Vir2us, Inc. v. Invincea, Inc. et al

Filing 69

OPINION AND ORDER: The parties are ORDERED to inform the Court by noon on Friday, February 12, 2016, whether they are able to agree on a date and to schedule a private mediation. Otherwise, the Court will ask a magistrate judge to hold a settlement conference in this matter. Signed by District Judge Henry C. Morgan, Jr on 2/4/16 and filed on 2/5/16. (tbro)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

FEB -5 2016

Norfolk Division
Cl ERK, U S. DISTRICT COURT
N<

Vir2us, Inc.,

-FOLK. VA

Plaintiff and Counterclaim Defendant,
v.

Civil Action No. 2:15cvl62

Invincca, Inc. and
Invincea Labs, LLC,
Defendants and Counterclaim Plaintiffs.

OPINION AND ORDER

On Monday, February 1, 2016, the Court conducted a Mark man hearing for the purpose
of construing ten (10) disputed terms in the patents at issue. Upon consideration of the parties'
briefs and oral arguments, the Court ruled from the bench as to nine (9) of these terms and took
the construction of one (1) term under advisement. The Court hereby issues this Opinion and
Order further detailing the Court's claim construction.
I. Factual Background & Procedural History

On April 15, 2015, Plaintiff Vir2us, Inc. ("Plaintiff or "Villus") filed a two-count
Complaint, alleging that Defendants Invincea, Inc. and Invincea Labs. LLC ("Defendants" or
•Invincea") have infringed U.S. Patent Nos. 7,392,541 ("the ;541 Patent") and 7,536,598 ("the

'598 Patent"). Doc. 1. Essentially, Plaintiff alleges that Defendants are infringing certain claims
in the '541 and '598 Patents by. for example, "inducing third parties, including without
limitation, manufacturers, resellers, developers, customers, and end users" directly to infringe the
claims of the ;541 Patent "by installing the Invincea Accused Products on computing devices[,]

using the Invincea Accused Products in their normal and customary manner," and providing

"technical and marketing literature, tutorials, presentations, lectures, product demonstrations, and
videos to customers and end users on how to install, operate configure, and use" certain of

Defendants' products.

Compl. ffl[ 14, 18.

Vir2us alleges similar claims of infringement

pertaining to the '598 Patent. See Compl. 1fl[ 26, 27. Defendants filed their answer on June 12,
2015, Doc. 17, denying they infringed on the patents at issue. See Answer ^ 1. Additionally,
Defendants asserted the affirmative defenses of Failure to State a Claim, Non-Infringement,

Invalidity, Prosecution History Estoppel, Limitation on Damages, No Right to Injunctive Relief,
Laches, Equitable Estoppel and Waiver, 28 U.S.C. § 1498(a). Answer ffl| 34-44.

Defendants also alleged counterclaims against Vir2us, asserting that Plaintiff has
infringed U.S. Patent No. 8,839,422 ("the '422 Patent") by "making, using, offering to sell,

and/or selling in the United States, without authority, products including without limitation
Vir2us's software, including Vir2us Immunity Suite, Vir2us Immunity Platform and/or Vir2us
Genesis." Answer ^ 59. Defendants also seek a declaration that they did not infring any claim of
the '541 Patent or the '598 Patent. Answer 1fl[ 67, 72. Defendants' counterclaim also alleges that
one or more claims of the '541 or '598 Patents are invalid. Answer fl[ 76, 80. On July 2, 2015,

Vir2us responded to Invincea's counterclaims, denying infringement and willful infringement of
the '422 Patent. Doc. 21 ^ 61. Vir2us asserted the affirmative defenses of Patent Invalidity,
Non-Infringement, Prosecution Disclaimer and Prosecution History Estoppel, Limitation of
Damages, No Right to Injunctive Relief, and Lack of Standing. Doc. 21 fl| 82-87.
On September 23, 2015, the Court entered its Rule 16(b) Scheduling Order. Doc. 24.
The parties filed their Joint Identification of Patent Claims and Disputed Claim Terms on

December 18, 2015, Doc. 47, after the Court held a hearing to address Vir2us's Emergency

Motion to Strike Invincea's Identification of Claim Terms for Failure to Comply with the Court's

Scheduling Order, Doc. 34.

The parties filed their opening claim construction briefs on

December 23, 2015. Docs. 48, 51. On January 11, 2016, the parties filed their responsive briefs.
Doc. 57, 58. On January 18, 2016, the parties filed a Joint Claim Construction and Prehearing
Statement, in which they outlined the terms to be construed at the hearing. Doc. 61.
II. Legal Principles of Claim Construction

A. General Principles

The purpose of a Markman hearing is to assist the Court in construing the meaning of the

patent(s) at issue. Markman v. Westview Instruments, Inc., 517 U.S. 370, 371 (1996); Markman
v. Westview Instruments. Inc.. 52 F.3d 967 (Fed. Cir. 1995), affd, 517 U.S. 370 (1996). Patents

consist of "claims," and the construction of those claims "is a question of law, to be determined

by the court." Markman, 517 U.S. at 371; Markman, 52 F.3d at 970-71. A court need only
construe, however, claims "that are in controversy, and only to the extent necessary to resolve

the controversy." Vivid Techs.. Inc. v. Am. Science Eng'g. Inc., 200 F.3d 795, 803 (Fed. Cir.
1999) (citations omitted). To be clear, "[c]laim construction is a matter of resolution of disputed

meanings and technical scope, to clarify and when necessary to explain what the patentee
covered by the claims, for use in the determination of infringement.

It is not an obligatory

exercise in redundancy." NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1311 (Fed. Cir.
2005) (citing U.S. Surgical Corp. v. Ethicon. Inc.. 103 F.3d 1554, 1568 (Fed. Cir. 1997)).

Claim construction begins with the words of the claims. Vitronics Corp. v. Conceptromc,
Inc.. 90 F.3d 1576, 1582 (Fed. Cir. 1996) ("First, we look to the words of the claims themselves

. . . ."). Words in a claim are generally given their ordinary meaning as understood by a person

of ordinary skill in the art (a "POSITA"). Id This "person of ordinary skill in the art is deemed

to read the claim term not only in the particular claim in which the disputed term appears but also

in the context of the entire patent, including the specification." Phillips v. AWH Corp., 415 F.3d
1303, 1313 (Fed. Cir. 2005) (en banc). "In some cases, ... the ordinary meaning of claim

language as understood by a person of skill in the art may be readily apparent even to lay judges,
and claim construction in such cases involves little more than application of the widely accepted
meaning of commonly understood words."

Id at 1314.

Often, however, "determining the

ordinary and customary meaning of the claim requires examination of terms that have a

particular meaning in a field of art. Because the meaning of a claim term as understood by

persons of skill in the art is often not immediately apparent, and because patentees frequently use
terms idiosyncratically, the court looks to those sources available to the public that show what a

person of skill in the art would have understood disputed claims language to mean." Id.
Further, the claims themselves can provide substantial guidance as to the meaning of

particular claim terms. Id First, "the context in which a term is used within a claim can be
highly instructive." Id In addition, other claims of the patent in question, both asserted and
unasserted, can also be useful because claim terms are "normally used consistently throughout

the patent" and therefore "can often illuminate the meaning of the same term in other claims."
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The claims should not be read alone, however, but rather should be considered within the

context of the specification of which they are a part. Markman, 52 F.3d at 978. As the Federal
Circuit stated in Vitronics and restated in Phillips, "the specification is always highly relevant to
the claim construction analysis.

Usually, it is dispositive; it is the single best guide to the

meaning of a disputed term." Phillips, 415 F.3d at 1315. The Court, however, must not read in

limitations from the specification without clear intent to do so. Thorner v. Sony Comp. Entmt.
Am. LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012). Furthermore, a patentee is free to be his or her

own lexicographer, and thus if the patentee defines a term in the specification differently than its
ordinary meaning, the patentee's definition controls. Phillips, 415 F.3d at 1316.
In addition to consulting the specification, a court may also consider the patent's

prosecution history, if in evidence, because it provides information regarding how the United
States Patent and Trademark Office and the inventor understood the patent. See id. at 1317. It

also enables the Court to determine if the inventor limited the invention during the course of
prosecution. Id "[WJhere an applicant whose claim is rejected on reference to a prior patent...
voluntarily restricts himself by an amendment of his claim to a specific structure, having thus

narrowed his claim in order to obtain a patent, he may not by construction ... give the claim the
larger scope which it might have had without the amendments." I.T.S. Rubber Co. v. Essex

Rubber Co., 272 U.S. 429, 444 (1926). Thus, consulting prior art reference in the prosecution
history is permissible. Vitronics, 90 F.3d at 1583.

These elements of the patent itself—the claims, the specification, and its prosecution
history—constitute intrinsic evidence of claim construction.

In addition to such intrinsic

evidence, a court may consider extrinsic evidence to determine the meaning of disputed claims.
Phillips, 415 F.3d at 1317.

Such extrinsic evidence "consists of all evidence external to the

patent and prosecution history, including expert and inventor testimony, dictionaries, and learned

treatises." Phillips, 415 F.3d at 1317 (citing Markman, 52 F.3d at 980). However, the Court

should not rely on extrinsic evidence when the intrinsic evidence removes all ambiguity.
Vitronics. 90 F.3d at 1583.

Such extrinsic evidence generally is held as less reliable than the intrinsic evidence and

"is unlikely to result in a reliable interpretation of patent claim scope unless considered in the

context of intrinsic evidence." Id at 1317-18. With respect to expert evidence, for example,

"[cjonclusory, unsupported assertions by experts as to the definition of a claim term are not
useful to a court . . . [and] a court should discount any expert testimony that is clearly at odds
with the claim construction mandated by the claims themselves, the written description, and the

prosecution history, in other words, with the written record of the patent." Id. at 1318.
With respect to general usage dictionaries, the Federal Circuit noted that "[dictionaries
or comparable sources are often useful to assist in understanding the commonly understood
meaning of words and have been used ... in claim construction," and further noted that "a

dictionary definition has the value of being an unbiased source 'accessible to the public in
advance of litigation.'" Id at 1322 (citing Vitronics, 90 F.3d at 1585). However, the Federal
Circuit cautions that (1) '"a general-usage dictionary cannot overcome art-specific evidence of

the meaning' of a claim term;" that (2) "the use of the dictionary may extend patent protection
beyond what should properly be afforded by the inventor's patent;" and that (3) "[t]here is no
guarantee that a term is used in the same way in a treatise as it would be by the patentee."

Phillips, 415 F.3d 1322 (quoting Vanderlande Indus. Nederland BV v. Int'l Trade Comm'n, 366

F.3d 1311, 1321 (Fed. Cir. 2004)).'

Indeed, "different dictionary definitions may contain

somewhat different sets of definitions for the same words. A claim should not rise or fall based

upon the preferences of a particular dictionary editor,... uninformed by the specification, to rely
on one dictionary rather than another." Id

1In Phillips, the Federal Circuit thus expressly discounted the approach taken in Texas Digital Systems. Inc. v.
Telegenix. Inc.. 308 F. 3d 1193 (Fed. Cir. 2002), in which the court placed greater emphasis on dictionary
definitions of claim terms. Phillips. 415 F.3d at 1319-24 ("Although the concern expressed by the court in
Texas Digital was valid, the methodology it adopted placed too much reliance on extrinsic sources such as

dictionaries, treatises, and encyclopedias and too little on intrinsic sources, in particular the specification and
prosecution history."). The Federal Circuit reaffirmed the approach in Vitronics. Markman. and Innova as the
proper approach for district courts to follow in claim construction, but acknowledged that there was "no magic
formula" for claim construction, and that a court is not "barred from considering any particular sources ... as
long as those sources are not used to contradict claim meaning that is unambiguous in light of the intrinsic
evidence." Phillips. 415 F.3d at 1324.

B. The "Canons of Claim Construction"

The Federal Circuit has recognized certain guideposts, or "canons of construction," to
assist a district court in determining the meaning of disputed claim terms and phrases. These are
merely guideposts, however, and are not immutable rules:
1.

Doctrine of Claim Differentiation: Ordinarily, each claim in a patent has a
different scope. See, e.g.. Versa Corp. v. Ag-Bag Int't Ltd.. 392 F.3d 1325, 1330
(Fed. Cir. 2004). Ordinarily, a dependent claim has a narrower scope than the
claim from which it depends. See, e.g., Phillips, 415 F.3d at 1315. Ordinarily, an
independent claim has a broader scope than a claim that depends from it. See,
e.g.. Free Motion Fitness, Inc. v. Cvbex Int'l, Inc., 423 F.3d 1343, 1351 (Fed. Cir.
2005).

2.

Ordinarily, claims are not limited to the preferred embodiment disclosed in the
specification. See, e.g., Phillips, 415 F.3d at 1323.

3.

Ordinarily, different words in a patent have different meanings.

See, e.g.,

Innova/Pure Water, Inc. v. Safari Water Filtration Svs.. Inc.. 381 F.3d 1111,

1119-20 (Fed. Cir. 2004).

4.

Ordinarily, the same word in a patent has the same meaning. See, e.g., Phillips,
415 F.3dat 1314.

5.

Ordinarily, the meaning should align with the purpose of the patented invention.
See, e.g., Innovad Inc. v. Microsoft Corp., 260 F.3d 1326, 1332-33 (Fed. Cir.
2001).

6.

Ordinarily, general descriptive terms are given their full meaning.

See, e.g.,

Innova/Pure Water, Inc.. 381 F.3d at 1118.

7.

If possible, claims should be construed so as to preserve their validity. See, e.g.,
Energizer Holdings. Inc. v. Int'l Trade Comm'n. 435 F.3d 1366, 1370-71 (Fed.
Cir. 2006).

8.

Ordinarily, absent broadening language, numerical ranges are construed exactly
as written. See, e.g.. Jeneric/Pentron. Inc. v. Dillon Co.. 205 F.3d 1377, 1381
(Fed. Cir. 2000).

9.

2

Ordinarily, absent recitation of order, steps of a method are not construed to have
a particular order. See, e.g.. Combined Svs.. Inc. v. Def. Tech. Corp. of Am., 350
F.3d 1207, 1211-12 (Fed. Cir. 2003).

This list is derived from the one provided in the FEDERAL JUDICIAL CENTER, Patent Law AND PRACTICE

§5.I.A.3.d (5th ed. 2006).

10.

Absent highly persuasive evidentiary support, a construction should literally read
on the preferred embodiment. See, e.g., Cvtologix Corp. v. Ventana Med. Svs.,
Inc.. 424 F.3d 1168, 1175 (Fed. Cir. 2005).
III. Disputed Terms

The parties dispute the following terms. The Court stated on the record the reasons for its
constructions, and it now explains its reasoning in greater detail.
a. "processing logic device"

The Court ORDERED that the proper construction of "processing logic device" is
"hardware circuitry capable of executing electronic instructions."

This construction was proposed by Invincea. At the hearing, Vir2us did not dispute that
the term is anything other than hardware.

Instead, Vir2us argued that Invincea's proposed

construction contained extraneous information, that the term was readily understood, and that if
the Court were to construe the term, it should adopt Vir2us's proposed construction, "computer
processing circuitry." The Court, however, found that Invincea's proposed instruction did not
contain extraneous information.

The Court began by examining the patent language.

See Vitronics Corp.. 90 F.3d at

1582. Claim One of the '541 Patent refers to "at least one processing logic device for executing

at least one instruction . . ." '541 Patent, 69:10-12. Invincea's proposal incorporates concepts

present in the patent language and the specification, which both support the idea that a
"processing logic device" is "hardware circuitry capable of executing electronic instructions."

See, e.g., '541 Patent, 47:18-24 (noting that isolated computing environments ("ICE") "will
normally include processing logic for executing the set of instructions intended of the ICE and

storage switchably coupleable and decoupleable with the processing logic").

Additionally,

Vir2us's proposed construction is circular, defining a "processing logic device" as "computer

processing circuitry." To avoid jury confusion, the Court adopted Invincea's construction, which
explicitly states that the "processing logic device" is hardware circuitry that can execute
instructions.

b. "microprocessor"

After considering the parties' submissions and arguments, the Court ORDERED that this
term required no further construction. The Court is not required to construe every disputed term.
See 02 Micro Intern. Ltd. v. Beyond Innovation Technology Co. Ltd.. 521 F.3d 1351, 1362 (Fed.

Cir. 2008); see also Sunbeam Products. Inc. v. Hamilton Beach Brands, Inc., et al., 3:09-cv-791,

2010 WL 3291830 (E.D. Va. Aug. 19, 2010). The patent does not define "microprocessor."
However, the term possesses a plain and ordinary meaning and its meaning is readily apparent to

a person of ordinary skill in the art. Indeed, Invincea, the party requesting the Court to construe

this term, admitted that the patent "applies [microprocessor] consistently with well-known
industry usage." Doc. 51 at 10. Therefore, the Court need not construe this term.
c. "data store," "storage," "data storage"

The Court ORDERED that the proper construction of these terms is "separate areas of
memory to store data."

The parties agreed that these terms refer to areas or portions of

memory. They also agreed that although these terms are slightly different, they should all have

the same construction. The parties disagreed, however, as to whether data storage can be based

on hardware, software, or both, and they disagreed as to whether data storages are separate from
each other.

The Court examined the '541 and '598 patent languages and specifications, which note
that "data storage devices can consist of hardware, and/or software, and/or a combination of
both." '598 Patent at 64:2-4. Since the Court should not read limitations into the claims that are

not there, see Hill-Rom Servs.. Inc. v. Strvker Corp., 755 F.3d 1367, 1371 (Fed. Cir. 2014), it
would be improper to limit these terms to only physical devices, as Defendants' construction
proposes. Additionally, the patents also describe a first data storage and a second data storage,
which are different, or separate. See '598 Patent, Claim 66 at 90:20-33; '541 Patent, Claim 1 at

69:13-16. The Court disagrees with Vir2us that specifying that the data storages are separate is
redundant, because it is necessary to inform the jury that these storages cannot overlap.
Therefore, the Court finds that defining these terms as "separate areas of memory to store data"
accurately describes their function and will assist the jury.
d. "data store switch"

The Court ORDERED that the proper construction of this term is "software, or
hardware, or a combination of the two that controls access to a data store."

Like the

disagreements over data store, storage, and data storage, the parties disputed whether this term
should be limited to physical devices. Invincea argued that that while the act of switching may
be logical, the switch itself is physical. The patent specification, however, states that "[t]he

switching of a data store may be logical or physical. Logical switching is switching enforced
purely by software." '598 Patent at 7:11-12. It also states that "data storage devices can consist
of hardware, and/or software, and/or a combination of both." '598 Patent at 64:2-4. Thus, the

switch may be non-physical.

The Court notes that the word "switch" is given a different

meaning in computer speak. It no longer represents only a physical object that someone must
touch to perform a function.

The Court agrees with Vir2us that by attempting to limit

construction of this term to a physical device, Invincea improperly limits the scope of the term.
See Hill-Rom Servs.. 755 F.3d at 1371. Thus, it is necessary for the Court to construe the term
and to specify that a data store switch can be software, hardware, or a combination of the two.

10

e. "couple" / "decouple" / "coupling" / "decoupling" / "coupled" / "coupleable"

The Court ORDERED that the proper construction of the terms "couple," "coupling,"
"coupleable," and "coupled" is "hardware, or software, or a combination of the two that
allows for communication of information."

The Court ORDERED that the proper

construction of the terms "decouple" and "decoupling" is "hardware, or software, or a
combination of the two that disallows for communication of information."

The Court

construed the terms in this manner to be consistent with its construction of "switch." The Court

examined the patent languages and the specifications to conclude that coupling and decoupling
can be performed by software, or hardware, or a combination of the two. See '541 Patent at
47:65^48:6 ("any device, logic, hardware, or software that either physically or logically couples

or decouples a signal . . ."). The Court rejected Invincea's argument that excluding the word
"power" from the construction would omit electrical coupling, because the Court viewed

incorporating the words "power" or "electrical coupling" as redundant.

Indeed, the patents

modify "couple" and its variants with "communicatively" and "electrically." See, e.g., '541
Patent at 6:67; '598 Patent at 11:65, 13:18, 14:22-25, 15:4. The fact that "communicatively"
and "electronically" modify "couple" suggests that the term "couple" does not inherently mean
hardware,

software,

or

a combination of the

two

that

allows

for

communication,

communicatively or electronically. Cf Phillips, 415 F.3d at 1314 (noting that because the claim
at issue referred to "steel baffles," the claim "strongly implies that the term 'baffles' does not

inherently mean objects made of steel."). Therefore, there is no additional need to specify that
power, as well as information, may be coupled.

Additionally, Invincea stressed during the hearing that the data stores do not necessarily

cease to exist after decoupling. This construction, however, does not equate decoupling with

11

destroying. What occurs after decoupling, and whether or not the data storages continue to exist
or cease to exist when decoupled, is a separate issue.
f. "dynamically configurable"

The Court ORDERED that the proper construction of "dynamically configurable" is
"the configuration can be changed during operation." The parties disputed whether the term

"dynamically configurable" is necessarily limited to physical components. The Court did not
agree with Invincea that the term is limited to only physical components. See, '541 Patent at

6:31-34, 6:37-39, 29:16-33, 10:8-11, 47:65-48:6.

Indeed, Invincea's proposal limits the

dynamic configuration to only physical components, and the Court should not "read limitations
from the embodiments in the specification into the claims." Hill-Rom Servs., 755 F.3d at 1371.
The Court also construed this term in this way because it believed that if it did not construe the
term, the jury may think that "dynamic" implied "vigorous."
g. "switching system for sclectably and independently coupling and decoupling the
processing logic device with the first storage and/or the second storage under automated
control"

The parties dispute whether this claim phrase is a means-plus-function element governed
by 35 U.S.C. § 112(f). The Court has taken this issue under advisement.
h. "virtual browsing environment"

The Court ORDERED that the proper construction of this term is "a virtual execution

environment specifically for a web browser," adopting Vir2us's proposed construction. The
parties agreed that a "virtual browsing environment" is an execution environment, but they
disagreed as to the type of application that can be executed inside of such an environment.

Vir2us argued that "virtual browsing environment" is limited to a website browser application,

12

whereas Invincea claimed it could be used with any application, such as Microsoft Word, for
example. The Court first examined the claim language, in the context of the entire patent. See
Vitronics Corp., 90 F.3d at 1582; see also Phillips, 415 F.3d at 1313-14. It is important to note

that "the context of the surrounding words of the claim also must be considered." ACTV, Inc. v.
Walt Disney Co.. 346 F.3d 1082, 1088 (Fed. Cir. 2003). Additionally, "it is the claims, not the
written description, which define the scope of the patent right." Williamson v. Citrix Online.

LLC. 792 F.3d 1339, 1346 (Fed. Cir. 2015) (quoting Laitram Corp. v. NEC Corp.. 163 F.3d
1342, 1347 (Fed. Cir. 1998) (internal quotations omitted). Here, Claim 1 of the '422 Patent
states that "the information including at least one website address and an indication of an

operation of the at least one operating system when the at least one browser application executed
within the at least one virtual browsing environment accessed at least one website at the at least

one website address." '422 Patent, Claim 1 at 19:13-18. The claim language does not refer to
any type of application but rather focuses on a browser application that accesses a website. The
claim language therefore implies that the virtual browsing environment is specific to a web

browswer. Thus, Invincea is improperly attempting to broaden the scope of this term. The Court
notes that the specification states that a virtual browsing environment may be used with any type

of application.

'442 Patent at 18:4-5.

While a patentee is free to define a term in the

specification differently from its ordinary meaning, Phillips, 415 F.3d at 1316, here, the claim
language itself is unambiguous and limits this term to a web browser. See, Chef America, Inc. v.

Lamb-Weston, Inc., 358 F.3d 1371, 1374-75 (Fed. Cir. 2004) (construing an unambiguous term
as written). Therefore, "virtual browsing environment" should be construed as it appears in the
claim language.
i. "collection computer"

13

The Court ORDERED that the proper construction of this term is "a computer
connected to a separate computer through a network." The parties disputed whether the
computer must be connected over a server.

The specification describes the "collection

computer" receiving and sending data to and from a network. See '422 patent at Fig. 1, 2:9-14,
26-28.

At the hearing, the Court suggested "a computer connected to a separate computer

through a network" as the construction, and both parties agreed.
j. "website address"

The Court ORDERED that this term requires no construction. Interestingly, Invincea
claims that a term in its own patent, the '422 Patent, should be defined here, and Vir2us asserts

that this term has a plain and ordinary meaning.

Invincea argues that this term applies to

"information used to identify a server hosting a website, such as a Uniform Resource Locator
("URL") (e.g., www.cnn.com) or an IP address." Doc. 51 at 23 (citing Rubin Decl. ^ 38). It also

states that "although this meaning is plain to one of ordinary skill in the art, a jury may not be
aware that multiple forms of addresses can be used to access a website." Doc. 51 at 24. The
Court, however, agrees with Vir2us that a "website address" is not an IP address and that a

person of ordinary skill in the art would not consider an IP address a website address. The Court

noted that the fact that an IP address could be a website address does not necessarily imply that a
website address is an IP address. The Court also examined Newton's Telecom Dictionary, which

lists a URL as an example of a web address, see Doc. 59-1, Newton's Telecom Dictionary at 764
(17th ed. 2001). The Microsoft Press Computer Dictionary defines "IP address" as "a 32-bit (4byte) binary number that uniquely identifies a host (computer) connected to the Internet and
other Internet hosts . . . [which] is expressed in "dotted quad" format. . ." Doc. 59-2, Microsoft

Press Computer Dictionary at 264 (3rd ed. 1997), as does Webster's New World Dictionary,

14

Doc. 59-3, Webster's New World Telecom Dictionary at 250-51 (2008). The Court finds that

both a person of ordinary skill in the art and a lay person would understand "website address"
and that it thus needs no further construction. The Court notes that Invincea chose to use the

term "website address" in its patent, and that if it wished for the term to apply to IP addresses as
well as URLs, it would have so specified. The Court "construe[s] the claim as written, not as the
patentees wish they had written it." Chef America. 358 F.3d at 1374.
IV. Settlement Conference

The parties are ORDERED to inform the Court by noon on Friday, February 12, 2016,
whether they are able to agree on a date and to schedule a private mediation. Otherwise, the
Court will ask a magistrate judge to hold a settlement conference in this matter.
V. Conclusion

For the reasons stated on the record and elaborated herein, the Court constructed the

disputed terms as follows:
Disputed Term

The Court's Construction

Processing logic device

Hardware

circuitry

capable

Microprocessor
Data store, storage, data storage

of executing

No further construction needed

electronic instructions

Separate areas of memory to store data
Software, or hardware, or a combination of the

Data store switch

two that controls access to a data store

Couple, decouple, etc.

Hardware, or software, or a combination of the
two that (dis)allows for communication of

Dynamically configurable

The configuration can be changed during
operation
A virtual execution environment specifically

information

Virtual browsing environment

for a web browser

Collection computer

A computer connected to a separate computer
through a network

Website address

No further construction needed

The Clerk is REQUESTED to deliver a copy of this Order to all counsel of record.

15

It is so ORDERED.

/s/

Henry Coke Morgan, Jr.
Senior United States District Jud
HENRY COKE MORGAN, JR,
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, VA

February JA ,2016