Global Sessions LP et al v. TD Bank Group et al

Filing 68

CONSOLIDATED MARKMAN ORDER ACCEPTED AS MODIFIED 65 Amended Report and Recommendation of the Special Master. Signed by Judge Sam Sparks. (kkc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

F!LED
2014
C1J

SEP

E'fl

3:

35

tJ

/ESTEN

iiCT OF

GLOBAL SESSIONS LP; and GLOBAL
SESSIONS HOLDINGS SRL,
Plaintiffs,

Case No. A-13-CA-691-SS
COMERICA BANK,
Defendant.
GLOBAL SESSIONS LP; and GLOBAL
SESSIONS HOLDINGS SRL,
Plaintiffs,
-vs-

Case No. A-13-CA-692-SS

TD BANK GROUP; TORONTO-DOMINION
BANK; TD BANK US HOLDING COMPANY;
and TD BANK, N.A.,

Defendants.

CONSOLIDATED MARKMAN ORDER

BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and
specifically Plaintiffs Global Sessions LP and Global Sessions Holdings SRL (collectively, Global

Sessions)' s Opening Claim Construction Brief [#401,1 Defendants Comerica Bank, TD Bank Group,
Toronto-Dominion Bank, TD Bank US Holding Company, and TD Bank, N.A.'s Opening Claim

Construction Brief [#41], Global Sessions's Response Brief [#43], Defendants' Response Brief

Docket entry numbers refer to filings in Cause Number 13-CV-691. The parties agreed to consolidate these
two cases for Markman purposes, and identical filings appear in both cause numbers.

/

[#44], Global Sessions's Post-Markinan Opening Brief [#52], Defendants' Post-Markman Opening

Brief [#53], Global Sessions's Post-Markman Response Brief [#54], Defendants' Post-Markman
Response Brief [#55], the parties' Joint Chart of Disputed Terms for Claim Construction [#56], the
Amended Report and Recommendation of the Special Master [#5 8], Global Sessions's Objections
[#59], and Defendants' Objections [#60]. Having reviewed the documents, the governing law, the

arguments of the parties at the Markinan hearing, and the file as a whole, the Court now enters the

following opinion and orders.

Background
I.

Procedural History
These two cases are patent infringement suits brought by Global Sessions against the various

bank Defendants. At issue are two pairs of patents. The first pair, referred to as the "session state

patents," includes United States Patent Numbers 6,076,108 (the '108 Patent), titled "System and
Method for Maintaining a State for a User Session Using a Web System Having a Global Session
Server," and 6,480,894 (the '894 Patent), a continuation ofthe '108 Patent. The second pair, referred

to as the "customized dynamic content" or "hub" patents, includes United States Patent Numbers
6,085,220 (the '220 Patent), titled "Enterprise Interaction Hub for Managing an Enterprise Web

System," and 6,360,249 (the '249 Patent), a continuation of the '220 Patent. All four patents share
a single specification, with a few minor differences.2
The parties agreed to a consolidated technical tutorial and Markman hearing in both cause

numbers. The Court, through Special Master Karl Bayer, held the consolidated Markman hearing

2

For example, the abstracts of the '220 and '249 Patents differ from those of the '108 and '894 Patents, and
the former patents also contain a few additional lines in the "Summary of the Invention" section, added during
prosecution.

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on June 11, 2014. Following the Markman hearing, the parties submitted additional briefing. The
Special Master issued his Amended Report and Recommendation on claim construction on August
13, 2014. To the extent the parties have made specific objections to the Special Master's factual

findings or legal conclusions, they are entitled to de novo review of those findings and conclusions.
FED.

II.

R.

Civ. P. 53(f).

Patent Descriptions
The patents-in-suit were prosecuted and issued in the late 1 990s and early 2000s, a time when

a relatively young Internet was being transformed into an e-commerce platform. The session state

patents are focused on the idea of "state," a concept well known in the industry at the time of the
invention. "State" generally describes the "context" of a user's interaction with a website. To use a

modem example, online shopping carts track user "states" and remember what items users place in
their carts, even when users navigate between and among many different webpages across single or
multiple visits.
The industry standard communication protocol used in web communications, HyperText

Transfer Protocol (HTTP), is a "stateless" protocol, meaning it does not track user states by default.
To solve the problems caused by statelessness, early web systems tracked user states on individual

web servers. As websites grew in popularity and web systems were decentralized and expanded
across multiple servers, individually tracking user states became unwieldy and problematic. The
session state patents claim a system and method for maintaining user states using a "global session

server" distinct from any particular web system or web server. The global session server allows web
systems to track user states and use any number of web servers to dispatch content to users, rather

than tying specific users to specific servers tracking their specific state. By drawing upon user states

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tracked by the global session server, individual web servers can remain stateless and respond to user

requests without regard to whether that particular user had been served by that web server in the past.
The hub patents focus on the use of an "interaction hub" made up of multiple layers, with
each layer performing a specific function. For example, a "presentation layer" determines how

webpages are created and displayed to users, while a "trend collection layer" compiles data based
on user activities on the website. According to the patents, this functional partitioning allows

developers to more easily implement system-wide changes by altering the parameters of a single
layer. Additionally, the trend collection layer can enable web systems to tailor content to specific
users based on their expressed interests or histories using the website.

Analysis
I.

Claim ConstructionLegal Standard
When construing claims, courts begin with "an examination of the intrinsic evidence, i.e.,

the claims, the rest of the specification and, if in evidence, the prosecution history." CCS Fitness,
Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002); see also Interactive
v.

Gfl Express, Inc.

Compuserve Inc., 256 F.3d 1323, 1327 (Fed. Cir. 2001).
The words in the claims themselves are of primary importance in the analysis, as the claim

language in a patent defines the scope of the invention. SRIInt 'lv. Matsushita Elec. Corp., 775 F.2d
1107, 1121 (Fed. Cir. 1985) (en banc). The words of a claim "are generally given their ordinary and

customarymeaning."Phillips v.A WHCorp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). "{T]he ordinary
and customary meaning of a claim term is the meaning that the term would have to a person of

ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of

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the patent

application."3

Id. at 1313. The inquiry into how a person

of ordinary skill in the art

understands a claim term provides an "objective baseline" from which to begin claim interpretation.
Id. The person

of ordinary skill in the art is understood to read a claim term not only in the context

of the particular claim in which the term appears, but in the context of the entire patent, including
the specification; thus, both the plain language of the claims and the context in which the various
terms appear "provide substantial guidance as to the meaning of particular claim terms." Id. at 1314.
The specification also plays a significant role in the analysis. Id. at 1315. The Federal Circuit

has repeatedly reaffirmed the principle that the specification "is always highly relevant. .

. .

Usually,

it is dispositive; it is the single best guide to the meaning of a disputed term." Id. (quoting Vitronics
Corp.

v.

Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). In interpreting the effect the

specification has on the claim limitations, however, courts must pay special attention to the

admonition that one looks "to the specification to ascertain the meaning of the claim term as it is
used by the inventor in the context of the entirety of his invention, and not merely to limit a claim

term." Interactive Gift, 256 F.3d at 1332 (internal quotation marks and citations omitted).
The final form of intrinsic evidence the Court may consider is the prosecution history.

Although the prosecution history "represents an ongoing negotiation between the PTO and the
applicant" and therefore "often lacks the clarity of the specification and thus is less useful for claim

construction purposes," it can nonetheless "often inform the meaning of the claim language by
demonstrating how the inventor understood the invention and whether the inventor limited the

This hypothetical person is now commonly referred to simply as an "ordinarily skilled artisan." E.g., Power
Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc., 711 F.3d 1348, 1365-66 (Fed. Cir. 2013).

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invention in the course ofprosecution, making the claim scope narrower than it would otherwise be."

Phillips, 415 F.3d at 1317.
Aside from the intrinsic evidence, the Court may also consult "extrinsic evidence," which
is "all evidence external to the patent and prosecution history, including expert and inventor

testimony, dictionaries, and learned treatises." Id. While extrinsic evidence "can shed useful light
on the relevant art," the Federal Circuit has explained it is "less significant than the intrinsic record
in determining 'the legally operative meaning of claim language." Id. at 13 17 (quoting C. R. Bard,
Inc. v. US. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). Extrinsic evidence in the form of

expert testimony may be useful to a court for "a variety of purposes, such as to provide background
on the technology at issue, to explain how an invention works, to ensure that the court's

understanding of the technical aspects of the patent is consistent with that of a person of skill in the
art, or to establish that a particular term in the patent or the prior art has a particular meaning in the

pertinent field." Id. at 1318. However, conclusory, unsupported assertions by an expert as to the
definition of a claim term are not useful, and should be discounted. Id. In general, extrinsic evidence
is considered "less reliable than the patent and its prosecution history in determining how to read

claim terms," although it may be helpful. Id.
The purpose of claim construction is to "determin[e the meaning and scope of the patent

claims asserted to be infringed." 02 Micro Int'l Ltd.

v.

Beyond Innovation Tech. Co., 521 F .3 d 1351,

1360 (Fed. Cir. 2008) (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 976 (Fed. Cir.

1995), aff'd, 517 U.s. 370 (1996)). Thus, "[wihen the parties raise an actual dispute regarding the

proper scope of these claims, the court, not the jury, must resolve that dispute." Id. However,
"district courts are not (and should not be) required to construe every limitation present in a patent's

asserted claims." Id. at 1362. For example, no construction is required if the requested construction

would be

"an obligatory exercise

in redundancy," or if the "disputed issue [is] the proper

application of a claim term to an accused process rather the scope of the term." Id. (quoting US.
Surgical Corp.

v.

Ethicon, Inc.,

103 F.3d 1554, 1568 (Fed. Cir. 1997)).

II.

Application

A.

Special Master's Recommendations
The Special Master's recommended constructions are as follows:

Claim Term
"a state of a user session"
and
"a state of the user session"

Recommended Construction
No construction necessary.

('108 Patent, Claims 1, 12; '894 Patent, Claims
5-6, 10-12)
1,

"single set of session data representing a state
of the user session"
and
"single set of session data representing a state
of the user session"

One set of information reflecting the history
during the "user session" of the user's requests
and the responsive webpages. This set may
exist in both a master copy and multiple
shadow copies.

('108 Patent, Claims 1, 12; '894 Patent, Claims
5, 10, 12)

"global session server"
and
"session server"

('108 Patent, Claims 1, 6, 10, 12, 17, 21; '894
Patent, Claims 5, 6, 10, 12)
"web system engine"

('108 Patent, Claims 1, 9, 12, 20; '894 Patent,
Claims 1, 2, 5-7, 10-12)

Server that stores and provides session data and
that is sufficiently separate from the web
system engines of the web system, either
physically or logically, such that the web
system engines remain stateless.
One or more components of a web system
forming a unit that services requests
dynamically for web content from users and
returns web pages in response.

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"layer"

('220 Patent, Claims
Claims 1-4, 6, 9, 12)

1,

4-6; '249 Patent,

An identifiable component or an identifiable set
of associated components configured to
perform an identified function; where each
identified layer is functionally insulated from
other identified layers.
The layer that provides the business logic for
the web system.

"business layer"

('220 Patent, Claims 1, 5; '249 Patent, Claims

1,2,6,9,

12)

Business rules of the web system.

"business logic"

('220 Patent, Claim 1; '249 Patent, Claims 1-2,

6,9)
"session state information"

No construction necessary.

('220 Patent, Claim 8)
"existing legacy data"

('220 Patent, Claim 1; '249 Patent, Claim

1,

4,

Data created or maintained prior to the user
session by a computer systemlsoftware outside
of the web system.

7, 10)

Collection ofdata reflecting users' interests and
interactions with the web system.

"profile data"

('220 Patent, Claim

1;

'249 Patent, Claims 1,2,

6,9)
"historical information"

No construction necessary.

('220 Patent, Claim 1; '249 Patent, Claims 1,2,

6,9)

To the extent the parties have not objected to the Special Master's constructions of certain

claim terms, the Court accepts the Special Master's recommendations as to those claim terms

without further comment. These terms are: "layer"; "business layer"; "business logic"; "session state
information"; "profile data"; and "historical information."

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B.

Objections
The Court now turns to the parties' specific objections.

1.

"a state of a user session" and "a state of the user session"
The Special Master concluded no construction was necessary for these terms. This was the

position taken by Defendants in their opening brief

See

Defs.' Op. Br. [#4 1], at 26 (proposing no

construction because the term "was a well-understood term of art at the time of the alleged

invention"). Defendants now abandon that position and object to the lack of a construction, arguing
the term must be construed to mean "all data associated with a user session that is necessary to

maintain the context of the user session."
The concept of state is central to the session state patents, but was not invented by the

patentee. The patents open with a discussion of the concept of state, the inherent problem of stateless
HTTP, and the idea of tracking state across multiple user requests.
11.23-62. The patents even criticize then-current implementations

See, e.g.,

'108 Patent, col. 1

of state-tracking tied to individual

web servers. Id. col.1 l.63col.2 1.6. This historical discussion shows ordinarily skilled artisans at
the time of the invention would readily understand what the "state of a user session" meant.
Although Defendants insist there is a claims construction dispute here, the Court sees only

infringement arguments. There are a potentially infinite number of possible state variables in any
given

systemtime of access,

IP address, user operating system, previous pages visited, items

selected by user, and so on. The Special Master explained any construction requiring a system to
track "all" state information across requests is overly broad, because some implementations of the

invention may not need to track every variable to accurately retain the context of a specific user's
session.

See

Markman Tr. [#5 1], at 67-68. Acknowledging this concern, Defendants modified their

post-Markman proposal to include the phrase "necessary to maintain the context ofthe user session."
But this definition now merely rephrases the basic concept at the heart of the patent. The term

"context" is even used by the patent as a way of describing what state is.

See

'108 Patent, col. 1

11.31-34 ("Without a way to manage state, between web transactions the system will have 'forgotten'

information about the user and the context of the session."). It is not necessary to complicate the

jury's task in this case with yet another defined phrase, particularly when that definition only repeats
the explanation of the core concept introduced in the first column of the patent. See US.

Surgical

Corp., 103 F.3d at 1568 (claims construction "is not an obligatory exercise in redundancy").

Defendants' real concern appears to be with Global Sessions's proposed construction, but
the Court has not adopted that construction, either. The parties agree state was a well-understood
concept at the time of the invention. Their arguments now are not arguments about the scope of what
state means, but rather are arguments about whether particular implementations of the invention

adequately track enough state variables to allow the system to remember the necessary context of
the user session.

See

02 Micro, 521 F.3d at 1362 (claims construction not required when issue is

"the proper application of a claim term to an accused process rather than the scope of the term")
These are infringement arguments, not claim construction arguments. This objection is

OVERRULED.
2.

"single set of session data representing a state of a user session" and "single set of
session data representing the state of a user session"
The Special Master recommended these terms be construed as: "One set of information

reflecting the history during the 'user session' of the user's requests and the responsive webpages.
This set may exist in both a master copy and multiple shadow copies." Global Sessions objects to

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this construction, arguing the phrase "the user's requests and the responsive webpages" has no
support in the record. As an alternative construction, Global Sessions suggests the construction
should read "reflecting the history during the 'user session' of the current user session."
Global Sessions correctly notes the phrase "user's requests and responsive webpages" does
not appear in the patents-in-suit. Instead, the patents explain state as "reflect[ing] the history of the

current user session." '108 Patent, col.2 11.5-6. The patents also explain the process the invention
uses for modifying the session state data used to determine a user's state:
Session data representing a state of the user session is stored in memory in a global
session server. Then, for each subsequent request associated with the user session,
the subsequent request is received, and the session data is retrieved from the global
session server. The subsequent request is then processed using the session data to
provide a web page to the user, and the session data is changed to reflect the
processing. The session data is again updated in the global session server. The global
session server thereby stores session data unique to each user session accumulated
over multiple web transactions.
Id. col 1. 11.48-59;

see also

id., Claim

1

("processing the subsequent request at the web system

engine using the session data to provide a web page to the user; changing the session data to reflect

the processing; and updating the single set of session data in the global session server according to
the changed session data")

This process is accurately reflected in the Special Master's recommended construction. The
process of tracking state involves: (1) receiving a request from a user, (2) retrieving session data, (3)

processing the request using the session data, which includes providing a web page to the user, (4)
changing the session data "to reflect the processing," and (5) updating the session data in the global
session server. The "history" of any user's session thus includes information about what that user
requested, and what the server provided in response. The patent expressly states the session data is

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"changed to reflect the processing" that occurs when the request is processed "to provide a web page
to the user." Reflecting that processing includes reflecting information about the webpages provided
in response to user requests.

If the server is not tracking what the user receives in response to its

requests, the server may lose important aspects of the "context" of that user's interactions with the
website.4

3.

This objection is OVERRULED.

"web system engine"
The Special Master recommended this term be construed as: "One or more components of

a web system forming a unit that services requests dynamically for web content from users and

returns web pages in response." Defendants object to this construction and request the construction
be modified to read "forming a unit that is required to service requests dynamically."

The parties agree, and the Special Master recognized at the Markman hearing, a web system
engine must necessarily possess all constituent parts necessary to perform the functions of a web

system engine. See Markman Tr. [#5 1], at 42-43 (Special Master Bayer: "And if I'm trying to
provide services, to be able to provide those services, doesn't that necessarily imply that within the

web system engine, whatever it takes to provide those services is required.

. . .

I

don't understand

why required even needs to be in there. Why isn't it implicit?"); P1.'s Post-Markman Op. Br. [#521,
at 4 ("Indeed, those elements that are required to perform as a web system engine are implied: the

web system engine would not function if the elements necessary for it to function did not work

together properly."). Defendants' proposed "required" language is implicit in the proposed
construction.

Global Sessions's alternative proposed construction is consistent with this understanding, but is less helpful
to the jury because it makes no effort to explain the concept of history. The Special Master's recommended construction
is therefore preferable.

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Defendants nevertheless argue the "required" language should be added to avoid jury
confusion when Global Sessions inevitably argues a "web system engine" which does

not

contain

everything required to dynamically service requests still infringes. Of course, any such argument to

thejury would not be a valid infringement argument, and the Court highly doubts competent counsel
would advance such an argument in this Court. What lawyer closes a breach of contract case by
arguing to the jury only three of the four required elements were proven by the evidence at trial? If

Defendants' counsel are faced with such stunning advocacy at trial in this matter, the Court has full
confidence they will be able to zealously represent their clients' interests using the Court's jury
instructions and the Special Master's recommended construction. This objection is OVERRULED.
4.

"global session server" and "session server"
The Special Master recommended these terms be construed as: "Server that stores and

provides session data and that is sufficiently separate from the web system engines of the web
system, either physically or logically, such that the web system engines remain stateless." Global

Sessions has objected to the Special Master's recommended construction of these terms, which
adopts the Defendants' position from post -Markman briefing. Global Sessions originally proposed

the term be construed as: "a centralized or distributed server that stores and provides session data,

which is accessible by multiple web system engines."5 In post-Markman briefing, Global Sessions
proposed a different construction: "server in memory that is logically separate from the web system
engines and that stores and provides session data." Global Sessions raises three specific objections

This original construction was also adopted in a preliminary order by another district court construing Global
Sessions' patents. See Pl.'s Op. Br. [#40..7], Ex. F (provisional claim construction order in Global Sessions LP v.
Travelociiy.com LP, No. 6:10cv671 LED-JDL (E.D. Tex. June 25, 2012)), at 4. The parties generally view the Eastern
District court's provisional order, which contains constructions but no analysis or discussion, as persuasive authority
when helpful to their positions in this litigation, and otherwise unpersuasive.

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to the Special Master's recommended construction: (1) the omission of the phrase "in memory"; (2)

the inclusion of the word "physically"; and (3) the inclusion of the phrase "such that the web system

engines remain stateless."
Global Sessions contends the phrase "in memory," which it did not propose in its original

construction and which was not included in the provisional order entered in the prior litigation, is
necessary to prevent some other server physically separate from the web system engines from being

interpreted as the global session server. On several occasions, the specification speaks of a global
session server residing "in memory." See, e.g., '108 Patent col.6 11.33-36 ("In the implementation

of FIGS. 2A and 2B, global session server 138 is maintained as a component in memory and stores
data items associated with the state of a user session."); id. col.7 11.22-24 ("Each session cache 206
can interface with global session server 208 which is maintained in memory for quick access.");

Id.

col. 8 11.13-15 ("Each session cache 218 can interface with multiple global session servers 220

which is maintained in memory for quick access."). Global Sessions contends these repeated

referencesapparently discovered by Global Sessions only after two Markman hearingsrequire
the addition of the limitation "in memory" to the construction of these terms.

Each of the uses of the phrase "in memory" is describing one particular embodiment of an
enterprise web system utilizing a global session server. See Id. col.5

11.6 1-63

("FIGS. 2A and 2B are

block diagrams of object flow within one embodiment of a web system implemented using an
enterprise interaction hub." (emphasis added)); id. col.7 11.15-17 ("FIGS. 3A and 3B are block

diagrams of an enterprise web system that implements a centralized global session server and a
distributed global session server."). The specification is careful to repeatedly characterize these

various descriptions as individual implementations. There is no suggestion they are exclusive
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implementations, nor any suggestion the global session server must be located "in memory" for
purposes of the invention. The Court has found no evidence in the record indicating an ordinarily

skilled artisan would interpret a global session server as being, by definition, "in memory."
Importantly, some claims require the global session server to be located "in memory," but others do
not. Compare '894 Patent, Claim 6 (claiming "[a] web system that maintains a state for a user

session," including "a session server accessible by the web system engines"), with id., Claim 9
(requiring each physical computer system to "comprise[] a session server stored in memory"). Global

Sessions's construction thus runs afoul of "the well-established principle that a court may not import
limitations from the written description into the claims." Laitram Corp.

v.

NEC Corp., 163 F.3d

1342, 1347 (Fed. Cir. 1998). The Federal Circuit has specifically "cautioned against limiting the

claimed invention to preferred embodiments or specific examples in the specification." Falana v.

Kent State Univ., 669 F.3d 1349, 1355 (Fed. Cir. 2012) (internal quotation marks omitted). Where,
as here, "there is no suggestion in the intrinsic record that the applicant intended the claims to have

the limited scope suggested" by the proposed construction, it is the Court's obligation to "follow the
language of the claims, rather than that of the written description." Id. (internal quotation marks
omitted). When the global session server must be located in memory, the claims say so. This
objection is OVERRULED.

Global Sessions's second and third arguments dovetail into a debate over the degree of
separation required between the global session server and the web system engine. Although Global
Sessions initially argued the patents do not mandate any separation, the parties ultimately agreed
some degree ofseparation is required. Both parties agree logical separation may be enough, in certain

circumstances. Global Sessions objects to the Special Master's endorsement of Defendants'
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suggestion physical separation may also be allowed in some embodiments of the invention. Global
Sessions also disputes the notion separation should be defined in terms of the statelessness of the
web system engines.
The Court agrees the concept of physical separation is not supported by the intrinsic record.

Defendants' counsel conceded at the Markman hearing physical separation is not required.

See

Markman Tr. [#51], at 19-20 (Defendants' Counsel: "['Separated'] does not mean they can't be on
the same computer. Of course, they could be on the same computer.

. .

So logically separate or

virtually separate. That's what's required."). Some claims even require physical co-location of the

global session server and the web system engine.

See, e.g.,

'894 Patent, Claim 2 ("The method of

claim 1, wherein at least one of the web system engines is implemented on a plurality of physical

computer systems."); id., Claim 4 ("The method of claim 2, wherein each physical computer system
comprises a session server stored in memory and holding master or shadow copies of session data
for a plurality of user sessions."). Admittedly, these instances of mandatory co-location could

potentially be resolved by the inclusion of the word "or" in the construction, so long as logical
separation was maintained.
Defendants' renewed argument for physical separation, however, is unpersuasive. Defendants
argue a prior art reference known as Smith shows logical separation alone is sometimes insufficient.
The Smith patent stored session data in separate files. The patentee allegedly distinguished Smith on

the grounds it did not contain a global session server. Defendants then make a leap of logic and

presume it was Smith's file-storage mechanism which precluded the existence of a global session
server. But Defendants have not identified anything in the prosecution history, or anywhere else in

the record, showing Smith was distinguished on that basis. Nor do they offer any argument as to why

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file-based separation could not qualify as "logical" separation. Moreover, nothing in the patents-insuit suggests state data is stored in "files;" to the contrary, the patents state session data "is stored

in memory in a global session server." '894 Patent, Abstract. Defendants separately argue a software

partition on a hard drive could adequately separate (logically, but not physically) the two
components, but make no effort to distinguish this partitioning from simple file separation. The
Court SUSTAINS this objection and modifies the Special Master's proposed construction to

eliminate the reference to physical separation.
The final and more substantive dispute is over the inclusion of the phrase "such that the web
system remain stateless." Global Sessions argues this phrase improperly imports a limitation from

the specification into the claims. The Court disagrees. A critical aspect of the invention is the
offloading of state-tracking responsibilities from the web system engine to the global session server.
The problem identified in the prior art was the stateless nature of HTTP and the unwieldy solution

of tracking state on individual web servers. See '108 Patent col. 1 11.23-3 6. The patents specifically
attempt to solve this problem, explaining:
A technical advantage of the use of the global session server is that it allows a web
system engine to remain stateless with respect to an ongoing user interaction with the
web system. This ability to remain stateless frees web system engine to effectively
manage server load balancing and other speed issues. Further, by separating the state
information from important enterprise data (which can be stored in secured
databases), the global session server allows the web system engine to more quickly
associated a state with a particular user request that reflects the history of the current
user session.
Id. col.1,

l.63col.2,

1.6; see also

id.

col.9, 11.53-62. One of the defining characteristics of the

invention is thus the use of the global session server to store and track state data in a logically

separate location, freeing the web system engine and its web servers to remain stateless and call upon

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the global session server when state data is needed to service a user request. If, as Global Sessions

suggests, the web system engine is not statelessin other words, if it is still tracking statethe core
functionality of the session state patents is

lost.6

This objection is OVERRULED.

The Court adopts the following construction of these terms: "Server that stores and provides

session data and that is sufficiently separate from the web system engines of the web system,

logically, such that the web system engines remain stateless."
5.

"existing legacy data"
The Special Master recommended this term be construed as: "Data created or maintained

prior to the user session by a computer system/software outside of the web system." Defendants
object and request the construction be modified to read "an antiquated computer system/software."
Defendants argue the Special Master's recommended construction fails to recognize "legacy"
data is data maintained in an outdated or antiquated computer system, and essentially reads "legacy"

out of the claim. The patents offer no explanation of what the term "legacy" means, and neither party
has identified any relevant intrinsic evidence bearing on the subject. Global Sessions's expert
testified an ordinarily skilled artisan would have understood the term "legacy data" to refer to "data

that has been created by a system external to the one being discussed (i.e., the 'legacy

system')in

other words, the term 'legacy' is relative to 'something else." Pl.'s Op. Br. [#40-10], Ex. 2 (Gupta
Deci.), ¶ 21. This data would also have necessarily been created "prior to the user session." Id. ¶ 23.

Defendants rely on a general purpose dictionary from the year 2000 for the definition of "legacy,"
Global Sessions alternatively suggests the Court should expand the Special Master's recommended
construction to include the entire phrase, "allows a web system engine to remain stateless with respect to an ongoing user
interaction with the web system." This additional language is superfluous because state as a concept exists only by
reference to user interactions with a web system. The only purpose state serves is to track the context ofuser interactions
with a system, so there is no distinction between a stateless web system and a web system merely stateless "with respect
to an ongoing user interaction with the web system."

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meaning "of or pertaining to old or outdated computer hardware, software, or data that, while still
functional, does not work well with up-to-date systems." Def.'s Op. Br. [#41], Ex.

0.

The Court agrees the Special Master's recommended construction accurately captures the

meaning of the term "existing legacy data" for two reasons. First, the thrust ofthe patents' use of this
term is to identify preexisting data somewhere else in the system, which can be drawn into the

interaction hub by the integration layer.

See

'220 Patent, col.1 11.58-61 ("An integration layer is

coupled to the business layer and interfaces with existing legacy data to provide the legacy data to
the business layer."); id. col.4 11.17-20 ("Integration layer 18 allows the system to tie into a wide
array of existing legacy applications, databases and third party software present in enterprise space
26 and ISV space 28."). Second, the terms proposed by

Defendantsold, antiquated, and

outdatedare nebulous and invite indefiniteness disputes because neither the patents nor
Defendants' construction explains how old or outdated a system must be in order to satisfy the claim
term.

See Whittaker Corp.

v.

UNR Indus.,

Inc.,

911 F.2d 709, 712 (Fed. Cir. 1990) ("[C]laims are

generally construed so as to sustain their validity, if possible."). Although Defendants' counsel
assured the Special Master "outdated" means something more than the "difference between iPhone
4 and iPhone 5," the Court has not found any evidence in the record explaining how an ordinarily

skilled artisan would have interpreted a phrase like "outdated" when trying to practice, or avoid
infringing, the patented invention. See Markman Tr. [#51], at 142. As the Special Master explained,
the language proffered by Defendants is "just not precise." Markmari Tr. [#5 1], at 149. In a field
where technology rapidly changes, including ill-defined words like "outdated" offers no help to the

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jurors who will ultimately hear this case, all of whom may have their own views of when technology
becomes

outdated.7

Although the Special Master's recommended construction does not describe "legacy" in
terms of being old, outdated, or antiquated, it does not read "legacy" out of the claim entirely. As
both the patents and Global Sessions's expert explained, legacy data is data which exists on some
preexisting system outside the web system of the invention. Tying the creation of the data to both

a time ("prior to the user session") and place ("a computer systemlsoftware outside the web system")
will allow jurors to conclude whether data qualifies as "existing legacy data" or not.8

Finally, Defendants also argue Global Sessions is judicially estopped from advancing a

proposed construction of this term which does

not

include the word "outdated" because they

proposed a construction including that word in previous litigation. In the Travelocity case, Global
Sessions proposed the following construction of this term: "data pre-existing the user requests that
is old or outdated or stored using old or outdated computer hardware or software, which is accessed

through the use of an integration layer." Pl.'s Op. Br. [#40-7], Ex. 1-F, at 6. The court provisionally
construed the term as "data created or maintained by an outdated computer systemlsoftware that may

7lmagine, for example, a preexisting system using version 1.0 of a particular software program. The developer
then releases version 1.1 of the software, rendering version 1.0 "outdated." Under Defendants' proposed construction,
this system might be transformed into a legacy system by the release ofthe update, and then transformed back into a nonlegacy system once the update is applied. The Court has seen no evidence suggesting "legacy," as that term is used in
the patent and was understood by ordinarily skilled artisans at the time, is so fluid. Instead, the evidence suggests
"legacy" is a referential term referring to preexisting, external systems, regardless of whether they are formally
"outdated" or "antiquated."
8

Defendants previously argued Global Sessions's construction would impermissibly allow legacy data to be
created immediately prior to a user session being initiated, which is inconsistent with the concept of legacy data. Not so.
The legacy systems accessed by the integration layer are still functional, and there is no evidence such legacy systems
cannot continue to both maintain and create new data.

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still be in use." Id. The court expressly reserved the right to modify its provisional order when

entering a final claim construction order. Id. The parties settled before a final order was entered.
The doctrine ofjudicial estoppel is flexible in its application, but is generally applied when

three circumstances are met: "(1) the party against whom judicial estoppel is sought has asserted a
legal position which is plainly inconsistent with a prior position; (2) a court accepted the prior

position; and (3) the party did not act inadvertently." Love v. Tyson Foods, Inc., 677 F.3d 258, 261
(5th Cir. 2012) (internal quotation marks omitted). Still, the doctrine is an equitable one, "invoked
by a court at its discretion," and "different considerations 'may inform the doctrine's application

in specific factual contexts." Reed v. City ofArlington, 650 F.3d 571, 574 (5th Cir. 2011) (en bane)

(quoting New Hampshire

v.

Maine, 532 U.S. 742, 749-51(2001)). Here, although Defendants'

proposed construction tracks the language of the Travelocity court's provisional order, the Court
declines to hold Global Sessions is judicially estopped from challenging that construction. The

Travelocity court did not adopt Global Sessions's proposed construction, it drafted its own
construction. It incorporated the term "outdated," but not the term "old," which Global Sessions had
also proposed. The court's provisional construction also said nothing about the preexisting nature

of the data, which was also part of Global Sessions's construction. Additionally, the provisional
order was expressly open to reconsideration, which never occurred because the parties settled before
a final order was entered. That provisional construction is not binding on anyone. Moreover, the

parties in this case both used the court's provisional order as a sword and a shield, touting it as
persuasive authority when constructions lined up but dismissing it as unpersuasive when advancing
a different construction. See Markman Tr. [#51], at 6 (Special Master Bayer: "I'm just shocked that

both sides find [the provisional order] incredibly authoritative on some terms and totally bunk on
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other terms."). Based on the record before this Court, which includes unchallenged expert testimony

not presented to the Travelocily court, Global Sessions should not be estopped from assisting the

Court in construing this claim term without the use of ill-defined terms like "outdated." These
objections are OVERRULED.

Conclusion
The parties' objections to the Special Master's recommended constructions are

OVERRULED IN PART and SUSTAINED IN PART, as described in this order, and the Special

Master's recommended constructions are ACCEPTED AS MODIFIED.
Accordingly,
IT IS ORDERED that Plaintiffs Global Sessions LP and Global Sessions Holdings

SRL's Objections [#59] are OVERRULED IN PART and SUSTAINED IN PART;
IT IS FURTHER ORDERED that Comerica Bank, TD Bank Group, Toronto-

Dominion Bank, TD Bank US Holding Company, and TD Bank, N.A.'s Objections [#60]
are OVERRULED;

IT IS FINALLY ORDERED that the Amended Report and Recommendation of the

Special Master [#5 8] is ACCEPTED AS MODIFIED. The following chart lists the Court's

construction of the disputed claim terms:

Court's Construction

Claim Term
"a state of a user session"
and
"a state of the user session"

No construction necessary.

('108 Patent, Claims 1, 12; '894 Patent, Claims
1, 5-6, 10-12)

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"single set of session data representing a state
of the user session"
and
"single set of session data representing a state
of the user session"

One set of information reflecting the history
during the "user session" of the user's requests
and the responsive webpages. This set may
exist in both a master copy and multiple
shadow copies.

('108 Patent, Claims 1, 12; '894 Patent, Claims
5, 10, 12)

"global session server"
and
"session server"

('108 Patent, Claims 1, 6, 10, 12, 17, 21; '894
Patent, Claims 5, 6, 10, 12)
"web system engine"

('108 Patent, Claims 1, 9, 12, 20; '894 Patent,
Claims 1, 2, 5-7, 10-12)
"layer"

('220 Patent, Claims

4-6; '249 Patent,

1,

Claims 1-4, 6, 9, 12)

1,2,6,9,

One or more components of a web system
forming a unit that services requests
dynamically for web content from users and
returns web pages in response.

An identifiable component or an identifiable set
of associated components configured to
perform an identified function; where each
identified layer is functionally insulated from
other identified layers.
The layer that provides the business logic for
the web system.

"business layer"

('220 Patent, Claims

Server that stores and provides session data and
that is sufficiently separate from the web
system engines of the web system, logically,
such that the web system engines remain
stateless.

1, 5;

'249 Patent, Claims

12)

"business logic"

Business rules of the web system.

('220 Patent, Claim 1; '249 Patent, Claims 1-2,

6,9)
"session state information"

No construction necessary.

('220 Patent, Claim 8)

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"existing legacy data"

('220 Patent, Claim

1;

'249 Patent, Claim 1,4,

Data created or maintained prior to the user
session by a computer system/software outside
of the web system.

7, 10)

"profile data"

('220 Patent, Claim

Collection ofdata reflecting users' interests and
interactions with the web system.
1;

'249 Patent, Claims 1,2,

6,9)
"historical information"

No construction necessary.

('220 Patent, Claim 1; '249 Patent, Claims 1,2,
6,9)
SIGNED this the

- day of September 2014.
UNITED STATES DISTRICT JUDGE

691 markman order kkt.frm

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