Radware, Ltd. v. F5 Networks, Inc. (147 F. Supp. 3d 974, 2015)

United States District Court for the Northern District of California 2015-12-04

Patents

Citations

Full opinion text

ORDER ON: (1) RADWARE’S MOTION TO STRIKE; (2) F5’S MOTION FOR JUDGMENT ON THE PLEADINGS; (3) F5’S MOTION TO AMEND INVALIDITY CONTENTIONS; (4) F5’S MOTION FOR SUMMARY JUDGMENT OF INVALIDITY; (5) RADWARE’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON INVALIDITY; (6) RADWARE’S MOTION FOR SANCTIONS; (7) RADWARE’S MOTION FOR SUMMARY JUDGMENT OF INFRINGEMENT; (8) F5’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT; (9) F5’S MOTION FOR SUMMARY JUDGMENT ON DAMAGES

Ronald M. Whyte, United States District Judge

Defendant F5 Networks, Inc. (“F5”) and plaintiffs Radware, Inc. and Radware Ltd. (collectively “Radware”) bring the following motions: (1) Radware’s Motion to Strike, Dkt. No. 201; (2) F5’s Motion for Judgment on the Pleadings, Dkt. No. 180; (3) F5’s Motion to Amend Invalidity Contentions, Dkt. No. 212; (4) F5’s Motion for Summary Judgment of Invalidity, Dkt. No. 183; (5) Radware’s Motion for Partial Summary Judgment Motion Against F5’s Affirmative Defense of Invalidity, Dkt. No. 189; (6) Radware’s Motion for Sanctions, Dkt. No. 207; (7) Radware’s Motion for Summary Judgment of Infringement, Dkt. No. 182; (8) F5’s Motion for Summary Judgment of Non-Infringement, Dkt. No. 190; and (9) F5’s Motion for Summary Judgment on Damages Issues, Dkt. No. 187. The court has reviewed the papers-filed and heard the argument of counsel. The court rules on the motions as set forth below.

I. BACKGROUND

A. Asserted Patents

Radware brings this patent infringement action against its competitor F5, alleging infringement of claims 1-7, 9-19, and 21-32 of U.S. Patent No. 8,266,319 (“’319 Patent”) and claims 1-4, 6-12, 14, and 15 of U.S. Patent No. 8,484,374 (“’374 Patent”) (collectively “Asserted Patents”). Both Asserted Patents are entitled “Load Balancing” and relate to “computer networks in general, and in particular to load balancing client requests among redundant network servers in different geographical locations.” ’319 col.l 11.13-16; ’374 col.l II.17-20. The ’374 Patent is a continuation of the ’319 Patent. The ’374 Patent shares the same specification as the ’319 Patent, other than the “Summary” section.

The technology at issue relates to link load balancing in a multi-homed environment. A “multi-homed” network is a network with multiple connections to the Internet. ’319 col.15 11.34-37. “Link load balancing” is a process for allocating network communications across these connections.

The Asserted Patents relate to techniques and systems for selecting a specific route from the multi-homed network to the Internet and from the Internet into the multi-homed network. The claimed inventions describe both “outbound” and “inbound” link load balancing. Outbound link load balancing deals with requests sent from a host that are destined for an external network via the Internet. Inbound link loading involves inbound requests for services received by the host via the Internet. Claims 24-28 of the ’319 Patent are directed to outbound link load balancing. Claims 1-23 and 29-32 of the ’319 Patent and all claims of the ’374 Patent are generally-directed to inbound link load balancing.

The Asserted Patents claim link load balancing as both a method and system. Representative Claim 26 of the ’319 Patent describes a method for outbound link load balancing: ,

26. A method for routing data via a network from a first node to a second node, said network having a plurality of available routes from said first node to said second node and the plurality of routes are assigned with respective IP addresses, said method comprising the steps of:

selecting one of said routes for sending data between the first node and the second node on the basis of costing information of said- respective routes; ”

receiving a packet having a source IP address;, and

translating the source^ IP address to an IP address corresponding to the selected route of the plurality of routes...

Representative Claim 13 of the ’319 patent describes a method for inbound link load

balancing:

13. A method for managing a computer network having a device connected to the Internet through a plurality of routes, wherein the plurality of routes are assigned with respective IP addresses, comprising:

receiving a DNS resolution query from a remote computer for a domain name within the computer network; selecting one of a plurality of routes connecting said device to the Internet in accordance with one or, more criteria of the plurality of routes;

responding to the DNS resolution query with an IP address associated with the selected route, said IP address is used for resolution of said domain name, receiving a packet having a destination IP address corresponding to one of the plurality of routes; and

translating the destination IP address to an IP address within the computer network.

B. Accused Products

Radware accuses F5’s “BIG-IP Application Delivery Controller” of infringement. Specific accused models are listed at Dkt. No. 182 at 10 n.4. F5’s BIG-IP device is [redacted] Dkt. No. 179-4 at 10 (citing Stamm Rep.). The infringement issues focus on three modules within the TMOS: the Link Controller, Local Traffic Manager (“LTM”), and Global Traffic Manager (“GTM”). Id. at 10-11. All three [redacted] must be activated through the purchase of á license from F5. Id. at 11. “LTM’s primary functionality is local server load balancing, not ISP load balancing. In particular, an LTM can sit between a local network arid the internet, and control the routing of incoming messages to different servers.” Dkt. No. 184-4 (Brewer Deck) ¶ 8. “GTM’s primary functionalities are to provide DNS-related services and global server load balancing (‘GSLB’). DNS services relate to ■ resporiding to client ■ requests for IP addresses associated with a domain name (e.g., ‘Amazon.com’).” Id. ¶ 9.

F5 acknowledges that the Link Controller’s “primary purpose is to provide, in part, ISP link load balancing functionality.” Dkt. No. 190 at 3. However, in December 2014 F5 implemented a “hotfix” that made certain changes to its source code for the LTM, GTM and Link Controller that, according to F5, [redacted] Id. at 4; see also Dkt. No. 188-6 (Thornewell Deck) ¶ 11. Since removing the Link Controller load balancing functionality, F5 has [redacted] Brewer Decl. ¶ 16.

C. Procedural History

The court previously held a joint Mark-man hearing in this ease and in the related case Radware v. A10, 13-cv-2021, on April 8, 2014 and issued its Claim -Construction Order on April 18, 2014. Dkt. No. 122. The court also considered motions for summary judgment related to .claim construction issues in May 2015, and issued an order on the motions on June 11, 2014. Dkt. No. 145. The parties in the A10 case filed a Joint Notice of Settlement on August 29, 2014.13-cv-2021, Dkt. No. 252.

Having held a healing on July 24, 2015, the court addresses the parties’ various motions: (1) Radware’s Motion to Strike, Dkt. No. 201, F5’s Motion for Judgment on the Pleadings, Dkt. No. 180, and F5’s Motion to Amend Invalidity Contentions, Dkt. No. 212; (2) F5’s Motion for Summary Judgment of Invalidity, Dkt. No. 183, and Radware’s Motion for Partial Summary Judgment Motion Against F5’s Affirmative. Defense of Invalidity, Dkt. No. 189; (3) Radware’s Motion for Sanctions, Dkt. No. 207; (4) Radware’s Motion for Summary Judgment of Infringement, Dkt. No. 182, and F5’s Motion for Summary Judgment of Non-Infringerrtént, Dkt. No. 190; and (5) Motion for Summary Judgment on Damages Issues, Dkt. No. 187.

II. RADWARE’S MOTION TO STRIKE PORTIONS OF F5’S MOTION FOR MOTION FOR JUDGMENT ON THE PLEADINGS, SUMMARY JUDGMENT OF INVALIDITY, AND DECLARATION OF DR. ALEXANDER IN SUPPORT THEREOF

Radware moves to strike: (1) F5’s motion for judgment on the pleadings; (2) those portions of F5’S motion for summary judgment of invalidity that rely on Global Server Load Balancing (“GSLB”); ■ (3) those portions of F5’s motion for summary judgment of invalidity that rely on Border Gateway Protocol (“BGP”); and (4) the May 28, 2015 declaration of Dr. Peter Alexander submitted in support of F5’s motion for summary judgment of invalidity. Dkt. No. 201.

A. F5’s Motion for Judgment on the Pleadings and its Section 101 Invalidity Defense

' Radware moves to strike F5’s motion for judgment on the pleadings on the basis that F5 failed to disclose 35 U.S.C. § 101 subject matter ineligibility as a basis for finding the Asserted Patents invalid in its invalidity contentions. Id. at 1.

F5 served its preliminary invalidity contentions on September 30, 2013, Dkt. No. 189-9, and, after obtaining the court’s leave, see Dkt. No. 157, served amended invalidity contentions on May 16, 2014, Dkt. No. 189-10. The preliminary, invalidity contentions state only that: (1) several asserted claims are invalid under 35 U.S.C. § 101 for mixing statutory claim classes, Dkt. No. 189-9 at 59 n.l, and that because discovery had then only recently commenced, it was at that time “premature for F5 to determine whether there are issues related to... improper inventorship [and] derivation under 35 U.S.C. § 101/102(f).” Id. at 59. F5’s amendments did not add any invalidity contentions related to Section 101. Only after Radware filed the instant motion to strike F5’s Section 101 invalidity defense did F5 move to amend its invalidity contentions to include the defense of lack of subject matter eligibility. Dkt. No. 212.

Under Patent L.R. 3-3(d), a party’s invalidity contentions must disclose “[a]ny grounds of invalidity based on 35 U.S.C. § 101... of any of the asserted claims.” “Any invalidity theories not disclosed pursuant to Local Rule 3-3 are barred, accordingly, from presentation at trial (whether through expert opinion.testimony or otherwise),” MediaTek Inc. v. Freescale Semiconductor, Inc., Case No. 11-5341, 2014 WL 690161, at *1 (N.D.Cal. Feb. 21, 2014) (citation omitted). This District’s patent local rules are designed “to balance the right to develop new information in discovery with the need for certainty as to the legal theories.” O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1366 (Fed.Cir.2006). The rules-accomplish this by requiring parties to “provide early notice of their,.. invalidity contentions, and to proceed with diligence in amending those contentions when new information comes to light in the course of discovery.” Id. at 1365-66. As Judge Gre-wal stated in a recent decision denying a motion for judgment on the pleadings for failure to disclose Section 101 invalidity as required by Patent L.R. 3-3, “[t]his district’s patent rules only work if there are consequences for failing to comply.” Good Technology Corp. v. MobileIron, Inc., Case No. 12-5826, Dkt. No. 298 at *3, 2015 WL 3866019 (N.D.Cal. May 4, 2015).

F5 does not dispute that it failed to disclose Section 101 as an invalidity theory as required under the Patent Local Rules. Rather, F5 argues that the court should deny Radware’s motion to strike F5’s Section 101 defense because: (1) the defense is based on new legal authority developed within the last year, subsequent to the Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l, — U.S. —, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014); and (2) the defense is not based on claim construction or'fact issues subject to discovery, so Rad-ware will not suffer any prejudice should the . court permit F5’s Section 101 defense. Dkt. No, 213 at 2. Neither argument is persuasive.

As to the first, F5 waited too long following Alice to seek amendment - of its invalidity contentions to assert a Section 101 defense, and an intervening district court application of Alice does not. constitute sufficient change in the law to permit amendment so late in the case. Intervening change in the law can constitute good cause to amend invalidity contentions. F5 cites a decision from the Central District of California permitting the amendment of claims in light-of Alice. Dkt. No. 213 at 3. However, the defendant in that case served its amended invalidity contentions on August 15, 2014, less than two months following Alice. See Mortgage Grader, Inc. v. Costco Wholesale Corp., Case No. 13-0043, Dkt. No. 97 at 2; 2014 WL 10763261 (C.D.Cal. Oct. 27, 2014). Here, F5 waited far longer — nearly a year — before filing its motion for judgment- on the pleadings asserting invalidity under Section 101. In addition, the issue of what constitutes patentable-subject matter'has been hotly debated since the Federal Circuit’s 2013 en banc decision in CLS Bank Intern. v. Alice Corp. Pty. Ltd., 717 F.3d 1269 (Fed.Cir.2013), aff'd, — U.S. —, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014).

F5 also bases its motion on Intellectual Ventures v. JP Morgan Chase & Co., Case No. 13-3777, 2015 WL 1941331 (S.D.N.Y. April 28, 2015). See Dkt. No. 180. According to F5, Intellectual Ventures, as “the first post-Aiiee decision addressing patent-ability of networking methods and technologies,” constitutes “intervening law” which supports late amendment to assert a Section 101 defense. Dkt. No. 213 at 3. However, Intellectual Ventures is not controlling authority: Alice marked the shift in Section 101 invalidity analysis; Intellectual Ventures merely applied Alice to the field of networking méthods and technologies. Accordingly, Intellectual Ventures does not constitute the kind of “intervening law” that would support amendment at this late hour. As Radware notes, the defendant in Good Technology submitted the Intellectual Ventures decision in support of its motion for judgment on the pleadings asserting a previously undisclosed Section 101. defense. See Good Technology Corp., Case No. 12-5826, Dkt. No. 281-1. Despite the Intellectual Ventures decision being' even more recent at that point than it is now, Judge Grewal nonetheless refused to excuse noncompliance with the Patent Local Rules and allow a previously undisclosed Section 101 theory. See id., Dkt. No. 298;

As to F5’s second ’ argument, the court need not reach the question of prejudice to Radware because F5 has not shown good cause to permit amendment of it's invalidity contentions. Patent L.R. 3-6'pro-vides for amendment of invalidity contentions “only by order of the Court upon a timely showing of good cause.”' “[G]ood cause requires a showing of diligence,” and it is the movant’s burden to-establish diligence. O2 Micro, 467 F.3d at 1366. As discussed above, F5- has not shown diligence, so the court need not consider the prejudice to Radware that would flow from F5’s untimely assertion' of á Section 101 invalidity theory.

Radware’s motion to strike F5’s motion for judgment on the pleadings is GRANTED, and' F5’s motion for judgment on the pleadings is DENIED. For the same reasons, F5’s motion to amend its invalidity contentions to add Section 101 subject matter ineligibility as a defense is DENIED.

B. Global Server Load Balancing and Cisco DistributedDirector

Radware also moves to strike those portions of F5’s motion for summary judgment of invalidity that rely on Global Server Load Balancing (“GSLB”) because F5 failed to disclose GSLB as prior art in its invalidity contentions as required by Patent Local Rule 3-3(c). Dkt. No.' 201 at 3.

F5 does not dispute that the term GSLB does not appear in- its invalidity contentions but states that its summary judgment motion of invalidity is based on a specific embodiment of GSLB, Cisco’s Dis-tributedDirector (“Ciscó DD”), not the general concept of GSLB itself. Dkt. No. 213 at 4. According to'F5, all aspects of GSLB relied upon in its summary judgment motion are disclosed by Cisco DD, and Cisco DD forms the entire basis for its analysis regarding invalidity based on GSLB. Id. at 5. F5 asserts that it both identified and charted Cisco DD as invalidating prior art in both its preliminary invalidity contentions and in Dr. Alexander’s invalidity report.'/^, at 6.

Radware, while acknowledging that Cisco DD was previously disclosed, nevertheless argues that “any" argument that GSLB, other than [Cisco DD], constitutes invalidating prior art should be stricken,” and that F5 “should be precluded from referring to GSLB functionality as invalidating prior art, whether or not it is a functionality performed by [Cisco DD].” Dkt. No. 224 at 5. However, Radware leaves unrebutted F5’s contention that Cisco DD is a specific embodiment of GSLB and cites no authority for precluding mention of GSLB as implemented in Cisco DD. While some of the language in F5’s motion does imply that GSLB systems other than Cisco DD also constitute anticipating prior art, see; e.g., Dkt. No. 183 at 14 (“The asserted claims are invalid based on GSLB systems, such as the Cisco DistributedDi-rector. ...”), Radware identifies no portion of F5’s motion for summary judgment of invalidity that relies on an aspect of GSLB not disclosed by Cisco DD.

Accordingly, because F5’s motion for summary judgment is based on Cisco DD, rather than GSLB generally, and Cisco DD was previously disclosed as allegedly anticipating prior art, Radware’s motion to strike those portions of F5’s motion based on GSLB is DENIED.

C. Border Gateway Protocol

Radware moves to strike those portions of F5’s motion for summary judgment of invalidity that rely on BGP because F5 failed to disclose BGP as prior art in its invalidity contentions. Dkt. No. 201 at 3.

Like GSLB, BGP is a general protocol, rather than a specific implementation or embodiment. However, whereas F5’s motion for summary judgment makes clear that Cisco DD is a specific implementation of GSLB and that Cisco DD itself is the prior art reference upon which its invalidity. theory is based, F5 does not dispute that it failed to disclose BGP as a prior art reference and has not identified a specific BGP reference. Instead, F5 argues that BGP was discussed in both parties’ expert reports, and that Radware cannot' claim that it will suffer any undue prejudice from its consideration as prior art. Dkt. No.' 213 at 7. F5 states that its’summary judgment motion regarding BGP is “based entirely on Radware’s expert’s own admissions from his April 17, 2015 deposition,” and that “[pjrior to conducting the deposition, F5 could not have anticipated that Dr. Rubin would make these admissions, and thus could not have presented them in its contentions.” Id.

F5 does not explain precisely how the testimony of Dr. Izhak Rubin, Radware’s technical expert, somehow enabled its BGP invalidity argument. Based on F5’s. argument, it appears that F5 either: (1) knew BGP was anticipating prior art before Dr. Rubin’s deposition but chose not to disclose it as á prior art in its invalidity contentions, perhaps because .before Dr. Rubin’s alleged ádmissions F5 felt it was an argument not worth making; or (2) F5 was aware of BGP but unaware that it was an, anticipating prior art reference until Dr. Rubin’s deposition. Whatever the case, F5 has not shown good cause to excuse its failure to comply with Patent Local Rule 3-3(c). F5 cites no authority for-the proposition that an opposing expert’s admissions can constitute good cause to allow the assertion of previously undisclosed prior art, and even if it could, F5 has not explained how Dr. Rubin’s alleged admission somehow rendered BGP. anticipating prior art that F5 could not have discovered in an earlier diligent search. This is particularly true in light of the fact that F5’s expert discussed BGP in his expert report.

As with F5’s Section 101 invalidity argument, because F5 has not shown good cause amend its invalidity contentions, the court need not reach the question of prejudice.

F5’s invalidity contentions do not disclose BGP as anticipating prior art as required under Patent Local Rule 3-3, and F5 has not shown good cause to amend its invalidity contentions. Radware’s motion to strike those portions of F5’s motion for summary judgment of invalidity based on BGP is therefore GRANTED.

D. May 28, 2015 Supplemental Declaration of Dr. Alexander

Finally, Radware moves to strike the supplemental declaration of F5’s expert, Dr. Alexander. Dkt. No. 201 at 12. Radware argues that in his supplemental declaration Dr. Alexander provides additional opinions regarding the Cisco DD system that were not provided in his expert report as required by Rule 26. Dr. Alexander provided his expert report on invalidity on January 20, 2015. In it, he identified and explained the Cisco DD testbed system he had created as a demonstration that Cisco DD anticipates the Asserted Patents. On March 2, 2015 Dr. Rubin provided his rebuttal expert report on invalidity, pointing out what are, in his opinion, flaws with the test-bed system. Specifically, Dr. Rubin opines that: (1) the test bed was not connected to the Internet, as required by the claims; (2) certain components of the test bed (a networking switch and configuration files) were not in existence as of the priority date of the patents; and (3) the test bed system, as configured by Dr. Alexander, still could not perform inbound or outbound link load balancing as required by the asserted claims. Dkt. No. 189-29 ¶¶ 96-109. Rad-ware contends that because Dr. Alexander created the test-bed, he had all of the evidence at his disposal when he wrote his initial expert report. Dkt. No. 201 at 13. According to Radware, to allow Dr. Alexander’s supplemental declaration would prejudice Radware by permitting F5 an improper rebuttal to Dr. Rubin’s rebuttal.

F5 contends that the supplemental declaration contains no new opinions, but rather simply addresses the. purported flaws with the test-bed system, which are simply factual issues raised by Radware. Dkt. No. 213 at 8. F5’s position is' that an expert cannot be reasonably expected to anticipate every counterargument that could possibly be made and preemptively discuss them in his report. Id, Moreover, F5 argues that Radware has had substantial opportunity to conduct discovery into these alleged flaws, including deposing Dr. Alexander about the substance of the

declaration.

The court agrees, with F5. Radware identifies no prejudice other than the general assertion that “it would prolong Rad-ware’s day in Court and the cessation of F5’s infringing conduct.” Dkt. No. 201 at 14. Moreover, the court agrees that an expert cannot reasonably be expected to anticipate every criticism and argument that an opposing expert will level, and preemptively respond to each and every one. Finally, the court notes that Radware cites no authority in. support of its argument, beyond citing Rule 26 itself. Accordingly, the court DENIES Radware’s motion to strike the supplemental declaration. However, F5 cannot offer new opinions of Dr. Alexander that go beyond merely responding to Dr. Rubin’s criticisms of the test bed systems.

III. THE PARTIES’ MOTIONS FOR SUMMARY JUDGMENT OF INVALIDITY AND TO DISMISS F5’S INVALDITY AFFIRMATIVE DEFENSES

Each party moves for summary judgment regarding invalidity, F5 moves for summary judgment that the asserted claims are invalid as anticipated by prior art GSLB and BGP, or, in the alternative, that the asserted claims are obvious in light of those references. Dkt. No. 183. Radware moves for partial summary judgment against F5’s affirmative defense of invalidity on the grounds that F5 has failed to demonstrate that the asserted references constitute invalidating prior art. Dkt. No. 189.

A. Legal Standard

Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate that there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At the summary judgment stage, the Court “does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

Patents are presumed to be valid. 35 U.S.C. § 282(a). However, an invention is not patentable if “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States” or if “(e) the invention was described in (1) an application for patent, published under section 122(b), by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent....” 35 U.S.C. § 102(a), (b), (e) (2006). A party challenging the validity of a patent bears the burden of proving invalidity by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011).

B. Prior Art References

Radware moves for partial summary judgment that: (1) F5 abandoned a number of prior art references previously cited in its invalidity contentions; (2) the “test-bed” systems created by F5 are not prior art; (3) the Maki-Kullas patent is not prior art; and (4) the Cisco DistributedDirector White Paper (“DD white paper”) is not prior art. See Dkt. No. 189. The court first addresses the allegedly abandoned prior art references and test-bed systems before turning to the Maki-Kullas patent and the DD white paper.

I. Abandoned Prior Art References

Radware first moves for partial summary judgment on twenty-six alleged anticipating prior art references and nine alleged obviousness combinations. Id. at II. Radware argues that despite identifying these prior art references and combinations in its invalidity contentions, F5’s expert failed to offer any opinions based on these references. Id. The result, according to Radware, is that F5 has no evidence in support of its claim that these references and combinations invalidate the Asserted Patents, and therefore Radware is entitled to partial summary judgment that these unsupported references do not invalidate the Asserted Patents, Id. at 13.

F5 does not dispute that Dr. Alexander did not rely or offer an opinion on these references but argues that “a district court should not exclude prior art evidence simply because such evidence is not in an expert’s report.” Dkt. No. 196-4 at 18 (citing Meyer Intellectual Props. Ltd. v. Bodum, Inc., 690 F.3d 1354 (Fed.Cir.2012)). F5 agrees that it may not raise such prior art at trial through expert testimony but argues that regardless of whether F5 intends to use the twenty-six prior art references and nine combinations, there is no basis for granting summary judgment in Radware’s favor.

F5 has not necessarily abandoned the asserted prior art references by failing to introduce any expert opinions based on these references. See In re Brimonidine Patent Litig., 643 F.3d 1366, 1376 (Fed.Cir.2011) (“There is no invariable requirement that a prior art reference be accompanied by expert testimony.”). Accordingly, Radware’s motion for summary judgment that F5 abandoned the prior art references on which it did not offer an expert opinion is DENIED. However, Radware may move to exclude these references if F5 later seeks to introduce them through lay witness testimony, should the particular references F5 seeks to introduce contain matter that is complex and requires expert testimony to explain. See, e.g., Alexsam, Inc. v. IDT Corp., 715 F.3d 1336, 1347-48 (Fed.Cir.2013). In addition, Radware may move to limit the number of prior art references asserted as anticipating or as part of an obviousness combination.

2. Cisco and BIG-IP Test-Bed Systems

Radware also moves for partial summary judgment that F5’s Cisco DD and BIG-IP test-bed systems do not anticipate or render obvious the asserted claims as a matter of law. Dkt. No. 189 at 14. Radware advances two arguments: (1) the test-bed systems did not exist as configured before the priority date of the patents because they incorporate components and configuration files that did not exist as of the priority date of the patents; and (2) the test-bed systems were not known or used to practice link load balancing before the priority date of the patents. Id. However, F5 appears to agree with Radware that the test-bed systems, rather than the underlying 3-DNS and DistributedDireetor products, are not prior art. See Dkt. No. 196-4 at 16 (“F5 has never asserted that all of the components of the Test-Bed System were used together in the prior art. Instead, the Test-Bed System simply evidences that the prior art 3-DNS and Dis-tributedDirector systems could perform ISP load balancing.”). Accordingly, because it is undisputed that the test-bed systems are themselves not prior art, Rad-ware’s motion for summary judgment that the test-bed systems neither anticipate nor render obvious the asserted claims is GRANTED.

3. The Maki-Kullas Patent

Radware moves for summary judgment that the Maki-Kullas patent is not prior art. See Dkt. No. 189. The Maki-Kullas patent, filed on October 5, 1999, pre-dates the December 20, 1999 effective filing date of the ’819 (and ’374) .patents. However, the person “who first conceives, and, in a mental sense, first invents.. .may date his patentable invention back to the time of its conception,, if he connects the conception with its reduction to practice, by reasonable diligence on his part, so that they are. substantially one continuous act.” Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1577. (Fed.Cir.1996) (internal quotation marks and citation omitted). Accordingly, to overcome the Maki-Kullas prior art reference, Radware must demonstrate that it conceived of the inventions disclosed in the ’319 and ’374 patents prior to the Maki-Kullas priority date, October 5, 1999, and diligently reduced the inventions to practice after conception. Radware asserts that the invention disclosed .in thé ’319 and ’374 patents was conceived by April i, 1999, and reduced to practice at least as eárly as October 4, 1999. Dkt. No. 186:4 at 17-19.

Although F5 has the burden of establishing invalidity, Radware has the burden of. proving that it conceived of the alleged inventions before the filing date of the patent application and diligently reduced the inventions to practice. Taurus IP, LLC v. DaimlerChrysler Corp., 726 F.3d 1306, 1322 (Fed.Cir.2013), (“After an accused infringer has put forth a prima facie case of invalidity, the burden of production shifts, to the patent owner to produce sufficient rebuttal evidence to prove entitlement to an earlier invention date.”). To do so, Radware must corroborate its alleged conception and reduction to practice dates. Spectralytics, Inc. v. Cordis Corp., 576 F.Supp.2d 1030, 1045-46 (D.Minn.2008), aff'd, 649 F.3d 1336 (Fed.Cir.2011) (“The patentee must do more than offer some evidence (such as an affidavit) supporting his pre-patent application invention date; the patentee must offer corroboration of that invention date.”) (emphasis in original). “The issue of the conception date of an invention is a legal conclusion" based on underlying factual findings.” Taurus IP, 726 F.3d at 1322.

a. Conception

Radwaré" asserts that the invention disclosed in the ’319 and ’374 patents was conceived by April 1, 1999, see Dkt. No. 186-4 at 17-19, and offers the following evidence in support of this date:

• [redacted]

[redacted]

[redacted]

[redacted]

As an initial matter, Dr. Rubin’s expert testimony is based solely on his review of “the inventor testimony and various documents cited and referenced in the depositions.” Id. Radware does not specifically identify the documents reviewed by Dr. Rubin, but the documents appear to include only the above inventor testimony and the [redacted]. As a result, Dr. Rubin’s expert testimony adds nothing beyond the inventor testimony in this case, and does not constitute evidence of conception. See Invitrogen Corp. v. Clontech Labs., Inc., 429 F.3d 1052, 1068 (Fed.Cir.2005) (rejecting expert testimony in support of conception that simply pointed to the inventor’s notebook and concluded that various entries demonstrated conception without providing any further explanation).

What this leaves is the testimony of Zisapel and Peles,* co-inventors- of the Asserted Patents-, and the email from Zisapel to Fuks, who is also a co-inventor of the asserted patent. The testimony of Zisapel and Peles cannot alone show conception, and must be corroborated. See, e.g., Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1382 (Fed.Cir.2002) (“It is well established that a party claiming his own prior inventorship must proffer evidence corroborating his testimony.”). When evaluating corroboration, courts apply a “rule of reason” that examines “all pertinent evidence so that a sound determination of the credibility of the inventor’s story may be reached.” Coleman v. Dines, 754 F.2d 353, 360 (Fed.Cir.1985). Although under a rule of reason analysis all the pertinent evidence is considered, it “does not dispense with the requirement for somé evidence of independent corroboration.” Coleman, 754 F.2d at 360. Corroboration' of inventor testimony requires evidence beyond an inventor’s own statements and documents. See Hahn v. Wong, 892 F.2d 1028, 1032 (Fed.Cir.1989) (“the inventor. . .must provide -independent corroborating evidence in addition to his own statements and documents.”); Golden Bridge Tech. Inc. v. Apple, Inc., Case No. 12-4882, 2014 WL 1928977, at *4 (N.D.Cal. May 14, 2014) (“[E]vidence of conception and reduction to practice must be ‘independently corroborated’ beyond the inventor’s own statements and documents, and must be ‘evidence that would-be available to a jury’ to support its factual positions.”) (internal quotation marks and citation omitted).

Even viewing all of Radware’s proffered evidence together, the court cannot conclude that Radware has sufficiently .proven its entitlement to a conception date of [redacted].- To the extent that Radware’s proffered [redacted] A jury could reasonably conclude that Radware had not conceived of the invention by [redacted], and the court finds that there is a genuine issue of fact as to the conception date of the inventions disclosed in the ’319 and ’374 .patents.

b. Reduction to Practice

Radware asserts that the inventions disclosed in the ’319 and ’374 patents were reduced to practice at least as early as October 4, 1999, one day prior to the filing date of the Maki-Kullas patent. Nee-Dkt. No. 186-4 at 17-19. Although the court found that Radware has not proven its claimed conception date of [redacted], because an inventor cannot reduce to practice an invention of which he has not conceived, the court proceeds to examine whether Radware can demonstrate that the inventions disclosed in the ’319 and ’374 patents were reduced to practice by October 4, 1999. Proof that the inventions were reduced to practice by October 4, 1999 would also serve as proof that the invention was conceived prior to the filing date of the Maki-Kullas patent, and therefore that the ’319 and ’374 patents claim priority over the Maki-Kullas patent.

Radware offers the following evidence in support of its claimed reduction to practice date:

• Radware press release issued on or about October 4, 1999 announcing Link-Proof as “the first IP load balancing solution for networks with multiple ISP connections.” See Dkt. No. 189-6.

• Testimony of co-inventor Peles. [redacted]. Dkt. No. 186-9 at 84:14-18.

To demonstrate actual reduction to practice, a party must show that the inventor: (1) constructed an embodiment or performed a process that met all the claimed limitations; and (2) determined that the invention would work for its intended purpose. Z4 Technologies, Inc. v. Microsoft Corp., 507 F.3d 1340, 1352 (Fed.Cir.2007) (citing Cooper v. Goldfarb, 154 F.3d 1321, 1327 (Fed.Cir.1998)); see also Estee Lauder Inc. v. L’Oréal, S.A., 129 F.3d 588, 592-95 (Fed.Cir.1997) (holding that reduction to practice does' not occur until inventor knows embodiment will work for its intended purposes). Like conception (and diligence in reducing an invention to practice), inventor testimony of reduction to practice must be corroborated. In re NTP, 654 F.3d 1279, 1291 (Fed.Cir.2011) (“An inventor cannot rely on uncorroborated testimony to establish a prior invention date____It has long been the case that an inventor’s allegations of earlier invention alone are insufficient — an alleged date of invention must be corroborated.) (citations omitted); Cooper, 154 F.3d at 1330 (“In order to establish an actual reduction to practice, an inventor’s testimony must be corroborated by independent evidence.”). Courts apply a rule of reason approach to the question of reduction to practice, but as with conception, “evidence of corroboration must not depend solely on the inventor himself.” Id. at 1330.

Radware argues that Peles’ testimony is corroborated by the LinkProof press release, which Radware argues is direct, independent, and contemporaneous evidence of the claimed October 4, 1999 date. Dkt. No. 209-4 at 6-7. However, Peles’ testimony is limited to the assertion that October 4, 1999 was the earliest date for which evidence of reduction to practice could be found. See Dkt. No. 186-9 at 84:14-18 [redacted] It does not appear that Peles affirmatively testified that October 4,1999 was the date by which Radware had reduced its invention to practice. The court therefore finds that his testimony does not constitute evidence of Radware’s claimed date for reduction to practice.

The question of whether Radware reduced the invention disclosed in the ’319 and ’374 patents to practice by October 4, 1999 therefore largely hinges on the Link-Proof press release. Because the court finds that Radware has not established as undisputed that the press release was issued on October 4, 1999, the court finds the press release insufficient to demonstrate reduction to practice; Radware asserts in its motion for summary judgment that the press release was issued “on or about” October 4, 1999. Dkt. No. 185-4 at 3. While the press release itself includes the date “October 4, 1999,” the document produced by Radware also contains the following handwritten notation: “Issued Oct 1999.” Dkt. No. 189-6 at ECF p. 2. Radware produces no corroborating evidence that the press release was actually issued on October 4, 1999; In its reply, Radware argues that the document speaks for itself, and is consistent with the testimony of others who recall that the Link-Proof product was being offered for sale at least by October 4,1999; Dkt. No. 209-4 at 6-7. However, ' the testimony Radware cites does not necessarily support a publication date of October 4, 1999. Radware first cites the deposition testimony of Zack Cherkassy, who testified that [redacted] Dkt. 209-12 at 37:19. But Radware does not explain how ’ Cherkassy’s recollection that LinkProof was released in September or October, 1999 is consistent with its contention that LinkProof was announced on or around October 4, 1999, and the press release to that effect. Radware also cites Dr. Rubin’s supplemental declaration, in which he opines that [redacted] Dkt; No. 210-11, ¶ 6. The court fails to see how Dr. Rubin’s supplemental declaration helps establish that Radware issued the press release on October 4,1999.

• In sum, the court finds that a reasonable juror, based on the evidence provided by Radware, could conclude that the invention disclosed in the ’319 and ’374 patents was not reduced to practice-by October 4,1999. Although Radware has submitted some evidence that it reduced the invention to practice in October, 1999, there is a genuine issue of fact- as to whether it did so by October 4,1999.

Becausé the court finds that Radware has not conclusively shown that it either conceived of tbé invention disclosed in the ’319 and ’374 patents by April 1, 1999, or that Radware reduced its invention to practice by October 4, 1999, the court hereby DENIES Radware’s motion for summary judgment that the Maki-Kullas patent is not prior art as a matter of law.

4. Cisco DistributedDirector White Paper

Finally, Radware moves for summary judgment that both versions of the Cisco DD white paper produced by F5 are not prior- art. Dkt. No. 189 at 19-22. Two versions of the of the DD white paper have been produced in discovery: (1) a version bearing a “1999” copyright notice which was authenticated by its author, Kevin Delgadillo (the .“’99 DD white paper”); and (2) a second version, which apparently has not been authenticated, and which bears a copyright date of 1997 (the “’97 DD white paper”). See Dkt. Nos. 189-15, 186-13. F5 asserts that both documents are anticipating prior art references and. support a finding that the ’319 and ’374 patents are invalid for obviousness.

The parties’ dispute regarding the ’99 DD white paper largely concerns whether F5 has shown that it was published prior to April 1, 1999 — the date by which Rad-ware contends the-inventions disclosed in the ’319 and ’374 patents were conceived. However, as discussed above, Radware has not shown that the Asserted. Patents are necessarily entitled to a priority date of April 1, 1999. F5 has introduced evidence that the ’99 DD white paper was released at least sometime in April of 1999,. and possibly in March of that year: (1) the document bears a “1999” copyright on every page, and bears the notation “3/99” on the final page, which Cisco employee and author of the document Kevin Delgadillo testified indicates the document was available publicly in March 1999, see Dkt. No. 189-18 at 17:19-18:22; and (2) Delgadillo testified that the document was published to the Cisco website in March 1999 (or, at the latest, April 1999), Dkt. No. at 3:16-18, 11:23-12:2, 13:11-24; and'16:3-15. Accordingly, the court finds that there is a genuine issue of fact as to the publication date of the ’99 DD white paper, and DENIES Radware’s motion for summary judgment that the ’99 DD white paper is not prior art as a matter of law. .

The second version, the ’97 DD white paper, bears a “1997” copyright on each page, but has not been authenticated by Delgadillo. This version is also “mutilated,” according to Radware, in that it has several blank spaces throughout. Dkt. No. 209-4 at 9. Radware contends that the court should’grant summary judgment that this version is not prior art because there is no evidence in the record that the document was ever publicly available. However, although it is currently unauthenticated and F5 chose not to depose Delgadillo about the document, Radware provides no reason to preclude F5 from-potentially introducing the document as evidence on the basis of Delgadillo’s- trial testimony. Moreover, Radware- concedes the ’99 and ’97 documents contain some of the same material, see Dkt. No. 186-4 at 22, which, along with the “1997” copyright date, at least raises an issue of fact as to the document’s authenticity and publication date. Accordingly, the court DENIES Radware’s motion for summary judgment that the ’97 DD white paper is not prior art as a matter of law.

C. Anticipation

• F5 moves for summary judgment of invalidity, arguing that all asserted claims of both the. ’319 and ’374 patents are invalid as anticipated by Cisco DD. Dkt. No. 183 at 14-20. For the reasons set' forth below, the court finds that F5.has not shown by clear and convincing evidence that Cisco DD anticipates the asserted claims, and that a reasonable jury could find that the Cisco DD system does not disclose ,ISP link load balancing. Accordingly, F5’s motion for summary judgment that the asserted claims are invalid as anticipated by Cisco DD is DENIED.

1. Legql Standard

A claim is anticipated under § 102, and thus invalid, “if each and every limitation is found either expressly or inherently in a single prior art reference.” Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1374 (Fed.Cir.2001) (internal quotation marks and citation omitted); accord Eli Lilly & Co. v. Zenith Goldline Pharm., Inc., 471 F.3d 1369, 1375 (Fed.Cir.2006). Put simply, “[t]hat which infringes, if later, would anticipate, if earlier.” Peters v. Active Mfg., 129 U.S. 530, 537, 9 S.Ct. 389, 32 L.Ed. 738 (1889) (internal quotation mark omitted). To show anticipation' under 35 U.S.C. § 102, the moving party must “identify each claim element, state the witnesses’ interpretation of the claim element, and explain in detail how each claim element is disclosed in the prior ‘ art reference.” Schumer v. Lab. Computer Systems, Inc., 308 F.3d 1304, 1315-16 (Fed.Cir.2002). A reference can also anticipate “if that missing'characteristic is necessarily present, or inherent, in the single anticipating reference.” Schering Corp. v. Geneva Pharm., 339 F.3d 1373, 1377 (Fed.Cir.2003).

Anticipation under § 102 is a two-step inquiry. See Medichem, S.A. v. Rolabo, S.L., 353 F.3d 928, 933 (Fed.Cir.2003). The first step is-.claim construction. Id.; see Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed.Cir.2001) (“‘claim must’be construed before determining its validity just as it is first construed before deciding infringement.’ ” (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 996 n. 7 (Fed.Cir.1995) (Mayer, J., concurring), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996)). The second step is a comparison of the properly construed claim to the prior art. Medichem, 353 F.3d at 933.

2. Analysis

•The Court previously construed' the claims in its claim construction order. See Dkt. No. 122. As relevant here, the Court construed the following terms:

The asserted claims in this case comprise two types: claims that are directed to selecting a route for inbound messages from a remote computer to the multi-homed network (claims 1-23 and 29-32 of the ’319 patent and claims 1-4, 6-12, and 14-15 of the ’374 patent), and those directed to selecting one of multiple routes for outbound messages, where the client computer is located on a multi-homed network and is sending communications out to a remote server (claims 24-28 of the ’319 patent). See Dkt. No. 122 at 17-19. The inbound claims all contain a multi-homing limitation, a limitation for resolving a DNS query from a remote computer for a domain name within the multi-homed network, and, critically, a limitation for selecting one of a plurality of routes through One of the ISPs to áénd a response to the DNS query. Some inbound claims also include a limitation that the route selection be based on one or more metrics or criteria, such as latency, hops, costing, load, or data packet loss. Finally, some of the inbound claims contain a limitation requiring the translation of IP addresses for packets received on the multi-homed network to an IP address within that network, known as network address translation (“NAT” or “NATing”). Like the inbound claims, each outbound claim contains a multi-homing limitation and the limitation of selecting one of the plurality of routes. However, for the outbound claims, the client is located at the multi-homed network and is sending packets to a remote server. Additionally, the outbound claims include the limitation that route selection must be based on costing information of the routes and NATing. Although F5 contends that Cisco DD/ GSLB anticipates all asserted claims, the court discusses the inbound claims before turning to the outbound claims.

a. Inbound claims

F5 contends that Cisco DD anticipates all inbound claims of the ’319 and ’374 patents as it discloses each limitation required by the inbound claims. Radware disputes that Cisco DD meets the route selection limitation, and argues that the prior art does not disclose “route metrics” with regard to dependent claims, but otherwise does not dispute that Cisco DD discloses the other inbound claim limitations. See Dkt. No. 202-4.

i. Route Selection Limitation

Each claim requires the selection of either “one of a plurality of routes” connected to the internet (in the case of the ’319 patent) or the selection of “one ISP link from the plurality ISP links” (for the ’374 patent). The court previously construed ISP link to mean “a pathway connecting to or from an ISP.” Dkt. No. 122 at 20. The court stated that an “ISP link” is a subpart of a “route,” id. at 21, and the parties treat the route selection limitations of the two patents as functionally equivalent in the context of this motion.

In its reply, F5 concedes that GSLB did not select between different routes having the same destination, but rather between routes that had different destinations. Dkt. No. 211 at 6. (“Radware’s argument essentially boils down to the fact that prior art GSLB selected between routes had different destinations, not a single destination. This is true.... ”). F5 argues that this is a distinction without a difference: “[t]he concept of choosing a server based on well-known route metrics for GSLB is the same as choosing a route based on the same metrics for ISP link load balancing.” Dkt. No. 183 at 15. Furthermore, F5 argues that it has introduced direct evidence that Cisco DD was capable of comparing various routes to the same destination, and that it had been sold for that purpose. Id. According to F5, the result is that Cisco DD discloses the route selection limitation required by the asserted inbound claims.

F5’s evidence consists of the expert testimony of Dr. Alexander and his demonstration Cisco DD test-bed, and the witness testimony of Kevin Delgadillo and Dean Darwin. Dkt. No. 183 at 15. Dr. Alexander opined that “The [Cisco] DD System was capable of receiving a DNS resolution query from a remote computer for a domain name within the enterprise LAN computer network, selecting one of the plurality of routes connecting said device to the Internet, and responding to the DNS resolution query with an IP address associated with the selected route.” Dkt. No. 183-11 ¶ 173. According to Dr. Alexander, Cisco DD systems available as early as December 1998 “provided a plurality of routes for an enterprise Local Area Network (“LAN”) to connect to the Internet such that each of the plurality of routes could be assigned ISP specific IP addresses.” Id: ¶ 163. According to Dr. Alexander, Cisco DD can allocate each ISP “a virtual IP address from its pool of addresses so as to uniquely identify the respective ISPs.” Id. ¶ 183. Dr. Alexander explains that he was able to configure Cisco DD to perform the role of “a network controller receiving a DNS resolution query from a remote computer,” id. 1Í181, and to “respond.to the DNS query with one of a plurality of the virtual IP destination addresses associated with each of the respective ISP links.” Id. ¶ 184. Furthermore, his configuration of the Cisco DD system can “select, based on at least one load balancing criterion, one ISP link from the plurality ISP links.” Id. F5 further supports its argument with witness testimony. First,' Kevin Delgadillo testified that Cisco DD could accomplish ISP load balancing, and was likely used for that purpose. Dkt. No. 183-5 at 41:18-23. Second, Dean Darwin, a former Cisco employee, testified that he sold Cisco DD in 1997 and 1998 “to balance between [ ] ISP links” as an ISP link load balancing' solution. Dkt. No. 183-10 at 257:10-258:19.

Radware disagrees with F5’s analysis, and contends that GSLB, and by extension Cisco DD, “uses a routing protocol that does not consider multiple candidate routes to a destination for the purpose of providing load balancing among associated attached ISP links.” Dkt. 195-1 at' ¶6. According to Radware, this means that GSLB/Cisco DD chooses the best server, not necessarily the best route. Dkt. No. 202-4 at 17. Radware argues that the fundamental difference, between prior art GSLB systems like Cisco DD and inbound ISP LLB as claimed by the ’319 and ’3.74 patents is that inbound LLB does not make a selection between different destination servers; rather, the destination server remains the same, and the LLB system chooses the route (or ISP link) used to reach that server. Id. at 18. Furthermore, Radware’s expert takes issue with several aspects of the test-bed system, and contends that it fails to show that Cisco DD discloses the limitations of the asserted inbound claims.

The' court finds- that F5 has not shown by clear and convincing evidence that the Cisco DD system anticipates the asserted inbound claims. First, while Delgadillo does testify that Cisco DD could accomplish “ISP load balancing,” he also testified that he was “not aware of’ any Cisco products, including the Cisco Distributed-Director, that would “enable a company or enterprise to do link load balancing.” Dkt. No. 203-6 at 31:2-32:11. Delgadillo also testified that Cisco “never marketed Distributed Director as a link load balancing solution.” Id. at 41:25-42:10. In his testimony, Delgadillo distinguishes between “ISP load balancing” and “link load balancing,” a distinction which F5 does not explain. Second, Darwin testified that he sold Cisco DD for the purpose of providing ISP redundancy: “the ability to move traffic if... an ISP was failing or failing to provide the performance, if it was slow or if it was congested or it was overused, to be able to balance between the ISP links.” Dkt. No. 183-10 at 257:16-20. While his testimony may provide some support for F5’s position, he does not testify as to how Cisco DD “moved traffic” between links, and whether it did so by performing route selection akin to that taught by the Asserted Patents.

Finally, the parties have provided conflicting expert testimony on whether the test-bed system demonstrates the ability to perform inbound ISP link load balancing. While Dr. Alexander asserts that his test-bed system demonstrates Cisco DD is capable of performing ISP link load balancing, Dr. Rubin opines that even if all components of the Cisco DD System had pre-dated the priority date of the patents-in-suit, the Cisco DD System still would not anticipate because the system could not perform either inbound or outbound link load balancing. Dkt. No. 186-24 at ¶¶ 97-109. Both experts appear to present reasonable analyses of whether the Cisco DD system anticipates the asserted inbound claims software, and reach opposite conclusions. Summary judgment is therefore improper. Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 322-32, 106 S.Ct. 2548.

ii. Route Metrics Limitation

F5 also asserts that the inbound dependent claims are anticipated because such dependent claims require route metrics and such route metrics were known in the prior art and not invented by Radware. The inbound dependent claims all'require either that the route selection be: (1) “based on the proximity determination”; or more generally (2) “in accordance with one or more criteria of the plurality of routes.” See, e.g., ’319 col.19 11.35-36, 64-66. Although F5 argues that Cisco DD included the use of various metrics, including availability, proximity, and latency, Dkt. No. 183 at 18, Radware correctly notes that F5 fails to prove that such route metrics were used by a “device for managing a computer network, said device connected to the Internet through a plurality of routes,” wherein that device then “select[s] the one of the plurality of routes” for purposes of link load balancing in a multi-homed environment, Dkt. No. 202-4 at 19. For each type of criterion or metric required by the asserted claims, F5 simply notes that Cisco DD “includes” that criterion or metric, but does not “explain in detail how each claim element is disclosed in the prior "art reference.” Schumer, 308 F.3d at 1315-16.

b. Outbound Claims

The parties’ arguments regarding the outbound claims mirror those advanced for the inbound claims. F5 states .that like with the inbound claims, “as the outbound claims recite nothing more than these known GSLB techniques applied in the context of multi-homed networks, they are invalid.” Dkt. No. 183 at 20. Radware argues that “the outbound claims have a multi-homing route selection limitation that is not met by GSLB.” Dkt. No. 202-4 at 20.

The outbound claims' require route selection in a multi-homing network environment like the inbound claims, with the difference that the client, not the server, is located at the multi-homed network and is sending packets to a remote server, rather than a remote client. Accordingly, the court finds that for the reasons discussed above in connection with the inbound claims, F5 has not shown by clear and convincing evidence that Cisco DD anticipates the outbound claims. The outbound claims all also require the use of costing information, and for the same reasons stated in the court’s discussion of route metrics for inbound claims, the court finds that F5 has not explained in detail how Cisco DD discloses the use of costing information in the context of the asserted outbound claims.

In sum, the court finds that F5 has failed to carry its burden of showing by clear and convincing evidence that each limitation in the asserted claims is disclosed in a single prior art reference, Cisco DD. The court therefore DENIES F5’s motion for summary judgment .that the Asserted Patents are invalid as anticipated under 35 U.S.C. § 102.

D. Obviousness

The final issue to resolve is whether the asserted claims are obvious in light of the prior art, A patent is obvious if “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103(a). See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). What a particular reference discloses is a question of fact, see Para-Ordnance Manufacturing, Inc. v. SGS Importers International, Inc., 73 F.3d 1085, 1088 (Fed.Cir.1995), as is the question of whether there was a reason to combine certain references, see Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296, 1303 (Fed.Cir.2010). Under the four part test for obviousness detailed in Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the court must consider (1) the scope and content of the prior art; (2) the difference between the prior art and the claimed invention; (3) the level of ordinary skill in the art; and (4) any objective evidence of nonobviousness. The party asserting invalidity bears the burden of proving “by clear and convincing evidence that a skilled artisan would have been motivated to combine the teachings of the prior art references to achieve the claimed invention, and that the skilled artisan would have had a reasonable expectation of success in doing so.” Procter & Gamble Co. v. Teva Pharmaceuticals USA, Inc., 566 F.3d 989, 994 (Fed.Cir.2009) (quoting Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1361 (Fed.Cir.2007)).

The scope and content of the prior art is set forth above. The parties agree on the level of ordinary skill in the art. See Dkt. No. 183 at 21 n.12. Radware has submitted evidence on objective indicia of nonobviousness. Although F5 relies on both GSLB/Cisco DD and BGP in support of its obviousness arguments, the court granted Radware’s motion to strike those portions of F5’s motion for summary judgment that rely on BGP. The court therefore does not consider F5’s arguments based on BGP.

F5 asserts that all' the core networking technology functionality of the claims existed in the prior art, and th