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Limelight Networks, Inc. v. XO Communications, LLC

United States District Court, E.D. Virginia, Richmond Division

January 19, 2018

LIMELIGHT NETWORKS, INC., Plaintiff,
v.
XO COMMUNICATIONS, LLC and AKAMAI TECHNOLOGIES INC., Defendants.

          OPINION

          JOHN A. GIBNEY, JR. UNITED STATES DISTRICT JUDGE

         In this patent litigation, the defendant, Akamai Technologies, Inc., ("Akamai") filed a motion in limine to exclude the plaintiffs expert testimony regarding the interpretation of the term "neighboring server" in Limelight's U.S. Patent No. 8, 683, 002 (the "'002 Patent") and also moved for summary judgment on non-infringement due to the Patent and Trademark Appeals Board's ("PTAB") interpretation of the term "second values" in Limelight's U.S. Patent No. 8, 750, 155 (the "'155 Patent"). The parties briefed the issues and the Court held a hearing on December 1, 2017, on the motions and the parties' proposed claim constructions. For the '002 Patent, the Court rejects Akamai's proposed construction of the term "neighboring server" because it unduly limits the term in light of the patent's claims and specification. The Court denies the motion in limine as moot and will not allow either party's expert to present testimony that contradicts the Court's construction. For Limelight's '155 Patent, the Court construes the term "second values" in the same way as the PTAB. The Court therefore grants partial summary judgment to Akamai on that issue, but will allow the parties to further brief whether Akamai's products nevertheless infringe on Limelight's '155 Patent based on the new construction.

         I. AKAMAI'S MOTION IN LIMINE REGARDING INTERPRETATION OF LIMELIGHT'S '002 PATENT

         Akamai moves to strike Limelight's expert testimony regarding the meaning of "one or more neighboring servers" in Limelight's '002 Patent. The motion is better styled as a request for claim construction, and the Court rejects Akamai's proposed construction.

         The definition of the term "neighboring servers" matters in this case because Akamai had a prior art service that, beginning in 2001, would ping all servers within a local group of peer servers known as a Point of Presence ("POP") to find requested content if it could not find the content at the first edge server. In 2009, after the issuance of Limelight's '002 Patent, Akamai changed its system such that it would ping only a specifically chosen set of servers. Relevant here, if the '002 Patent's "neighboring servers" term simply means all local servers, then Akamai has not infringed on the patent because its prior art did just that. If "neighboring servers" means a specific subset of servers chosen for a particular reason, then Akamai's system, beginning in 2009, may have infringed on the '002 Patent.

         Akamai proposes that the Court give the term "one or more neighboring servers" its plain meaning or construe it to mean "one or more nearby servers." Limelight proposes that the Court construe the term as "servers that are gathered in a group as neighbors with respect to a piece of content." The Court rejects Akamai's contention that neighboring servers simply means all local servers and construes "one or more neighboring servers" as "servers that are gathered in a particular group as neighbors with respect to a piece of content." Based on this interpretation, a jury must determine whether Akamai infringes on Limelight's patent.

         A. The '002 Patent

         The '002 Patent claims a method of optimizing a content delivery network ("CDN") in to get internet content to end-users in the fastest way possible. Relevant here, the '002 Patent seeks to overcome the technological limitation that a CDN cannot store all of the content on the internet on each of the network's physical server locations distributed geographically throughout the country. When an internet user requests content on the internet through the CDN and first server to receive the request does not have the content, this results in a "cache miss" and the '002 Patent describes how to best find the requested content and deliver it to the user. The patent's claims look to "neighboring servers" for the missing content.

         The '002 Patent's claims do not themselves define neighboring servers. Claim 15 states that the first server to receive a request exists in a first POP. If the first server does not have the information sought by a user, the system looks for the information in "one or more neighboring servers." The '002 Patent's specification discusses "neighbors" in a number of places throughout the patent. First, it says that "caches gathered in a particular group as neighbors can be other servers in the current POP . . ., servers having the capability to process the content object, a subset of servers assigned to a customer using the CDN to serve the content object, or some other grouping of servers in the POP." ('002 Patent at 4:24-29.) The patent continues that "content may be found in neighboring edge servers in the same POP, in another POP, in CDN origin servers, or even an external origin server'7 (Id. at 4:67-5:6.) (emphasis added).

         B. Legal Standard

         Phillips v. AWE Corp. and its progeny set forth the principles of claim construction. 415 F.3d 1303 (Fed. Cir. 2005). A district court must give a patent's words the ordinary and customary meaning they would have to a person of ordinary skill in the art. Id. at 1313. "[T]he person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification." Id.

         The claim language itself stands at the top of the source hierarchy, followed by other intrinsic evidence-the written description and prosecution history. Id. at 1314. "[T]he 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.'" Id. at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). Despite the specification's important role, "'one of the cardinal sins of patent law [is] reading a limitation from the written description into the claims.'" Id. at 1320 (quoting SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1340 (Fed. Cir. 2001)). "[C]laims must 'not be read restrictively unless the patentee has demonstrated a clear intention to limit the claim scope using words or expressions of manifest exclusion or restriction.'" Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347 (Fed. Cir. 2015) (quoting Innova/Pure Water, Inc., v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1117 (Fed. Cir. 2004).

         "[W]here the specification makes clear at various points that the claimed invention is narrower than the claim language might imply, it is entirely permissible and proper to limit the claims." Alloc, Inc. v. ITC, 342 F.3d 1361, 1370 (Fed. Cir. 2003)). For example, the Federal Circuit found that the undefined term "board" necessarily needed to be made of wood where "there was nothing in the intrinsic record to support the conclusion that a skilled artisan would have construed the term 'board' more broadly than a piece of construction material made from wood cut from a log." Nystrom v. TREX, Co., 424 F.3d 1136, 1145 (Fed. Cir. 2005) ("Throughout the written description, Nystrom consistently used the term "board" to describe wood decking material cut from a log.").

         After considering intrinsic evidence, the Court may look to extrinsic evidence, including inventor testimony, dictionaries, and learned treatises. Extrinsic evidence, however, cannot ...


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