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Bushnell Hawthorne, LLC v. Cisco Systems, Inc.

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

July 1, 2019

BUSHNELL HAWTHORNE, LLC, Plaintiff,
v.
CISCO SYSTEMS, INC., Defendant. Claim Term Agreed Construction Claim Term Plaintiffs proposed construction Defendant's proposed construction Claim Term Plaintiffs proposed construction Defendant's proposed construction Claim Term Plaintiffs proposed construction Defendant's proposed construction Claim Term Plaintiffs proposed construction Defendant's proposed construction Claim Term Plaintiffs proposed construction Defendant's proposed construction

          MEMORANDUM OPINION

          T.S. Ellis, III United States District Judge.

         At issue in this patent infringement action are the parties' proposals regarding the appropriate construction of certain claim terms recited by plaintiffs patent, U.S. Patent No. 7, 933, 951 ("the '951 Patent"). Among these proposals is defendant's argument that certain claims of the '951 Patent, including the Patent's sole independent claim, are fatally indefinite. The parties appeared for a claim construction hearing on May 23, 2019, and this matter, including the issue whether the '951 Patent is indefinite, has been fully briefed and argued. Accordingly, the parties' claim construction disputes are now ripe for disposition.

         I.

         The '951 Patent is entitled "Systems and Methods for Discerning and Controlling Communication Traffic." The Patent purports to disclose "systems and methods ... that allow for redirection of communication traffic over the Internet based, at least in part, on the type of higher-level communication protocol intended to be used." See '951 Patent, Abstract.

         Claim 1 is the sole independent claim of the '951 Patent. The claim reads as follows:

1. A computer system for redirecting Internet communications, said system comprising:
a first processor that receives information from a computer at a point of origin;
a second processor that analyzes the information for one or more pre-defined bit strings or character sets;
a third processor that receives return information from a computer that communicates with other computers on the Internet;
a fourth processor that analyzes the return information for said one or more predefined bit strings or character sets;
a fifth processor that
a) supplies one or more IP Addresses for the information requested if one or more of the pre-defined bit strings or character sets are not encountered,
b) supplies one or more second IP Addresses for the information requested if one or more different bit strings or character sets are encountered,
c) supplies one or more third IP addresses if one or more of the pre-defined bit strings or character sets are encountered and a higher level protocol can be inferred, and/or d) allows the traffic to flow thru unmodified; and a sixth processor that analyzes a request submitted to said different IP Address for one or more alternative bit strings or character sets, wherein the alternative bit strings or character sets are indicative of a particular higher level Internet communication protocol, and wherein the system further comprises maintaining a list of bit strings or character sets for which a different IP Address should not be supplied, wherein the list is updated one or more times after creation of the list, and wherein the list is updated based on monitoring of requests for: originating IP address, requested host-name, size of a DNS query, frequency of a single host-name or domain name, port number, date, and/or time.

'951 Patent at 21; SM5.

         Dependent claims 8, 13, and 15 introduce additional limitations relevant here. Claim 8 recites "a seventh processor that receives a request to connect to a computer at said IP Address." Id. at 22:6-7. Claim 13 recites "a tenth processor at the different IP address." Id. at 22:23-24. And claim 15, in pertinent part, recites the sixth processor introduced by claim 1, namely "the sixth processor that analyzes a request submitted to said different IP address." Id. at 22:29-30.

         II.

         The parties agree that the following four constructions of terms in claim 1 and various dependent claims reflect the manner in which a person of ordinary skill in the art would construe the claim terms in the context of the '951 Patent. Accordingly, these four agreed constructions of the '951 Patent's claim terms are adopted for purposes of this action.

Claim Term
Agreed Construction

"processor" (claim 1 and dependent claims)

"any hardware, software, or combination of two or more of either or both that can process information within the framework of a computer system"

"bit strings" or "character sets" (claim 1 and dependent claims)

"a sequence of bits or characters that represent information"

"higher level protocol" (claim 1 and dependent claims)

"a protocol for transmission of information over the Internet which is above the IP protocol layer"

"transparently" (claim 16)

"in a way that is not perceived by other users or servers"

         III.

         In contrast to those terms, the parties sharply dispute the proper construction of five other claim terms in claims 1, 8, 13, and 15, namely (i) "said different IP Address," (ii) "a different IP Address," (iii) "said IP Address," (iv) "the different IP Address," and (v) "wherein the system further comprises maintaining a list of bit strings or character sets." The claim constructions proposed by the parties are separately addressed below.

         A.

Claim Term
Plaintiffs proposed construction
Defendant's proposed construction

"said different IP Address" (claims 1 and 15)

"an IP address supplied by the fifth processor that is different from the IP address for the information requested by the user or computer at the point of origin"

Indefinite.

         Independent claim 1 and dependent claim 15 each reference a "sixth processor that analyzes a request submitted to said different IP Address." '951 Patent at 21:32-33. Defendant argues that these claims are indefinite because there is no reasonably certain antecedent for the claim term "said different IP address." In response, plaintiff contends that despite the absence of an explicit antecedent basis, it is nonetheless reasonably ascertainable to one skilled in the art[1] that the claim term means "an IP address supplied by the fifth processor that is different from the IP address for the information requested by the user or computer at the point of origin." For the reasons that follow, defendant is correct that claims 1 and 15, and any dependent claims thereto, are invalid for indefiniteness.

         It is well-established that "a patent must be precise enough to afford clear notice of what is claimed, thereby 'apprising] the public of what is still open to them.'" Nautilus, Inc. v. Biosig Instruments, Inc.,572 U.S. 898, 909 (2014) (quoting Markman v. Westview Instruments, Inc.,517 U.S. 370, 373 (1996)). Accordingly, the Supreme Court has held that "a patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with ...


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