Alacritech, Inc. v. Century Link Communications LLC (271 F. Supp. 3d 850, 2017)

United States District Court for the Eastern District of Texas 2017-09-21

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER ON CLAIM CONSTRUCTION

ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE

Before the Court is the opening claim construction brief of Alacritech, Inc. (Plaintiff) (Dkt. No. 181, filed on April 4, 2017), the response of Tier 3, Inc., Sawis Communications Corp., CenturyLink Communications LLC, Dell Inc., Wistron Corp., Wiwynn Corp., SMS Infocomm Corp., Cavium, Inc., and Intel Corporation (collectively, “Defendants”) (Dkt. No. 303, filed under seal on July 10, 2017), and the reply of Plaintiff (Dkt. No. 307, filed under seal on July 14, 2017). The Court held a hearing on the issues of claim construction and claim definiteness on August 7, 2017. Having considered the arguments and evidence presented by the parties at the hearing and in their briefing, the Court issues this Order.

Table of Contents

I. BACKGROUND...857

II. LEGAL PRINCIPLES... 861

A. Claim Construction.. .861

B. Departing from the Ordinary Meaning of a Claim Term.. .863

C. Functional Claiming and 35 U.S.C. § 112, ¶ 6 (pre-AIA) / § 112(f) (AIA)... 863

D. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)... 865

III. CONSTRUCTION OF DISPUTED TERMS... 865

A. “fast-path processing,” “slow-path processing,” “substantially no network layer or transport layer processing,” and “significant network layer or significant transport layer processing”... 865

B. “a destination memory,” “a destination in memory,” and “a destination [for the data] in a memory of the computer”... 870

C. “context [for communication],” “context,” and “status information”... 873

D. “prepend,” “prepended,” and “pre-pending” ...876

E. “without an interrupt dividing”... 877

F. 104 Patent: “means for receiving.. .a command...,” “means for sending.. .data...,” and “means for sending... an indication879

G. ’205 Patent: “means...for receiving. . .aresponse....882

H. ’241 Patent: Mechanism Terms.. .884

I. “flow key” and “flow re-assembler”.. .889

J. “operation code”... 892

K. “database”.. .893

L. “packet batching module”... 894

M. “traffic classifier”... 896

IV.CONCLUSION... 898

1. BACKGROUND

Plaintiff alleges infringement of eight U.S. Patents: No. 7,124,205 (the ’205 Patent), No. 7,237,036 (the ’036 Patent), No. 7,337,241 (the ’241 Patent), No. 7,673,072 (the ’072 Patent), No. 7,945,699 (the ’699 Patent), No. 8,131,880 (the ’880 Patent), No. 8,805,948 (the ’948 Patent), and No. 9,055,104 (the 104 patent) (collectively, the “Asserted Patents”). The ’205, ’036, ’241,-’072, ’699, ’880, and ’948 Patents are related through separate chains of continuation and continuation-in-part applications that ultimately converge on a provisional application filed on Oct. 14, 1997, U.S. Provisional Patent Application 60/061,809 (the ’809 Provisional). The 104 Patent claims priority back to a provisional application filed on April 22, 2002.

The Asserted Patents each pertain generally to technology for accelerating computer networking. The ’205, ’036, ’241,-’072, ’699, and ’880 Patents are generally directed to network-accelerating technology that offloads some of the network-layer processing from the computer processor to an interface device. The 104 Patent is generally directed to network-accelerating technology that- reduces delays that result from waiting on data-receipt acknowledgments.

The abstracts and exemplary claims of the Asserted Patents provide as follows: The abstract of the”’205 Patent provides:

A network interface device connected to ' a host provides hardware and processing mechanisms for accelerating data transfers between the host and a network. Some data transfers áre processed using a dedicatéd fast-path whereby the protocol stack of the host performs no network layer or transport layer processing. Other data transfers are, however, handled in a slow-path by the host protocol stack. In one embodiment, the host protocol stack has an ISCSI layer, but a response to a solicited ISCSI read request command is nevertheless processed by the network interface device in fast-path. -In another embodiment, an initial portion of a response to a solicited command is handled using the dedicated fast-path and then after an error condition [sic] occurs a subsequent portion of the response is handled • using the... slow-path.- The interface-; device uses a command status message to communicate status to the host.

The abstract of the ’036 Patent provides:

A system for protocol processing in a ' computer network has an intelligent network interface card -(INIC) or communication processing device (CPD) associated with a' host computer. The INIC provides a fast-path that avoids protocol processing for most large mul-ti-packet messages, greatly accelerating data communication. The INIC also -assists the host for those message packets that are chosen for processing by host software layers. A communication control block for a message is defined that allows DMA controllers of the INIC.to move data, free of headers, directly to or from a destination or source in the host. The context is stored in the INIC as a communication control block (CCB) -that can be passed.back to the-host for message processing by the host. The INIC contains specialized hardware circuits that are much faster at their specific tasks than a general purpose CPU. A preferred embodiment includes a trio of pipelined processors with separate processors devoted to transmit, receive and management processing, with full duplex communication for four fast Ethernet nodes.

The abstract of the ’241 Patent provides:

A system for protocol processing in a computer network has ah intelligent network interface card (INIC) or communication processing device (CPD) associated with a host computer. The INIC provides a fast-path that avoids protocol processing for most large mul-ti-packet messages, greatly accelerating data communication... The. INIC also assists the host for those message packets that.are .cjhosen for processing, by host software layers. A communication control block for- a message is defined that allows DMA controllers of the INIC to move data, free of headers, directly to or from a destination or source in the host. The context is stored in the INIC as a communication control block (CCB) that can be passed back to the host for message processing by the host. The INIC contains specialized hardware circuits that are much faster at their specific tasks than a general purpose CPU. A preferred embodiment includes a trio of pipelined processors with separate processors devoted to transmit, receive and management processing, with full duplex communication for four fast Ethernet nodes.

The abstract of the ’072 Patent provides:

A system for protocol processing in a computer network has an intelligent network interface card (INIC) or communication processing device (CPD) associated with a host computer. The INIC provides a fast-path that avoids protocol processing for most large mul-ti-packet messages, greatly accelerating data communication. The INIC also assists the host for those message packets that are chosen for processing by host software layers. A communication control block for a message is defined that allows DMA controllers of the INIC to move data, free of headers, directly to or from a destination or source in the host. The context is stored in the INIC as a communication control block (CCB) that can be passed back to the host for message processing by the host. The INIC contains specialized hardware cir-euits that are much faster at their specific tasks than a general purpose CPU. A preferred embodiment includes a trio of pipelined processors with separate processors devoted to transmit, receive and management processing, with full duplex communication for four fast Ethernet nodes.

The abstract of the ’699 Patent provides:

■ A Network Interface device (NI device) coupled to a host computer receives a multi-packet message from a network (for example, the Internet) and DMAs the data portions of the various packets directly into a destination in application memory on the host computer. The address of the destination is determined by supplying a first part of the first packet to an application program such that the application program returns the address -of the destination. .The address is supplied by the host computer to the NI device so that the NI device can DMA the data portions of the various packets directly into the destination.: In some embodiments the NI device is an expansion card added to the host computer, whereas in other embodiments the NI device is a part of the host computer.

The abstract of the ’880 Patent provides:

.An intelligent network interface card (INIC) or communication processing device (CPD) works with a host computer for data communication. The device provides a fast-path that avoids protocol processing for most messages, greatly accelerating data transfer and offloading time-intensive processing tasks from the host CPU. The host retains a fallback processing capability for messages that do not fit fast-path criteria, with the device providing assistance such as validation even for slow-path messages, and messages being selected’for either fast-path or slow-path processing. A context for a connection is defined that allows the device to move data, free of headers, directly to or from a destination or source in the host. The context can be passed back to the host for message processing by the host. The device contains specialized hardware circuits that are much faster at their specific tasks than a general purpose CPU. A preferred embodiment includes a trio of pipelined processors devoted, to, transmit, receive and utility processing, providing full duplex communication for four Fast Ethernet nodes.

The abstract of the ’948 Patent provides:

A system for protocol processing in a computer network has an intelligent network interface card (INIC)-. or communication processing device (CPD) associated with a host computer. The INIC or CPD provides a fast-path that avoids host protocol processing for most large multipacket messages, greatly accelerating data communication. The INIC or CPD also assists the host for those message packets that are chosen for processing by host software layers. A communication control block (CCB) for a message is defined that allows DMA controllers of the INIC to move data, free of headers, directly to or from a destination or source ha the host. The CCB can be passed back to the host for message processing by the host. The INIC or CPD contains hardware circuits configured for protocol processing that can perform that specific task faster than the host CPU. One embodiment includes a processor providing transmit, receive and management processing, with full duplex communication for four fast Ethernet nodes.

The abstract of the 104 Patent provides:

A transmit offload engine (TOE) such as an intelligent network interface device (INIC), video controller or host bus adapter (HBA) that can communicate data over transport protocols such as Transport Control Protocol (TCP) for a host. Such a device can send and receive data for the host to and from a remote host, over a TCP connection maintained by the device. For sending data, the device can indicate to the host that data has been transmitted from the device to a network, prior to receiving, by the device from the network, an acknowl-edgement (ACK) for all the data, accelerating data transmission. The greatest sequence number for which all previous bytes have been ACKed can be provided with a response to a subsequent command, with the host maintaining a table of ACK values to complete commands when appropriate.

Claim 1 of the ’205 Patent, an exemplary apparatus claim, recites:

1. An appai'atus comprising:

a host computer having a protocol stack and a destination memory, the protocol stack including a session layer portion, the session layer portion being for processing a session layer protocol; and

a network interface device coupled to the host computer, the network interface device receiving from outside the apparatus a response to a solicited read command, the solicited read command being of the session layer protocol, performing fast-path processing on the response such that a data portion of the response is placed into the destination memory without the protocol stack of the host computer performing any network layer processing or any transport layer processing on the response.

Claim 1 of the ’072 Patent, an exemplary method claim, recites:

1. A method comprising:

establishing, at a host computer, a transport layer connection, including creating a context that includes protocol header information for the connection;

transferring the protocol header information to an interface device; transferring data from the network host to the interface device, after transferring the protocol header information to the interface device;

dividing, by the interface device, the data into segments;

creating headers for the segments, by the interface device, from a template header containing the protocol header information; and

prepending the headers to the segments to form transmit packets.

Claim 1 of the 104 Patent, an exemplary method claim, recites: ■

1. A method for communication involving a computer, a network, and a network interface device of the computer, the network interface device being coupled to the network, the method comprising:

receiving, by the network interface device from the computer, a command to transmit application data from the computer to the network;

sending, by the network interface device to the network, data corresponding to the command, including prepending a transport layer header to at least some of the data; sending, by the network interface device to the computer, a response to the command indicating that the data has been sent from the network interface device to the network, prior to receiving, by the network interface device from the network, an acknowl-edgement (ACK) that all the data corresponding to the command has been received; and

maintaining, by the network interface device, a Transport Control Protocol (TCP) connection that the command, the data and the ACK correspond to.

II. LEGAL PRINCIPLES

A. Claim Construction

“It is a ‘bedrock principle’ of patent law that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.’ ” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start by considering the intrinsic evidence. Id. at 1313; C.R Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc’ns Group, Inc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims themselves, the specification, and the prosecution history. Phillips, 415 F.3d at 1314; C.R. Bard, Inc., 388 F.3d at 861. The general rule — subject to certain specific exceptions discussed infra — is that each claim term is construed according to its ordinary and accustomed meaning as understood by one of ordinary skill in the art at the time of the invention in the context of the patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1368 (Fed. Cir. 2003); Azure Networks, LLC v. CSR PLC, 771 F.3d 1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption that claim terms carry their accustomed meaning in the relevant community at the relevant time.”) (vacated on other grounds).

“The claim construction inquiry. . .begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998). “[I]n all aspects of claim construction, ‘the name of the game is the claim.’ ” Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1298 (Fed. Cir. 2014) (quoting In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)). First, a term’s context in the asserted claim can be instructive. Phillips, 415 F.3d at 1314. Other asserted or unasserted claims can also aid in determining the claim’s meaning, because claim terms are typically used consistently throughout the patent. Id. Differences among the claim terms can also assist in understanding a term’s meaning. Id. For- example, when a. dependent claim adds a limitation to an independent claim, it is presumed that the independent claim does not include the limitation. Id. at 1314-15.

“[C]laims ‘must be read in view of the specification, of which they are a part.’ ” Id. (quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)). “[T]he specification ‘is always highly relevant to the claim construction analysis. Usually, it is disposi-tive; it is -the single .best guide, to the meaning of a disputed term.’ ” Id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). But, ‘“[a]l-though the specification may aid the court in interpreting the meaning, of disputed claim language, particular embodiments and examples appearing in the specification will not generally be read into the claims.’ ” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571 (Fed. Cir. 1988)); see also Phillips, 415 F.3d at 1323. “[I]t is improper to read limitations from a preferred embodiment described -in the specification — even if it is the only embodiment — into the claims, absent a clear indication in the intrinsic record that the patentee intended the claims to be ,so limited.” Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).

The prosecution history is another tool to supply the proper context for claim construction because, like the specification, the prosecution history provides evidence of how the.- U.S. Patent.-and Trademark Office (PTO) and the inventor- understood the patent. Phillips, 415 F.3d at 1317. However, “because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity-of the specification and thus is less useful for claim construction puiposes.” Id. at 1318; see also Athletic Alternatives, Inc. v. Prince Mfg., 73 F.3d 1573, 1580 (Fed. Cir. 1996) (ambiguous prosecution history may be “unhelpful as an interpretive resource”).

Although extrinsic evidence can also be useful, it is “ ‘less significant than the intrinsic record in determining the legally operative meaning of claim language.’ ” Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc., 388 F.3d at 862). Technical dictionaries and treatises may help a court understand the underlying technology and the manner in which one skilled in the art might use claim terms, but technical dictionaries and treatises may provide definitions that are too broad or may not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert testimony may aid a court in understanding the underlying technology and determining the particular meaning of a term in the pertinent field, but an expert’s conclusory, unsupported assertions as to a term’s definition are not helpful to a court. Id. Extrinsic evidence is “less reliable than the patent and its prosecution history in détermining how t.o read claim terms.” Id. The Supreme Court recently explained the role of extrinsic evidence in claim construction:

In some cases, however, the district court will need to look beyond the patent’s intrinsic evidence and to consult extrinsic evidence in order to understand, for example, the background science or the meaning of a term in the relevant art during the relevant time period. See, e.g., Seymour v. Osborne, 11 Wall. 516, 546, 20 L.Ed. 33 (1871) (a patent may be “so interspersed with technical terms and terms of art that the testimony of scientific witnesses is indispensable to a correct understanding of its meaning”). In cases where those subsidiary facts are in dispute, courts will need to make subsidiary factual findings about that extrinsic evidence. These are the “evidentiary underpinnings” of claim construction that we discussed in Mark-man, and this subsidiary factfinding must be reviewed for clear error on appeal. ...

Teva Pharm. USA, Inc. v. Sandoz, Inc., — U.S. -, 135 S.Ct. 831, 841, — L.Ed.2d — (2015).

B. Departing from the Ordinary Meaning of a Claim Term

There are “only two exceptions to [the] general rule” that claim terms are construed according to their plain and ordinary' meaning: “i) when a patented sets out a definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope of the claim term either in the specification or during prosecution.” Golden Bridge Tech., Inc. v. Apple Inc., 758 F.3d 1362, 1365 (Fed. Cir. 2014) (quoting Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012)); see also GE Lighting Solutions, LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (“[T]he specification and prosecution history only compel departure from the plain meaning in two instances: lexicography and disavowal”). The standards for finding lexicography or disavowal are “exacting.” GE Lighting Solutions, 750 F.3d at 1309.

To act as his owii lexicographer,’ the patentee must “clearly set forth a definition of the disputed claim term,” and “dearly express an intent to. define the term.” Id. (quoting Thorner, 669 F.3d at 1365); see also Renishaw, 158 F.3d at 1249. The patentee’s lexicography must appear “with reasonable clarity, deliberateness, and precision.” Renishaw, 158 F.3d at 1249.

To disavow or. disclaim the full scope of a claim term, the patentee’s statements in the specification or prosecution history must amount to a “clear and unmistakable” surrender. Cordis Corp. v. Boston Sci. Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); see also Thorner, 669 F.3d at 1366 (“The patentee, may demonstrate intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of daim scope.”). “Where an applicant’s statements are amenable to multiple reasonable interpretations, they cannot be deemed clear and unmistakablé.” 3M Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).

C. Functional Claiming and 35 U.S.C. § 112, ¶ 6 (pre-AIA) / § 112(f) (AIA)

A patent claim may be expressed using functional language. See 35 U.S.C. § 112, ¶ 6; Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1347-49 & n.3 (Fed. Cir. 2015) (en banc in relevant portion). Section 112, Paragraph 6, provides that a structure may be claimed as a “means...for performing a specified function” and that an act may be claimed as a “step for perform-mg a specified function.” Masco Corp. v. United States, 303 F.3d 1316, 1326 (Fed. Cir. 2002).

But § 112, ¶6 does,not apply to all functional claim language. There is a rebuttable presumption that § 112, ¶ 6 applies when the claim language includes “means” or “step for” terms, and that it does not apply in- the absence of those terms. Masco Corp., 303 F.3d at 1326; Williamson, 792 F.3d at 1348. The presumption stands or falls according to whether one of ordinary skill in the art would understand the claim with the functional language, in the contéxt of the entire specification, to denote sufficiently definite structure or acts for performing the function. See Media Rights Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1372 (Fed. Cir. 2015) (§ 112, ¶ 6 does not apply when “the claim language, read in light of the ¡specification, recites sufficiently definite structure” (quotation marks omitted) (citing Williamson, 792 F.3d at 1349; Robert Bosch, LLC v. Snap-On Inc., 769 F.3d 1094, 1099 (Fed. Cir. 2014))); Williamson, 792 F.3d at 1349 (§ 112, ¶ 6 does not apply when “the words of the claim are understood by persons of ordinary skill in the art to have sufficiently definite meaning as the name for structure”); Masco Corp., 303 F.3d at 1326 (§ 112, ¶ 6 does not apply when the claim includes an “act” corresponding to “how the function is performed”); Personalized Media Communications, L.L.C. v. International Trade Commission, 161 F.3d 696, 704 (Fed. Cir. 1998) . (§ 112, ¶ 6 does not apply when the claim includes “sufficient structure, material, or acts within the claim itself to perform entirely the recited function... even if the claim uses the term ‘means.’ ” (quotation marks and citation omitted)).

When it applies, § 112, ¶ 6 limits the scope of the functional term “to only the structure, materials, or acts described in the specification as corresponding to the claimed function and equivalents thereof.” Williamson, 792 F.3d at 1347. Construing a means-plus-functjon limitation involves multiple steps. “The first step.. .is a determination of the function of the means-plus-function limitation.” Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). “[T]he next step is to determine the corresponding structure disclosed in the specification and equivalents thereof.” Id. A “structure disclosed in the specification is ‘corresponding structure only if the specification or prosecution history clearly links or associates that, structure to the function recited in the claim.” Id. The focus of the “corresponding structure” inquiry is not simply whether a structure is capable of performing the recited function, but rather whether the corresponding structure is “clearly linked or associated with the [recited] function.” Id. The corresponding structure “must include all structure that actually performs the recited function.” Default Proof Credit Card Sys. v. Home Depot U.S.A., Inc., 412 F.3d 1291, 1298 (Fed. Cir. 2005). However, § 112 does not permit “incorporation of structure from the written description beyond that necessary to perform the claimed function.” Micro Chem., Inc. v. Great Plains Chem. Co., 194 F.3d 1250, 1258 (Fed. Cir. 1999).

For § 112, ¶ 6 limitations implemented by a programmed general purpose computer or microprocessor, the corresponding structure described in the patent specification must include an algorithm for performing the function. WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). The corresponding structure is not a general purpose computer but rather the special purpose computer programmed to perform the disclosed algorithm. Aristocrat Techs. Austl. Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008).

D. Definiteness Under 35 U.S.C. § 112, ¶ 2 (pre-AIA) / § 112(b) (AIA)

Patent claims must particularly point out and distinctly claim the subject matter regarded as the invention. 35 U.S.C. § 112, ¶ 2. A claim, when viewed in light of the intrinsic evidence, must “inform those skilled in the art about the scope of the invention with reasonable certainty.” Nautilus Inc. v. Biosig Instruments, Inc., — U.S. -, 134 S.Ct. 2120, 2129, 189 L.Ed.2d 37 (2014). If it does not, the claim fails § 112, ¶ 2 and is therefore invalid as indefinite. Id. at 2124. Whether a claim is indefinite is determined from the perspective of one of ordinary skill in the art as of the time the application for the patent was filed. Id. at 2130. As it is a challenge to the validity of a patent, the failure of any claim in suit to comply with § 112 must be shown by clear and convincing evidence. Id. at 2130 n.10. “[Ijndefiniteness is a question of law and in effect part of claim construction.” ePlus, Inc. v. Lawson Software, Inc., 700 F.3d 509, 517 (Fed. Cir. 2012).

When a term of degree is used in a claim, “the court must determine whether the patent provides some standard for measuring that degree.” Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1378 (Fed. Cir. 2015) (quotation marks omitted). Likewise, when a subjective term is used in a claim, “the court must determine whether the patent’s specification supplies some standard for measuring the scope of the [term].” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005). The standard “must provide objective boundaries for those of skill in the art.” Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014).

In the context of a claim governed by 35 U.S.C. § 112, ¶ 6, the claim is invalid as indefinite if the claim fails to disclose adequate corresponding structure to perform the claimed functions. Williamson, 792 F.3d at 1351-52. The disclosure is inadequate when one of ordinary skill in the art “would be unable to recognize the structure in the specification and associate it with the corresponding function in the claim.” Id. at 1352.

III. CONSTRUCTION OF DISPUTED TERMS

A. “fast-path processing,” “slow-path processing,” “substantially no network layer or transport layer processing,” and “significant network layer or significant transport layer processing”

Because the parties’ arguments and proposed constructions with respect to these terms are related, the Court addresses the terms together. ., ■

The Parties’ Positions

Plaintiff submits: “Fast-path processing” is defined in the ’205 Patent, “handling the connection such that protocol stack [ ] of the host performs little or no network.layer or transport layer processing ... is called ‘fast-path processing.’ ” Dkt. No. 181 at 7 (quoting ’205 Patent 39:39-45), This definition and exemplary embodiments allow that the host may perform some portion of the processing. Id. at 8. Surrounding claim language also allows this. Claim 1 recites “without the protocol stack of the host computer performing any network layer processing or any transport layer processing on the response” (allowing host processing on other than the response), Claim 8 recites “without the protocol stack of the host computer doing any network layer processing on the packet and without the protocol stack of the host computer doing any transport layer processing on the packet” (allowing host processing on other than the packet), and Claim 31 recites “the portion being fast-path processed such that the data is placed into the destination memory on the host computer without the protocol stack of the host computer doing significant network layer or significant transport layer processing” (allowing insignificant host processing in the fast path). Id. at 8. And the ’809 Provisional, incorporated into the ’205 Patent, expressly teaches the host playing a role in the fast-path processing. Id. at 8-9 & n.2 (citing ’809 Provisional at 7-8, 13; Min Opening Deck ¶ 65, Dkt. No. 181-12 at 24-25). “Slow-path processing” is simply the alternative to “fast-path processing” and need not be separately construed. Id. at 11. And “significant” and “substantially” do not have special-meaning, can be understood without construction, and are supported by disclosure of the ’205 Patent, including the ’809 Provisional. Id. at 21-22.

In addition to the claims themselves, Plaintiff cites the following intrinsic and extrinsic evidence to support its position: Intrinsic evidence: ’205 Patent 1:10, 1:33, 3:48-51, 3:63-4:4, 8:8-60,11:18-30,17:6-34, 18:16-37, 39:39-45; ’205 Patent File Wrapper Oct. 2, 2001 Application (Pl,’s Ex. I, Dkt. No. 181-9); U.S. Provisional Application No. 60/061,809 (the ’809 Provisional) (Pl.’s Ex. U, Dkt. No. 181-21). Extrinsic evidence: Lanning Dep. 186:23-187:5, 195:11- 196:5, 199:4-15 (PL’s Ex. P, Dkt. No. 181-16);. Min Opening Decl. ¶¶ 61, 63, 65 (PL’s Ex. L, Dkt. No. 181-12); Lanning Opening Decl. ¶¶ 41, 47 (PL’s Ex. N, Dkt. No. 181-14); Lanning Rebuttal Deck ¶¶ 13-15, 20, 28 (PL’s Ex. O, Dkt. No. 181-15).

Defendants respond: Neither the ’205 Patent or any parent application to the patent describe an embodiment in.which the host does , “a little” of the fast-path processing. Dkt. No. 303 at 10. Rather, but for a single unexplained reference to the “host perform[ing] little or no... processing,” the ’205 Patent teaches that fast-path processing is performed entirely exclusive of the host. Id. at 10-14 (citing ’205 Patent 39:35-45). The disclosures of the ’809 Provisional relied upon by Plaintiff disclose either host processing above the network and transport layers, id. at 12-13 (citing ’809 Provisional at 7-8), or host processing instead of fast-path processing— i.e., slow-path processing, id. at 13-14 (citing ’809 Provisional at 13). The patent provides no guidance regarding how much processing the host may perform yet still be “little.. .processing.” Id. at 14. Similarly, the patent provides no guidance regarding how much host processing qualifies as “substantially no.. .processing” or-“significant. . .processing.” Id. at 14-15.

In addition to the claims themselves, Defendants cite the following intrinsic and extrinsic evidence to support their position: Intrinsic evidence: ’205 Patent, at [57] Abstract, 3:44-51, 4:29-33, 9:25-29, 11:25-30, 11:64-12:3, 12:22-24,' 14:55-60, 37:15-18, 39:35-45, 40:19-31; ’809 Provisional (Defs.’ Ex. 1, Dkt. No. 303-1). Extrinsic evidence: Min Opening Decl. ¶¶ 63, 65 (PL’s Ex. L, Dkt. No. 181-12); Lanning Opening Decl. ¶¶41, 42, 45-47 (Defs.’'Ex. 5, Dkt. No. 303-5); Lanning Rebuttal Decl. ¶¶ 10-13, 20, 21 (Defs.’ Ex. 6, Dkt. No. 303-6).

Plaintiff replies: The patentee’s definition of “fast-path processing” provided in the ’205 Patent governs. Dkt. No. 307 at 8. While there are some exemplary embodiments that expressly require no host processing, others do not have'this requirement. Id. at 9. ,And the disclosures of the ’809 Provisional establish' that: (1) “fast-path processing” includes host processing on the rare occasion that the “fast-path [ ] receive[s] a header and data that is a complete request, but is also too larger for a header buffer” in the fast-path, id. at 9-10, and (2) the host “transport driver performing transport-level processing” may participate in fast-path processing, id, at 10 n.6.

Plaintiff cites further extrinsic evidence to support its position: Min Opening Decl. ¶¶ 62, 66 (PL’s Ex. L, Dkt. No. 181-12); Lanning Rebuttal Decl. ¶ 9 (PL’s Ex. 0, Dkt. No. 181-15).

Analysis

There are two main issues in dispute. First, whether the host CPU may perform a “little” network layer or transport layer processing in the “fast-path processing.” Second, whether it is reasonably certain what it means for the host to perform “little” or “substantially no” or “significant” network layer or transport layer processing. With respect to the first issue, “fast-path processing” is defined in the ’205 Patent to include “little” processing by the host. With respect to the second issue, the patent provides examples of host processing in the fast path that are sufficient to reasonably delineate “little” or “substantially no” or “significant” host processing.

The ’205 Patent provides a definition of “fast-path processing,” which is defined in the alternative to “slow-path processing”:

There is a communication control block 2417 (CCB) on host computer 2407 and a communication control block 2418 (CCB) on network interface device 2408. These two CCBs are associated with the connection of the ISCSI transaction between computer 2401 and ISCSI target 2404. Only one of the two CCBs is “valid” at a given time. If the CCB 2417 of the host computer is valid, then the protocol stack of the host computer is handling the connection. This is called “slow-path processing” and ,is described above in this patent document. If, on the other hand, the CCB 2418 is valid, then network interface device 2408 is handling the connection such that protocol stack 2411 of the host performs little or no network layer or transport layer processing for packets received in association with the connection. This is called “fast-path processing” and is described above in this patent document.

’205 Patent 39:30-45 (emphasis added). This definition comports with use of the terms elsewhere in the patent. For example, the patent provides:

If, on the other hand, processor 780 finds no such exception condition, then the “fast-path candidate” packet is determined to be an actual “fast-path packet”. The receive state machine 2232 then processes of the packet through TCP. The data portion of the packet in buffer 2114 is then transferred by another DMA controller (not shown in FIG. 21) from buffer 2114 to a host-allocated file cache in storage 35 of host 20. In one embodiment, host 20 does no analysis of the TCP and IP headers of a “fast-path packet”. All analysis of the TCP and IP headers of a “fast-path packet” is done on INIC card 20.

Id. at 37:8-18 (emphasis added). That is, in one embodiment all TCP/IP header processing in the fast path is performed by the INIC, not the host. This suggests that not all embodiments of fast-path processing entirely exclude the host. Similarly, Claim 31 provides:

An apparatus comprising:

a host computer having a protocol stack and a destination memory; and

means, coupled to the host computer, for receiving from outside the apparatus a response to an ISCSI read request command and for fast-path processing a portion of the response to the ISCSI read request command, the portion including data, the portion being fast-path processed such that the data is placed into the destination memory on the host computer without the protocol stack of the host computer doing significant network layer or significant transport layer processing, the means also being for receiving a subsequent portion of the response to the ISCSI read request command and for slow-path processing the subsequent portion such that the protocol stack of the host computer does network layer and. transport layer processing on the subsequent portion.

Id. at 46:12-29 (emphasis added). Again, this does not exclude all transport and network layer processing by the host. This is not inconsistent with exemplary embodiments that state simply that the host does no transport and network layer processing — “little or no” includes “no.” Further, recitations in Claim 1 (“performing fast-path processing on the response such that a data portion of the response is placed into the destination memory without the protocol stack of the host computer performing any network layer processing or any transport layer processing on the response” (emphasis added)) and Claim 8 (“performing fast-path processing on the packet such that the data is placed into a destination memory without the protocol stack of the host computer doing any network layer processing on the packet and without the protocol stack of the host computer doing any transport layer processing on the packet” (emphasis added)) would be rendered superfluous if fast-path processing necessarily excluded network-layer and transport-layer processing by the host computer. But “[cjlaims must be interpreted with an eye toward giving effect to all terms in the claim.” Info-Hold, Inc. v. Muzak LLC, 783 F.3d 1365, 1373 (Fed. Cir. 2015). Simply, the patentee defined fast-path processing to allow that the host may do some — little—transport and network layer processing. The Court declines to adopt a different definition.

In the context of the ’205 Patent, the meaning of “little” or “substantially no” or “significant” host processing is reasonably certain. Terms of degree are not indefinite if the patent provides some objective standard for measuring the degree. Biosig Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1378 (Fed. Cir. 2015). As the Supreme Court recently reiterated, “the definiteness requirement must take into account the inherent limitations of language,” Nautilus Inc. v. Biosig Instruments, Inc., — U.S. -, 134 S.Ct. 2120, 2128, 189 L.Ed.2d 37 (2014). Thus, terms of degree may appropriately be used to “avoid[ ] a strict numerical boundary to the specified parameter.” Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd., 476 F.3d 1321, 1326 (Fed. Cir. 2007) (quoting Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995)). The scope of the term of degree may be understood with reference to the technological context. Id. Here, the context is the performance improvement gained by shifting host processing to the interface. See, e.g., 205 Patent 3:48-51 (“The host CPU and protocol stack avoid protocol processing for data transfer over the fast path, releasing host bus bandwidth from many demands of the network and storage subsystem.”); id. at 43:32-38 (“Protocol processing speed and efficiency is tremendously accelerated by an intelligent network interface card (INIC) containing specially designed protocol processing hardware, as compared with a general purpose CPU running conventional protocol software, and interrupts to the host CPU are also substantially reduced.”).

The Court finds Plaintiffs expert more credible than Defendants’ expert on this issue of indefiniteness. In opining that these terms are not indefinite, Plaintiffs expert considered the terms in the above-stated technological context. See, e.g., Min Opening Decl. ¶¶ 61-63, Dkt. No. 181-2 at 21-23. In contrast, Defendants’ expert appears to be searching for a numerical boundary and, failing to find one, opines that the terms are indefinite. See, e.g,, Lanning Opening ¶¶ 41-48, Dkt, No. 303-5 at 21-23.

Further, the disclosures of host-processing at pages 7 through 8 and 13 of the ’809 Provisional, which is incorporated into the ’205 Patent, appear to be instances of fast-path processing that provide further technological guidance as to what level of host processing is acceptable in the fast path. The application provides that the host • “transport driver”' will help route packets through the fast path by communicating-through an existing NT mechanism — “a small amount of data” between the upper layer client and the network interface (INIC) during the fast-path processing -to facilitate INIC DMA of the remaining data. ’809 Provisional 7-8, Dkt. No. 181-21 at 11-12; Min Opening Decl. ¶ 65, Dkt. -No. 181-12 at 24-25. The Court is -not persuaded that this processing by the host “transport driver,” which involves communication of packet data and memory address with both the INIC and the upper-level client, is not “transport layer processing” because it is “above the transport layer,” as Defendants’ contend. See, - e.g., Lanning Rebuttal Decl. ¶ 20, Dkt. No. 303-6 at 16-18. Likewise, the application provides that in situations in which the size of the incoming request is such that only a single data buffer is used, the fast-path flow for that single buffer will be identical to the slow-path flow — “which also puts all the data into the header buffer or, if the header is too small, uses a large (2K) host buffer for all the data" and “at most, one data buffer" will be sent to the host for processing. ’809 Provisional 13 (emphasis added), Dkt. No. 181-21 at 17; Min Opening Decl. ¶ 65, Dkt. No. 181-12 at 24-26. The Court is not persuaded that this is not fast-path processing, as Defendants’ contend. See, e.g., Lanning Rebuttal Decl. ¶ 20, Dkt. No. 303-6 at 16-18. Indeed, the “which also” language in the description of this embodiment suggests that this is not simply slow-path processing, but rather a specific instance of fast-path processing. The Court finds Plaintiffs expert more credible than Defendants’ on these disclosures in the ’809 Provisional.

Accordingly, the Court determines that Defendants have failed to prove that any claim is rendered indefinite by “substantially no network layer or transport layer processing” or “significant network layer or significant transport layer processing” and construes “fast-path processing” and “slow-path processing” as follows:

• “fast-path processing” means “a mode of operation in which the protocol stack of the host computer performs little or no network layer or transport layer processing”; ■ •

• “slow-path processing” means “a mode of operation in which the host performs more than a little network-layer or transport layer processing.”

B. “a destination memory,” “a destination in memory,” and “a destination [for the data] in a memory of the computer”

Because the parties’ arguments and proposed constructions with respect to these terms are related, the Court addresses the terms together.

The Parties’ Positions

Plaintiff submits: The patents describe that the destination recited in the claims is the place in memory where the information is deposited and may be a single contiguous block of memory or several associated blocks. Dkt. No. 181 at 12 (citing ’699 Patent 6:64-7:2). Some claims— but not all — explicitly recite processing limitations related to depositing the information at the memory. These would be rendered superfluous by Defendants’ proposed processing limitations. Id. at 12-13. And no claim recites all Defendants’ proposed processing limitations. Id. Exemplary embodiments include destinations that are not on the host computer, contradicting Defendants’ proposed “location in host memory” limitation. Id. at 13-14. And some claims — but not all — explicitly recite that the destination is on the host computer. Id. at 14 (citing ’205 Patent 38:67-39:4). Finally, the destination need not be a final destination, as Defendants’ proposed “when all.. .processing is complete” limitation demands. Id. Rather, the patents expressly refer to “final destination,” which implies that a' destination is not necessarily final. Id.

In addition to the claims themselves, Plaintiff cites the following intrinsic and extrinsic evidence to support its position: Intrinsic evidence: ’699 Patent 6:64-7:2; ’241 Patent fig.4B, 9:66-10:23; ’205 Patent 9:1-7, 38:67-39:4. Extrinsic evidence: Random House Webster’s Dictionary (1999), “destination” (Pl.’s Ex. Q, Dkt. No. 181-17); Webster’s New World Dictionary of Computer Terms (8th ed. 2000), “destination” (PL’s Ex. R, Dkt. No. 181-18); Lanning Opening Deck ¶¶8-11 (Pl.’s Ex. N, Dkt. No. 181-14); Lanning Rebuttal Deck ¶¶'83-85 (PL’s Ex. O, Dkt. No. 181-15); Min Opening Deck ¶¶ 16-23 (PL’s Ex. L, Dkt. No. 181-12).

Defendants respond: , Plaintiffs pro- . posed construction is simply “memory” and. gives no effect to “destination.” Dkt. No. 303 at 16. The patents distinguish the “destination” in memory from the “initial landing point” in memory, and this distinction is not captured by Plaintiffs propiosed construction. Id. at 16-17 (citing ’699' Patent 2:28-43). The ’699 and ’241 Patents state that the destination is in host memory and the only reference to the contrary is found only in the ’205 Patent (the claims of which expressly require the destination be in host memory) and therefore does not apply to the other patents. Id. at 17-18 (citing. ’699 Patent 6:64-7:2; ’241 Patent 14:48- 51; ’205 Patent 39:2-4). And the patents distinguish the destination from locations in memory used during protocol processing. Id. at 18 (citing ’241 Patent 35:20-27; ’205 Patent 2:66-3:5, 16:53-55; ’699 Patent 2:28-43).

In addition to the claims themselves, Defendants cite the following intrinsic and extrinsic evidence to support their position: Intrinsic evidence: ’699 Patent, at [54] Title, 2:28-43, 6:64- 7:2; ’205 Patent 2:66-3:5, 16:53-55, 39:2-4; ’241 Patent 5:18-28, 14:48-51, 35:20-27; ’809 Provisional (Defs.’ Ex. 1, Dkt. No. 303-1). Extrinsic evidence: Oxford Dictionary of Computing (4th ed. 1996), “word” (Defs.’ Ex. 18, Dkt. No. 303-18); Lanning Rebuttal Decl. ¶ 85 (Defs.’ Ex. 6, Dkt. No. 303-6).

Plaintiff replies: Under its plain meaning, and as used in the patents, “destination” refers to the place to which something travels or is sent, and is a counterpart to “source.” Dkt. No. 307 at 11. This is captured in the language of the claims — the information is expressly placed or sent or transferred to the memory “destination.” Id. at 12. Thus, the destination is distinct from the “initial landing point” as the initial .landing point is a “source.” Id. And the statements in the ’205 Patent regarding destinations other than in the host are incorporated into the ’241 Patent, and the ’205 Patent expressly claims such an embodiment — “destination memory that is part of a second host computer.” Id. at 12 & nn.9, 10.

Plaintiff cites further intrinsic evidence to support its position: ’699 Patent 5:65-67; ’241 Patent 2:15-18.

Analysis

There are three main issues in dispute. First, whether a destination in memory is simply the memory. Second, whether the destination in memory is necessarily in host memory. Third, whether the destination in memory is the location for data after the MAC, network, and transport layer processing is complete. With respect to the first issue, the destination is a specified location in memory. With respect to the second issue, the destination in memory need not be in the host memory. With respect to the third issue, the destination is not necessarily the post-processing destination.

The ’205, ’241, and ’699 Patents each refer to destinations as locations in memory. For example, the ’205 Patent describes destinations such as the “location of a file cache [ ] in storage” and “in semiconductor memory.” See, e.g., ’205 Patent 37:34-37, 39:4-6, 40:6-11, 40:17-19. ' The ’241 includes similar references to, e.g., “in storage” See, e.g., ’241 Patent 10:16-18. And the ’699 Patent refers to destinations, e.g., “in memory space,” “a single contiguous block of host memory,” and “several associated blocks... of host memory.” See, e.g., ’699 Patent 5:25-29, 6:64-7:2. Indeed, the parties approach the limitations as if “destination in memory” means the same as “destination memory.” And the plain meaning of “destination” supports that the destination terms here refer to specific memory rather than just memory in the abstract, as Plaintiffs proposed construction suggests. The Court notes, however that the statements in the ’699 Patent regarding contiguous and associated blocks are not definitional. They simply note the destination may be scattered over multiple — associated—locations. Id. at 5:65-67 (“In some embodiments, the second, destination 110 is actually made up of a plurality of locations having different addresses of different lengths.”).

The destination need not be in host memory. The ’205 Patent, the disclosure of which is incorporated into the ’241 Patent, provides: “[d]estination 2413 may be on the host computer, or on another computer, or on another device, or elsewhere on network 2403.” ’241 Patent 39:2-3. The claims of the ’699 Patent expressly recite that the destination is “in a memory of the computer.” The Court understands “the computer” here to be the host, implying that the destination is not necessarily in the host memory. Indeed, Claim 12 of the ’205 Patent explicitly provides that “the destination memory is part of a second host computer.” ’205 Patent 44:57-58.

Finally, the Court is not persuaded that the destination terms necessarily entail the processing Defendants suggest. Even if Defendants’ characterization is correct— and every embodiment of a destination is described with reference to data that has undergone Defendants’ proposed processing — that alone is not sufficient to limit the claims to that processing. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005) (en banc) (“we have expressly rejected the contention that if a patent ^escribes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment”); Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1366 (Fed. Cir. 2012) (“It is likewise not enough that the only embodiments, or all of the embodiments, contain a particular limitation. We do not read limitations from the specification into claims; we do not redefine words. Only the patentee can do that.”); SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc) (“The law does not require the impossible. Hence, it does not require that an applicant describe in his specification every conceivable and possible future embodiment of his invention.”). And Defendants have not identified any lexicography or disavowal that would limit the broad meaning of destination as they propose. GE Lighting Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1309 (Fed. Cir. 2014) (“The standards for finding lexicography and disavowal are exacting. To act as its own lexicographer, a patentee must clearly set forth a definition of the disputed claim term, and clearly express an intent to define the term.” (quotation marks omitted)). Further, Defendants’ proposed processing limitation would render explicit limitations superfluous. For example, the claims of the ’699 Patent each recite “transferring the data to the destination, without transferring the network layer headers or the transport layer headers of the plurality of packets to the destination.” ’699 Patent 7:17-19, 7:50-52, 8:27-29. If “destination” necessarily presupposes the transport-layer and network-layer processing, this limitation would be superfluous. But “[cjlaims must be interpreted with an eye toward giving effect to all terms in the claim.” Info-Hold, Inc. v. Muzak LLC, 783 F.3d 1365, 1373 (Fed. Cir. 2015).

Accordingly, the Court construes the destination terms as follows:

• “a destination memory” means “one or more specified locations in memory that may be a single contiguous block or several associated blocks of memory in a computer”;

• “a destination in memory” means “one or more specified locations in memory that may be a single contiguous block or several associated blocks of memory in a computer”;

• “a destination [for the data] in a memory of the computer” means “one or more specified locations [for the data] in a memory of the computer and that may be a single contiguous block or several associated blocks of memory in the computer.”

C. “context [for communication],” “context,” and “status information”

Because the parties' arguments and proposed constructions with respect to these terms are related, the Court addresses the terms together.

The Parties' Positions

Plaintiff submits: The plain meaning of “context” refers to the circumstances surrounding an event or situation and in the context of the exemplary embodiment and claims, the “context” refers to information regarding a connection or communication, Dkt, No. 181 at 14-15. For example, the patents provide “the context summariz[es] various features of the connection, such as protocol type and source and destination addresses for each protocol layer.” Id. at 15 (quoting '036 Patent 7:62-8:2), And the patents describe contexts for different types of connections, such as TCP, TTCP, and SPX. Id. Certain claims require “status information” as part of thé context, which plainly refers to the status of the connection. Id. at 18.

In addition to the claims themselves, Plaintiff cites the following intrinsic and extrinsic evidence to support its position: Intrinsic evidence: '036 Patent 7:62-8:2, 10:10-22, 10:35-41, 17:14-22, 37:63-38:10; '072 Patent File Wrapper June 25, 2007 Application; '809 Provisional. Extrinsic evidence: Random House Webster’s Dictionary (1999), “context” (Pi’s Ex. Q, Dkt. No. 181 — 17); American Heritage Dictionary (3d ed. 1994), “context” (Pi’s Ex. S, Dkt. No. 181-19); Min Opening Decl. ¶ 74 (Pi’s Ex. L, Dkt. No. 181-12); Min Rebuttal Deck ¶¶ 39-40 (Pl.’s Ex. M, Dkt. No, 181-13); Lanning .Opening Decl. ¶¶ 17-31; 39 (Pi’s Ex. N, Dkt. No. 181-14).

■Defendants respond: The meaning of “context” in the claims is not reasonably certain because “context” is used in the patents and priority documents in a manner inconsistent with its use in the claims. Dkt. No. 303 at 19. “Context” is variably used to refer to a “connection” and information in a Transmission Control Block for TCP connections (TCB). Id.' at 19-20. In previous litigation, 'Plaintiff represented “context” as something analogous to TCB and in an interference proceeding involving a related but unasserted patent, inventors referred to “context” as TCB. Id. at 20-21. In the ’036 and ’072 Patents, however, “context” is used to' refer to information in a Communication Control Block (CCB), which is a generalization of TCB that is not limited to TCP and includes UDP. Id. at 21. Yet the ’809 Provisional specifically excludes UDP. Id. at 21-22. And Plaintiffs proposed construction covers information “clearly hav[ing] no relation to anything in the patents in suit” and adds nothing to the meaning of claims that already recite “packets.” Id. at 22. Ultimately, one of ordinary skill in the art is not able to determine if particular information is “context.”

In addition to the claims themselves, Defendants cite the following intrinsic and extrinsic evidence to support their position: Intrinsic evidence: ’072 Patent 9:49-52,' 24:15-18, 30:60-64; ’036 Patent 9:50-53, 24:38-40, 31:14-17; ’809 Provisional (Defs.’ Ex. 1, Dkt. No. 303-1); Blight-man Dep. 67:21 — 68:2 (Defs,’ Ex. 8, Dkt. No. 303-8); Higgen Dep. 122:11-123:7 (Defs.’ Ex. 8, Dkt. No. 303-8). Extrinsic evidence: Alacritech Initial Proposal Document (Defs.’ Ex. 3, Dkt. No. 303-3); Alacritech, Fast-path TCPJTASEjOFFLQAD Porting Effort Summary (Defs.’ Ex.17, Dkt. No. 303-7); Min Dep. 170:19-174:6, 175:2-176:6 (Defs.’ Ex. 4, Dkt. No. 303-4).

Plaintiff replies: When considered in the context of the surrounding claim language and description of the ’036 and ’072 Patents, the meaning of “context” is reasonably certain. Dkt. No. 307 at 13-16. That “context” may be satisfied by various and diverse pieces of information goes to the term’s breadth, not its definiteness. Id. at 14. Whether a term is used differently in a priority document than in the' issued patents is irrelevant to the indefiniteness analysis. Id. And Defendants’ cited priority documents refer to protocols other than TCP or use “context” to describe the state of a TCP connection and thus are consistent with Plaintiffs proposed construction. Id. at 15.

Plaintiff cites further intrinsic and extrinsic evidence to support its position: Intrinsic evidence: ’036 Patent 9:50-53, 17:14-25, 39:33-40, 39:45-48. Extrinsic evidence: Lanning Dep. 74:20-76:4, 76:7 — 16 (PL’s Ex. P, Dkt. No. 181-16); Min Dep. 141:12-16, 152:18-153:4, 159:13- 161:3, 162:4-13 (PL’s Reply Ex. C, Dkt. No. 307-4). . '

Analysis

The issue here is whether the meaning of “context” is reasonably certain in the context of the ’036 and ’072 Patents. It is.

To begin, Defendants offered no argument in their brief supporting their contention that “status information” renders claims indefinite. A naked assertion of indefiniteness cannot satisfy the burden of proving a patent claim invalid,

The Court is not persuaded the statements in the patents, and extrinsic to the patents, regarding TCB as a contéxt or CCB as context or UDP embodiments of the invention render any claims indefinite. Rather than equating, for example, TCB and context, the patents allow that context may come in the form of TCB, or CCB, or other forms. As explained in the patents:

A connection context 50 has been created, as will be explained below, the context summarizing various features of the connection, such as protocol type and source and destination addresses for each protocol layer. The context may be passed between an interface for the session layer 42 and . the CPD 30, as shown by arrows 52 and 54, and stored as a communication control block (CCB) at either CPD 30 or storage 35.

’036 Patent 7:62-8:2. That is, the context relates to features of the connection. It may be, therefore is not necessarily, stored as a CCB. The patents also provide that “[h]ost stack 44 may use this packet to create a connection context for the message, including finding and reserving a destination for data from the message associated with the packet, the context taking the form of a CCB.” Id. at 10:19-22. That is, the context may take the form of a CCB. This does not preclude context taking the form of TCB. Indeed, the patent