecopier: [phone]
Otis W. Carroll
Texas State Bar No. 03895700
Deborah Race
Texas State Bar No. 16448700
IRELAND, CARROLL &KELLEY
6101 South Broadway, Suite 500
Tyler, Texas 75703
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
Robert M. Parker
Texas State Bar No. 15498000
PARKER, BUNT &AINSWORTH, P.C.
100 East Ferguson