EC Data Systems, Inc. v. J2 Global, Inc. et al

Filing 72

CLAIM CONSTRUCTION ORDER by Judge Dean D. Pregerson. SEE ORDER FOR DETAILS. (cch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EC DATA SYSTEMS, INC.,

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Plaintiff,
v.
j2 GLOBAL, INC., ADVANCED
MESSAGING TECHNOLOGIES,
INC.,
Defendants.
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Case No. CV 12-07544 DDP (AJWx)
CLAIM CONSTRUCTION ORDER
OPENING CLAIM CONSTRUCTION BRIEFS
AT DOCKET NOS. 61-62

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I. Background

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This claim construction order pertains to two cases, Case No.

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11-CV-7904 DDP (“the Vitelity Action”) and Case No. 12-CV-7544 DDP

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(“the EC Data Action”) (collectively the “Actions”).

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Communications, Inc. and Advanced Messaging Technologies, Inc.

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(collectively “j2”) are parties to both Actions.

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terms have been identified for construction, with EC Data Systems,

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Inc. (“EC Data”) (the plaintiff in the EC Data Action) and Vitelity

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Communications, LLC (“Vitelity”) (the defendant in the Vitelity

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Action) proposing the same construction for three of these terms.

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j2 is the owner of U.S. Patent Numbers 6,208,638 (“‘638 Patent”);

j2 Global

A total of five

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6,350,066 (“‘066 Patent”); 6,597,688 (“‘688 Patent”); and 7,020,132

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(“‘132 Patent”).

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infringed some or all of these patents.

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j2 is asserting that Vitelity and EC Data have

The technology at issue relates to user receipt and

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transmission of facsimile and telephone messages over the Internet,

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and ways of making those messages available to users.

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Patent describes a method or system for making messages available

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to users over the internet.

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transmitting messages to users in email form.

The ‘066

The ‘638 Patent describes a method for
The ‘688 and ‘132

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Patents, which share common specifications and drawings, relate to

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sending messages over the internet that can be received by a

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facsimile machine.

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two categories: Patents ‘066 and ‘638 relate to a message being

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received by a user, or an “inbound” message; Patents ‘688 and ‘132

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relate to a message that a user is sending, or an “outbound”

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message.

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II. Legal Standard

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The four patents can generally be grouped into

A patent infringement analysis involves two steps: (1)

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determining the meaning and scope of the patent claims asserted to

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be infringed; and (2) comparing the properly construed claims to

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the accused device.

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Inc., 517 U.S. 370 (1996).

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presently before the Court.

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See generally Markman v. Westview Instruments,
The first step in this sequence is

“It is a bedrock principle of patent law that the claims of a

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patent define the invention to which the patentee is entitled the

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right to exclude.”

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(Fed. Cir. 2005) (en banc) (internal quotation marks omitted).

Phillips v. AWH Corp., 415 F.3d 1303, 1312

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2

The

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construction of a particular patent claim term presents a question

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of law, to be decided by the Court.

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Markman, 517 U.S. at 391.

The starting point for claim construction is a disputed term’s

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ordinary meaning.

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construction purposes, ordinary meaning is the meaning that a

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person of ordinary skill in the art would attribute to a claim term

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in the context of the entire patent at the time of the invention,

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i.e., as of the effective filing date of the patent application.

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ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368, 1374 (Fed.

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Phillips, 415 F.3d at 1313.

For claim

Cir. 2009).

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The claims do not stand alone; a person of ordinary skill in

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the art “is deemed to read [a] claim term not only in the context

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of the particular claim in which the disputed term appears, but in

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the context of the entire patent, including the specification.”

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Phillips, 415 F.3d at 1313-14 (emphasis added).

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specification is “the primary basis for construing the claims” in

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light of the “statutory requirement that the specification describe

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the claimed invention in full, clear, concise, and exact terms.”

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Id. at 1315 (internal quotation marks omitted) (emphasis added).

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In determining the proper construction, the claim language,

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specification, and prosecution history – together referred to as

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the “intrinsic evidence” – are of paramount importance.

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(“[T]he best source for understanding a technical term is the

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specification from which it arose, informed, as needed, by the

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prosecution history.” (internal quotation marks omitted)).

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Consistent with this principle, courts have recognized that the

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specification may reveal a special definition given to a claim term

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by the patentee that differs from the meaning it would otherwise
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Accordingly, the

Id.

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possess.

Id. at 1316.

In such cases, the inventor’s lexicography

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governs.

Id.

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intentional disclaimer, or disavowal, of claim scope by the

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inventor.

In other cases, the specification may reveal an

Id.

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Additionally, “[a] patentee may limit the meaning of a claim

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term by making a clear and unmistakable disavowal of scope during

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prosecution.”

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Educ. v. Hedrick, 573 F.3d 1290, 1297 (Fed. Cir. 2009).

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Univ. of Pittsburgh of Commonwealth Sys. of Higher

While a court interprets claim terms in light of the

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specification, it should generally not “import[] limitations from

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the specification into the claims absent a clear disclaimer of

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claim scope.”

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1361, 1373 (Fed. Cir. 2007).

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specification to interpret the meaning of a claim and importing

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limitations from the specification into the claim can be a

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difficult one to apply in practice.”

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In walking this “tightrope,” Andersen, 474 F.3d at 1373, the court

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hews to the question of “how a person of ordinary skill in the art

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would understand the claim terms.”

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Andersen Corp. v. Fiber Composites, LLC, 474 F.3d
“[T]he distinction between using the

Phillips, 415 F.3d at 1323.

Phillips, 415 F.3d at 1323.

A court’s ultimate goal is to construe the disputed terms in a

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manner consistent with the way the inventor defined them and a

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person of ordinary skill in the art would understand them.

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construction that stays true to the claim language and most

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naturally aligns with the patent’s description of the invention

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will be, in the end, the correct construction.”

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at 1316 (internal quotation marks omitted).

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///

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///
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“The

Phillips, 415 F.3d

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III. Analysis
A. Claim terms for the ‘638 Patent

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1. “incoming call signal includes a particular inbound

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address uniquely associated with a user account”

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j2's Construction

EC Data’s and

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Vitelity’s

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Court’s Construction

Construction

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the inbound address
of an incoming
call can only be
associated with one
user account

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the inbound address
of an incoming
call can only be
associated with one
user account, and
each user account
can only be
associated with one
inbound address

the inbound address
of an incoming
call can only be
associated with one
user account

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j2's proposed construction is the same one that j2 offered and

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this Court adopted when this term was previously construed in j2

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Global Communications, Inc. v. Captaris, Inc., No. 09-CV-4150 DDP

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(the “Captaris Action”).

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construction is the same one that the Court rejected in the

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Captaris Action.

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EC Data’s and Vitelity’s proposed

In that Action, the Court noted:

[T]he court finds no indication that the Patent is
limited in the way Defendants suggest. It is clear that
each inbound address is uniquely associated with a user;
however, the claim is silent as to whether a user is
equally limited to one inbound address. The court is
persuaded that j2's proposed construction aligns with the
most “natural[]” reading of the term. [Phillips, 415 F.3d
at 1316.] Defendants’ construction would import
limitations not apparent in the claim or specification
and, which the court considers severely narrow and
outside the realm of what one in the ordinary art would
have understood the claim terms to include.

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(Captaris Claim Construction Order at 19:8-20, Docket No. 205 in

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the Captaris Action.)

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its proposed construction during re-examination of the ‘638 Patent

EC Data and Vitelity state that j2 disavowed

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when it made the following statement: “The foregoing portion of the

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written description makes clear that the user account and the

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inbound address (both used exclusively in the singular case) are

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uniquely associated-there is nothing in the ‘638 patent that

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suggests that a single inbound address may be associated with

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multiple user accounts.”

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the above quote, the words after the dash seem to indicate that the

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purpose of the Patent Owner’s statement was to explain that an

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inbound address is associated with only one user account, not that,

(Spohn Decl. Ex. I at 4-5.)

However, in

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as EC Data and Vitelity suggest, each user account can only be

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associated with one inbound address.

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“clear and unmistakable disavowal of scope,” as Vitelity and EC

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Data suggest.

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Thus, j2 did not make a

Hedrick, 573 F.3d at 1297.

During reexamination, j2 further stated:

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[W]hile a user account can have multiple destination
addresses, it is clear that only a single inbound address
(e.g., a single telephone or facsimile number) is
associated with a particular user account. The '638
patent is very clear in this regard, and it only makes
sense - it is necessary for a user to have an inbound
address that is uniquely associated with a user account
so that messages directed to the inbound address will be
received by the user, and only by the user, at one or
more destination addresses.

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(Spohn Decl. Ex. I at 5.)

As with the previous quote, the

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statement after the dash indicates that an inbound address must be
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associated with only one user account.

The Court previously

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rejected the same arguments that EC Data and Vitelity now make in a
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previous case.1

Because j2 did not make a “clear and unmistakable

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Captaris and EasyLink, who participated in coordinated claim
construction proceedings, advanced the same arguments, with the
same citations to the ’638 Patent’s reexamination history that EC
Data and Vitelity now cite. (Bernstein Suppl. Dec. Ex. J at 17; Ex.
(continued...)
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disavowal of scope during prosecution,” the Court sees no reason to

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depart from the construction it adopted in the Captaris action.

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Hedrick, 573 F.3d at 1297.2

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2. “redirecting the first incoming call signal

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from the first communications server to a second

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communications server”

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j2's Construction

EC Data’s and

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Vitelity’s

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Court’s Construction

Construction

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directing to the
second
communications
server a call that
was originally
directed to a first
communications
server

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moving the first
incoming call signal
from the first
communications
server to a second
communications
server, where
duplicate user
information is
provided to the
second communication
server

directing to the
second
communications
server a call that
was originally
directed to a first
communications
server

There are two disputes regarding the instant term.

The first

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is whether, as EC Data’s and Vitelity’s construction implies, the

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incoming call signal must actually reach the first communications

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server before it goes to the second communications server.

The

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(...continued)
K at 11; Ex. L at 26-27; Ex. M at 21.)
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Additionally EC Data’s and Vitelity’s reliance on the
Examiner’s response to j2’s statements during re-examination are of
no avail. The Examiner’s unilateral reaction to j2's statement
does not bind j2. Salazar v. Procter & Gamble Co., 414 F.3d 1342,
1347 (Fed. Cir. 2005). For these reasons, the Patent Owner’s
statements to the Examiner also do not amount to a disavowal of
patent scope under Biogen Idec, Inc. v. GlaxoSmithKline LLC, 713
F.3d 1090 (Fed. Cir. 2013).
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second is whether the term requires that duplicate user information

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be provided to the second communications server.

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Regarding the first dispute, EC Data and Vitelity state that

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the term to be construed, itself, implies that the information

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reaches the first communication server and is then redirected to a

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second.

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going one place but ended up in another, not necessarily that it

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went to one place first and then another.

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definition of “redirect”: “to change the course or direction of,”

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available at http://www.merriam-webster.com/dictionary/redirect.

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However, redirecting only implies that information was

See Merriam-Webster’s

Additionally, the ‘638 Patent’s preferred embodiment indicates

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that the invention was designed to redirect information without

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ever reaching the first server, since problems may exist with that

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server that prevent it from receiving information: “Also, it should

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be noted that the call will only come from switch 140 to

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communications server 150 if there are no problems with the line.

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Otherwise the call will get routed to a different communications

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server.”

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Vitelity’s and EC Data’s proposed construction would exclude the

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preferred embodiment, a result that is “rarely, if ever, correct.”

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Playtex Prods.,Inc. v. Procter & Gamble Co., 400 F.3d 901, 904

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(Fed. Cir. 2005).

(Bernstein Decl., Ex. A, col. 5, lines 46-50.)

Thus,

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As to the second dispute, in response to “the Examiner[‘s]

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state[ment] that the '638 patent lacks support for a limitation

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requiring that an inbound address remain unchanged during

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redirection of a message signal to a second communications server,”

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(Spohn Decl. Ex. I at 5-6 (Patent Owner responding to Spohn Decl.

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8

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Ex. H at 2)), the Patent Owner made the following statement during

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reexamination:

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[A]t column 5, lines 10-28, the '638 specification
provides that a trunk line interface (reference numeral
152 in FIG. 2) of a communications server (reference
numeral 150 in FIGS. 1 and 2) “receives signals
indicating the circuit destination address of the
incoming call.” This “circuit destination address” is
the destination on the circuit switched network, and is
the same as the “inbound address” described elsewhere in
the ‘638 patent and recited in the claims. As noted
above, this is the telephone or facsimile number assigned
to a user and uniquely associated with the user account.
Much of the remainder of column 5, including the
discussion at lines 47-62 previously cited by the Patent
Owner, addresses redirecting a call to an alternate
communications server capable of allocating necessary
resources to process the incoming message. This
redirecting includes providing the alternate server with
“duplicate user information” required to process the
call. See column 5, lines 54-62.

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(Spohn Decl. Ex. I at p. 6 (bolded emphasis in original and

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underlined emphasis added).)

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Owner’s above statement requires the phrase “where duplicate user

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information is provided to the second communication server” be

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incorporated into the definition of the instant term.

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disagrees.

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EC Data emphasizes that the Patent

The Court

In the above quote, the Patent Owner was answering whether “an

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inbound address remain[ed] unchanged during redirection,” not

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whether user information was required to be duplicated.

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the duplication language in the above was not necessary to answer

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the Patent Examiner’s inquiry, the Patent Owner did not “clear[ly]

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and unmistakabl[y]” affirm a duplication requirement during

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reexamination.

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duplication language above cites to the specification, thus

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indicating that the language was explanatory, not a disavowal of

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claim scope.

See Hedrick, 573 F.3d at 1297.

Because

Additionally, the

See Andersen, 474 F.3d at 1373 (holding that courts
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should generally not “import[] limitations from the specification

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into the claims absent a clear disclaimer of claim scope”).3

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these reasons, the Court will not incorporate the duplication-

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related language that EC Data and Vitelity suggest.

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3. “Audio Message”
j2's Construction

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For

Vitelity’s

Court’s Construction

Construction
an audible message
that contains a
voice or facsimile
message

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a message, such as a
voice message
but not a facsimile
message, that is
intended to be heard
by a recipient

an audible message
that contains a
voice or facsimile
message

EC Data does not ask the Court to construe this term.

j2's

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construction is the same as what it proposed and the Court adopted

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in the Captaris Action.

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24.)

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Court rejected in the Captaris Action.

(Captaris Claim Constriction Order at 22-

Vitelity’s construction is the same construction that the

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(Id.)

Vitelity correctly notes that the specification, at times,

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makes a distinction between an audio and facsimile message.

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However courts should generally not “import[] limitations from the

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specification into the claims absent a clear disclaimer of claim

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scope.”

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statement that the Patent Owner made during patent prosecution on

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June 7, 1999:

Andersen, 474 F.3d at 1373.

Vitelity also focuses on a

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It appears that the Examiner may have taken the Patent
Owner’s above block-quoted response as affirming a duplication
limitation. (See Spohn Decl. Ex. J at 4.) For the same reasons
that are discussed in footnote 2, however, the Examiner’s
statements do not change the Court’s conclusion.

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Richardson [the prior art being distinguished] does not
anticipate the features present in the currently amended
claims to allow distribution of voicemail messages via
the use of electronic mail messages, which involves the
conversion of [an] incoming audio message into a digital
representation of said audio message; and sending said
digital representation of said audio message to [an]
electronic mail address in an electronic mail message.
In addition, Richardson also does not anticipate the
association of a recipient’s phone number to an e-mail
address to allow an incoming voice call to be delivered
to the recipient by determining a user account and an
electronic mail address associated with [an] inbound
address. (Emphasis added).4

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The above quote, though, is about voicemail.

The prior art being

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distinguished, the Richardson patent, concerns voicemail, not
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facsimiles.

(Bernstein Suppl. Decl., Ex. R.)

Indeed, the words

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“fax” or “facsimile” do not appear in the Richardson patent.

(Id.)

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Accordingly, nothing in the above quote indicates that j2 made a
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“clear and unmistakable disavowal [regarding facsimiles] during
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prosecution.”

Hedrick, 573 F.3d at 1297 (Fed. Cir. 2009).

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By contrast, there is substantial evidence that “audio
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message” includes a “facsimile message.”

Claim 11 of the ’638

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Patent states “[t]he system of claim 1, where the audio message is
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a facsimile message and the digital representation of the audio
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message is a graphics file.”

(Bernstein Decl., Ex. A,

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col. 7, lines 54-56 (emphasis added).)

Claim 12 claims “[t]he

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system of claim 1, where the message processing resource further
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The Court notes that the specification and June 7 response
were previously cited by Captaris and EasyLink, and the Court did
not find the cites persuasive. (Bernstein Decl. Ex. P; Id. Ex. L
at 33; Captaris Claim Construction Order.)
Regarding the June 7
response, although Vitelity quotes the language block quoted above,
it is unclear where in the record this quote can be found.
(Vitelity Opening Claim Construction Brief at 7:6-19 (quoting the
above block-quoted language but not citing to it). Nevertheless,
since j2 does not dispute its accuracy, and since j2 has the better
interpretation of the quoted language, the Court need not decide
whether this uncited quote is admissible.
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comprises a processor to: determine if the audio message contains a

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facsimile message or a voice message; and, digitize the audio

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message if the audio message contains the voice message and

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receive the facsimile message if the audio message contains the

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facsimile message.” (Bernstein Decl., Ex. A, col. 7, line 57 – col.

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8, line 5 (emphasis added).)

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a facsimile message.

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9
10

Thus, the term audio message includes

B. The ‘066 Patent
1. “user-specific message storage area”
j2's Construction

EC Data’s and

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Vitelity’s

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Court’s Construction

Construction

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an area within a
storage medium that
stores messages for
a recipient in a
manner that
identifies the
message uniquely to
the recipient

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an area within a
storage medium that
stores messages for
an intended
recipient in a
manner that
identifies the
message uniquely to
the intended
recipient and which
is accessible only
by the intended
recipient

an area within a
storage medium that
stores messages for
a recipient in a
manner that
identifies the
message uniquely to
the recipient

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21

j2's construction is the same one that it proposed and the

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Court adopted in the Captaris Action.

(Captaris Claim Construction

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Order at 15.)

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aside from the clause beginning with “and which” in EC Data’s and

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Vitelity’s construction.

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between the parties’ constructions is that EC Data and Vitelity

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state that “intended recipient” is superior to a definition that

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only states “recipient.”

The parties offer nearly identical constructions,

Before that clause, the only difference

The Court finds that the word “intended”
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is unnecessary surplusage.

2

to which the message is directed.

3

likely to confuse the jury, and, thus, frustrate one of claim

4

construction’s chief purposes.

5

Annuities N. Am., LLC, No. CIV.3:04-CV-01897(CF), 2006 WL 1273740

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(D. Conn. May 9, 2006) (“[T]he purpose of a Markman hearing is to

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construe the patent claims so that the Court can instruct the jury

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on the meaning of the patent.”)

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The recipient is, of course, the entity
Adding unnecessary verbiage is

Whitserve LLC v. Computer Patent

There is also no need to add a requirement that a message be

10

“accessible only by the intended recipient” to the instant term.

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Although EC Data and Vitelity submit evidence the Patent Owner

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stated during reexamination that “access to the mailbox is limited

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to the intended recipient,” (Spohn Decl. Ex. EE at 3, cl. 48 & 99),

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the instant term does not contain the word “mailbox.”

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Patent Owner’s statements about the term “mailbox” have at best

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inconclusive relevance to the instant term.

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message were “accessible only by the intended recipient,” then

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individuals (such as a colleague or friend) whom the recipient has

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given his password to could not access the messages, nor could a

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repairperson for that matter.

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While the ‘066 patent specifically discusses the confidentiality of

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messages, (‘066 Patent at 5:7-9), the invention did not disavow

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that sometimes someone other than the recipient may access the

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message.

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C.

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The ‘688 and ‘132 Patents

///

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Additionally, if a

Such a result would be absurd.

1. “Message queue”

27

Thus, the

///
13

1

j2's Construction

2
3
4
5

a storage area for
storing messages for
retrieval using
a first-in,
first-out policy

7
8
9

11

Court’s Construction

Construction

6

10

EC Data’s

a data structure
implemented within a
processing server
that stores multiple
request messages
received from
customers for
retrieval using a
first-in, first-out
policy

the organization of
messages for
retrieval using a
first-in, first-out
policy

Vitelity has not proffered a construction for the instant
term.

Three disputes underlie the parties’ proposed constructions.
First, the parties dispute whether a message queue is a data

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structure or a storage area.

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should not be incorporated into the Court’s construction, j2 states

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that the term will confuse the jury.

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purposes of a Markman hearing is to adopt constructions that will

16

facilitate juror understanding.

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Magna Donnelly Corp., No. 2:07CV10945-SFC-MKM, 2010 WL 4259615

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(E.D. Mich. Oct. 25, 2010) (“Dura seems to misunderstand the

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purpose of a Markman hearing, which is to translate the terse

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language of the claims that are understandable to a person of

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ordinary skill in the art into a form that would be readily

22

understood by the jury . . .”)

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minimally less confusing.

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organization system, the Court’s adopted construction is likelier

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to aid the jury.

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In arguing that “data structure”

The Court agrees.

One of the

Dura Global Technologies, Inc. v.

However, “storage area” is at best

Because a “queue” is essentially an

Nor does the reexamination history, as EC Data suggests,

27

compel a different result. During reexamination, the Patent

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Examiner defined “queue” as a "multi-element data structure from
14

1

which elements (by strict definition) can be removed only in the

2

same order in which they were inserted; that is, it

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follows a first-in first-out (FIFO) constraint.”

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OO at 16.)

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the present response that the Examiner’s definition of ‘queue’ is

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correct the term ‘message queue’ as used in the ‘132 patent must

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incorporate the notion that the queue is a data structure

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configured to contain multiple messages . . .”

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original.)

(Spohn Decl. Ex.

The Patent Owner argued that even if “for purposes of

Id. (Emphasis in

Thus, the Patent Owner did not affirm a data-structure

10

requirement.

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is given to “queue,” the term must be modified by “message.”

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Because the Patent Owner’s argument was not a “clear and

13

unmistakable disavowal of scope during prosecution,” the Court will

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not adopt the data-structure requirement.

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1297.

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The Patent Owner only argued that whatever definition

Hedrick, 573 F.3d at

Second the parties dispute whether a message queue must be

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implemented within the processing server.

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diagram in the ‘688 Patent’s specification and language within the

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specification that states the “message queue” is included in the

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“processing server.”

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the ‘688 Patent indicated that it did not intend to be limited by

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the diagram EC Data cites: “For purposes of explanation, specific

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embodiments are set forth to provide a thorough understanding of

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the present invention.

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skilled in the art, that the invention may be practiced without

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these details.”

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(emphasis added).)

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principle that a court should generally not “import[] limitations

EC Data relies on a

(‘688 Patent at Fig. 2 and 3:15.)

However,

However, it will be understood by one

(Bernstein Decl., Ex. C, col. 2, lines 58-62
In light of this language, and the general

15

1

from the specification into the claims absent a clear disclaimer of

2

claim scope,” the Court will not import the processing-server

3

limitation here.

4

Int'l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1354 (Fed. Cir. 2010)

5

(“[A]n inventor must evince a ‘clear intention’ to limit the claim

6

terms to a specification embodiment.”)

7

Andersen, 474 F.3d at 1373; Trading Technologies

Additionally, other evidence suggests that the term

8

“processing server” should not be included in the definition of

9

“message queue.”

Although some claims indicate that a processing

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server implements the message queue, (see, e.g., ‘688 Patent claim

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10), claim 19 of the ’688 Patent does not specify the hardware on

12

which the message queue runs.

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queue” to “processing server” and others do not, the pantentee

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evinced an intention not to impose a “processing server” limitation

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on all claims.

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server” in the construction of “message queue.”

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Because some claims link “message

Therefore, the Court will not include “processing

Third, EC Data’s states that the term “message queue” requires

18

that multiple messages always be stored.

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15-16.)

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reexamination of the ‘132 Patent that the message queue is

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“configured to contain multiple messages.”

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16 (emphasis in original).)

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“multiple messages” and not on the words “configured to contain.”

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Something that is “configured” to do something need not always do

25

that thing, but instead, need only be “set up for operation

26

especially in a particular way.” (Bernstein Suppl. Decl., Ex. Q

27

(providing Webster’s definition of “configure”); see also Boston

28

Scientific Corp. v. Cordis Corp., No. C 02-01474 JW, 2006 WL

(EC Data Op. Br. at

EC Data quotes a statement by the Patent Owner during

(Spohn Decl. Ex. OO at

Here, EC Data focuses on the words

16

1

3782840, at *2 (N.D. Cal. Dec. 20, 2006) (relying on the following

2

dictionary definition to define “configure”: “to design, arrange,

3

set up, or shape with a view to specific applications or uses”).

4

Accordingly, “message queue” does not include within its definition

5

a requirement that there be multiple messages, only a requirement

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that the message queue be designed to hold multiple messages.5

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IV. Conclusion

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9
10

For the reasons set forth above, the court adopts the above
claim constructions.
IT IS SO ORDERED.

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Dated:

September 13, 2013
DEAN D. PREGERSON
United States District Judge

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24
5

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26
27
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EC Data’s supplemental authority to the contrary is
unpersuasive. (Docket No. 69.) The supplemental authority again
indicates that a message queue must be “configured” to contain
multiple messages. The authority also indicates that j2 stated
during reexamination that the “message queue must be able to store
multiple message.” (Spohn Supp. Decl. Ex. QQ at 9.) That
something is able to do something, does not mean that it is always
required to do it under every circumstance.
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