Full opinion text
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AND CONSTRUING “MINI-MARK-MAN” CLAIMS ARMSTRONG, District Judge. This matter comes before the Court for two related proceedings. The first is a “mim-Markman” (limited claim construction) proceeding in which the Court shall construe thirty terms and phrases appearing in twelve claims selected by the parties from the numerous claims at issue in this action. The second is Microsoft’s Motion for Summary Judgment that Certain “Mini-Markman” Claims Are Invalid for Indefiniteness (the “Indefiniteness Motion”). The Court held a claim construction hearing on June 11 and 12, 2003, and heard oral argument on the Indefiniteness Motion on June 12, 2003. Having read and considered the papers submitted, having considered the parties’ arguments at the hearings, and being fully informed, the Court DENIES the Indefiniteness Motion and CONSTRUES the disputed terms and phrases as set forth below. I. BACKGROUND A. Procedural History Plaintiff and counterdefendant Inter-Trust Technologies Corp. (“InterTrust”) filed its Complaint in case number C 01-1640 SBA on April 26, 2001, its First Amended Complaint on June 26, 2001, its Second Amended Complaint on July 30, 2001, and its Third Amended Complaint on October 25, 2001. In its Third Amended Complaint InterTrust claimed infringement of seven patents. Defendant and counterclaimant Microsoft Corp. (“Microsoft”) filed an answer and counterclaims to the Third Amended Complaint on November 15, 2001, alleging infringement of two of its own patents. The Court subsequently held one of the patents asserted in the Third Amended Complaint not infringed, leaving six patents-in-suit from the Third Amended Complaint. On February 6, 2002, InterTrust filed a second, separate patent infringement action against Microsoft, No. C 02-0647 SBA, claiming infringement of an additional patent. That second patent infringement action was consolidated with the earlier-commenced action on May 3, 2002. In an Order filed on October 23, 2002, the Court, inter alia, granted InterTrust leave to amend its complaint. Accordingly, on October 24, 2002, InterTrust filed its Fourth Amended Complaint, claiming infringement of eleven patents (i.e., it added infringement claims regarding four new patents), one of which was the patent-in-suit in Case No. C 02-0647 SBA. Per the Court’s October 23, 2002 Order, Case No. C 02-0647 SBA was automatically dismissed as moot upon the filing of the Fourth Amended Complaint. In an Order filed on November 1, 2002, the Court stayed this action in part, staying all proceedings (including discovery) unrelated to twelve claims selected by the parties and listed in the Order; these claims would be subject to limited Markman and indefiniteness proceedings. On November 7, 2002, Microsoft filed an Answer and Counterclaims to InterTrust’s Fourth Amended Complaint, in which it claimed infringement of the same two of its own patents that it had asserted in its previous answer and counterclaims. Thus, at present, InterTrust has asserted eleven patents that are currently in suit, and Microsoft has asserted two, for a total of thirteen patents-in-suit. These patents are: InterTrust: 5,892,900 (the “ ’900 patent”) 5,915,019 (the “ ’019 patent”) 5,917,912 (the “ ’912 patent”) 5,920,861 (the “ ’861 patent”) 5,949,876 (the “ ’876 patent”) 5,982,891 (the “ ’891 patent”) 6,112,181 (the “ T81 patent”) 6,157,721 (the “ ’721 patent”) 6,185,683B1 (the “ ’683 patent”) 6,253,193B1 (the “ ’193 patent”) 6,389,402B1 (the “ ’402 patent”) Microsoft: 6,049,671 (the “ ’671 patent”) 6,256,668 (the “ ’668 patent”) Both parties have asserted various affirmative defenses to the opposing party’s infringement claims, and Microsoft additionally seeks declaratory judgments of non-infringement of InterTrust’s asserted patents. B. The Instant Proceedings 1. Mirai-Markman Proceeding Per the Court’s Order of February 24, 2003, and the Court’s relevant prior and subsequent Orders, the parties are before the Court for a “mini-Markman” proceeding. The Court is construing thirty terms and phrases from twelve claims jointly selected by the parties from the eleven patents asserted by InterTrust. The parties have asked for one additional item of construction: whether a particular term, “virtual distribution environment,” should be read into all of the claims at issue as a limitation. The terms and phrases to be construed have been selected from the following twelve claims (from seven of Inter-Trust’s asserted patents): 1. 193.1 2. 193.11 3. 193.15 4. 193.19 5. 683.2 6. 721.1 7. 721.34 8. 861.58 9. 891.1 10. 900.155 11. 912.8 12. 912.35 The parties have filed a Patent Local Rule 4-3 Joint Claim Construction and Prehearing Statement Revised in Accordance with the Scope of “Mini-Markman ” Hearing Set Forth in the Court’s Order Entered 2/24/03 (the “JCCS”), which provides most of the essential information for the Court’s construction of the terms and phrases at issue. The parties’ competing proposed constructions of the terms and phrases are set out in Exhibits A and B to the JCCS (both exhibits provide the parties’ proposed constructions but organize them differently). InterTrust’s and Microsoft’s identifications of intrinsic and extrinsic evidence are set out in Exhibits C and D, respectively, to the JCCS. In connection with the mini -Markman hearing the parties have submitted the following briefs: InterTrust has submitted InterTrust’s Opening Claim Construction Brief (“InterTrust’s Opening Markman Brief’) (40 pages in length); Microsoft has submitted Microsoft’s Markman Brief (40 pages); and InterTrust has submitted Plaintiff InterTrust Technologies Corporation’s Reply Memorandum on Claim Construction (“InterTrust’s Reply Markman Brief’) (25 pages). The parties have also submitted various declarations with attachments in support of their briefs. On In-terTrust’s motion, the Court struck the testimony of witnesses David Maier, Sanford Bingham, and Martin Plaehn, offered by Microsoft in support of its claim construction positions, in two Orders filed on June 5 and 10, 2003. The parties have filed a Joint Appendix to Joint Claim Construction Statement (the “JA”), which consists of a brief cover document and 18 volumes containing the full seven patents-in-suit from which the 12 claims that are the subject of the mini-Markman proceeding are taken (Exhibits A through G), the prosecution histories of these seven patents (Exhibits H through Q), selected cited references (Exhibits R through DD), and a related patent application (Exhibit EE). 2. Indefiniteness Motion Also per the Court’s Order of February 24, 2003, and the Court’s relevant prior and subsequent Orders, the parties are before the Court for resolution of Microsoft’s Indefiniteness Motion. The Indefiniteness Motion seeks summary judgment on the issue that those of the claims at issue that contain any of the terms “secure,” “protected processing environment,” or “host processing environment” are invalid as indefinite. These terms are three of the 30 terms to be construed in the mini -Markman proceeding. The parties’ briefing on the Indefiniteness Motion consists of the following: Microsoft’s Brief in Support of Motion for Summary Judgment that Certain “Mini-Markman ” Claims Are Invalid for Indefiniteness (“Microsoft’s Opening Indefiniteness Brief’); the Memorandum of Points and Authorities of Plaintiff InterTrust Technologies in Opposition to Microsoft (sic) Motion for Summary Judgment on Indefiniteness and in Support of Cross-Motion for Summary Judgment (“Inter-Trust’s Indefiniteness Opposition Brief’); and Reply to InterTrust’s Opposition to Microsoft’s Brief in Support of Motion for Summary Judgment that Certain “Mini-Markman ” Claims Are Invalid for Indefiniteness (“Microsoft’s Reply Indefiniteness Brief’). Both parties’ briefs overwhelmingly focus on the term “secure.” The parties have also submitted various declarations with attachments in support of their briefs. Of Microsoft’s evidentiary submissions, on InterTrust’ motion the Court struck the testimony of witnesses Jim McLaughlin, Julien Signes, Damian Saccocio, and Karl Ginter, in an Order filed on June 5, 2003. II. LEGAL STANDARDS A. Claim Construction Generally A patent confers the right to exclude others from making, using, or selling the invention defined by the patent’s claims. See Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed.Cir.1985). A patent must describe the exact scope of an invention and its manufacture to secure to a patentee all to which he is entitled, and to apprise the public of what is still open to them. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 373, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). These objectives are served by two distinct elements of a patent document. First, it contains a specification describing the invention in such full, clear, concise, and exact terms as to enable any person skilled in the art to make and use the same. See 35 U.S.C. § 112. Second, a patent includes one or more claims, which particularly point out and distinctly claim the subject matter which the applicant regards as his or her invention. See id. The first step in any invalidity or infringement analysis is claim construction. See Union Oil Co. v. All. Richfield Co., 208 F.3d 989, 995 (Fed.Cir.2000). The construction of claims is simply a way of elaborating the normally terse claim language in order to understand and explain, but not to change, the scope of the claims. See id. Claim construction is a matter of law to be determined by the court. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed.Cir.1995), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). B. Consideration of Evidence in Connection with Claim Construction 1. Intrinsic Evidence “It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification, and, if in evidence, the prosecution history.”. Vitronics Corp. v. Conceptronic; Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996) (citing Markman, 52 F.3d at 979). In the context of the intrinsic evidence, the court should first look to the .language of the claims themselves. See id. Words in a claim are generally given their ordinary and customary meaning as understood by one of ordinary skill in the art. See id.; see also Dow Chem. Co. v. Sumitomo Chem. Co., 257 F.3d 1364, 1373 (Fed.Cir.2001) (“[A] technical term used in a patent claim is interpreted as having the meaning a person of ordinary skill in the field of invention would understand it to mean.”). It is well-established that “dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in determining the ordinary and customary meanings of claim terms.” Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202 (Fed.Cir.2002); see also Dow Chem., 257 F.3d at 1373 (“Dictionaries and technical treatises ... hold a special place and may sometimes be considered along with the intrinsic evidence when determining the ordinary meaning of claim terms.”). A dictionary definition may not be relied on, however, if it contradicts any definition found in’ or ascertained by a reading of the patent documents. See Kopykake Enters., Inc. v. Lucks Co., 264 F.3d 1377, 1382 (Fed.Cir.2001) (citing Vitronics, 90 F.3d at 1584 n. 6). The Court should rely on specialized, technical dictionaries that reflect the understanding of one skilled in the art, rather than lay dictionaries. AFG Indus, v. Cardinal, 239 F.3d 1239, 1247-48 (Fed.Cir.2001) (“Dictionary definitions of ordinary words are rarely dispositive of their meanings in a technological context.”) (citing Anderson v. Int’l Eng’g & Mfg., Inc., 160 F.3d 1345, 1348-49 (Fed.Cir.1998); see also Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1580 (Fed.Cir.1996)). “Although words in a claim are generally given their ordinary and customary meaning, a patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, provided the special definition of the term is clearly stated in the specification.” Vitronics, 90 F.3d at 1582. Therefore, it is necessary to review the specification to determine whether the patentee has used terms inconsistent with their ordinary and customary meaning. See id.; see also Dow Chem., 257 F.3d at 1373 (“[T]he court must examine the intrinsic evidence to determine whether the patentee has given a term an unconventional meaning.”). Thus, the specification acts as a dictionary when it expressly defines a term used in the claim or defines it by implication. See Vitronics, 90 F.3d at 1582 (citing Mark-man, 52 F.3d at 979). However, in examining the specification, the court must not read limitations from .the specification into the claims. See Burke, Inc. v. Bruno Indep. Living Aids, Inc., 183 F.3d 1334, 1340 (Fed.Cir.1999); Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186-87 (Fed.Cir.1998) (limitations from specification are not to be read into the claims, but there is a fine line between reading a claim in light of the specification and reading a limitation into the claim from the specification); but see SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., 242 F.3d 1337, 1341 (Fed.Cir.2001) (“Where the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question.”). Finally, if it is entered into evidence, the court must examine the prosecution history of the patent. See Dow Chem., 257 F.3d at 1373; Vitronics, 90 F.3d at 1582. The prosecution history contains the complete record of the proceedings before the Patent and Trademark Office, and may include express representations made by the applicant regarding the scope of the claims. See Vitronics, 90 F.3d at 1582. The court examines the prosecution history to determine “whether the patentee has ‘relinquished a potential claim construction in an amendment to the claim or in an argument to overcome or distinguish a reference.’ ” Dow Chem., 257 F.3d at 1373 (citing Interactive Gift Exp., Inc. v. Compuserve Inc., 256 F.3d 1323, 1331 (Fed.Cir.2001)); see also Pall Corp. v. PTI Technologies Inc., 259 F.3d 1383, 1392 (Fed.Cir.2001) (“[I]t is well established that ‘[t]he prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution.’ ”) (citing Southwall Technologies, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995)). A narrower claim interpretation will be adopted if the “accused infringer can demonstrate that the patentee ‘defined’ the claim as ‘excluding’ a broader interpretation ‘with reasonable clarity and deliberateness.’ ” Pall Corp., 259 F.3d at 1393 (citing N. Telecom Ltd. v. Samsung Elecs. Co., 215 F.3d 1281, 1294-95 (Fed.Cir.2000)). 2. Extrinsic Evidence In most cases, an examination of the intrinsic evidence will be sufficient to resolve any ambiguity in the disputed claim and it would be improper to rely on extrinsic evidence. See Vitronics, 90 F.3d at 1583 (citing Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1216 (Fed.Cir.1995)). Extrinsic evidence may be used to define the claim only if the claim language remains “genuinely ambiguous” after consideration of the intrinsic evidence. See id. However, “it is entirely appropriate, perhaps even preferable, for a court to consult trustworthy extrinsic evidence to ensure that the claim constructions it is tending to from the patent file is not inconsistent with clearly expressed, plainly apposite, and widely held understandings in the pertinent technical field.’ ” AFG Indus., 239 F.3d at 1249 (quoting Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1309 (Fed.Cir.1999)); see also Bell & Howell Document Mgmt. Prods. Co. v. Altek Systems, 132 F.3d 701, 706 (Fed.Cir.1998); Mantech Envtl. Corp. v. Hudson Envtl. Servs., Inc., 152 F.3d 1368, 1373 (Fed.Cir.1998). When “the specification explains and defines a term used in the claims, without ambiguity or incompleteness, there is no need to search further for the meaning of the term.” However, when such definition is challenged it is often appropriate, despite facial clarity and sufficiency of the specification and the prosecution history, to receive evidence of the meaning and usage of terms of art from persons experienced in the field of the invention. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 540 (Fed.Cir.1998) (citations omitted). A court may hear all relevant testimony— including expert testimony — so long as it does not accord weight to expert testimony that contradicts the clear language of the claim. See Vitronics, 90 F.3d at 1584. C. Invalidity Based on Indefiniteness A patent is presumed to be valid. 35 U.S.C. § 282. A party challenging the validity of a patent must prove the invalidity by clear and convincing evidence. See Apotex USA, Inc. v. Merck & Co., 254 F.3d 1031, 1036 (Fed.Cir.2001); Loral Fairchild Corp. v. Matsushita Elec. Indus. Co., 266 F.3d 1358, 1361 (Fed.Cir.2001). A patent claim satisfies the definiteness requirement of paragraph 2 of 35 U.S.C. § 112 only if “one skilled in the art would understand the bounds of the claim when read in light of the specification.” Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed.Cir.2001) (citing Miles Labs., Inc. v. Shandon, Inc., 997 F.2d 870, 875 (Fed.Cir.1993)). This means that the claims at issue must be “sufficiently precise to permit a potential competitor to determine whether or not he is infringing.” Morton Int’l, Inc. v. Cardinal Chem. Co., 5 F.3d 1464, 1470 (Fed.Cir.1993). But a claim is not indefinite “merely because it poses a difficult issue of claim construction”; the claim need only “be amenable to construction, however difficult that task may be.” Exxon Research, 265 F.3d at 1375. Whether a claim is indefinite is a question of law. Id. at 1376. III. DISCUSSION As an initial matter, the Court notes that the relevant “art” of the claims at issue in the mmi-Markman proceeding and the Indefiniteness Motion is computer security. The Court previously reached this conclusion in its Order re: Unresolved Portion of InterTrust’s Motion to Strike Markman Matter after considering supplemental briefing on this issue, and the Court now incorporates by reference its reasoning therein. The Court addresses the Indefiniteness Motion first for a practical reason: if any of the terms at issue are found indefinite, there would be no need to construe any claim that contains such term or terms. A. Indeñniteness Motion Microsoft’s Indefiniteness Motion seeks summary judgment on the issue of whether the claims at issue are indefinite with regard to three terms: “secure”; “protected processing environment”; and “host processing environment.” The overwhelming majority of the briefing, however, is addressed solely to the term secure. These terms are discussed in turn. 1.Secure Although Microsoft’s discussion of why the term secure is indefinite is lengthy both in its opening brief and its reply brief, the essence of its theory of indefiniteness is a ten-variable test created by Microsoft’s expert, Professor John C. Mitchell (“Prof.Mitchell”), which, he eon-tends, is not satisfied with respect to secure. Specifically, Prof. Mitchell asserts that in order for persons of ordinary skill in the art to understand what is meant by the term secure, they must be able to reach a common understanding with regard to each of the following variables: 1. Protecting what types of things or actions? 2. Protecting what specific things or actions? 3. Protecting what properties of these things or actions (e.g., secrecy/confidentiality, integrity, availability, authenticity, and non-repudiation)? 4. Protecting against whom? 5. Protecting against what points of attack? 6. Protecting against what kind of attacks? 7. Secure for how long? 8. How to test or infer the existence of the protection? 9. What degree of protection? 10. Secure to whom? (Decl. of Professor John C. Mitchell at 9-11.) Prof. Mitchell’s Declaration presents numerous excerpts from the relevant specifications that, he evidently believes, do not allow persons of ordinary skill in the art to reach common understandings regarding any or all of these variables. (See, e.g., id. at 12-18.) Given that the Court has stricken the testimony of witnesses Signes, McLaughlin, Saccocio, and Ginter, Prof. Mitchell’s testimony constitutes virtually the entirety of the evidentiary support, other than the text of the claims and specifications themselves, for Microsoft’s positions in the Indefiniteness Motion. InterTrust advances a number of arguments in response to Microsoft’s contentions. First, it points out that Prof. Mitchell testified that secure has a general meaning in the field of computer science, and he himself was able to explain his use of the word secure. (InterTrust’s Indefiniteness Opp. Br. at 4.) Prof. Mitchell also testified that there is a recognized set of criteria for determining whether a system is secure. (Id. at 5.) Second, InterTrust asserts that the claims of the patents-in-suit use secure in context, placing qualifiers around it that make clear to what they are referring. (Id. at 5-7.) Third, Inter-Trust notes that Prof. Mitchell’s ten-variable test was created for the purposes of litigation and that Prof. Mitchell does not apply this test to any other document; indeed, as InterTrust’s expert, Dr. Michael Reiter (“Dr.Reiter”), testifies, Microsoft’s own patents and Prof. Mitchell’s own computer security papers fail the test. (Id. at 8.) Relatedly, InterTrust provides various examples in which Prof. Mitchell appears to understand what secure means in context, yet he nevertheless finds the term indefinite because it fails to meet his ten-variable test. (Id. at 8-9.) Fourth, InterTrust, emphasizing that Microsoft must produce clear and convincing evidence, describes the relevant standard for determining indefiniteness, noting that the use of general terms to describe a range of circumstances does not render claims indefinite and that the fact that reasonable persons might disagree regarding the scope of claims does not render them indefinite. (Id. at 10-14.) Inter-Trust adds that Microsoft’s assertion that 35 U.S.C. § 112 requires claims to be drafted “as precisely or specifically as possible” to be definite has been expressly rejected by the Federal Circuit in PPG Industries v. Guardian Industries Corp., 156 F.3d 1351 (Fed.Cir.1998). (Id. at 15.) Fifth, InterTrust notes that the terms secure and securely are used in other patents, including Microsoft’s patents. (Id. at 17.) Sixth, InterTrust explains that the Patent and Trademark Office (“PTO”) examiners assigned to the InterTrust applications had no difficulty applying the disputed terms to the prior art. (Id. at 18.) Seventh, InterTrust contends that Prof. Mitchell’s analysis should be discarded because he made no attempt to construe the claims as a whole, but rather focused on secure in isolation. (Id. at 18-19.) Eighth, InterTrust seeks to distinguish the cases offered by Microsoft in which certain claim terms were held indefinite on the basis that those cases concerned patent applications,, not issued patents; in the former there is no presumption of validity, whereas there is such a presumption' for the latter. (Id. at 20-22.) In its reply brief, Microsoft addresses several of InterTrust’s arguments. Of particular note is Microsoft’s argument that certain patent language defines secure with reference to a particular purpose, but that purpose is not explicitly defined (e.g., commercial requirements), thereby leaving the reader in the dark about the scope of the claim. (Microsoft’s Indefiniteness Reply Br. at 7-9, 11-12.) In particular, Microsoft argues that to the extent that secure is defined with reference to the context of the invention’s commercial embodiments, it is indefinite. (Id. at 12-13.) In addition, Microsoft, quoting deposition testimony of Prof. Mitchell, disputes InterTrust’s contention that Prof. Mitchell did not attempt to understand claim terms in the context of the claims. (Id. at 3-4.) At first blush, Microsoft’s arguments and examples are appealing: when read in isolation, many of the claims’ uses of the term secure superficially appear ambiguous. But InterTrust has made a convincing case that Microsoft’s arguments must be rejected. Perhaps most crucially, the Court agrees with InterTrust that Prof. Mitchell’s test is not credible. Prof. Mitchell’s test is so unusual and unsupported — probably because, as he admitted, it was created for this litigation — that the Court finds it not credible. There is no evidence whatever, other than Prof. Mitchell’s self-serving assertion, that a person of ordinary skill in the art would require definition of all ten variables in the test to understand what is meant by secure. Still further, Prof. Mitchell’s opinions are suspect because his declaration does not reflect that he has made any effort to understand the meaning of secure in the context of the claims in their entirety, his deposition testimony on this point notwithstanding. Such an approach is not consistent with proper claim construction, which requires interpretation of each claim as a whole. Prof. Mitchell’s conspicuous failure to apply his test to the use of the word in other documents suggests that the test has been generated for selective application to InterTrust’s patents. And even more damaging to the test’s credibility is Dr. Reiter’s testimony that application of this test to Microsoft’s own patents renders them indefinite. The need to satisfy this test thus seems more hypothetical than real. Further, as InterTrust correctly points out, the mere fact that persons skilled in the art might disagree about the scope of the claims at issue does not render them indefinite. As the Federal Circuit has observed, “It may of course occur that persons experienced in a technologic field will have divergent opinions as to the meaning of a term, particularly as narrow distinctions are drawn by the parties or warranted by the technology.... But the fact that the parties disagree about claim scope does not of itself render the claim invalid.” Verve, LLC v. Crane Cams, Inc., 311 F.3d 1116, 1120 (Fed.Cir.2002). Nor are the claims at issue indefinite because they use a term that requires an evaluation of the context in which it is used or describes a range of circumstances. On this score the Federal Circuit’s reasoning and holding in Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565 (Fed.Cir.1986), discussed by In-terTrust in its opposition brief and at the hearing, demonstrate that Microsoft’s concerns are overstated. In Orthokinetics, the Federal Circuit considered whether the term “so dimensioned” from the following claim language was indefinite: “In a wheel chair having a seat portion, a front leg portion, and a rear wheel assembly, the improvement wherein said front leg portion is so dimensioned as to be inserta-ble through the space between the door-frame of an automobile and one of the seats thereof ....” Id. at 1568 (emphasis added). The district court had concluded that “so dimensioned” was indefinite because a potential competitor would have to construct a model of a travel chair and test the model on a variety of automobiles before the competitor could determine whether it infringed the patent. See id. at 1575. The Federal Circuit reversed, reasoning: It is undisputed that the claims require that one desiring to build and use a travel chair must measure the space between the selected automobile’s door-frame and its seat and then dimension the front legs of the travel chair so they will fit in that particular space in that particular automobile. Orthokinetics’ witnesses, who were skilled in the art, testified that such a task is evident from the specification and that one of ordinary skill in the art would easily have been able to determine the appropriate dimensions.... [¶] That a particular chair on which the claims read may fit within some automobiles and not others is of no moment. The phrase “so dimensioned” is as accurate as the subject matter permits, automobiles being of various sizes. As long as those of ordinary skill in the art realized that the dimensions could be easily obtained, [35 U.S.C.] § 112, 2d ¶ requires nothing more. The patent law does not require that all possible lengths corresponding to the spaces in hundreds of different automobiles be listed in the patent, let alone that they be listed in the claims. Id. at 1576 (citations omitted). Similarly, Microsoft has failed to demonstrate that a person of ordinary skill in the art would be unable to determine from the language of the claims and the specifications whether a device might be secure in a sense contemplated by the claims at issue. For example, Microsoft, citing STX, Inc. v. Brine, Inc., 37 F.Supp.2d 740 (D.Md.1999), aff'd on other grounds, 211 F.3d 588 (Fed.Cir.2000), contends that secure is indefinite to the extent that it is defined with reference to the commercial purpose for which it is intended to be used. (Microsoft’s Indefiniteness Reply Br. at 12.) Microsoft argues that if one of ordinary skill in the art would have to infringe the patent claim to discern the boundaries of the claim, the claim must be indefinite. (Id. at 12-13.) The Court agrees with the general proposition that Microsoft advances. But Microsoft, which bears a heavy burden to demonstrate indefiniteness, has failed to offer sufficient evidence that a person of ordinary skill in the art could not discern what would be considered “secure” for a given commercial purpose. Its unsupported assertion in its reply brief that “a person of skill in the art cannot possibly know what a particular customer, market or market niche will deem sufficiently ‘secure’ until after it has sold the product,” (id. at 12), is no substitute for evidence to this effect. Nor is its effort to distinguish Or-thokinetics availing: That Orthokinetics involved measurement of a “one-dimensional variable,” namely length, (see id.), does not demonstrate that persons of ordinary skill in the art of computer security cannot effectively “measure” several variables. In addition, the fact that “secure” is subjective, in contrast to the clearly objective variable of length, (see id.), does not mean that a person of ordinary skill in the art cannot determine whether or not something is secure within the context that the term is used. The Court is also unaware of any principle in patent law that all operative claim terms must be measurable by some objective standard, and Microsoft does not advance any authority in support of such principle. In sum, it is not self-evident that potential designers of computer security systems are incapable of accurately assessing the commercial purposes for which their systems would be utilized to determine whether these systems are secure within the meaning of the claims at issue and, therefore, whether they infringe them. In the absence of clear and convincing evidence that a person of ordinary skill in the art would be unable to perform this task successfully, the Court cannot conclude that the claims at issue are indefinite. Were Microsoft not to bear the burden of proving indefiniteness by a clear-and-convincing evidentiary standard, resolution of the Indefiniteness Motion might present a closer call. But such is not the case here. There is no clear and convincing evidence that InterTrust’s claims are invalid as indefinite to the extent they contain the term secure. The Court thus DENIES the Indefiniteness Motion with regard to the term secure. 2. Protected Processing Environment (PPE) and Host Processing Environment (HPE) Microsoft contends that the terms protected processing environment (“PPE”) and host processing environment (“HPE”) do not have an ordinary or customary meaning inside or outside of the computing world. (Microsoft’s Indefiniteness Opening Br. at 15.) Microsoft notes that Inter-Trust’s expert Dr. Reiter testified that a person of ordinary skill in the art would not know what these terms meant in 1995. (Id. at 16.) Citing J.T. Eaton & Co. v. Atlantic Paste & Glue Co., 106 F.3d 1563, 1570 (Fed.Cir.1997), Microsoft contends that because a person of ordinary skill in the art would not understand these terms, it was InterTrust’s duty to supply a precise meaning for these terms. (Id. at 15; see also Microsoft’s Indefiniteness Reply Br. at 10.) Microsoft asserts that neither the claims nor the specification provides sufficient description of PPE or HPE to inform a person of ordinary skill in the art what these terms mean. (Microsoft’s Indefiniteness Opening Br. at 16-19.) InterTrust responds that, with regard to PPE, the specification provides detailed descriptions of the key terms on which PPE is based (i.e., secure processing environment (“SPE”) and HPE), and therefore PPE is sufficiently defined. (See Inter-Trust’s Indefiniteness Opp. Br. at 22.) In-terTrust also points to the various figures in the specification, spread out over dozens of pages, that relate to PPE. (Id.) Inter-Trust further cites to the Declaration of Dr. Michael Reiter in Opposition to Microsoft’s Motion for Summary Judgment and in Support of InterTrust’s Cross-Motion for Summary Judgment (the “Reiter Indefiniteness Declaration”), which provides excerpts from the relevant specifications. (Id. (citing Reiter Indefiniteness Decl. ¶¶ 39-40, Ex. G).) Finally, InterTrust rejects Prof. Mitchell’s finding PPE indefinite based on application of his ten-variable test. (Id.) As for HPE, InterTrust contends that Microsoft has disingenuously claimed an absence of description in the specification: InterTrust asserts that the terms host processing environment and HPE are used interchangeably; even though the term host processing environment does not frequently appear in the specification, HPE does, along with extensive descriptions. (Id. at 23.) The potential indefiniteness of these two terms was not addressed at the mini-Markman hearing, but the Court is comfortable resolving the issue on the papers. At the outset, Microsoft’s citation to J.T. Eaton & Co. v. Atlantic Paste & Glue Co., 106 F.3d 1563,1570 (Fed.Cir.1997), is inap-posite. J.T. Eaton has nothing to do with invalidity for indefiniteness, and the cited portion describes merely the patent applicant’s obligation to define a coined term precisely in prosecuting its application. See id. at 1568, 1570. Perhaps under J.T. Eaton InterTrust was required to define PPE and HPE when it was prosecuting its applications for the patents-in-suit, but the Federal Circuit’s holding therein does not alter Microsoft’s burden to provide clear and convincing evidence of indefiniteness. Microsoft has failed to carry that burden with regard to PPE and HPE. Microsoft itself recognizes that PPE is described to be an SPE and/or an HPE. (Microsoft’s Indefiniteness Opening Br. at 19 (quoting ’193 patent at 105:18-21).) Contrary to Microsoft’s assertion, this definition by reference is not inherently an unhelpful exercise; it is fruitless only if the incorporated terms are themselves indefinite. Since Microsoft does not contest the clarity or definiteness of SPE, the Court examines only the definiteness of HPE. The Court discusses the proper construction of HPE infra, but in the meantime, it is sufficient for the Court to conclude that Microsoft has failed to provide clear and convincing evidence of indefiniteness. Microsoft’s evidence pertaining to HPE, aside from evidence that HPE did not have a meaning known by a person of ordinary skill in the art, consists essentially of a few references to the ’900 patent specification. (Id.) But the Court agrees with InterTrust that the description of HPEs in the portion of the ’193 patent specification that it cites, (T93 patent at 79:23-83:9), as well as the various figures referenced therein, (e.g., ’193 patent Fig. 10), provide sufficient meaning to the term HPE to survive an indefiniteness challenge. Were InterTrust now applying for the relevant patents-in-suit, and were the Court the PTO, the Court might require InterTrust to provide greater precision in defining PPE and HPE. But the parties are now before the Court on Microsoft’s challenge to the relevant claims’ validity, and thus Microsoft bears a heavy burden if its motion is to succeed. In presenting its arguments regarding PPE and HPE, Microsoft appears inclined to shift the burden to InterTrust to defend the validity of its claims. But the burden remains with Microsoft, and Microsoft has failed to put forward sufficient evidence to carry its burden. Accordingly, the Court DENIES the Indefiniteness Motion with regard to the terms PPE and HPE. B. Construction of Claims at Issue 1.Terms and Phrases for Which Microsoft Did Not Brief Its Position Out of the thirty terms and phrases selected by the parties for construction, Microsoft elected not to present any argument in its 40-page Markman brief in support of its positions or in opposition to InterTrust’s positions on thirteen terms and phrases. These terms and phrases, along with the claims in which they appear, are: 1. aspect (683.2, 861.58, 900.155, 912.8) 2. authentication (193.15) 3. budget (193.1) 4. clearinghouse (193.19) 5. compares (900.155) 6. derive (900.155) 7. designating (721.1) 8. device class (721.1) 9. digital signature/digitally signing (721.1) 10. digitally signing a second load module with a second digital signature different from the first digital signature, the second digital signature designating the second load module for use by a second device class having at least one of tamper resistance and security level different from the at least one of tamper resistance and security level of the first device class (721.1) 11. executable programming/exeeuta-ble (721.34, 912.8, 912.35) 12. identifying at least one aspect of an execution space required for use and/or execution of the load module (912.8) 13. securely applying, at said first appliance through use of said at least one resource said first entity’s control and said second entity’s control to govern use of said data item (891.1) At the mini -Markman hearing the Court stated its disinclination to hear oral argument regarding any of these thirteen terms and phrases. The Court reasonably concluded that Microsoft made a decision not to dispute or oppose InterTrust’s proposed constructions of these terms and phrases given (1) the number of terms Microsoft declined to address; (2) the importance of written argumentation for the mini-Markman proceeding; and (3) the fact that InterTrust did address every term and phrase at issue. The Court has reviewed all of Inter-Trust’s briefing on these terms and phrases and finds InterTrust’s arguments in support of its relevant positions sound and persuasive. In light of this finding, and given the absence of argument for Microsoft’s positions, the Court now adopts In-terTrust’s proposed constructions for all thirteen of these terms and phrases, other than “budget” and “securely applying ... said data item.” Aside from the Court’s adoption of In-terTrust’s proposed constructions, the Court wishes to make clear that Microsoft’s failure to brief these terms and phrases has serious implications. Microsoft has chosen to dispute these terms and phrases, and it has supplied the Court with proposed constructions. In so doing, Microsoft’s attorneys are bound to comply with Rule 11(b), which provides in pertinent part: By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the'best of the person’s -knowledge, information, and belief, formed after an inquiry .reasonable under the circumstances, ... [¶] the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery .... Fed.R.Civ.P. 11(b). Thus, by asserting that the terms and phrases at issue should be defined as proposed by Microsoft, Microsoft’s attorneys are representing to the Court that these terms and phrases have evidentiary support. Microsoft’s failure now to provide any discussion whatever on these terms and phrases in its Markman brief arguably suggests that Microsoft’s attorneys never had sufficient factual basis on which to dispute InterTrust’s proposed constructions and to offer their own constructions. The Court takes this implication very seriously. The Court has expended substantial time and effort on this case. While the Court fully expects that a case of this complexity will require substantial resources and therefore is ready and willing to commit those resources to achieve a proper resolution of this matter, the Court is not willing to waste its time attempting to resolve issues that are not disputed in good faith. Thus, if Microsoft’s counsel did not deem Microsoft’s positions on the thirteen terms and phrases sufficiently important or well-founded to brief, they should not have. presented them to the Court for consideration in the first place. Microsoft and its counsel are hereby admonished not to waste the Court’s time in this or any similar way in the future. Accordingly, the Court CONSTRUES the following terms and phrases as set out below. a. Aspect “Aspect” means: “Feature, element, property, or state.” b. Authentication “Authentication” means: “Identifying {e.g., a person, device, organization, document, file, etc.). Authentication includes uniquely identifying or identifying as a member of a group.” c. Clearinghouse “Clearinghouse” means: “A provider of financial and/or administrative services for a number of entities; or an entity responsible for the collection, maintenance, and/or distribution of materials, information, licenses, etc.” d. Compares “Compares” means: “Examines for the purpose of noting similarities and differences.” e. Derive “Derive” means: “Obtain, receive, or arrive at through a process of reasoning or deduction. In the context of computer operations, the ‘process of reasoning or deduction’ constitutes operations carried out by the computer.” f. Designating “Designating” means: “Indicating, specifying, pointing out, or characterizing.” g. Device Class “Device class” means: “A group of devices which share at least one attribute.” h. Digital Signature I Digital Signing “Digital signature” means: “A digital value, verifiable with a key, that can be used to determine the source and/or integrity of a signed item {e.g., a file, program, etc.).” “Digitally signing” is the process of creating a digital signature. i. Digitally signing a second load module with a second digital signature different from the first digital signature, the second digital signature designating the second load module for use by a second device class having at least one of tamper resistance and security level different from the at least one of tamper resistance and security level of the first device class “Digitally signing a second load module with a second digital signature different from the first digital signature, the second digital signature designating the second load module for use by a second device class having at least one of tamper resistance and security level different from the at least one of tamper resistance and security level of the first device class” means: Generating a digital signature (ie., a digital value, verifiable with a key, that can be used to determine the source and/or integrity of a signed item {e.g., a file, program, etc.)), for the second load module, the digital signature designating (ie., indicating, specifying, pointing out, or characterizing) that the second load module is for use by a second device class {ie., a group of devices which share- at least one attribute). The second device class must have a different tamper resistance (defined infra) or security level than the first device class. j. Executable Programming/Executable “Executable programming” and “executable” mean: “A computer program that can be run, directly or through interpretation.” k. Identifying at least one aspect of an execution space required for use and/or execution of the load module “Identifying at least one aspect of an execution space required for use and/or execution of the load module” means: “Identifying an aspect (ie., a feature, element, property, or state) of an execution space that is needed in order for the load module to execute or otherwise be used.” 2. Remaining Terms and Phrases for Construction Microsoft provided briefing on 17 of the 30 terms and phrases, as well as the issue of whether the term virtual distribution environment should be read into every claim at issue. Nevertheless, as the Court informed the parties at the mini -Mark-man hearing, the Court’s consideration of most of Microsoft’s arguments has been substantially hampered by Microsoft’s persistent failure to provide evidentiary and legal citations in support of these arguments. Page after page of Microsoft’s Markman Brief contains bold assertions about the meaning of certain claim terms that have few supporting authorities, and the authorities that do appear generally do not provide support for the dispositive arguments that Microsoft is asserting. (E.g., Microsoft’s Markman Br. at 37, 39-40.) Without such evidentiary or legal citations, the Court has little basis to credit Microsoft’s assertions. Microsoft cannot reasonably contend that the 40 pages it was allocated for its Markman brief was insufficient for it to provide such citations, as InterTrust was able to present all of its pertinent arguments with adequate supporting citations in the 40 pages it was allocated for its opening Markman brief. Nor can Microsoft reasonably expect the Court to comb through Microsoft’s voluminous submissions to locate authority that might support its specific assertions where Microsoft has failed to refer the Court to specific pages and passages in those submissions. Nor could Microsoft reasonably expect to be able to raise new arguments or cite to new authorities for the first time at the mini -Markman hearing, other than to respond to arguments or authorities appearing for the first time in InterTrust’s reply brief. As far as the Court is concerned, the persuasiveness of an argument in support of a proposed construction is in direct proportion to the authorities on which it is premised. Necessarily this means that an argument that lacks appropriate supporting citations is no argument at all. Thus, Microsoft cannot be heard to complain that the Court has not adequately considered its arguments where these arguments are insufficiently supported by citations to evi-dentiary and/or legal authorities. With the foregoing in mind, the Court turns to its consideration of the 17 terms and phrases briefed by Microsoft, the two terms and phrases not construed above, and the “global construction” of virtual distribution environment asserted by Microsoft. a. Global Construction of Virtual Distribution Environment (VDE) At the outset, there is some uncertainty over Microsoft’s position about the global construction of virtual distribution environment (“VDE”)- In Exhibit A to the JCCS, Microsoft indicates that its position is that each of the seven claims at issue in this mini -Markman proceeding should be construed to incorporate a VDE. More specifically, Microsoft states with respect to nine of the twelve claims: “Claim as a whole: The recited method is performed within a VDE.” (JCCS Ex. A at 1 (¶ 1), 9 (¶ 14), 11 (¶ 25), 13 (¶ 38), 20 (¶ 65), 26 (¶74), 28 (¶ 81), 36 (¶ 98), 39 (¶ 110) (underscoring in original) (boldface omitted).) Microsoft offers similar pronouncements with respect to the remaining three claims. {See id. at 15 (¶ 51), 24 (¶ 70), 30 (¶86).) Further, Microsoft asserts the following in its Markman brief: The claims must be read in light of the entire 900+ page “Big Book” patent application and, in particular, its 115 page “Summary of the Invention.” This Summary of the Invention makes literally hundreds of statements touting the “important,” “fundamental,” “critical,” and required features, capabilities and purposes of the “present invention.” The Summary further defines this “invention” (which it expressly names “VDE”) by distinguishing it from the allegedly “limited” and rigid solutions of others. All of these are required aspects of the “present invention,” not merely optional features of a “preferred embodiment.” As such, the claims must be read to include these “invention” features. (Microsoft’s Markman Br. at 1 (emphasis added).) Microsoft states elsewhere in its Markman brief that it “asks the Court to construe each claim as requiring the disclosed ‘invention,’ as it has been distilled in Microsoft’s global ‘claim as a whole’ construction.” {Id. at 5 (emphasis added).) It emphasizes additionally: “[T]he claim construction point being made by Microsoft is that all of these claims necessarily invoke the required features’ of the VDE ‘invention,’ not that all claims require only those features. InterTrust’s patent claims are free to recite additional features, which additional limitations may (or may not) make them separate ‘inventions’ under Patent Office restriction practice.” {Id. at 15 (emphasis added).) In its Markman briefing InterTrust purports to interpret Microsoft’s position, probably as a result of these statements, to be that every claim impliedly includes a limitation of VDE — that is, there should be a global construction of VDE. {See, e.g., InterTrust’s Opening Markman Br. at 7.) Microsoft does not indicate in its Mark-man brief that InterTrust has mischarac-terized its position. Based on Microsoft’s statements in its Markman brief and JCCS and the fact that Microsoft did not take exception to InterTrust’s characterization of Microsoft’s position, the Court reached the same understanding of Microsoft’s position that In-terTrust purported to reach. At the mini-Markman hearing, however, counsel for Microsoft claimed for the first time that InterTrust had mischaracterized its position. According to counsel, Microsoft was not contending that VDE should be read into each claim as a limitation; rather, each disputed claim term should be accorded the meaning that it has in the VDE context. (Transcript of Proceedings, Claims Construction Hearing (“Tr.”) 59:2-8.) The Court finds Microsoft’s position at the mini -Markman hearing to be fundamentally different from, and not reasonably supported by, its statements in its written submissions. Microsoft repeatedly states in the JCCS that for each claim as a whole, the recited method is performed within a VDE. In addition, Microsoft states in its Markman brief that every claim must contain all features of a VDE. These pronouncements cannot be interpreted to mean anything other than that the scope of each claim is limited by all the features of a VDE. In other words, Microsoft’s written statements evince the view that even if every express element of one of the claims at issue reads on an accused device, that device would still not infringe the claim if the device did not have all the features that Microsoft claims to be the hallmark of VDE. If Microsoft wished to advance the position that it presented at the hearing, it could have easily done so in its papers by stating that “each disputed claim term must be construed in accordance with its meaning in the context of VDE.” At the very least, it should have alerted the Court in its Markman brief that InterTrust in its opening brief had mischaracterized Microsoft’s position. Microsoft will not be heard to complain that the Court misapprehends its position where it has made affirmative representations to the Court about its position and remains silent when InterTrust purports to interpret its position consistent with those representations. The Court thus proceeds to consider the parties’ arguments with the understanding that Microsoft’s position is that each claim is limited by all the features of a VDE. Microsoft contends that each claim at issue impliedly contains a limitation of VDE, even though the term VDE appears in only one of the twelve claims, 900.155, and, then, only in its preamble. The proper construction of VDE is addressed infra in Part III.B,2.t. Microsoft’s argument rests on the apparent fact, which is not contested by InterTrust, that all seven of the patents-in-suit that are the subject of the mini -Markman proceeding derive from the 900-page “Big Book” patent application submitted to the Patent Office in or about 1995. Microsoft focuses on the repeated references to the “invention” and VDE in the specifications of these patents, arguing that the claims necessarily contemplate that VDE will be an additional limitation read into all the claims. InterTrust disagrees with Microsoft’s assertions, making a few key arguments. First, InterTrust points out that the eleven claims other than 900.155 contain no limitations relating to VDE. Citing a pair of Federal Circuit cases, Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313 (Fed.Cir.2003), and Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243 (Fed.Cir.1998), InterTrust argues that statements in an application regarding the invention cannot be read into the claims absent a relevant limitation in the claims themselves. (InterTrust’s Opening Markman Br. at 9.) Second, citing, inter alia, Amgen, InterTrust argues that it is improper to read into claims a limitation from the specification that does not clearly and unambiguously exclude or disclaim certain embodiments. (Id. at 9-10.) Third, InterTrust contends that specification statements about the “invention” do not limit the claims if the rest of the specification and file history do not indicate that such a limitation was intended; and InterTrust urges that several aspects of the specification and file history contradict an importation of VDE into all the claims. (Id. at 10-11.) Specifically, Inter-Trust points out that the PTO held that the Big Book application claimed five separate categories of invention, forcing it to restrict its application to one class of inventions to be pursued in the application. (Id. at 11-13.) InterTrust followed the PTO’s command, and also filed separate “divisional” applications relating to the other categories of inventions pursuant to 35 U.S.C. § 121. (Id. at 12.) In addition, InterTrust calls the Court’s attention to the ’876 patent, which is not one of the seven patents-in-suit that are the subject of the mini-Markman hearing but is one of the eleven patents-in-suit asserted by In-terTrust. InterTrust explains that the ’876 patent issued as a direct continuation of the Big Book application and, therefore, includes the same specification as the 193 patent, including the same statements regarding the “invention” and VDE that Microsoft has cited. (Id. at 13-14.) The ’876 patent includes numerous dependent claims adding an express requirement that a process or method include a VDE. (Id. at 14.) These claims, InterTrust maintains, demonstrate that the claims do not recite a VDE, since otherwise the inclusion of the term VDE would be redundant. Having thoroughly considered the parties’ arguments in their papers and the arguments of counsel at the hearing, the Court concludes that Microsoft’s position must be rejected. The PTO’s determination that the Big Book application described five inventions is alone disposi-tive. The PTO’s decision makes clear that these five inventions are separate, independent, and discrete from one another, each capable of existing in the absence of the rest: The inventions are distinct, each from the other because of the following reasons: 2. Inventions of Groups I-V are related as subcombinations disclosed as usable together in a single combination. The subcombinations are distinct from each other if they shown to be separately usable. In the instant case, invention of Group I has separate utility such as protecting executable code from computer viruses. Invention of Group II has separate utility such as a computer network administration. Invention of Group III has separate utility such as protection of software. Invention of Group TV has separate utility such as a contract bidding procedure. Invention of Group V has separate utility such as auditing of pay television. 3. Because these inventions are distinct for the reasons given above and have acquired a separate status in the art as shown by their different classification, restriction for examination purposes as indicated is proper. 4. Because these inventions are distinct for the reasons given above and have acquired a separate status in the art because of their recognized divergent subject matter, restriction for examination purposes as indicated is proper. (JCCS Ex. C at 103 (24(BB) (’193 file history, Sept. 25, 1996 Office Action at 2-3)).) The foregoing makes unequivocal that the PTO determined that the Big Book described multiple independent inventions, each with separate utility, each with separate subject matter. Given this determination, it is impossible to conclude that, as Microsoft maintains, every claim must be read to contain all the features of a single “invention,” namely the “invention” allegedly described in the Big Book application. At the hearing counsel for Microsoft invoked Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1352 (Fed.Cir.2001), for the proposition that “claims cannot enlarge what’s patented beyond what the inventor described as the invention.” (Tr. 62:7-10.) Counsel appropriately cited to Netword for this principle, 242 F.3d at 1347, and the Court does not disagree with its validity. But this general principle is not inconsistent with the conclusion that the Big Book application described five independent and discrete inventions and, accordingly, the Court’s instant determination that each of the claims at issue should not be read to include VDE. As Netword makes clear, the focus is on what the inventor described to the PTO as the invention, not what the inventor may have subjectively believed to be the invention. Here, the inventors submitting the Big Book evidently described five separate inventions. Reading this description and reaching this conclusion, the PTO ordered the inventors to restrict their application to one of the five inventions and to pursue divisional applications if they so chose. The inventors submitting the Big Book may very well have subjectively believed that there was but a single invention, but their subjective beliefs and intent are of no moment. The Court also finds compelling Inter-Trust’s invocation of the ’876 patent. As InterTrust notes, the ’876 patent issued as a direct continuation of the Big Book application; it includes the same specification as the T93 patent. Accordingly, one would expect that Microsoft’s “global construction of VDE” argument would be equally applicable to construction of the ’876 patent. Indeed, as Microsoft argues in its Markman brief, “related patents should be construed consistently.” (Microsoft’s Markman Br. at 16.) Yet several of the claims in the ’876 patent, including claims 10 through 14, expressly contain a VDE limitation. If, as Microsoft asserts, VDE should be implicitly read into all claims within all patents directly derived from the Big Book application, these claims’ express VDE limitation appears redundant and nonsensical. Still further, much of Microsoft’s theory for con