Full opinion text
MEMORANDUM OPINION HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE Plaintiff 01 Communique Laboratory, Inc. (“plaintiff’ or “01” or “Communique”) brought this action on February 1, 2006, alleging that defendants Citrix Systems, Inc. and Citrix Online, LLC (collectively “defendants” or “Citrix”), infringe U.S. Patent No. 6,928,479 (the ’479 patent”). (Doc. No..294-l [’479 patent”]). Now pending before the Court are multiple motions filed by both parties. The motions fall into two;.categories — infringement and eligibility of asserted claims of the ’479 patent under 35 U.S.C. § 101 (“101”). With respect to infringement, Communique moves for summary judgment of: (a) direct' infringement, and (b) exclusion of prior art raised during reexamination. (Doc. Nos. 346 and 346-1 [“Pltf. Infr. Motion”].) Citrix opposes Communique’s infringement motion and moves for summary judgment on plaintiffs claims for: (a) willful infringement, (b) induced infringement, and (c) injunctive relief. (Doc. Nos. 354 and 355 [“Deft. Infr.. Motion”].) Communique-filed a reply in support of its motion and.in opposition to Citrix’s motion (Doc. No. 376-[“Pltf. Infr. Reply”]), and Citrix filed a reply in support of its motion (Doc. No. 385 [“Deft. Infr. Reply”]). With respect to the parties’ motions under § 101,' Citrix moves for summary judgment that the'asserted claims of the ’479 patent are patent ineligible under § 101. (Doc. Nos. 347 and 347-1 [“Deft; § 101 Motion”].) Communique opposes Citrix’s § 101 motion and alfco moves for summary judgment that the asserted claims are patent eligible under § 101. (Doc. Nos. 352 and 353 [“Pltf. § 101 Motion”].) Citrix filed a reply in support of its § 101 motion and in opposition to Communique’s § 101 motion (Doc. No.' 375 [“Deft. § 101 Reply”]), and Communique filed a' reply in support of its. § 101 motion. (Doc. No. 386 [“Pltf. § 101 Reply”]). For the reasons that follow, Citrix’s motion for summary judgment that the asserted claims of the. ’479 patent are ineligible under § 101 is denied, and Communique’s motion for summary judgment that the asserted claims are eligible under § 101 is granted. Further, for the reasons that follow, Communique’s motion for summary judgment of direct infringement is denied, and Communique’s motion exclusion of prior art references raised during reexamination is denied. Citrix’s motion for summary judgment on Communique’s claims for .willful infringement. and injunctive relief is denied, and Citrix’s motion for summary judgment on Communique’s claim for induced infringement is granted. . I. BACKGROUND A. The’479 Patent The ’479 patent is owned by Communique, and the claimed invention is a “system, computer product and method for providing a ■ private communication portal” through which-individuals may remotely access a personal computer from a remote computer using a locator server acting as an intermediary between the personal and remote computers. (’479 patent, Col. 13:48-Col. 14:15.) The dispute in this infringement action revolves ■ around the manner in which that remote .access occurs. When first filed in 2006, this case was before United States District Court Judge Ann Aldrich. While before Judge Aldrich, Citrix requested reexamination of the ’479 patent by the United States Patent and Trademark , Office (“USPTO”), arguing that the patent was invalid Rased on obviousness and anticipation with respect to certain prior art references, (Doc. No. 282-2 (Request for Inter Partes Reexamination [“Reexam. Req.”]).) The reexamination request did not include the issue of patent eligibility under § 101. The' ’479 patent was not invalidated as a result of the USP- ■ TO’s reexamination, and Citrix’s petition was dismissed. (Doc. No. 2-30-2,). B. Third Amended Complaint and Claim Construction After the reexamination petition was dismissed and the case was assigned to this Court, Communique filed a second, and then a third, amended complaint (Doc. No. 294 [“3d Am. Compl.”].) In the third amended complaint, Communique claims that Citrix’s product, GoToMyPC, infringes one or more claims of the ’479 patent, and that defendants have induced others to infringe the patent. In addition to damages, Communique seeks a permanent injunction against defendants prohibiting infringement of the ’479 Patent. (3d Am, Compl. at 9258-59.)' Citrix filed a counterclaim, seeking' a declaration that defendants have not infringed, and do not infringe or actively induce others to infringe the ’479 Patent. Citrix also seeks a declaration that the asserted claims of the ’479 patent are invalid and/or unenforceable because: the claims fail to satisfy one or more of the conditions for patentability specified in 35 U.S.C. §§ 101 et seq. (Doc. No. 308 [“Counterclaim”] at 10466-67.). The Court concluded that it was required to consider the impact, if any, of the ’479 patent reexamination upon the earlier claim construction issued by Judge Aldrich. Accordingly, the Court ordered claim construction briefing, conducted a Markman hearing, and issued its claim construction opinion. (Doc. No. 343 [“CC Op.”].). II. DISCUSSION A. Summary Judgment Standard It is well-established that “[s]ummary judgment is as appropriate in a patent case as in any other. Where no genuine issue of material fact remains and the movant is entitled to judgment as a matter of law, the court should utilize the salutary procedure of Fed. R. Civ. P. 56[.]” Barmag Banner Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 835 (Fed.Cir.1984). Summary judgment is appropriate where “there is no genuine dispute as. to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is material if its resolution affects the outcome of the lawsuit under the govérning law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If a reasonable jury could return a verdict for the nonmoving party, then summary- judgment is not appropriate. Id. “A critical factor in a motion for summary judgment in a patent ease, as in any other, is' the determination by the court that there is no genuine issue of material fact.” Barmag Banner, 731 F:2d at 835 (emphasis in original). The moving party must provide evidence to the Court which demonstrates the absence of a genuine dispute as to any material fact. Once the moving party meets this initial burden, the opposing party must come forward with specific evidence showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 250, 106 S.Ct. 2505. The nonmoving party may .oppose a summary judgment motion “by any of the kinds of evidentiary material listed in Rule 56(c), except the mere pleadings themselves[.]” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The Court must view all facts and evidence, and inferences that may be reasonably drawn therefrom, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). General averments or conclusory allegations of an affidavit do-not create specific fact dispütes for summary judgment purposes. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). “Summary judgment requires that a plaintiff present more than a scintilla of evidence to demonstrate each element of a prima facie case.” Garza v. Norfolk S. Ry. Co., 536 Fed.Appx. 517, 519 (6th Cir.2013) (citing Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir.2007)). “ ‘The mere existence of a scintilla of evidence in support of the [nonmov-ing party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].’ ” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.1989) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505). The district court’s review on summary judgment is a threshold inquiry to determine whether there is the need for.a trial due to genuine factual issues that must be resolved by a .finder of fact because those issues may reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250, 106 S.Ct. 2505. Put another way, this Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct, 2505;, see also Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 578 (6th Cir.2003). Summary judgment is required against a party who . fails to, make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party bears the burden , of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the -nonmoving party’s case necessarily renders all other facts immaterial. The moving party, is entitled to judgment- as a matter of law because the nonmoving party has failed to make a sufficient showing of an essential element of [his] case with respect to which [he] has the burden of proof. ■ ... Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548 (internal quotation marks and citation omitted). The typical summary judgment standard of review “poses unique issues” when cross motions for summary judgment are filed. B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 592 (6th Cir.2001). When cross motions are filed, the district court must evaluate each party’s motion on its own merits, drawing all reasonable inferences against the moving party. Id. (citation omitted). If it is possible to draw inferences in either direction, then both motions for summary judgment should be denied. Id. at 592-93. The making of contradictory claims on summary judgment does not mean that if one is rejected the other must be accepted. Id. B.35U.S.C. § 101 and Alice Before analyzing the summary judgment motions on the infringement issues, the Court must first decide the parties’ cross motions on the issue of patent eligibility under § 101. “Patent eligibility under § 101 is an issue of law[.]” Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1366 (Fed.Cir.2015) (citing In re BRCA1- & BRCA2-Based Hereditary Cancer Test Patent Litig., 774 F.3d 755, 758 (Fed.Cir.2014)). Important to the Court’s analysis is the Supreme Court’s recent decision regarding patent eligibility under § 101 —Alice Corp. Pty. Ltd., v. CLS Bank Int’l., — U.S. -, 134 S.Ct. 2347, 189 L.Ed.2d 296 (2014). 35 U.S.C. § 101 provides that: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to "the conditions and requirements of this ' title. 1. § 101 analysis under Alice There .are three exceptions to § 101’s broad description of patent eligible subject matter: laws of nature, natural phenome-. na, and abstract ideas. Alice, 134 S.Ct. at 2354 (“We have long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not pateiitable.”) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. — , -, 133 S.Ct. 2107, 2116, 186 L.Ed.2d 124 (2013)); Bilski v. Kappos, 561 U.S. 593, 601, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010). The purpose of the exception is to prevent monopolization of the “basic tools of scientific and technological work” .that would impede further innovation. Mayo Collaborative Servs. v. Prometheus Labs., Inc., — U.S. -, 132 S.Ct. 1289, 1293, 182 L.Ed.2d 321 (2012). But the Supreme Court recognized that, [a]t some level, “all inventions.., embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” [Mayo, 132 S.Ct. at ' 1293]. Thus, an invention is not rendered ■ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U.S. 175, 187, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). “[A]p-plication[s]”- of such concepts “ ‘to a new and useful end,’ ” we have said, remain eligible for patent protection. Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972). Alice, 134 S.Ct. at 2354 (alterationsún original); Diehr, 450 U.S. at 187, 101 S.Ct. 1048 (“[A]n ■ application of a law of nature or mathematical-formula to a known structure or process may well be deserving of patent protection.”) (emphasis in original) (citation omitted). ., ■ The Supreme- Court in Alice utilized the two-part framework set forth in Mayo for distinguishing patents that claim laws of nature, natural phenomena, or abstract ideas from patent eligible claims. Id. ■ at 2355. The first step is 'to “determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Id} at 2355 (citing Mayo, 132 S.Ct. at 1296-97). If the claim is not directed to one of the three patent ineligible concepts, no further analysis is required — the claim is patent eligible under § 101. But- if the claim is directed to an abstract idea, the Court must undertake the second step of Mayo to determine whether the elements of a claim, “both individually and ‘as an ordered combination,’ ” contain “additional elements” that “transform the nature of the claim into a patent-eligible application” of an abstract idea. Id. at 2355 (citing Mayo, 132 S.Ct. at 1297-98). This second step involves a’ search for the “inventive concept” — “an element or combination of elements that-is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. at 2355 (citing Mayo, 132 S.Ct. at 1294) (alteration in original). Alice made clear that the mere introduction of a computer into a claim, or the recitation of generic computer functions, to perform an abstract idea does not turn an abstract idea into a patent eligible claim. Id. at 2357-58 (collecting cases). “[I]f a patent’s recitation of a computer amounts to a mere instruction to [implement the abstract idea on the computer] that addition cannot impart patent eligibility.” Id. at 2358 (quoting Mayo, 132 S.Ct. at 1301) (internal quotation marks and citation omitted). 2. Presumption of validity and burden of proof - -Before undertaking the § 101 analysis, the Court must -first address the parties’ dispute whether a presumption of validity and burden of proof by clear and convincing evidence applies to the parties’ cross motions regarding patent eligibility under § 101. This is not a simple issue. 35 U.S.C. § 282(a) provides that a patent and each claim of a patent “shall be presumed valid[,]” and “[t]he burden of establishing invalidity' of a patent or any claim therefor shall rest oh'the party asserting such invalidity.” Defenses involving the validity of a patent, including § 101, must be pleaded. See 35 U.S.C. § 282(b)(2). ' Communique contends that the ’479 patent'is entitled to a presumption of validity, and Citrix’s § 101 defense, as with other invalidity defenses, must be proved by clear and convincing evidence. (Pltf. § 101 Motion at 13097 (citing Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335 (Fed.Cir.2013)).) In Ultmmercial, applying a presumption of validity and burden of clear and convincing evidence on the defendant asserting invalidity under § 101, the Federal Circuit found that an Internet and computer .based method for monetizing copyrighted products was .eligible for’ patent protection. Ultramercial, 722 F.3d at 1342 (presumption of validity and clear and convincing standard applies to § 101 eligibility challenges) (citing Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 131 S.Ct. 2238, 2242, 180 L.Ed.2d 131 (2011)). But the Supreme Court vacated the decision in Ultmmercial, and remanded the case to the Federal Circuit for further consideration regarding ■ patent eligibility under § 101 in light of Alice. WildTangent, Inc. v. Ultramercial, LLC, — U.S. -, 134 S.Ct. 2870, 189 L.Ed.2d 828 (2014). On remand, the Federal Circuit concluded that the patent claims were not directed to patent eligible material, but did not readdress the burden of proof. Judge Mayer filed a concurring opinion, which included a lengthy explanation for his position that no presumption of eligibility applies to. a § 101 inquiry. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 718-21 (Fed.Cir.2014) (Mayer, J., concurring). Before Alice was decided by the Supreme Court, it was the subject of an en banc decision in which a divided Federal Circuit affirmed the district court’s decision that the patent at issue was ineligible under § 101,. and this en banc decision was cited by Ultramercial, discussed above. CLS Bank Intern, v. Alice Corp. Pty. Ltd., 717 F.3d 1269 (Fed.Cir.2013) (en banc). The en banc per curiam decision consisted of one paragraph, with a total of five concurring and dissenting opinions. With respect to the burden of proof in a § 101 analysis, Judge Lourie, writing a concurring opinion for himself and four other judges, stated that “it bears remembering that all issued patent claims receive a statutory; presumption of validity. 35 U.S.C. § 282; [Microsoft, 131 S.Ct. 2238]. And, as with obviousness and enablement, that presumption applies when § 101 is raised as a basis for invalidity in district court proceedings.” Id. at 1284 (Lourie, J. concurring) (citations omitted). Chief Judge Rader, writing for himself and three other judges in an opinion c'oncurring-in-part and dissenting-in-part, also stated that “[b]ecause we believe the presumption of validity applies to all challenges to pat-entability, including those under Section 101 and the exceptions thereto, we find that any attack on an issued patent based on a challenge to the eligibility of the subject matter must be proven by clear and convincing evidence.” Id. at 1304-05 (Rader, C.J. concurring-in-part and dissenting-in-part) (citing Microsoft, 131 S.Ct. at 2242), But there was no majority opinion and, as Judge Rader observed, “[t]hough much is published today discussing the proper approach to . the patent eligibility inquiry, nothing said today beyond our judgment has the weight of precedent.” Id. at 1292, n. 1 (Rader, C.J. concurring-in-part and dissenting-in-part). t The Supreme Court in Alice affirmed the Federal Circuit’s per curiam en banc decision, which consisted of a single paragraph, finding thé patent at issue ineligible under § 101. But the Supreme Court was silent on the issues of presumption of validity and burden' of proof in its '§ 101 analysis. At this time, there is uncertainty in the law with respect to the presumption of validity and standard of proof in a § 101 analysis, and district courts across the country have gone both ways. See e.g. Listingbook, LLC v. Market Leader, Inc., No. 1:13-cv-583, 144 F.Supp.3d 777, 784-85, 2015 WL 7176455, at *5 (M.D.North Carolina Nov. 13, 2015) (collecting cases). In Microsoft, the Supreme Court concluded that the invalidity defenses must be proved by clear and convincing evidence. Microsoft, 131 S.Ct. at 2242. This burden of proof flows from the presumption, of validity in 25 U.S.C. 282(a). Id. at 2246, But evidentiary standards apply to questions of fact, not to questions of law. Id. at 2253 (Breyer, J. concurring) (citation omitted). Invalidity defenses often are , mixed questions of fact and law. See InTouch Techs., Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327, 1339 (Fed.Cir.2014) (obviousness is a mixed question of law and fact), “Where the ultimate question of patent validity turns on, the correct answer to legal questions — what these subsidiary legal standards , mean or how they apply to the facts as given — today’s strict standard of proof has no. application.” Microsoft, 131 S.Ct. at 2253 (Breyer, J. concurring) (citations omitted). “Courts can help to keep application of [the] ‘clear and coqyincing’ standard within its. proper legal bounds by separating factual and legal aspects of an invalidity claim[.]... By preventing the ‘clear and convincing’ standard from roaming outside its fact-related reservation, courts can increase the likelihood that dis-eoveries or inventions will not receive legal protection where none is duef’-M Section 101 is an invalidity defense under § 282. Federal Circuit precedent provides that § 101 eligibility is a question of law subject to de novo review. OIP Techs. v. Amazon.com, Inc., 788 F.3d 1359, 1362 (Fed.Cir.2015). (citing Accenture Global Srvs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1340-41 (Fed.Cir.2013)). But, “[t]his legal conclusion may contain underlying factual issues,” Listingbook, 144 F.Supp.3d at 785, 2015 WL 7176455, at *6 (quoting Accenture Global Servs., 728 F.3d at 1340-41). . ‘ ., , In this Court’s view, the most reasoned approach is to.apply thé clear .and convincing evidentiary standard of proof to invalidity defenses under § 101 to the extent that analysis involves underlying factual issues, but not to the purely legal' portion of the § 101 analysis. Microsoft, 131 S.Ct. at 2253 (Breyer, J. concurring); see Listingbook, 144 F.Supp.3d at 784-86, 2015 WL 7176455, at *5-6, (citations omitted). In this case, the issues before the Court with respect to the eligibility of the ’479 patent under § 101 are purely legal. While the parties disagree how the limitations of claim 24 should be characterized in the context of the Mayo framework, those differences in this case do not constitute disputes of fact .subject to an evidentiary standard of proof. See Microsoft, 131 S.Ct. at 2253 (Breyer, J. concurring). C. Analysis — 35 U.S.C. § 101 1. The ’479 patent and claim 24 Citrix’s argument that it is entitled to summary judgment that the ’479 patent is patent ineligible under § 101 as a matter of law hinges on the Alice decision and the Court’s latest claim construction opinion, which concluded.that claim 24 claims software. But Alice was not the death knell of software patents. “[Computer software and codes remain patentable.” California, Inst. of Tech. v. Hughes Commc’ns Inc., 59 F.Supp.3d 974, 990 (C.D.Calif.2014) (discussing Diehr). According to Citrix, “[a]s construed, [Communique’s] asserted claims usurp the abstract idea of an intermediary-connecting two endpoints, and add nothing of a technical nature.” (Deft. § 101 Motion at 12125.) “Applying the guidance of Bil-ski, Mayo, and Alice.. ,we start [the § 101 analysis] by ascertaining the basic character of the subject matter, and then [by ascertaining] whether there is an ‘inventive concept’ in a claim drawn to some level of abstraction.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348 (Fed.Cir.2015) (considering patent specification to understand basic character of claimed subject matter) (citing Bancorp, Srvcs., LLC v. Sun Life Assur. Co. of Canada (U.S.), 687 F.3d 1266, 1273-74 (Fed.Cir.2012) (“[T]he determination of patent eligibility requires a full understanding of the basic character of the claimed subject matter.”)); StoneEagle Srvs., Inc. v. Pay-Plus Solutions, Inc., Case No. 8:13-cv-2240-T-33MAP, 113 F.Supp.3d 1241, 1250-51, 2015 WL 4042097, at *8 (M.D.Fla. Aug. 8, 2015) (considering patent’s background sections to understand subject matter); Enfish, LLC v. Microsoft, Corp., 56 F.Supp.3d 1167, 1173 (C.D.Ca.2014) (To determine if a claim is directed to an abstract idea, “the court must identify the purpose, of the claim — in other words, determine what the claimed invention is trying to'achieve — and ask whether that purpose is abstract.”). The abstract in the ’479 patent describes the invention as follows: A system, computer product and method for providing a private communication portal at a first computer connected to a network of computers includes a communication facility resident at the first computer, and a second computer including a locating facility for locating the current location of the first computer on the network, where the second computer facilitates communication between the first computer and third computer by authenticating the third computer for communication with the first computer and providing the location of the first computer for communication with the third computer. (’479 patent, at 9262.). The ’479 patent specification describes prior art systems for remote access, and lists specific disadvantages of such multi-user systems ■ owned and operated by third-party intermediaries that are overcome by invention. (’479 patent, Col. 1:15-Col. 2:20.) As described in the specification, these disadvantages include: cost; lack of flexibility, customization, and access to personal data; cumbersome use; and replication of data from personal computer to third-party intermediary that raise privacy and security concerns. (Id.) In summary,' the specification states that the invention addresses these problems by providing an easy-to use, inexpensive, private communication portal that does not require replication to a third-party intermediary to access data, and that provides greater customization flexibility and security. (’479 patent, Col. 2:21-Col. 4:22.). The text of claim 24 is set forth in its entirety, below. ‘ 24. A computer program product for use on a server computer linked to the Internet and having a static IP address, for providing access to a personal computer from a remote computer, the personal computer being linked to the Internet, its location on the Internet being defined by either (i) a dynamic public IP address (publicly addressable), or (ii) a dynamic LAN IP address (publicly unaddressable), the. computer program product comprising: ' (a) a computer usable medium; ■■ - (b) computer readable program code re: corded or storable in the computer useable medium, the computer readable' program code defining a server computer program on the server computer where1 in: ' . ' ' (i) the server computer program is operable to enable a connection between the remote computer and the server com puter; and (ii) the server computer program includes a location facility and is'responsive to a request from the remote computer to'communicate with the personal computer to act as an intermediary between the personal computer and the remote computer by creating one or more communication sessions there between, said one or more communication sessions being-created by the location facility, in .response to receipt of the request for communication with the personal computer from the remote com puter, by determining a then current location of the personal computer and creating a communication channel between the remote computer and the personal computer, the location facility being operable to create such communication ’ channel whether the personal computer is linked to the Internet directly (with a publicly addressable) dynamic IP address or indirectly via an •Internet gateway/proxy (with a publicly un-addressable dynamic LAN IP address). (’479 patent, Col. 13:48-Col. 14:15 (footnotes added).). 2. Abstract idea The first step in the Mayo analysis it to determine whether the claim is directed to an abstract idea. The question of what constitutes an abstract idea is not an easy one, and the Supreme Court in Alice declined to “delimit the precise contours” of an abstract idea. Alice, 134 S.Ct. at 2357. “At step one of the Alice framework, it is often useful to determine the breadth of the' claims in order to determine whether claims extend to cover a ‘fundamental... .practice long prevalent in our system[.]’ ” Capital One Bank, 792 F.3d at 1369 (quoting Alice, 134 S.Ct. at 2356). In addition to fundamental practices long prevalent in our system, other' examples of abstract ideas include algorithms, mathematical formulas, ánd conventional economic and business principles-.and practices, such as hedging risk and use of an intermediary; methods equivalent to human mental work; “[a]ge-old ideas [and] basic tools of research and development, like natural laws and fundamental mathematical relationships;” methods of budgeting; use of advertising as currency; guaranteeing a party’s performance; automated call distribution; computerized telephone call routing system; and customizing content based on information known about customer. Citrix describes claim 24 as an abstract idea of an intermediary that, in response to a request for communication, finds a current location of the requested endpoint and creates a connection between the two devices, and argues that the invention could be, and was, performed by humans when telephone operators connected one caller to a second caller at the first caller’s request. (Deft. § 101 Motion at 12126) (citing Intellectual Ventures I LLC v. Symantec Corp., 100 F.Supp.3d 371, 383 (D.Del.2015) (“Another helpful way of assessing whether the claims of the patent are directed to an abstract idea is to consider if all of the steps of the claim could be performed by human beings in a non-computerized ‘brick and, mortar’ context.”) (citing buySAFE, 765 F.3d at 1353)). Citrix claims that Communique’s expert, Dr. Gregory Ganger (“Ganger”), created this analogy himself during the reexamination process when explaining the “create” element of the claim. (Deft. § 101 Motion at 12127.). But an examination of Ganger’s declaration shows Ganger did not use this analogy to describe the invention of the ’479 patent, but that he used this analogy, along with other analogies, for the purpose of distinguishing the term “create” from the terms “use,” “enables,” and “facilitates” in clarifying that the location facility in the ’479 patent creates the communication channel, and does not simply assist another component in creating the channel. Moreover, Citrix’s analogy breaks down when claim 24 is considered as a whole, as Alice requires. See also Symantec Corp., 100 F.Supp.3d at 383-85 (claim directed to an abstract idea if all of the steps of the claim could be performed by human beings in a non-computerized context). While an operator can connect callers, Citrix does not contend the operator could do so if the recipient of the call has a dynamic (changing) phone number that is unknown to the operator (publicly unaddressable IP address). In addition, the “then ’ current location” of the personal computer in claim 24 is not simply the personal computer’s current IP address — or telephone number in Citrix’s analogy — but includes determining the then current “communication session for communicating with the personal computer.” (CC Op. at 11483-84.) Finally, the purpose' of claim 24, as reflected ■ in the ’479 patent specification, in creating the private communication channel for remote access is not simply to allow people to talk with each other, but to allow direct access of data on the personal computer from the remote computer. A telephone operator cannot and does not provide the caller with direct access to data' on the callee’s desk. Citrix oversimplifies the subject matter of the ’479 patent and claim 24 in an attempt to characterize the invention as an abstract idea. Software patents are not all automatically directed to an abstract idea. Ultramercial, 772 F.3d at 715 (“[W]e do not purport -to state that all claims in all software-based patents will necessarily be directed to an abstract idea.”). The ’479 patent and claim 24 are not merely directed to a broad concept of remote access or automatic call routing. The ’479 patent and claim 24 do not involve a basic or fundamental business or economic practice or principle, algorithm, a conventional idea that existed in a pre-Internet world simply implemented by a computer, or an idea that could be performed by humans. Rather, claim 24 describes a “particular approach” to solving problems with prior art remote access patents -that could only exist in a post-Internet world, utilizing a “location facility” that creates the private communication portal between the personal and remote computers in a specific way, even if the IP address of the personal computer is dynamic and not publicly addressable, to achieve the solution taught by the- ’479 patent. See Contentguard, 142 F.Supp.3d at 514-15, 2015 WL .5853984, at ■*4 (patents not directed to abstract idea because disclose “particular solutions through the use of “trusted systems”). Accordingly, the Court concludes that the ’479 patent and claim 24 are not directed to an abstract idea. But even if claim 24 were determined to be an abstract idea, the claim would still be patent eligible under the second step of the Mayo analysis. 3. Claim 24 contains an inventive concept The second step of the Mayo test requires the Court to “search for an ‘inventive concept’... that is ‘sufficient to ensure that the' patent in practice amounts to .significantly more than a patent upon the [ineligible concept] itself.’ ” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1294) (alteration in original). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. at 2357 (quoting Mayo, 132 S.Ct. at 1297) (alterations in original). While Alice made clear that “[t]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent eligible invention[,]” id. at 2358, it is also clear that use of a computer does not automatically make a claim patent ineligible under § 101. .The ultimate question of patent eligibility is whether the patent claims an “inventive concept” such that the elements of the claim transform the abstract idea into a patent eligible invention:. In Diehr, the Supreme Court found a computer implemented process using a “well-known” mathematical formula for curing rubber was patent eligible. That was so because considering the claim elements as a whole, the claim in Diehr contained “additional steps” that “transformed the process into an inventive application” and “improved an existing technological process[.]” Alice, 134 S.Ct. at 2358 (citations omitted). A software pátent can be eligible under § 101 when it claims a solution to e£ problem necessarily rooted in computer technology, and does not merely recite a conventional business or economic practice known from a pre-Internet world that is simply implemented on a generic computer performing generic computer functions; DDR Holdings, LLC v. Hotels.com, L.P. 773 F.3d 1245, 1259 (Fed.Cir.2014) (“[T]he claimed solution amounts to an inventive concept for resolving this particular Internet-centric problem; rendering the claims patent eligible.”). In DDR Holdings, the patents were directed to systems and methods of generating a composite web page that combined visual elements of a host website with the content of a third-party merchant. Id. at 1248. The patents addressed the problem of retaining visitors to a host website which, as explained in the specification, would be transported away from the host website if the website visitor clicked on an advertisement which activated a hyperlink to the advertiser’s website. Id. The claimed invention for the composite web page provided the product information from the third-party merchant, but retained the “look and feel” of the host cite, thus retaining the host’s website visitors by giving the viewer of the page the impression that she is viewing pages served by the host website. Id. at 1248-49. Without concluding whether the claims were directed at an abstract idea, the Federal Circuit found that the claims were patent eligible because step two of the Alice/Mayo framework was satisfied. Id. at 1259. The court in DDR Holdings reached that conclusion because,, unlike other patents involving both the computer and the Internet which merely recited “the performance of some business practice known from a pre-Internet world along with the requirement to perform-it on the Inter-nett,]” the claimed solution in DDR Holdings was “necessarily, rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” Id. at 1257. Rather than merely reciting “use of the Internet” to perform an abstract business practice, the claims at issue in DDR Holdings specified how the Internet was manipulated to yield the desired result. Id.. 1258. In addition, the claims did not “attempt to preempt every application of the idea of increasing sales by making two web pages look the same,” but recited a specific way, to create a composite web page through the use of an “outsource provider.” Id. at 1259. These “additional features” ensure that the claims are “more than a drafting effort designed to monopolize the [abstract idea].” Id. (quoting Alice, 134 S.Ct. at 2357). Thus “the claimed solution amounts to an inventive concept for resolving the particular Internet-centric problem, rendering the claims patent eligible.” Id. ■ For these same reasons, claim 24 is patent eligible under the second step’ of the Alice/Mayo analysis. Claim 24 claims a computer program product — software. Software runs on computers, but Alice did not foreclose all software based patents as ineligible under § 101 just -because software runs on computers. The test is not the presence or absence of a computer, but the presence or absence of an inventive concept, and courts post-AKce have found software patents and claims-patent eligible on that basis. Citrix argues that claim 24 does not satisfy the second Step of the AlicefMzyo analysis because' claim 24 ohly requires generic software operating on a generic computer system to implement the abstract idea of connecting two computers, and lacks “additional features” necessary to find an inventive'* concept and ensure that the claim is not simply a drafting effort designed to monopolize an abstract idea. (Deft. § 101 Motion at 12131-32.) Ci-trix reaches this conclusion by separately examining individual elements of claim 24, which ■ Citrix contends represent - nothing more than generic computers performing generic functions. In support of this position,- Citrix' cités the deposition testimony of Communique’s expert, Ganger, and Communique’s president and CEO, ' Andrew Cheung (“Cheung”). According to Citrix, their testimony' establishes that there is nothing new in claim 24 and that the individual conventional elements of claim 24 existed in the computer world before the ’479 patent. (Deft. § 101 Motion at 12131-41.). But Citrix’s argument regarding the individual elements fails to consider ciaim 24 as a whole, as required by Alice, and Citrix’s citation to Ganger’s testimony is selective.:Ganger testified that specific individual elements of claim 24 were previously known, and that “under certain cir-cumstanees,” remote access betwéen two computers server computers was possible before the ’479 patent. (First Ganger Dep. at 12395-97.) But the ’479 patent does not claim to invent each individual element of the claim or remote access, but to solve the problems with existing remote access technology. (’479. patent, Col. l:15-Col, 2:20.) Citrix ignores Ganger’s testimony that, the ’479 patent discloses a “particular approach” with a number of specific features for solving problems in current remote access technology and that claim 24 that cannot be parsed into individual elements, but must be considered together as a whole. (Ganger Dep. at 12400-01 (61-64)); Alice, 134 S.Ct. at 2355 (elements of a claim must be considered both individually and “as an ordered combination”). Citrix'likens claim 24 to claim 1 in Prag-matus, which the district court found merely contained generic computer functions without an - inventive concept that transformed the abstract idea of an automated call distribution system into “something more.” The district court in Pragma-tus distinguished the claim before it from DDR Holdings because the claim simply automated contact between a customer and call centers, which “have existed for decades in the modern world.” Pragmatus, 114 F.Supp.3d at 200, 2015 WL 4128963, at *5. The plaintiff in Pragmatm did not demonstrate “how its claims are rooted specifically in a problem for computer technology, rather than the abstract concept of communication with call centers.” Id. at 202, 2015 WL 4128963 at *7 (citing DDR Holdings, 773 F.3d, at 1257). .But unlike claim 1 in Pragmatus, which simply used a computer to automate a process that existed in a pre-Internet world, the ’479 patent and claim 24 disclose a specific solution, rooted in computer technology, to remote access problems that can only arise in the realm of computer networks, and accomplishes that solution even in the face of specific Internet-centric challenges. Claim 24 does not simply say: use the Internet to implement remote access between two computers. The preamble describes the use and purpose of the claimed computer product. The body of claim 24 specifies how the claimed computer program product accomplishes the solution of the ’479 invention of creating a private communication portal between a remote computer and personal computer through the use of a “location facility” that acts as an intermediary between the remote ¡and pergonal computers and creates the communication, sessions by: (a) by “determining a current address or communication session for communicating with the personal computer”; (b) “making or.bringing into existence a communication channel between the remote computer and the personal computer”; and (c) the “location facility” creates the communication channel whether the personal computer is linked to the Internet directly'with a dynamic IP address, or indirectly with a publicly unaddressable dynamic LAN IP address. Examined as a whole, the, specific features, steps, and limitations of claim 24 provide a specific solution to remote access problems that is necessarily rooted in computer technology, ■ and thus; constitute an inventive concept — something more than an abstract idea merely implemented on a generic computer. DDR Holdings, 773 F.3d at 1257; see also Versata Dev. Grp. Inc. v. SAP Am. Inc., 793 F.3d 1306, 1334 (Fed.Cir.2015) (distinguishing claims involving business methods implemented on a general purpose computer from claims in DDR Holdings “rooted in computer technology to solve a problem specifically arising in some aspect of computer technology”); SimpleAir, Inc. v. Google Inc., 136 F.Supp.3d at 751-52, 2015 WL 5675281,.at *5 (systems and methods for transmitting data to remote computing devices patent eligible because claim limitations sufficient to ensure claim amounts to more, than patent on an abstract idea). ' Moreover, the specific, features, steps, and limitations of claim 24 with respect to the 479 patent’s particular solution to computer remote access problems dp not foreclose or preempt .other, solutions to problems concerning remote access technology. DDR Holdings, 773 F.3d at 1259; see also Contentguard, 142 F.Supp.3d at 516-17, 2015 WL 5853984, at *6 (particular solution to problems concerning enforcement of usage rights does not foreclose other, solutions). Patent eligibility under § 101 is a question of law for the Court. The Court concludes, based on its analysis of claim 24 and the requirements of Alice regarding patent eligibility under § 101’, that claim 24 is patent eligible under § 101 as' a matter of law. Having concluded that claim 24 is patent eligible under § 101, dependent claim 45 is also patent eligible. Accordingly, Citrix’s motion for summary judgment that claims 24 and 45 are patent ineligible under § 101 is denied, and Communique’s motion for summary judgment that claims 24 and 45 are patent eligible under § 101 is granted. D. Preclusive Effect of ’479 Patent Reexamination on Citrix’s Prior Art Arguments Regarding Invalidity Communique moves for judgment that Citrix may not assert prior art that was raised during the reexámination process. Communique makes two arguments in support of its-motion. First, Communique contends that 35 U.S.C. § 315(c), and un-codified Pub. L. No. 106-113, § 4607, 113 Stat. 1501 (1999), preclude Citrix from asserting the invalidity of the ’479 patent based on prior art argued by Citrix before the USPTO during reexamination. Second, Communique contends that common law issue preclusion also precludes Citrix from raising arguments that were raised during reexamination. 1. § 315(c) and § 4607 On December 7, 2007, Citrix Systems, Inc. filed a request for an inter partes reexamination of the ’479 patent ■ on the grounds that the patent was invalid based on prior art before this case was assigned to this Court. The USTO granted the request ,for reexamination, which included claims 24 and 45 now at issue (Doc. No. 282-3.) But the ’479 patent was .not invalidated, and Citrix’s reexamination petition was dismissed by the USPTO. (Doc. No. 230-2.). 35 U.S.C. § 315(c) (“§ 315(c)”) provides that: (c) Civil action. — A third-party requester whose request for an inter partes reexamination results in an order under section 313 is estopped from asserting at a later time, in any civil action arising in whole or in part under section 1338 of title 28, the invalidity of any claim finally determined to be valid and patentable on any ground which the third-party requester raised or could have raised during the inter partes reexamination proceedings. This subsection - does not prevent the assertion of invalidity based on newly discovered prior art unavailable to the third-party requester and the Patent and Trademark Office at the time of. the inter partes reexamination proceedings. 35. U.S.C. § 315(c) (Effective November 2, 2002-September 15, 2012) (footnote added). „ At the time that Citrix requested reexamination, the statute limited inter partes reexamination requests to arguments based on prior art patents or printed publications. See 35 U.S.C. § 315(c); 37 C.F.R. § 1.915 (Effective May 16, 2007-September 22, 2011.) With this Communique does not disagree: “During reexamination, public documents can be argued to invalidate a claim, but source code, for example, that was not publicly disclosed and deposition testimony cannot be discussed.” (Pltf. Infr. Motion at 11535.) “[T]he resulting estoppel [of § 315(c)] is similarly limited.” Mikkelsen Graphic Eng’g, Inc. v. Zund America, Inc., 541 Fed.Appx.- 964, 974 (Fed.Cir.2013). The only “grounds” that Citrix-could raise with respect to validity of- the ’479 patent is limited to the content of prior art patents and printed publications that were submitted or could have been submitted during reexamination. Citrix intends to present invalidity evidence at trial with respect to the following prior art systems: (1) BuddyHelp, (2) Ex-pertLive, (3) pcAnywheré 9.0, (4) Microsoft NetMeeting 2,1 and Microsoft Internet .Locator Server, (5) PhonePatch, (6) NetOp Remote Control 6.0, and (7) Activision Active Net Software. (Deft. Infr. Motion at 13149.) The invalidity evidence that Citrix seeks.to introduce during trial with respect to this prior art includes confidential source.code, witness testimony, expert testimony, and evidence of product availability and use, which Citrix argues was not and could not have been introduced during reexamination, and therefore are not subject to estoppel. At a minimum, Citrix contends that there are disputes of material fact as to whether the invalidity evidence Citrix now seeks to assert was considered in reexamination, and those disputes alone necessitate the denial of Communique’s summary judgment motion. (Deft. Infr. Motion at 13149.). a. BuddyHelp/Expert Live Communique contends that Citrix devoted 51 pages of its request for reexamination to BuddyHelp' references, and that with respect to its current invalidity-contentions, Citrix offers no new information regarding the functionality of Buddy-Help that was not considered by the USP-TO. (Pltf. Infr. Motion at 11536.) That said, Communique appears to concede that the source code for BuddyHelp was not part of the USPTO’s reexamination, but blames Citrix for improperly withholding the source code, claiming that it “contains a number of ‘open source’ materials” which Citrix should have disclosed. (Pltf. Infr'. Motion at' 11537-38.) In response, Citrix contends that the BuddySource source code is highly confidential, and not a printed publication that must be disclosed tó the USPTO. (Deft. Infr. Motion at 13152 (citing Doc. No. 346-4 (Expert Report of Ian Foster (“Foster”) Nov. 25, 2015 ( [“First Foster Report”]’)) ¶¶ 134-42.). On summary judgment, the moving party must advance evidence which demonstrates the absence of a genuine dispute of material fact, after which the opposing party must come forward with specific evidence showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. As an initial matter, Communique admits that source code that is not publicly available cannot be discussed during reexamination. Moreover, Communique does not contend that all of the source code for BuddyHelp was arguably publicly available as an open-source, but only that the BuddyHelpsource code, contains “a number of third-party open source materi.als.” (Pltf. Infr. Motion at 11537.) Communique’s qualified argument regarding the public availability of the BuddyHelp source code is on its face insufficient to demonstrate that there is no genuine dispute that BuddyHelp source cqde was publicly available. In addition to the BuddyHelp source code, Citrix also intends to introduce at trial fact and expert testimony, expert reports, and deposition testimony, which Communique recognizes could not be introduced during reexamination. (Pltf. Infr. Motion at 11535 (“During reexamination, public documents can be argued to invalidate a claim, but source code, for example, that was not publicly disclosed and deposition testimony cannot be discussed.”).) Accordingly, the Court concludes that Communique has failed to establish that it is entitled to a ruling in its favor on summary judgment that the Court should preclude Citrix from presenting all invalidity evidence regarding the BuddyHelp. With respect to ExpertLive/ Communique contends that ExpertLive should also be excluded because Citrix admits that “relevant portions” of the BuddyHelp and ExpertLive programs are the same code, and therefore ExpertLive’s ‘‘functionality’ is the same as BuddyHelp, and should be excluded on the same basis as BuddyHelp. (Pltf. Infr. Motion at 11536 (citing Doc. No. 377 (Deposition of Ian Foster Jan. 9, 2015 [“First Foster Dep.”]) at 13832-36 (64-68)). But Citrix points to Foster’s deposition testimony that states the two source codes are not identical. (Deft. Infr. Motion at 13155 (citing First Foster Dep. at 13836 (68).). ' At a minimum, there is a fact dispute regarding the identity of source code between BuddyHelp and ExpertLive. Moreover, even if it is true that certain portions of the code for ExpertLive and BuddyHelp are the same, there is no dispute that the BuddyHelp source code was not part of the reexamination process, and the deficiencies of Communique’s argument regárding preclusion of BuddyHelp source code apply equally to ExpertLive. Additionally, as with Buddy-Help, expert testimony, witness testimony, and other evidence beyond prior art and printed publications regarding Ex-pertLive could not have been introduced during reexamination. Therefore, the Court concludes that Ci-trix is not precluded by § 315(c) or § 4607 from introducing invalidity evidence at-trial regarding BuddyHelp and ExpertLive that was not a patent or printed publication that was introduced, or could have been introduced, during the reexamination. Accordingly, Communique’s sweeping motion for exclusion of all invalidity evidence related to BuddyHelp and ExpertLive .is denied. b. pcAnywhere .With respect to this prior art evidence, Communique contends that all of the pcAnywhere publications currently relied upon by Citrix with respect-to invalidity were available during the reexamination “and, in fact, were submitted to the Patent Office during [reexamination.]” (Pltf. Infr. Motion at 11538 (citing Doc. No. 346-10 [“Information Disclosure Statement”], at 3 (page ID # 12042).). The document to which Communique cites refers to ..a single news release regarding pcAnywhere. linked at the website www.symantec.com. Based on this, Communique argues that Citrix has identified no new material evidence related to pcAnywhere’s “functionality,” and should be estopped from further litigating this-prior art. Citrix contends that pcAnywhere was not considered during reexamination, and points to its reexamination request which does not include pcAny-where in the list of patents and printed publications identified by Citrix to be considered during reexamination. (Deft, Infr. Motion at 13157 (citing Reexam Req. at 6-7 (7868-7869)).). At a minimum, the parties have a fact dispute regarding what documentation, if any, was submitted during reexamination regarding pcAnywhere. That said, even if pcAnywhere was considered during reexamination, that consideration would be limited to prior art patents and printed publications. The invalidity evidence that Citrix seeks to introduce at trial could not have been considered during reexamination: a physical boxed product, a witness declaration, expert repqrts and testiipony, and purchase orders. (Deft. Infr. Motion at 13157.) See ACCO Brands, Inc. v. PC Guardian Anti-Theft Prods., Inc., 592 F.Supp.2d 1208, 1217-18 (N.D.Calif.2008) (§ 315(c) does not prevent use of physical computer as evidence of invalidity because reexamination is limited to consideration of patents and printed publications, and there is no evidence of dimensions of security slot other than the computer itself). .Since the evidence Citrix seeks .to introduce at trial regarding pcAnywhere could not have been submitted during reexamination, it is not barred by § 315(e). Accordingly, Communique’s motion to exclude all invalidity evidence regarding pcAnywhere is denied. c. Microsoft NetMeeting 2.1, Microsoft Internet Locator Server, PhonePatch, NetOp 6.0, cmd Activision Active Net Communique’s arguments regarding the exclusion of the above-captioned prior art is the same'-as before — this prior art was considered during the reexamination, and therefore cannot be a basis for Citrix’s invalidity arguments at trial. (Pltf. Infr. Motion at 11539-41.) With respect to this prior art, Citrix once again argues that it does not seek to assert patents and printed publications, but evidence that could not have been asserted during reexamination: fact witness declarations and testimony, expert reports and testimony, sales records, and confidential , source code. For the same reasons discussed above* Citrix is not estopped from introducing all invalidity evidence of the above-listed prior art. 2. Issue preclusion Communique’s final argument is that Ci-trix is excluded from introducing prior art evidence that was subject to reexamination because the reexamination process resulted in a conclusion that the patents were valid in light of that prior art and Citrix cannot now relitigate those issues. Collateral estoppel protects a party from- having to litigate issues that have been fully and fairly tried in a previous action and adversely resolved against a party-opponent. Pharmacia & Upjohn Co. v. Mylan Pharm., Inc., 170 F.3d 1373, 1379 (Fed.Cir.1999). Our review of a collateral estoppel determination is generally guided by regional circuit precedent, but we apply our own precedent to those aspects of such a determination that involve substantive issues of patent law. Aspex Eyewear, Inc. v. Zenni Optical Inc., 713 F.3d 1377, 1380 (Fed.Cir.2013); see also Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1341 n. 1 (Fed.Cir.2012) (“[T]he question whether a particular claim in a patent case is the same as or separate from another claim has special application to patent cases, and we therefore apply our own law to that issue.”). Ohio Willow Wood Co. v. Alps S., LLC, 735 F.3d 1333, 1342 (Fed.Cir.2013); Soverain Software LLC v. Victoria’s Secret Dir red Brand Mgmt., LLC, 778 F.3d 1311, 1314 (Fed.Cir.2015) (regional circuit law applies to the general procedural question of whether issue preclusion applies). Under Sixth Circuit precedent, there are four essential elements to a claim for issue preclusion: “(1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding; (2) determination of the issue must have been necessary to the outcome of the prior proceeding; ■ (3) the prior proceeding must have resulted in a final judgment on the merits; and (4) the party against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding.” Schreiber v. Philips Display Components Co., 580 F.3d 355, 367 (6th Cir.2009) (citations omitted). The Court concludes that, at least the first and second elements of issue preclusion are not satisfied because the standard of proof, and purpose of the reexamination proceedings, pursuant to 35 U.S.C. § 305 and a district court infringement proceeding in which patent invalidity is asserted as a defense, are entirely different. In re Swanson, 540 F.3d 1368, 1377-78 (Fed.Cir.2008) (“PTO examination procedures have distinctly different standards ... purposes, and outcomes compared to civil litigation”- (citing In re Etter, 756 F.2d 852, 856 (Fed.Cir.1985). Therefore, the same precise issues and arguments are not raised in a reexamination proceeding as may-be raised in a district court proceeding. In civil litigation, a chállenger who attacks the validity of patent claims must overcome the presumption of validity with clear and convincing evidence that the patent is invalid. 35 U.S.C. § 282. If this statutory burden is' not met, :“[c]ourts do not find patents ‘valid,’ only that the patent challenger did not carry the ‘burden of establishing invalidity in -the - particular case before the court.’” Ethicon [Inc. v. Quigg ], 849 F.2d [1422, 1429] at n. 3 [Fed.Cir.1988] (internal citations omitted) (emphasis in original). # Hí % In PTO examinations and reexaminations, the standard of proof&emdash;a preponderance of evidence&emdash;is substantially lower than in a civil case, In re Caveney, 761 F.2d 671, 674 (Fed.Cir.1985); there is no presumption of validity, Etter, 756 F.2d at 856; and the “examiner is not attacking the validity of the patent but is conducting a subjective examination of •the claims in light of prior art,” id. at 857-58. And unlike in district courts, in reexamination proceedings “[e]laims are given ‘their broadest reasonable inter* pretation, consistent with the specification ____[In re] Trans Tex. Holdings, 498 F.3d [1290] at 1298 [ (Fed.Cir.2007) ] (quoting In re Yamamoto, 740 F.2d 1569, 1571 (Fed.Cir.1984)). Id. In addition to the reasons stated above for denying Communique’s motion for sweeping preclusion of all prior art references raised in the reexamination from this civil action, thé difference in purpose, procedures, evidence, and standards of proof between the two forums on thé issue of invalidity do not support a finding that the first and second element of issue preclusion are satisfied. Accordingly, Communique’s motion to excluded all evidence of prior art is denied. Communique is not precluded, however, from objecting at trial to the introduction of prior art evidence that was, or could have been, introduced during reexamination. E. Direct Infringement Direct infringement occurs wtíeh one, “without authority makes, uses, offers to sell,' or sells any patented invention” within the United States. 35 U.S.C. § 271(a). Claim 24 claims a “computer program product.” “Direct infringement requires a party to perform each arid every step or element of a claimed method or product.” BM