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Rodney Gilstrap.\n ______________________\n\n ON PETITION\n ______________________\n\n Before PROST, Chief Judge.\n ORDER\n Newegg Inc. submits a petition for a writ of manda-\nmus directing the United States District Court for the\nEastern District of Texas to enter judgment that Newegg\ndoes not infringe U.S. Patent No. 5,412,730.\n Upon consideration thereof,\n IT IS ORDERED THAT:\n TQP Development LLC is directed to respond to the\npetition within seven days from the date of filing of this\norder. Any reply must be filed within three days from the\ndate of filing of the response.\n\fCase: 15-142 Document: 3 Page: 2 Filed: 07/06/2015\n\n\n\n2 IN RE: NEWEGG INC.\n\n\n\n\n FOR THE COURT\n\n /s/ Daniel E. O\u2019Toole\n Daniel E. O\u2019Toole\n Clerk of Court\n\n\ns19\n\f","ocr_status":2,"date_upload":"2015-08-01T09:48:15-07:00","document_number":"3","attachment_number":null,"pacer_doc_id":"0130612095","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2016-08-19T17:52:52.220539-07:00","date_modified":"2018-12-09T17:34:42.849485-08:00","date_filed":"2015-07-06","time_filed":null,"entry_number":3,"recap_sequence_number":"2015-07-06.006","pacer_sequence_number":null,"description":"ORDER filed. TQP Development LLC is directed to respond to the petition [2] within seven days from the date of filing of this order. Any reply must be filed within three days from the date of filing of the response. Service: 07/06/2015 by clerk. [253820]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/1935906/","id":1935906,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4162344/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/1437272/","id":1437272,"tags":[],"absolute_url":"/docket/4162344/2/1/in-re-newegg-inc/","date_created":"2016-08-19T17:52:52.200024-07:00","date_modified":"2018-12-09T17:34:42.708491-08:00","sha1":"2f84ffec4030d0be66a36fe761ca8f006af854b1","page_count":34,"file_size":332687,"filepath_local":"recap/gov.uscourts.cafc.15-142.2.1.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.cafc.15-142/gov.uscourts.cafc.15-142.2.1.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case: 15-142 Document: 2-1 Page: 1 Filed: 07/06/2015\n\n\n\n Miscellaneous Docket No. ___________\n\n\n United States Court of Appeals\n for the Federal Circuit\n IN RE NEWEGG INC.,\n Petitioner.\n\nOn Petition for a Writ of Mandamus to the United States District Court for the\nEastern District of Texas in Case No. 2:11-cv-00248, Judge Rodney Gilstrap\n\n PETITION FOR WRIT OF MANDAMUS\n\n Kent. E. Baldauf, Jr.\n Daniel H. Brean\n THE WEBB LAW FIRM\n One Gateway Center\n 420 Fort Duquesne Blvd., Suite 1200\n Pittsburgh, PA 15222\n Telephone: (412) 471-8815\n\n Mark. A. Lemley\n DURIE TANGRI LLP\n 217 Leidesdorff Street\n San Francisco, CA 94111\n Telephone: (415) 362-6666\n\n Edward R. Reines\n WEIL GOTSHAL & MANGES LLP\n 201 Redwood Shores Parkway\n Redwood Shores, CA 94065\n Telephone: (650) 802-3000\n\n Counsel for Newegg Inc.\n\n July 6, 2015\n\f Case: 15-142 Document: 2-1 Page: 2 Filed: 07/06/2015\n\n\n\n\nUNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT\n\n In re Newegg, 2015-_______\n\n CERTIFICATE OF INTEREST FOR NEWEGG INC.\n\nCounsel for Newegg Inc. hereby certifies the following:\n\n1. The full name of every party or amicus represented by me is:\n Newegg Inc.\n\n2. The name of the real party in interest (if the party named in the caption is not\nthe real party in interest) represented by me is:\n Not applicable.\n\n3. All parent corporations and any publicly held companies that own 10 percent\nor more of the stock of the party or amicus curiae represented by me are:\n No publicly held company owns ten percent or more stock in\n Newegg Inc.\n\n4. The names of all law firms and the partners or associates that appeared for\nthe party or amicus now represented by me in the trial court or agency or are\nexpected to appear in this court are:\n Kent E. Baldauf, Jr., The Webb Law Firm\n James J. Bosco, Jr., The Webb Law Firm\n Daniel H. Brean, The Webb Law Firm\n Anthony W. Brooks, The Webb Law Firm\n Bryan P. Clark, The Webb Law Firm\n Herbert A Yarbrough, III, Yarbrough Wilcox, PLLC\n Debra Elaine Gunter, Findlay Craft, PC\n Edward R. Reines, Weil Gotshal & Manges, LLP\n Alan D. Albright, Bracewell & Guiliani LLP\n Mark A. Lemley, Durie Tangri LLP\n Edward R. Reines, Weil Gotshal & Manges LLP\n\nDated: July 6, 2015 /s/ Daniel H. Brean\n Daniel H. Brean\n Counsel for Newegg Inc.\n\n\n i\n\f Case: 15-142 Document: 2-1 Page: 3 Filed: 07/06/2015\n\n\n\n\n TABLE OF CONTENTS\n\nCERTIFICATE OF INTEREST FOR NEWEGG INC. ..................................... i\u00a0\n\nTABLE OF CONTENTS ....................................................................................... ii\u00a0\n\nTABLE OF AUTHORITIES ................................................................................ iii\u00a0\n\nRELIEF SOUGHT...................................................................................................1\u00a0\n\nISSUE PRESENTED ...............................................................................................1\u00a0\n\nPRELIMINARY STATEMENT ............................................................................1\u00a0\n\nSTATEMENT OF RELEVANT FACTS ..............................................................3\u00a0\n\n I. THE PARTIES .....................................................................................................3\u00a0\n\n II. THE DISTRICT COURT PROCEEDINGS ..............................................................4\u00a0\n\n III. THE \u2019730 PATENT AND TQP\u2019S INFRINGEMENT CONTENTIONS........................8\u00a0\n\n IV. THE INTUIT SUMMARY JUDGMENT DECISIONS .............................................11\u00a0\n\nLEGAL STANDARDS ..........................................................................................13\u00a0\n\nREASONS WHY THE WRIT SHOULD ISSUE ...............................................14\u00a0\n\n I. NEWEGG HAS NO OTHER ADEQUATE MEANS TO OBTAIN RELIEF ..................14\u00a0\n\n II.\u00a0 NEWEGG IS CLEARLY AND INDISPUTABLY ENTITLED TO JUDGMENT OF NON-\n INFRINGEMENT ...............................................................................................19\n\n III. ISSUANCE OF THE WRIT IS APPROPRIATE ......................................................25\u00a0\n\nCONCLUSION.......................................................................................................27\u00a0\n\nCERTIFICATE OF SERVICE ............................................................................28\u00a0\n\n\n\n\n ii\n\f Case: 15-142 Document: 2-1 Page: 4 Filed: 07/06/2015\n\n\n\n\n TABLE OF AUTHORITIES\n\n CASES\n\nAcumed LLC v. Stryker Corp.,\n 525 F.3d 1319 (Fed. Cir. 2008) ............................................................................22\n\nCassidian Comms., Inc. v. microDATA GIS, Inc.,\n No. 2:12-cv-00162-JRG (E.D. Tex.) ....................................................................17\n\nCheney v. United States Dist. Court for the Dist. of Columbia,\n 542 U.S. 367 (2004) ...................................................................................... 13, 14\n\nChudasama v. Mazda Motor Corp.,\n 123 F.3d 1353 (11th Cir. 1997) ............................................................................25\n\nChurch of Scientology v. United States Dep\u2019t of Army,\n 611 F.2d 738 (9th Cir. 1979) ................................................................................24\n\nColo. River Water Conservation Dist. v. United States,\n 424 U.S. 800 (1976) .............................................................................................24\n\nElkay Mfg. Co. v. Ebco Mfg. Co.,\n 192 F.3d 973 (Fed. Cir. 1999) ........................................................................ 13, 20\n\nGoogle Inc. v. Beneficial Innovations, Inc.,\n No. 2:11-cv-00229-JRG (E.D. Tex.) ....................................................................17\n\nHampton v. Nicholson,\n 175 Fed. Appx. 334 (Fed. Cir. 2006) ...................................................................13\n\nHitachi Consumer Elecs. Co. v. Top Victory Elecs. (Taiwan) Co.,\n No. 2:10-cv-260-JRG (E.D. Tex.) ........................................................................17\n\nIn re Apple Inc.,\n 456 Fed. Appx. 907 (Fed. Cir. 2012) ...................................................................15\n\nIn re EMC Corp.,\n 501 Fed. Appx. 973 (Fed. Cir. 2013) ...................................................................15\n\n\n\n\n iii\n\f Case: 15-142 Document: 2-1 Page: 5 Filed: 07/06/2015\n\n\n\nIn re Federal Computer Corp., Misc. Dkt. No. 307,\n 1991 U.S. App. LEXIS 31719 (Fed. Cir. June 19, 1991) ....................................26\n\nIn re Google Inc.,\n 588 Fed. Appx. 988 (Fed. Cir. 2014) ...................................................................24\n\nIn re Monroe Communications Corp.,\n 840 F.2d 942 (D.C. Cir. 1988) .............................................................................26\n\nIn re Nintendo Co.,\n 544 Fed. Appx. 934 (Fed. Cir. 2013) ...................................................................15\n\nIn re Princo Corp.,\n 478 F.3d 1345 (Fed. Cir. 2007) ............................................................................21\n\nIn re School Asbestos Litigation,\n 977 F.2d 764 (3d Cir. 1992) .................................................................................25\n\nIn re TS Tech United States Corp.,\n 551 F.3d 1315 (Fed. Cir. 2008) ................................................................ 13, 14, 21\n\nJackson v. Shinseki,\n 338 Fed. Appx. 898 (Fed. Cir. 2009) ...................................................................14\n\nLa Buy v. Howes Leather Co.,\n 352 U.S. 249 (1957) .............................................................................................26\n\nReese v. Verizon Cal., Inc.,\n 498 Fed. Appx. 980 (Fed. Cir. 2012) ............................................................ 22, 23\n\nRibaudo v. Nicholson,\n 20 Vet. App. 552 (2007) .......................................................................................14\n\nSimpleAir, Inc. v. Google Inc.,\n Nos. 2:13-cv-00587-JRG and 2:11-cv-00416-JRG (E.D. Tex.) ................... 17, 18\n\nSoverain Software LLC v. Victoria\u2019s Secret Direct Brand Mgmt., LLC,\n 778 F.3d 1311 (Fed. Cir. 2015) ............................................................................23\n\nState Farm Mut. Auto. Ins. Co. v. LogistiCare Solutions, LLC,\n 751 F.3d 684 (5th Cir. 2014) ................................................................................23\n\n\n iv\n\f Case: 15-142 Document: 2-1 Page: 6 Filed: 07/06/2015\n\n\n\nTQP Development, LLC v. 1-800-Flowers et al.,\n No. 2:11-cv-00248-JRG (E.D. Tex.) ......................................................................7\n\nTQP Development, LLC v. American Eagle Outfitters, Inc.,\n No. 2:14-cv-00565-JRG (E.D. Tex.) ......................................................................8\n\nTQP Development, LLC v. Intuit, Inc.,\n No. 2:12-cv-00180-WCB (E.D. Tex) ........................................................ 5, 11, 23\n\nTransocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc.,\n 617 F.3d 1296 (Fed. Cir. 2010) ..................................................................... 22, 23\n\nUnited States v. Newman,\n 456 F.2d 668 (3d Cir. 1972) .................................................................................25\n\nWi-Lan Inc. v. HTC Corp.,\n No. 2:11-cv-00068-JRG (E.D. Tex.) ....................................................................17\n\nWill v. Calvert Fire Ins. Co.,\n 437 U.S. 655 (1978) ...................................................................................... 14, 21\n\n STATUTES\n\n28 U.S.C. \u00a7 1651(a) .......................................................................................... 13, 25\n\n RULES\n\nFederal Rule of Civil Procedure 50(a) .......................................................................4\n\nFederal Rule of Civil Procedure 50(b) .......................................................................4\n\n OTHER AUTHORITIES\n\nChristian E. Mammen, Technical Detail in Senate PATENT Act\nCould Have Major Impact in Eastern District of Texas Patent Litigation,\nPatentlyO, available at: http://patentlyo.com/patent/2015/06/technical-district-\nlitigation.html (June 11, 2015) .................................................................................16\n\n\n\n\n v\n\f Case: 15-142 Document: 2-1 Page: 7 Filed: 07/06/2015\n\n\n\n\n RELIEF SOUGHT\n\n Newegg Inc. (\u201cNewegg\u201d) respectfully petitions for a writ of mandamus\n\ndirecting the United States District Court for the Eastern District of Texas to enter\n\njudgment that Newegg does not infringe U.S. Patent No. 5,412,730 (\u201cthe \u2019730\n\nPatent\u201d) as a matter of law.\n\n ISSUE PRESENTED\n\n Whether the district court\u2019s 20-month failure to resolve Newegg\u2019s motion\n\nfor judgment as a matter of law has prejudicially deprived Newegg of relief to\n\nwhich Newegg is indisputably entitled, warranting a writ of mandamus to enter\n\njudgment in favor of Newegg.\n\n PRELIMINARY STATEMENT\n This Petition involves a case tried in November 2013 that still has not\n\nreached any appealable judgment. Although the jury found infringement and\n\nawarded $2.3 million in damages to TQP Development, LLC (\u201cTQP\u201d), it is beyond\n\nany reasonable debate that Newegg does not infringe the asserted claims, and\n\nNewegg sought appropriate post-trial relief on that basis. In the absence of a\n\njudgment, however, Newegg has been unduly burdened with an untenable $2.3\n\nmillion liability on its books for 20 months and counting, which prejudices\n\nNewegg\u2019s ability to make business decisions regarding that considerable sum.\n\n\n\n\n 1\n\f Case: 15-142 Document: 2-1 Page: 8 Filed: 07/06/2015\n\n\n\n Newegg has respectfully encouraged the district court to decide Newegg\u2019s\n\nmotion for judgment as a matter of law no fewer than four times, and has\n\ncommunicated the prejudice caused by the delay. It is now approaching two years\n\nafter trial and no action has been taken by the district court on Newegg\u2019s motion.\n\nThis is several times longer than the time it has taken most other patent cases, tried\n\nbefore the same judge and around the same time, to reach final judgments. With\n\nno appealable judgment, and none ostensibly forthcoming, Newegg has no realistic\n\nrecourse aside from seeking a writ of mandamus.\n\n Newegg\u2019s right to a judgment of non-infringement in this instance is truly\n\nindisputable and warrants the exceptional relief of mandamus. The asserted claims\n\nrequire data to be encrypted and transmitted one block at a time, but Newegg\u2019s\n\nsystem undisputedly encrypts and transmits many blocks of data en masse.\n\nAlthough being well outside the literal requirements of the claims like this is not\n\nalways sufficient, it is completely dispositive in this case because TQP was barred\n\nby prosecution history estoppel from arguing any doctrine-of-equivalents theory.\n\nNo reasonable jury could have found infringement under these circumstances.\n\n Moreover, in a closely related case brought by TQP asserting the same\n\npatent and the same claims against Intuit, Inc., Judge Bryson of this Court (sitting\n\nby designation) granted Intuit summary judgment of non-infringement on the same\n\ngrounds Newegg argued. Judge Bryson\u2019s ruling applied to Intuit\u2019s accused\n\n\n\n 2\n\f Case: 15-142 Document: 2-1 Page: 9 Filed: 07/06/2015\n\n\n\nsystems that were identical to Newegg\u2019s, was based on testimony from the Newegg\n\ntrial, and was made under a claim construction slightly broader (and thus more\n\nfavorable to TQP) than the one given in Newegg\u2019s case. Although Newegg was\n\nalready entitled to judgment of non-infringement prior to Judge Bryson\u2019s ruling,\n\nthe force of collateral estoppel from the ruling further vindicates Newegg\u2019s\n\npositions. This is not to mention the principles of comity that strongly encourage\n\ndeference by Judge Gilstrap to Judge Bryson\u2019s prior ruling on the exact same issue.\n\n Given the clarity and simplicity of the merits issues that conclusively\n\nestablish that Newegg does not infringe, and especially in light of Judge Bryson\u2019s\n\ndecisions, 20 months is far, far too long to wait for a judgment to expunge the $2.3\n\nmillion of liability that the jury unduly found. Newegg respectfully urges this\n\nCourt to issue a writ of mandamus and grant Newegg the relief to which it is\n\nentitled. Newegg cannot achieve this relief through the ordinary appellate process\n\ndue to the district court\u2019s excessive and unreasonable delay.\n\n STATEMENT OF RELEVANT FACTS\n\nI. THE PARTIES\n\n Newegg is a specialty retailer of computers, computer parts, and electronics\n\nthat conducts most of its business through its website, www.newegg.com.\n\n TQP is a shell corporation formed for the purpose of owning and monetizing\n\nthe \u2019730 Patent through actual and threatened litigation.\n\n\n\n 3\n\f Case: 15-142 Document: 2-1 Page: 10 Filed: 07/06/2015\n\n\n\n\nII. THE DISTRICT COURT PROCEEDINGS\n\n TQP sued Newegg for infringement in May 2011. A0004. TQP accused\n\naspects of Newegg\u2019s website systems that allow for secure, encrypted\n\ncommunications of sensitive data (e.g., credit card numbers).\n\n A six-day trial was held November 18-26, 2013. A0032-33. Before the case\n\nwas submitted to the jury, Newegg moved for judgment as a matter of law\n\n(\u201cJMOL\u201d) of non-infringement under Rule 50(a), but the district court denied\n\nNewegg\u2019s motion and submitted the issue to the jury. A0032-33.\n\n The jury found that Newegg infringed claims 1, 6, 8, and 9 of the \u2019730\n\nPatent, and awarded TQP damages in the amount of $2.3 million. A0001-03.\n\nNewegg then added, as it must, the $2.3 million verdict to the liabilities on its\n\ncorporate books.\n\n After the district court failed to enter judgment on the verdict for three\n\nmonths, on February 17, 2014, Newegg proceeded to file a renewed motion\n\nseeking, inter alia, JMOL of non-infringement under Rule 50(b). A0058-60. As\n\nexplained further below, Newegg\u2019s motion demonstrated that infringement could\n\nnot possibly lie where the claims require that \u201ca new key value . . . is used\u201d to\n\nencrypt new blocks of data only after the previously encrypted blocks \u201chave been\n\nsent\u201d from the transmitter to the receiver (A0180), and where Newegg\u2019s accused\n\nsystem undisputedly uses new key values before transmission of the previously\n\n\n\n 4\n\f Case: 15-142 Document: 2-1 Page: 11 Filed: 07/06/2015\n\n\n\nencrypted blocks has occurred. A0069-74 (explaining that TQP\u2019s infringement\n\ntheory requires each block of data to be encrypted and transmitted before the next\n\nblock of data is encrypted, while Newegg\u2019s system encrypts many blocks of data at\n\na time and transmits them en masse). Particularly where TQP\u2019s own expert\n\nunambiguously agreed that Newegg\u2019s system worked in the opposite manner of the\n\nclaims, and where TQP was barred from advancing any equivalents theory of\n\ninfringement, no reasonable fact finder could have reached the verdict that this jury\n\ndid. Id.\n\n After briefing was completed on the JMOL motion, in April 2014 Newegg\n\nsubmitted a request for an oral hearing, suggesting that a hearing could assist \u201cthe\n\nCourt in resolving the numerous issues presented in the motions.\u201d A0153. The\n\ndistrict court took no action.\n\n Two months later, in June 2014, Judge Bryson of this Court, sitting by\n\ndesignation in the Eastern District of Texas, issued a ruling in the related case,\n\nTQP Development, LLC v. Intuit, Inc., No. 2:12-cv-00180-WCB (\u201cthe Intuit\n\nCase\u201d). That ruling granted summary judgment of non-infringement to Intuit of\n\nthe same patent, based on the same claim requirement, applied to identical accused\n\nsystems as were involved in the Newegg case. A0233-39; A0233 n.3. Judge\n\nBryson even relied on TQP\u2019s expert\u2019s testimony in Newegg\u2019s trial as proof that\n\nIntuit\u2019s accused system could not infringe as a matter of law. A0233-36.\n\n\n\n 5\n\f Case: 15-142 Document: 2-1 Page: 12 Filed: 07/06/2015\n\n\n\n Newegg immediately brought Judge Bryson\u2019s decision to the attention of the\n\ndistrict court as being \u201cdispositive of Newegg\u2019s post-trial motions.\u201d A0142-46.\n\nThe district court still took no action on Newegg\u2019s motion.\n\n A month later, in July 2014, Judge Bryson denied TQP\u2019s motion to\n\nreconsider the summary judgment ruling. A0240. Newegg again immediately\n\nbrought this decision to the attention of the district court, explaining how it\n\n\u201cwarrants entry of [JMOL] or non-infringement.\u201d A0149-50. The district court\n\nstill took no action on Newegg\u2019s JMOL motion.\n\n After no action was taken by the district court on Newegg\u2019s motion for\n\nanother four months, Newegg submitted a renewed request for oral argument in\n\nNovember 2014. A0156-57. This time, Newegg not only reiterated that such\n\nargument might be helpful to the district court to resolve the post-trial motions, but\n\ninformed the district court of the substantial harm resulting from the sizable $2.3\n\nmillion verdict that remained on Newegg\u2019s books for the entire year that had then\n\npassed since the trial. Id.\n\n As Newegg explained, the uncertainty caused by the continued delay in\n\nbringing the case to judgment seriously hinders Newegg\u2019s ability to make business\n\ndecisions with respect to the $2.3 million liability. A $2.3 million contingent\n\nliability is equivalent to dozens of full-time salaries and employment opportunities\n\nlost, and represents many substantial business opportunities that Newegg cannot\n\n\n\n 6\n\f Case: 15-142 Document: 2-1 Page: 13 Filed: 07/06/2015\n\n\n\ntake. For instance, that sum in 2015 alone would have allowed Newegg to expand\n\nits work force, conduct research and development, acquire a small business, build\n\nor lease an additional warehouse, offer more free shipping and lower prices to its\n\ncustomers, or take any number of other measures to enhance Newegg\u2019s business in\n\nthe highly competitive online retail market.\n\n Further, Newegg explained to the district court that \u201cwith TQP being a\n\npatent assertion entity and not an operating company, delay of judgment increases\n\nthe likelihood that TQP will disperse its funds and assets, which may prevent\n\nNewegg from recovering fees or costs from TQP in the event that Newegg\n\nultimately prevails in this case.\u201d A0156-57 (citing examples of having been in\n\nsimilar situations in the past, including Newegg\u2019s inability to collect costs in the\n\namount of $28,304.80 from Kelora Systems, LLC due to Kelora\u2019s bankruptcy\n\nfiling). Indeed, the ownership and management of TQP and its patent may have\n\nalready changed.1 Still, the district court took no action.\n\n\n1\n SEC filings show that TQP tried to sell itself and the \u2019730 Patent to Marathon\nPatent Group, Inc. in May 2013, only months before the trial between TQP and\nNewegg, but that the deal never consummated. See\nhttp://www.sec.gov/Archives/edgar/data/1507605/000152153613000697/q110121\n3_10q-marathon.htm (last visited June 15, 2015). Newegg would not be privy to\nsubsequent sales efforts with non-public companies, but PACER records show that\nfive months after the Newegg trial, TQP filed several more lawsuits asserting the\n\u2019730 Patent, suddenly represented by entirely different counsel. Compare TQP\nDevelopment, LLC v. 1-800-Flowers et al., No. 2:11-cv-00248-JRG, ECF No. 1\n(May 6, 2011 complaint filed by Spangler Law PC; Russ August & Kabat; and Ni\nLaw Firm, PLLC against Newegg) with, e.g., TQP Development, LLC v. American\n\n 7\n\f Case: 15-142 Document: 2-1 Page: 14 Filed: 07/06/2015\n\n\n\n It has now been 20 months since Newegg went to trial against TQP. That is\n\nnearly two years of unnecessary and unduly burdensome business uncertainty with\n\nrespect to a substantial $2.3 million liability that the district court should have\n\nextinguished long ago.\n\nIII. THE \u2019730 PATENT AND TQP\u2019S INFRINGEMENT CONTENTIONS\n\n The \u2019730 Patent is generally directed to a method for encrypting,\n\ntransmitting, and decrypting data in \u201cblocks.\u201d \u2019730 Patent, at Abstract, Fig. 1, &\n\n3:5-40 (A0039-40, A0045). The patent has only a single independent claim\u2014\n\nclaim 1. As TQP\u2019s expert explained at trial, the method of claim 1 includes the use\n\nof a first and second sequence of \u201ckey values.\u201d A0381-88. These key values are\n\nused to encrypt (i.e., scramble) a block of data at the transmitter and are used to\n\ndecrypt (i.e., unscramble) the block of data at the receiver. Id. Each key value in\n\nthe first sequence that is used to encrypt a block at the transmitter must be identical\n\nto the key value in the second sequence that is used to decrypt that same block at\n\nthe receiver or the encrypted data will not be decrypted correctly. Id.\n\n Claim 1 requires \u201ca new one of said key values in said first and said second\n\nsequences [to be] produced each time a predetermined number of said blocks are\n\ntransmitted over said link.\u201d \u2019730 Patent, at Claim 1 (A0050). The district court\n\nconstrued this language to mean \u201ca new key value in the first and second sequence\n\nEagle Outfitters, Inc., No. 2:14-cv-00565-JRG, ECF No. 1 (April 30, 2014\ncomplaint filed by Austin Hansley PLLC).\n\n 8\n\f Case: 15-142 Document: 2-1 Page: 15 Filed: 07/06/2015\n\n\n\nis used each time a predetermined number of blocks have been sent from the\n\ntransmitter over the communications link.\u201d A0180 (emphasis added). In other\n\nwords, a new key value cannot be \u201cused\u201d for encryption of new blocks of data at\n\nthe transmitter until the previously encrypted blocks \u201chave been sent\u201d by the\n\ntransmitter. TQP never objected to this construction. Further, TQP was barred by\n\nprosecution history estoppel from asserting an equivalents theory as to this claim\n\nrequirement, and only accused Newegg of literal infringement. A0262.\n\n At trial, TQP contended that each byte of data was a \u201cblock,\u201d and that the\n\n\u201cpredetermined number of blocks\u201d that must be sent from the transmitter to trigger\n\nthe switch to a new key value was one (1). A0454-55, at 12:24-13:5; A0465, at\n\n23:2-6. Thus, viewing TQP\u2019s contentions in light of the claim construction, the \u2019730\n\npatent would require a new key value to be used at the transmitter for encrypting the\n\nnext byte only after the prior byte was encrypted and transmitted over the link. Put\n\nanother way, for TQP to have shown this claim requirement was met, a byte of data\n\nmust be encrypted and sent over the communication link before the next byte is\n\nencrypted.\n\n TQP not only failed to prove that Newegg\u2019s system met this requirement, it\n\nconceded precisely the opposite\u2014that Newegg\u2019s system does not change to a new\n\nkey value after transmitting each byte. Specifically, TQP\u2019s expert admitted, using\n\n\n\n\n 9\n\f Case: 15-142 Document: 2-1 Page: 16 Filed: 07/06/2015\n\n\n\nthe following demonstrative (A0139), that the one-byte \u201cblock\u201d in Newegg\u2019s system\n\nis not transmitted before the next key value is used on the next block:\n\n\n\n\n Q. [I]n this animation\u2014you show that we\u2019ve got one block, the\n green block, and two blocks\u2014the second block, the blue block\u2014\n block, they\u2019ve been encrypted already, correct?\n A. As is shown here, yes.\n Q. And they\u2019ve each been encrypted using a different key value,\n correct?\n A. Block 1 was encrypted with a different key value than Block 2,\n yes.\n Q. So Block 2, the blue block, is being encrypted using a new key\n value before Block 1 has been transmitted across the\n communication link, correct?\n A. That\u2019s correct.\n\nA0572, at 130:11-23 (emphasis added); see also A0496-97, at 54:22-55:5 (TQP\u2019s\n\nexpert admitting that multiple bytes are transmitted \u201call at one time\u201d in Newegg\u2019s\n\naccused system). TQP\u2019s expert thus openly acknowledged that, in Newegg\u2019s\n\n\n 10\n\f Case: 15-142 Document: 2-1 Page: 17 Filed: 07/06/2015\n\n\n\nsystem, the new key value is used to encrypt a second byte (the blue block above)\n\nbefore the previously encrypted byte (the green block above) has been sent over the\n\ncommunication link.\n\nIV. THE INTUIT SUMMARY JUDGMENT DECISIONS\n\n As a threshold matter, it is undisputed that the accused systems in the Intuit\n\nCase were \u201cidentical to the system at issue in Newegg.\u201d A0233 n.3.\n\n Although TQP never attempted to challenge the \u201chave been sent\u201d claim\n\nconstruction in the case against Newegg, it did in the Intuit Case when trying to\n\nsurvive summary judgment. But Judge Bryson correctly reaffirmed the critical\n\ntemporal limitations regarding the key values utilized for encrypting the blocks and\n\nthe transmission of the encrypted blocks. Judge Bryson construed the claim\n\nlanguage as follows:\n\n For both the first and second sequences, at the transmitter and at the\n receiver respectively, a new key value is produced each time a\n predetermined number of blocks are transmitted over the link. The\n term \u2018produced\u2019 as used in that sentence, means \u2018generated\u2019 or\n \u2018supplied.\u2019 The phrase \u2018are transmitted\u2019 means \u2018are being transmitted\u2019\n or \u2018have been transmitted.\u2019\n\nA0231-32; see also A0214-15.\n\n This construction diverges from that in Newegg\u2019s case in two respects, both\n\nof which arguably make the construction more favorable to TQP. First, Judge\n\nBryson held that \u201cproduced\u201d means \u201cgenerated or supplied,\u201d as opposed to \u201cused.\u201d\n\nSecond, Judge Bryson also replaced the \u201chave been sent\u201d language of Newegg\u2019s\n\n 11\n\f Case: 15-142 Document: 2-1 Page: 18 Filed: 07/06/2015\n\n\n\nconstruction with \u201care being transmitted,\u201d which he stated \u201cdoes not necessarily\n\nmean that the transmission of the blocks must have been completed before the new\n\nkey value is produced. The events could be occurring simultaneously or in close\n\nsuccession, with the transmission onto the communication link occurring after the\n\nnew key value is produced.\u201d A0219.\n\n Despite having broadened the construction in these two respects, Judge\n\nBryson found that summary judgment of non-infringement was proper. Relying on\n\nthe same testimony and demonstrative from the Newegg trial cited above, Judge\n\nBryson explained that \u201cTQP has shown only that key values in the accused systems\n\nchange for each new block that enters the transmitter, not each time a single block\n\nis placed on the communication link by the transmitter.\u201d A0233-39. Additionally,\n\n\u201cTQP\u2019s evidence does not show that key-value changes are tied to the number of\n\nblocks that are being transmitted at any particular moment, i.e., that the key value\n\nis changed each time the number of blocks in the transmitter reaches the\n\npredetermined number one.\u201d Id. Judge Bryson summarized his analysis as\n\nfollows:\n\n [i]n the patented method, a new key value is produced each time a\n predetermined number of data blocks are transmitted, whereas in the\n accused systems a new key value is produced each time the\n transmitter receives a predetermined number of data blocks (one, in\n the case of the defendants\u2019 systems) from the data source.\n\nA0237. Judge Bryson later denied TQP\u2019s motion for reconsideration. A0246-49.\n\n\n 12\n\f Case: 15-142 Document: 2-1 Page: 19 Filed: 07/06/2015\n\n\n\n\n LEGAL STANDARDS\n\n 28 U.S.C. \u00a7 1651(a) gives this Court the authority to \u201cissue all writs\n\nnecessary or appropriate in aid of [its] jurisdictions and agreeable to the usages and\n\nprinciples of law.\u201d The Federal Circuit has adopted a three-pronged test for\n\ngranting a writ of mandamus:\n\n (1) the party seeking issuance of the writ must have no other adequate\n means to attain the relief he desires; (2) the petitioner must satisfy the\n burden of showing that his right to issuance of the writ is \u201cclear and\n indisputable\u201d; and (3) the issuing court, in the exercise of its\n discretion, must be satisfied that the writ is appropriate under the\n circumstances.\n\nHampton v. Nicholson, 175 Fed. Appx. 334, 335 (Fed. Cir. 2006) (citing Cheney v.\n\nUnited States Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81 (2004)).\n\n It was TQP\u2019s burden at trial to prove that Newegg\u2019s website systems met all\n\nthe claim requirements. The failure to establish that the accused system meets all\n\nlimitations of the claim requires entry of judgment of non-infringement as a matter\n\nof law. Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 980-981 (Fed. Cir. 1999).\n\n For substantive issues of patent law raised in this Petition, Federal Circuit law,\n\nnot the law of the Fifth Circuit, governs. In re TS Tech United States Corp., 551\n\nF.3d 1315, 1319 (Fed. Cir. 2008).\n\n\n\n\n 13\n\f Case: 15-142 Document: 2-1 Page: 20 Filed: 07/06/2015\n\n\n\n\n REASONS WHY THE WRIT SHOULD ISSUE\n\nI. NEWEGG HAS NO OTHER ADEQUATE MEANS TO OBTAIN RELIEF\n\n \u201c[W]here a district court persistently and without reason refuses to\n\nadjudicate a case properly before it, the court of appeals may issue the writ [of\n\nmandamus].\u201d Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661-662 (1978). Put\n\nanother way, delay may \u201cgive rise to a right to mandamus [if] the delay is\n\nequivalent to an arbitrary refusal to act.\u201d Jackson v. Shinseki, 338 Fed. Appx. 898,\n\n901-902 (Fed. Cir. 2009) (citing Ribaudo v. Nicholson, 20 Vet. App. 552, 555\n\n(2007)). The 20-month delay of judgment in this case, which is several times\n\nlonger than the time to judgment for similar cases tried at similar times before the\n\nsame judge, and in the face of Newegg\u2019s repeated efforts to move the case along to\n\njudgment, is tantamount to an arbitrary refusal to act that warrants issuance of a\n\nwrit of mandamus.\n\n Although litigants ordinarily must wait for a final judgment to seek relief\n\nfrom this Court on appeal, \u201cthe \u2018no other means\u2019 requirement is not intended to\n\nensure that [a petitioner] exhaust every possible avenue of relief at the district court\n\nbefore seeking mandamus relief. . . . Rather, the purpose . . . is to \u2018ensure that the\n\nwrit will not be used as a substitute for the regular appeals process.\u2019\u201d TS Tech, 551\n\nF.3d at 1322 (quoting Cheney, 542 U.S. at 380-81). Here, Newegg seeks not to\n\nsubstitute this Petition for the ordinary appeal process, but to obtain relief to which\n\n\n\n 14\n\f Case: 15-142 Document: 2-1 Page: 21 Filed: 07/06/2015\n\n\n\nit is entitled at a meaningful and reasonable time in the face of excessive and\n\nprejudicial delay of judgment.\n\n A petition for a writ of mandamus may be granted based in part on delay,\n\nwhere the delay causes prejudice that cannot be redressed by following the\n\nordinary appellate course. For example, if the failure of a district court to promptly\n\nstay or transfer a case effectively precludes meaningful relief (because the parties\n\nare forced to litigate in an improper forum or on a case that should be stayed), such\n\na circumstance favors the issuance of a writ of mandamus. See, e.g., In re Apple\n\nInc., 456 Fed. Appx. 907, 908 (Fed. Cir. 2012) (suggesting that mandamus is\n\nappropriate remedy for 15-month delay in acting on motion to transfer, but denying\n\npetition because \u201cApple failed to employ any strategy to pressure the district court\n\nto act, such as seeking mandamus to direct the district court to rule on the\n\nmotion\u201d); In re Nintendo Co., 544 Fed. Appx. 934, 941 (Fed. Cir. 2013) (citing In\n\nre EMC Corp., 501 Fed. Appx. 973, 975-976 (Fed. Cir. 2013) (encouraging district\n\ncourts to decide motions to transfer early so that defendants need not \u201cpartake in\n\nyears of litigation prior to a determination on a transfer motion\u201d)). Yet the Eastern\n\nDistrict of Texas \u201chas gained a reputation for deferring rulings on venue transfer\n\n\n\n\n 15\n\f Case: 15-142 Document: 2-1 Page: 22 Filed: 07/06/2015\n\n\n\nmotions until the case is substantially advanced,\u201d making such delay-based\n\nprejudices common and uniquely affecting defendants.2\n\n Likewise, here the failure of the district court to act on Newegg\u2019s JMOL\n\nmotion has caused two serious prejudices to Newegg: (1) 20 months of carrying an\n\nunjustifiable and uncertain $2.3 million liability on its books, which substantially\n\nhinders Newegg\u2019s ability to make business decisions with respect to that\n\nconsiderable sum; and (2) the ever-increasing specter of shell company TQP\n\ndissolving its corporate entity or filing for bankruptcy and leaving Newegg unable\n\nto recover fees and obtain other relief from TQP to which Newegg believes it is\n\nentitled. This is not to mention that Newegg will, absent further action by the\n\ncourts, continue to be unjustly labeled an infringer in the public record, damaging\n\nNewegg\u2019s reputation.\n\n The failure of the district court to act while Newegg\u2019s prejudice compounds\n\ncannot be remedied by awaiting the ordinary course of a final judgment and\n\nappeal. Nor can Newegg effectively do anything before the district court to avoid\n\nfurther delay. Indeed, Newegg attempted to encourage prompt resolution of this\n\ncase in the district court no fewer than four times\u2014twice requesting an oral\n\n2\n Christian E. Mammen, Technical Detail in Senate PATENT Act Could Have\nMajor Impact in Eastern District of Texas Patent Litigation, PatentlyO (June 11,\n2015), available at http://patentlyo.com/patent/2015/06/technical-district-\nlitigation.html (\u201cAccording to Lex Machina, there were 33 cases in the Eastern\nDistrict of Texas between January 1, 2010 and May 1, 2015 in which a venue\ntransfer motion was pending for over a year before being ruled on . . . .\u201d).\n\n 16\n\f Case: 15-142 Document: 2-1 Page: 23 Filed: 07/06/2015\n\n\n\nhearing and twice submitting controlling dispositive supplemental authority\u2014but\n\ncan only do so much at the district court level to move things along. Newegg has\n\nbeen patient but firm, and filed the present Petition only as a last resort when no\n\naction from the district court appeared to be forthcoming 20 months after trial.\n\n Newegg\u2019s post-trial appealable judgment has already been delayed up to\n\nfour times longer than other patent cases that went through trial around the same\n\ntime as Newegg (November 2013) before the same judge. See, e.g., Hitachi\n\nConsumer Elecs. Co. v. Top Victory Elecs. (Taiwan) Co., No. 2:10-cv-260-JRG\n\n(5 months from April 2013 trial to appealable judgment); Wi-Lan Inc. v. HTC\n\nCorp., No. 2:11-cv-00068-JRG (5.5 months from October 2013 trial to appealable\n\njudgment); Cassidian Comms., Inc. v. microDATA GIS, Inc., No. 2:12-cv-00162-\n\nJRG (7.5 months from December 2013 trial to appealable judgment); Google Inc.\n\nv. Beneficial Innovations, Inc., No. 2:11-cv-00229-JRG (7 months from January\n\n2014 trial to appealable judgment). Even considering the time from the close of\n\npost-trial briefing to judgment, the delay in Newegg\u2019s case is still excessive\u2014\n\nwhile Newegg has been waiting 15 months since briefing closed on its JMOL\n\nmotion, the cases cited in the preceding sentence received judgments only two to\n\nfive months after post-trial briefing closed.3 All told, data pulled from Lex\n\n\n3\n One case after Newegg\u2019s that was bifurcated into two separate trials (January\n2014 and March 2014) still reached final judgment in less than half the time that\nNewegg\u2019s has taken. See SimpleAir, Inc. v. Google Inc., Nos. 2:13-cv-00587-JRG\n\n 17\n\f Case: 15-142 Document: 2-1 Page: 24 Filed: 07/06/2015\n\n\n\nMachina shows that Newegg\u2019s case has been pending longer than 98.8% of cases\n\nfiled before the same judge. Newegg\u2019s case has taken far, far too long to reach an\n\nappealable final judgment.\n\n Further evidencing the unreasonableness of the delay in Newegg\u2019s case is\n\nthe most recent Civil Justice Reform Act (\u201cCJRA\u201d) Report for Judge Gilstrap,\n\nwhich indicates that as of September 30, 2014, Judge Gilstrap had only a single\n\ncivil case pending for more than three years, and that he had no motions pending\n\nfor more than six months. A0850-51; A0805. The CJRA Report further indicates\n\nthat Judge Gilstrap had no bench trials submitted over six months and no\n\nbankruptcy or social security appeals pending more than six months. A0852-54;\n\nA0805. For a docket that, while very busy, seems remarkably efficient based on\n\nthe CJRA Report, it is especially surprising and disappointing to Newegg that its\n\nmotion has yet to be resolved.4\n\n\n\n\nand 2:11-cv-00416-JRG (9 months from second trial to December 2014 judgment).\nAnd despite the multiple rounds of post-trial briefing, that case only took 5 months\nfrom the close of briefing to reach final judgment. Id.\n4\n Curiously, although TQP\u2019s case against Newegg (filed May 6, 2011) had been\npending for more than three years, and although Newegg\u2019s JMOL motion (filed\nFebruary 17, 2014) had been pending more than six months at that time, neither the\ncase nor the motion were listed in Judge Gilstrap\u2019s September 2014 CJRA Report.\nSee A0842-43 (explaining that a case is deemed \u201cpending\u201d as of the date it was\noriginally filed, and that a motion is deemed \u201cpending\u201d 30 days after it is filed).\n\n 18\n\f Case: 15-142 Document: 2-1 Page: 25 Filed: 07/06/2015\n\n\n\n\nII. NEWEGG IS CLEARLY AND INDISPUTABLY ENTITLED TO JUDGMENT OF\n NON-INFRINGEMENT\n\n No reasonable jury could possibly have found that Newegg\u2019s system\u2014\n\nwhich uses a new key value to encrypt each block of data before any transmission\n\nof the data occurs\u2014meets the claim requirement that each key value is \u201cused\u201d\n\nwhen the previous encrypted block \u201cha[s] been sent\u201d from the transmitter. A0180.\n\nTQP\u2019s own expert at trial admitted, with reference to the demonstrative above, that\n\nin Newegg\u2019s system \u201cBlock 2, the blue block, is being encrypted using a new key\n\nvalue before Block 1 has been transmitted across the communication link.\u201d\n\nA0572, at 130:11-23 (emphasis added); see also A0496-97, at 54:22-55:5. This\n\nalone avoids infringement, especially where TQP advanced only a theory of literal\n\ninfringement for this claim requirement.\n\n At trial, TQP\u2019s expert\u2019s unpersuasive response was that this order-of-steps\n\nrequirement of the claim refers to actions occurring exclusively at the receiver, and\n\nnot at the transmitter. See, e.g., A0565-66. But by the plain text of the claim, the\n\n\u201chave been sent\u201d requirement must apply to both the first sequence in the transmitter\n\nand the second sequence in the receiver: \u201ca new one of said key values in said first\n\nand said second sequences being produced each time a predetermined number of\n\nsaid blocks are transmitted over said link.\u201d \u2019730 Patent, at Claim 1 (A0050). Claim\n\n1 expressly defines the \u201cfirst sequence\u201d of key values as a sequence of key values on\n\nthe transmitter side. Id. (\u201cgenerating a first sequence of pseudo-random key values\n\n\n 19\n\f Case: 15-142 Document: 2-1 Page: 26 Filed: 07/06/2015\n\n\n\nbased on said seed value at said transmitter\u201d). Only the second sequence is at the\n\nreceiver side. Thus, the new key values are undeniably required to be used at both\n\nthe transmitter and the receiver after a predetermined number of blocks have been\n\nsent over the communication link. Indeed, Judge Bryson expressly rejected TQP\u2019s\n\nargument to the contrary, holding that \u201cthe key values that are generated at the\n\ntransmitter and the key values that are generated at the receiver are both produced\n\neach time the predetermined number of blocks is transmitted over the\n\ncommunication link.\u201d A0206 (emphasis added) (explaining that \u201cthe plain language\n\nof the limitation refers to both the first sequence of pseudo-random key values\n\n(which is associated with the transmitter) and the second sequence of pseudo-\n\nrandom key values (which is associated with the receiver)\u201d).\n\n Because the parties agree that Newegg\u2019s system does not change key values\n\nat the transmitter based on the transmission of blocks,5 and because the claim\n\nrequirements exclude such a system, Newegg is entitled to JMOL of non-\n\ninfringement. Elkay, 192 F.3d at 980-981 (reversing denial of JMOL where the\n\nclaims required \u201ca single feed tube/probe with a single flow path for both liquid\n\n5\n Newegg\u2019s technical expert, Dr. Stubblebine, confirmed non-infringement by\nexamining the same demonstrative slide prepared by Dr. Jaeger shown above.\nA0625, at 32:17-25 (\u201cThe Court\u2019s construction says that new key value in the first\nand second sequence is used each time a predetermined number of blocks have been\nsent from the transmitter over the communication link. And what Dr. Jaeger was\naccusing as that predetermined number is one block. And so one block has got to be\nsent before you use the next key to encrypt the next block, and that\u2019s not what\u2019s\ngoing on.\u201d).\n\n 20\n\f Case: 15-142 Document: 2-1 Page: 27 Filed: 07/06/2015\n\n\n\nand air,\u201d \u201c[t]here is no dispute that the WaterGuard devices use separate feed tubes\n\nfor water and air\u201d).\n\n This is not \u201ca matter committed to the district court\u2019s discretion,\u201d such as a\n\nroutine decision to stay a case, where it is problematic to suggest that that the right\n\nto relief one way or the other is \u201cclear and indisputable.\u201d Will, 437 U.S. at 665-66\n\n(affirming district court\u2019s discretion to stay case in light of parallel state court\n\nproceedings). Rather, this is a situation where a ruling denying Newegg judgment\n\nas a matter of law would constitute \u201ca clear abuse of discretion or usurpation of\n\njudicial power.\u201d E.g., TS Tech, 551 F.3d at 1318, 1321 (ordering district court to\n\ntransfer case because \u201cdenying transfer from a venue with no meaningful ties to the\n\ncase\u201d was a \u201cpatently erroneous result\u201d); cf. In re Princo Corp., 478 F.3d 1345,\n\n1355 (Fed. Cir. 2007) (ordering district court to issue stay because statute clearly\n\nrequired continued stay until ITC proceeding was \u201cfinal\u201d). The law is clear, the\n\nclaim requirements are clear, and the facts are clear and undisputed. Newegg does\n\nnot infringe as a matter of law.\n\n Even under Judge Bryson\u2019s somewhat more generous claim construction\n\nthan the one adopted in this case without TQP\u2019s objection, Newegg\u2019s system still\n\ndoes not meet the claim requirements. As Judge Bryson explained when denying\n\nTQP\u2019s request for reconsideration, the claims require more than \u201ceach block\n\nget[ting] a new key value\u201d\u2014they require \u201ca new key value [to be] produced \u2018each\n\n\n\n 21\n\f Case: 15-142 Document: 2-1 Page: 28 Filed: 07/06/2015\n\n\n\ntime\u2019 a single block is being transmitted or a single block has been transmitted.\u201d\n\nA0249. If Intuit\u2019s system (which is admittedly identical to Newegg\u2019s, A0233 n.3)\n\navoids infringement for this reason based on the same testimony from TQP\u2019s\n\nexpert in Newegg\u2019s trial, and based on a broader claim construction, Newegg\u2019s\n\nsystem cannot infringe under the \u201chave been sent\u201d construction given to the jury.\n\nThat claim requirement is simply not met by either system, regardless of which\n\nconstruction is applied.\n\n Further, although Newegg was entitled to JMOL based on its own trial\n\nrecord and construction alone, once Judge Bryson entered summary judgment in\n\nfavor of Intuit, Newegg\u2019s right to JMOL then had the additional force of collateral\n\nestoppel. See Transocean Offshore Deepwater Drilling, Inc. v. Maersk\n\nContractors USA, Inc., 617 F.3d 1296, 1312 (Fed. Cir. 2010) (applying Fifth\n\nCircuit law and finding noninfringement based on collateral estoppel where the\n\naccused technology in the second case was materially identical to the\n\n\u201cnoninfringing design\u201d in the first case); Reese v. Verizon Cal., Inc., 498 Fed.\n\nAppx. 980, 982 (Fed. Cir. 2012) (\u201c[C]ollateral estoppel in a patent case prevents a\n\nplaintiff who previously litigated a claim that certain technology infringed its\n\npatent (and lost) from taking \u2018another bite at the apple\u2019 by again asserting that the\n\nsame technology infringes the same patent.\u201d) (citing Transocean, 617 F.3d at\n\n1312); cf. Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1324 (Fed. Cir. 2008)\n\n\n\n 22\n\f Case: 15-142 Document: 2-1 Page: 29 Filed: 07/06/2015\n\n\n\n(explaining that claim preclusion applies where \u201cthe accused device in the action\n\nbefore the court is \u2018essentially the same\u2019 as the accused device in a prior action\n\nbetween the parties that was resolved by a judgment on the merits\u201d).\n\n The law of the regional circuit applies to matters like collateral estoppel,\n\nwhich are not unique to patent law. Soverain Software LLC v. Victoria\u2019s Secret\n\nDirect Brand Mgmt., LLC, 778 F.3d 1311, 1314 (Fed. Cir. 2015). The Fifth\n\nCircuit applies collateral estoppel when the following four conditions are met:\n\n First, the issue under consideration in a subsequent action must be\n identical to the issue litigated in a prior action. Second, the issue must\n have been fully and vigorously litigated in the prior action. Third, the\n issue must have been necessary to support the judgment in the prior\n case. Fourth, there must be no special circumstance that would render\n preclusion inappropriate or unfair.\n\nId. at 1315 (quoting State Farm Mut. Auto. Ins. Co. v. LogistiCare Solutions, LLC,\n\n751 F.3d 684, 689 (5th Cir. 2014)). Here, the issue in both the Intuit and Newegg\n\ncases is whether the exact same accused systems meet the same claim requirement,\n\nwhich plainly satisfies the first prong. Transocean, 617 F.3d at 1317; Reese, 498\n\nFed. Appx. at 982. The second prong is likewise satisfied because the parties\n\nextensively litigated the issue in the Intuit Case in three distinct rounds of\n\nbriefing\u2014Intuit\u2019s original summary judgment motion, Intuit\u2019s renewed summary\n\njudgment motion, and TQP\u2019s motion for reconsideration\u2014with the briefs relying\n\non considerable amounts of evidence and detailed argument. See generally\n\nA0200-50. Because Judge Bryson\u2019s entry of summary judgment was based\n\n 23\n\f Case: 15-142 Document: 2-1 Page: 30 Filed: 07/06/2015\n\n\n\nentirely on his conclusion that the \u201ca new one of said key values . . . being\n\nproduced each time\u201d claim requirement was not met by Intuit\u2019s accused system,\n\nthe third prong is also satisfied. A0239. And regarding the fourth prong, there are\n\nno special circumstances or equitable reasons not to apply the doctrine to preclude\n\nTQP from relitigating the same issue a second time\u2014TQP had every opportunity\n\nto fully and fairly make its case, and it simply lost. Because Judge Bryson\u2019s ruling\n\ncollaterally estops TQP from continuing to contend that Newegg infringes, it is\n\nimpossible for any judgment to be entered against Newegg by the district court,\n\nand judgment should be entered in Newegg\u2019s favor accordingly.\n\n Finally, as this Court has recognized, principles of comity strongly\n\nencourage deference to prior decisions from district courts on identical issues, as is\n\ninvolved here. See In re Google Inc., 588 Fed. Appx. 988, 990 (Fed. Cir. 2014)\n\n(\u201cUnder the doctrine of comity, when cases involving substantially overlapping\n\nissues are pending before two federal district courts, there is a strong preference to\n\navoid duplicative litigation.\u201d) (citing Colo. River Water Conservation Dist. v.\n\nUnited States, 424 U.S. 800, 817 (1976)). It would waste scarce judicial resources\n\nfor Judge Gilstrap to conduct an entirely fresh adjudication of the very same issues\n\nthat Judge Bryson already conclusively resolved. See Church of Scientology v.\n\nUnited States Dep\u2019t of Army, 611 F.2d 738, 750 (9th Cir. 1979) (\u201cThe purpose of\n\nthe comity principle is of paramount importance. The doctrine is designed to avoid\n\n\n\n 24\n\f Case: 15-142 Document: 2-1 Page: 31 Filed: 07/06/2015\n\n\n\nplacing an unnecessary burden on the federal judiciary, and to avoid the\n\nembarrassment of conflicting judgments.\u201d). Judge Bryson\u2019s summary judgment\n\nruling should be viewed as the final word from the district courts on whether the\n\naccused system infringes TQP\u2019s patent.\n\nIII. ISSUANCE OF THE WRIT IS APPROPRIATE\n\n The All Writs Act broadly gives this Court the authority to \u201cissue all writs\n\nnecessary or appropriate in aid of [its] jurisdictions and agreeable to the usages and\n\nprinciples of law.\u201d 28 U.S.C. \u00a7 1651(a). Excessive delay of judgment as in this\n\ncase should be remedied via a writ of mandamus because such delay leaves\n\nlitigants no other avenue for relief outside of a writ. Cf. In re School Asbestos\n\nLitigation, 977 F.2d 764, 792 (3d Cir. 1992) (holding that \u201ca writ of mandamus is a\n\nproper remedy when a district judge arbitrarily refuses to rule on a summary\n\njudgment motion\u201d); Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th\n\nCir. 1997) (\u201cWhen a litigant\u2019s rights are materially prejudiced by the district\n\ncourt\u2019s mismanagement of a case, [the Courts of Appeals] must redress the abuse\n\nof discretion.\u201d); United States v. Newman, 456 F.2d 668, 671 (3d Cir. 1972) (\u201cIt is\n\nin the interest of justice that a decision on the propriety of a trial be reached as\n\nsoon after it has ended as is possible, and that decision be not deferred until the\n\ntrial\u2019s story has taken on the uncertainty and dimness of things long past.\u201d). And\n\nunreasonable delay of judgment especially counsels in favor of a writ of\n\n\n\n 25\n\f Case: 15-142 Document: 2-1 Page: 32 Filed: 07/06/2015\n\n\n\nmandamus where, as here, the issues requiring judicial resolution are simple and\n\nstraightforward. See In re Federal Computer Corp., Misc. Dkt. No. 307, 1991\n\nU.S. App. LEXIS 31719, at *3-4 (Fed. Cir. June 19, 1991) (explaining that \u201cthe\n\nBoard has a number of options to move this matter forward\u201d and \u201calthough the\n\ndelay has been only four months, the matter appears so simple that the delay is\n\nbecoming unreasonable\u201d) (citing In re Monroe Communications Corp., 840 F.2d\n\n942, 945 (D.C. Cir. 1988) (holding that \u201c[d]elay is measured by a \u2018rule of\n\nreason\u2019\u201d)).\n\n Newegg\u2019s petition does not depend on any finding of bad intent on the part\n\nof the district court in failing to resolve Newegg\u2019s JMOL motion, or even on a\n\nconclusion that the district court has actively decided not to rule on Newegg\u2019s\n\nJMOL motion. Newegg makes no such assertions. When unreasonable delay of\n\njudgment, by whatever cause, leads to undue prejudice and substantial harm that\n\ncannot be remedied by ordinary means, and where a party is clearly entitled to\n\njudgment, extraordinary writs can and should be issued to remedy the situation. As\n\nthe maxim goes: \u201cjustice delayed is justice denied.\u201d This Court has a duty to act,\n\nunder these exceptional circumstances, to remedy such failures by district courts to\n\nproperly administer justice. See La Buy v. Howes Leather Co., 352 U.S. 249, 259-\n\n260 (1957) (\u201cWe believe that supervisory control of the District Courts by the\n\nCourts of Appeals is necessary to proper judicial administration in the federal\n\n\n\n 26\n\f Case: 15-142 Document: 2-1 Page: 33 Filed: 07/06/2015\n\n\n\nsystem.\u201d). This petition for a writ of mandamus, reluctantly filed and sought,\n\nwarrants such exceptional relief and intervention by this Court.\n\n CONCLUSION\n\n For the foregoing reasons, Newegg respectfully requests that this Court issue\n\na writ of mandamus directing the district court to enter JMOL of non-infringement.\n\n\n\n Respectfully submitted,\n\n\nDated: July 6, 2015 /s/ Daniel H. Brean\n Kent. E. Baldauf, Jr.\n Daniel H. Brean\n THE WEBB LAW FIRM\n One Gateway Center\n 420 Fort Duquesne Blvd., Suite 1200\n Pittsburgh, PA 15222\n Telephone: (412) 471-8815\n\n Mark. A. Lemley\n DURIE TANGRI LLP\n 217 Leidesdorff Street\n San Francisco, CA 94111\n Telephone: (415) 362-6666\n\n Edward R. Reines\n WEIL GOTSHAL & MANGES LLP\n 201 Redwood Shores Parkway\n Redwood Shores, CA 94065\n Telephone: (650) 802-3000\n\n Counsel for Appellant Newegg Inc.\n\n\n\n\n 27\n\f Case: 15-142 Document: 2-1 Page: 34 Filed: 07/06/2015\n\n\n\n\n CERTIFICATE OF SERVICE\n\n This is to certify that on July 6, 2015, the foregoing PETITION FOR\nWRIT OF MANDAMUS was electronically filed with the Court. A copy has\nbeen served on counsel for Respondent TQP Development, LLC via Federal\nExpress upon the following:\n Marc Aaron Fenster\n Adam S. Hoffman\n RUSS AUGUST & KABAT\n 12424 Wilshire Boulevard\n Suite 1200\n Los Angeles, CA 90025\n Tel: (310) 826-7474\n Fax: (310) 826-6691\n mafenster@raklaw.com\n ahoffman@raklaw.com\n\nA copy has also been served on the date above via Federal Express on:\n\n The Honorable Rodney Gilstrap\n U.S. District Court\n Sam B. Hall, Jr. Federal Building\n and United States Courthouse\n 100 East Houston Street\n Marshall, Texas 75670\n Tel: (903) 935-3868\n Fax: (903) 935-2295\n\nAn original and four hard copies and a PDF copy on disk, along with the required\nfiling fee, of this Petition have been hand-delivered to the U.S. Court of Appeals\nfor the Federal Circuit on the date indicated above.\n\n /s/ Daniel H. Brean\n Daniel H. Brean\n Counsel for Newegg Inc.\n\n\n\n 28\n\f","ocr_status":2,"date_upload":"2015-08-20T04:33:30-07:00","document_number":"2","attachment_number":1,"pacer_doc_id":"0130611815","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Petition for Writ of Mandamus","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/1437273/","id":1437273,"tags":[],"absolute_url":"/docket/4162344/2/2/in-re-newegg-inc/","date_created":"2016-08-19T17:52:52.208095-07:00","date_modified":"2018-12-09T17:34:42.758974-08:00","sha1":"a323b736f4113ee9cc12a615e1ce047e9c9f9589","page_count":206,"file_size":4936333,"filepath_local":"recap/gov.uscourts.cafc.15-142.2.2.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.cafc.15-142/gov.uscourts.cafc.15-142.2.2.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":" Case: 15-142 Document: 2-2 Page: 1 Filed: 07/06/2015\n\n\n\n Miscellaneous Docket No. ___________\n\n\n United States Court of Appeals\n for the Federal Circuit\n IN RE NEWEGG INC.,\n Petitioner.\n\nOn Petition for a Writ of Mandamus to the United States District Court for the\nEastern District of Texas in Case No. 2:11-cv-00248, Judge Rodney Gilstrap\n\nAPPENDIX IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS\n\n Kent. E. Baldauf, Jr.\n Daniel H. Brean\n THE WEBB LAW FIRM\n One Gateway Center\n 420 Fort Duquesne Blvd., Suite 1200\n Pittsburgh, PA 15222\n Telephone: (412) 471-8815\n\n Mark. A. Lemley\n DURIE TANGRI LLP\n 217 Leidesdorff Street\n San Francisco, CA 94111\n Telephone: (415) 362-6666\n\n Edward R. Reines\n WEIL GOTSHAL & MANGES LLP\n 201 Redwood Shores Parkway\n Redwood Shores, CA 94065\n Telephone: (650) 802-3000\n\n Counsel for Newegg Inc.\n\n July 6, 2015\n\f Case: 15-142 Document: 2-2 Page: 2 Filed: 07/06/2015\n\n\n TABLE OF CONTENTS\n\n Date Docket Description Appendix\n Filed No. Nos.\n11/25/13 407 Jury Verdict A0001 \u2013\n A0003\n06/05/15 N/A Docket Sheet A0004 \u2013\n A0038\n05/02/95 N/A U.S. Patent No. 5,412,730 A0039 \u2013\n A0057\n02/17/14 436 Newegg\u2019s Rule 50(b) Motion for Judgment as a Matter A0058 \u2013\n of Law A0141\n06/30/14 450 Newegg\u2019s Notice of Subsequent Authority A0142 \u2013\n A0148\n07/25/14 453 Newegg\u2019s Second Notice of Subsequent Authority A0149 \u2013\n A0152\n04/16/14 446 Newegg\u2019s Notice of Request for Hearing on Post-Trial A0153 \u2013\n Motions A0155\n11/13/14 458 Newegg\u2019s Notice of Renewed Request for Hearing on A0156 \u2013\n Post-Trial Motions A0158\n05/20/13 226 Claim Construction Memorandum and Order A0159 \u2013\n A0199\n02/21/14 152 Memorandum Opinion and Order (TQP v. Intuit, No. A0200 \u2013\n 2:12-cv-00180-WCB) A0215\n06/20/14 192 Memorandum Opinion and Order (TQP v. Intuit, No. A0216 \u2013\n 2:12-cv-00180-WCB) A0239\n07/23/14 203 Memorandum Opinion and Order (TQP v. Intuit, No. A0240 \u2013\n 2:12-cv-00180-WCB) A0250\n11/08/13 379 Order Granting TQP\u2019s Motion in Limine to Exclude A0251 \u2013\n Evidence and Argument Relating to Prosecution A0262\n History Estoppel\n11/27/13 413 Transcript of Jury Trial (11/19/13 - afternoon session) A0263 \u2013\n A0442\n11/27/13 414 Transcript of Jury Trial (11/20/13 - morning session) A0443 \u2013\n A0593\n11/27/13 417 Transcript of Jury Trial (11/21/13 - afternoon session) A0594 \u2013\n A0776\n09/30/14 N/A Civil Justice Reform Act Report A0777 \u2013\n A0849\n09/30/14 N/A Civil Justice Reform Act Report for Judge Gilstrap A0850 \u2013\n A0854\n\f Case: 15-142 Document: 2-2 Page: 3 Filed: 07/06/2015\n\nCase 2:11-cv-00248-JRG Document 407 Filed 11/25/13 Page 1 of 3 PageID #: 6491\n\n\n\n\n IN THE UNITED STATES DISTRJCT COURT\n FOR THE EASTERN DISTRJCT OF TEXAS\n MARSHALL DIVISION\n\n\n\n TQP DEVELOPMENT, LLC,\n Civil Action No. 2:11-CV-248-JRG-RSP\n Plaintiff,\n CONSOLIDATED\n\n JURY TRIAL DEMANDED\n 1-800-FLOWERS.COM, INC, et al.,\n\n Defendants.\n\n\n VERDICT FORM\n In answering these questions, you are to follow the instructions I have given you in the\n\nCharge of the Court.\n\n QUESTION 1\n\n\n Did TQP Development, LLC (\"TQP\") prove by a preponderance of the evidence that\n\nNewegg Inc. (\"Newegg\") directly infringed any of the asserted claims of the '730 Patent?\n\n Answer \"Yes\" or \"No\" for each claim:\n~--------------------------------~--------------------------------.\n\n\n\n\n'730 Patent Infringed?\n\nClaim 1\n\nClaim 6\n\nClaim 8\n\nClaim 9\n\n\n\n\n 1\n\n\n\n A0001\n\f Case: 15-142 Document: 2-2 Page: 4 Filed: 07/06/2015\n\nCase 2:11-cv-00248-JRG Document 407 Filed 11/25/13 Page 2 of 3 PageID #: 6492\n\n\n\n\n QUESTION2\n\n\n Did TQP prove by a preponderance of the evidence that Newegg induced its customers to\n\ninfringe any ofthe asserted claims of the '730 Patent?\n\n Answer \"Yes\" or \"No\" for each claim:\n\n'730 Patent Induced Infringement?\n\nClaim 1 &irs\n \\)\nClaim 6 t)(v~;'::c=\n ( J >\n\n\n\n\nClaim 8 j/l,-;~~\nClaim 9 Ji,()\n /~::::::>\n\n\n\n\n QUESTION 3\n\n\n Did Newegg prove by clear and convincing evidence that any of the following claims of\n\nthe '730 Patent are invalid?\n\n Answer \"Yes\" or \"No\" for each claim:\n\n'730 Patent Invalid?\n\nClaim 1 ut0o\nClaim 6 ~--;:::;~\n\n\nClaim 8 N\nClaim 9 jLJT:=>\n\n\n\n\n 2\n\n\n\n\n A0002\n\f Case: 15-142 Document: 2-2 Page: 5 Filed: 07/06/2015\n\nCase 2:11-cv-00248-JRG Document 407 Filed 11/25/13 Page 3 of 3 PageID #: 6493\n\n\n\n\n A0003\n\f Case: 15-142 Document: 2-2 Page: 6 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 1 of 35\n JURY,PATENT/TRADEMARK,PROTECTIVE\u2212ORDER,REOPEN,TransWard\n U.S. District Court [LIVE]\n Eastern District of TEXAS (Marshall)\n CIVIL DOCKET FOR CASE #: 2:11\u2212cv\u221200248\u2212JRG\n\nTQP Development LLC vs v. 1\u2212800\u2212Flowers.com Inc et al Date Filed: 05/06/2011\nAssigned to: Judge Rodney Gilstrap Jury Demand: Both\nCause: 35:271 Patent Infringement Nature of Suit: 830 Patent\n Jurisdiction: Federal Question\n\n Date Filed # Docket Text\n 05/06/2011 1 COMPLAINT for Patent Infringment against 1\u2212800\u2212Flowers.com, Inc., Alticor,\n Inc., Amway Corp., Cellco Partnership, HSN, Inc., Micro Electronics, Inc.,\n Newegg, Inc., QVC, Inc., Sprint Nextel Corporation, Verizon Communications,\n Inc. ( Filing fee $ 350 receipt number 0540\u22123023721.), filed by TQP\n Development, LLC. (Attachments: # 1 Exhibit A \u2212 U.S. Patent 5,412,730, # 2 Civil\n Cover Sheet)(Spangler, Andrew) (Entered: 05/06/2011)\n 05/06/2011 2 Notice of Filing of Patent/Trademark Form (AO 120). AO 120 mailed to the\n Director of the U.S. Patent and Trademark Office. (Spangler, Andrew) (Entered:\n 05/06/2011)\n 05/09/2011 Case assigned to Judge T. John Ward. (ch, ) (Entered: 05/09/2011)\n 05/09/2011 In accordance with the provisions of 28 USC Section 636(c), you are hereby\n notified that a U.S. Magistrate Judge of this district court is available to conduct\n any or all proceedings in this case including a jury or non\u2212jury trial and to order\n the entry of a final judgment. The form Consent to Proceed Before Magistrate\n Judge is available here by clicking on the hyperlink and is also on our website. All\n signed consent forms, excluding pro se parties, should be filed electronically using\n the event Notice of Consent to Proceed Before Magistrate Judge. (ch, ) (Entered:\n 05/09/2011)\n 05/10/2011 3 E\u2212GOV SEALED SUMMONS Issued as to 1\u2212800\u2212Flowers.com, Inc., Alticor,\n Inc., Amway Corp., Cellco Partnership, HSN, Inc.. (Attachments: # 1 Alticor, # 2\n Amway, # 3 Cellco, # 4 HSN)(ehs, ) (Entered: 05/10/2011)\n 05/10/2011 4 E\u2212GOV SEALED SUMMONS Issued as to Micro Electronics, Inc., Newegg, Inc.,\n QVC, Inc., Sprint Nextel Corporation, Verizon Communications, Inc..\n (Attachments: # 1 Newegg, # 2 Nextel, # 3 QVC, # 4 Verizon)(ehs, ) (Entered:\n 05/10/2011)\n 05/13/2011 5 NOTICE of Attorney Appearance by Hao Ni on behalf of TQP Development, LLC\n (Ni, Hao) (Entered: 05/13/2011)\n 05/20/2011 6 NOTICE of Attorney Appearance by Adam S Hoffman on behalf of TQP\n Development, LLC (Hoffman, Adam) (Entered: 05/20/2011)\n 05/20/2011 7 NOTICE of Attorney Appearance by Marc A Fenster on behalf of TQP\n Development, LLC (Fenster, Marc) (Entered: 05/20/2011)\n 05/20/2011 8 NOTICE of Attorney Appearance by Alexander Chester Giza on behalf of TQP\n Development, LLC (Giza, Alexander) (Entered: 05/20/2011)\n 05/31/2011 9 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n Alticor, Inc. served on 5/20/2011 by CM RRR through Registered Agent The\n Corporation Co, answer due 6/10/2011. (ehs, ) (Entered: 05/31/2011)\n 05/31/2011 10 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n Amway Corp. served on 5/20/2011 by CM RRR through Registered Agent CT\n Corporation System, answer due 6/10/2011. (ehs, ) (Entered: 05/31/2011)\n 05/31/2011 11 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n HSN, Inc. served on 5/19/2011 by CM RRR through Registered Agent Corporation\n Service Co, answer due 6/9/2011. (ehs, ) (Entered: 05/31/2011)\n A0004\n\f Case: 15-142 Document: 2-2 Page: 7 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 2 of 35\n05/31/2011 12 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n Micro Electronics, Inc. served on 5/19/2011 by CM RRR through Registered\n Agent Ltd., answer due 6/9/2011. (ehs, ) (Entered: 05/31/2011)\n05/31/2011 13 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n Newegg, Inc. served on 5/19/2011 by CM RRR on Registered Agent Corporation\n Service Co, answer due 6/9/2011. (ehs, ) (Entered: 05/31/2011)\n05/31/2011 14 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n QVC, Inc. served on 5/19/2011 by CM RRR through Registered Agent\n Corporation Service Co, answer due 6/9/2011. (ehs, ) (Entered: 05/31/2011)\n06/01/2011 15 Unopposed MOTION for Extension of Time to File Answer /Respond to Plaintiff's\n Complaint by Micro Electronics, Inc.. (Attachments: # 1 Text of Proposed\n Order)(Wilcox, Melvin) (Entered: 06/01/2011)\n06/01/2011 16 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n Sprint Nextel Corporation served on 5/18/2011 by CM RRR through registered\n agent Corporation Servicee Co, answer due 6/8/2011. (ehs, ) (Entered: 06/01/2011)\n06/02/2011 17 ***FILED IN ERROR, PLEASE IGNORE.***\n HSN, Inc.'s First Unopposed Application for Extension of Time to Answer\n Complaint.( Lanser, Joseph) Modified on 6/2/2011 (sm, ). (Entered: 06/02/2011)\n06/02/2011 ***FILED IN ERROR, WRONG EVENT (PLEADING DOES NOT MATCH\n EVENT). Document # 11, Application to extend time. PLEASE IGNORE.***\n (sm, ) (Entered: 06/02/2011)\n06/02/2011 18 Unopposed MOTION for Extension of Time to File Answer re 1 Complaint, by\n HSN, Inc.. (Attachments: # 1 Text of Proposed Order)(Lanser, Joseph) (Entered:\n 06/02/2011)\n06/03/2011 19 NOTICE of Attorney Appearance by Lindsey Lauren Hargrove on behalf of Sprint\n Nextel Corporation (Hargrove, Lindsey) (Entered: 06/03/2011)\n06/03/2011 20 First MOTION for Extension of Time to File Answer to Plaintiff's Complaint by\n Sprint Nextel Corporation. (Attachments: # 1 Text of Proposed Order)(Hargrove,\n Lindsey) (Entered: 06/03/2011)\n06/07/2011 21 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint re Sprint Nextel Corporation.( Hargrove, Lindsey) (Entered:\n 06/07/2011)\n06/07/2011 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint is GRANTED pursuant to Local Rule CV\u221212 for Sprint Nextel\n Corporation to 7/8/2011. 30 Days Granted for Deadline Extension.( ch, ) (Entered:\n 06/07/2011)\n06/07/2011 31 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n Verizon Communications, Inc. served CMRR on 5/20/2011. (ch, ) (Entered:\n 06/09/2011)\n06/07/2011 32 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n 1\u2212800\u2212Flowers.com, Inc. served CMRR on 5/24/2011, answer due 6/14/2011. (ch,\n ) (Entered: 06/09/2011)\n06/07/2011 33 E\u2212GOV SEALED SUMMONS Returned Executed by TQP Development, LLC.\n Cellco Partnership served CMRR on 5/24/2011. (ch, ) (Entered: 06/09/2011)\n06/08/2011 22 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint re Newegg Inc. (Yarbrough, Herbert) (Entered: 06/08/2011)\n06/08/2011 23 NOTICE of Attorney Appearance by Debra Elaine Gunter on behalf of Newegg,\n Inc. (Gunter, Debra) (Entered: 06/08/2011)\n06/08/2011 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint is GRANTED pursuant to Local Rule CV\u221212 for Newegg, Inc. to\n 7/11/2011. 30 Days Granted for Deadline Extension.( sm, ) (Entered: 06/08/2011)\n A0005\n\f Case: 15-142 Document: 2-2 Page: 8 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 3 of 35\n06/08/2011 24 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint re Cellco Partnership.(Smith, Melissa) (Entered: 06/08/2011)\n06/08/2011 25 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint re Verizon Communications, Inc..(Smith, Melissa) (Entered:\n 06/08/2011)\n06/08/2011 26 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint re QVC, Inc..( Durst, Timothy) (Entered: 06/08/2011)\n06/08/2011 27 APPLICATION to Appear Pro Hac Vice by Attorney Laura Beth Miller for\n Alticor, Inc., Amway Corp. (APPROVED FEE PAID) 2\u2212553. (ch, ) (Entered:\n 06/08/2011)\n06/08/2011 28 APPLICATION to Appear Pro Hac Vice by Attorney Joseph S Hanasz for Alticor,\n Inc., Amway Corp. (APPROVED FEE PAID) 2\u2212553. (ch, ) (Additional\n attachment(s) added on 6/8/2011: # 1 CONFIDENTIAL INFORMATION) (ch, ).\n (Entered: 06/08/2011)\n06/08/2011 29 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint re Amway Corp..( Hanasz, Joseph) (Entered: 06/08/2011)\n06/08/2011 30 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint re Alticor, Inc..( Hanasz, Joseph) (Entered: 06/08/2011)\n06/09/2011 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint is GRANTED pursuant to Local Rule CV\u221212 for Verizon\n Communications, Inc. to 7/15/2011; Cellco Partnership to 7/15/2011. 30/33 Days\n Granted for Deadline Extension.( sm, ) (Entered: 06/09/2011)\n06/09/2011 Defendant's Unopposed First Application for Extension of Time to Answer\n Complaint is GRANTED pursuant to Local Rule CV\u221212 for Alticor, Inc. to\n 7/11/2011; QVC, Inc. to 7/11/2011; Amway Corp. to 7/11/2011. 30 Days Granted\n for Deadline Extension.( sm, ) (Entered: 06/09/2011)\n06/13/2011 34 ORDER granting 20 Motion for Extension of Time to Answer. Dft Sprint Nextel\n Corporation deadline is extended to 7/22/2011. Signed by Judge T. John Ward on\n 6/13/2011. (ch, ) (Entered: 06/13/2011)\n06/13/2011 Answer Due Deadline Updated for Sprint Nextel Corporation to 7/22/2011. (ch, )\n (Entered: 06/13/2011)\n06/13/2011 35 ORDER granting 18 Motion for Extension of Time to Answer. HSN Inc deadline is\n extended to 7/11/2011. Signed by Judge T. John Ward on 6/13/2011. (ch, )\n (Entered: 06/13/2011)\n06/13/2011 Answer Due Deadline Updated for HSN, Inc. to 7/11/2011. (ch, ) (Entered:\n 06/13/2011)\n06/14/2011 36 ORDER granting 15 Motion for Extension of Time to Answer. Micro Electronics\n have up to and including July 11, 2011, to answer. Signed by Judge T. John Ward\n on 6/13/11. (ehs, ) (Entered: 06/14/2011)\n06/14/2011 Answer Due Deadline Updated for Micro Electronics, Inc. to 7/11/2011. (ehs, )\n (Entered: 06/14/2011)\n06/17/2011 37 APPLICATION to Appear Pro Hac Vice by Attorney Matthew A Werber for HSN,\n Inc..(APPROVED, FEE PAID 2\u2212575) (ehs, ) (Entered: 06/17/2011)\n06/17/2011 38 APPLICATION to Appear Pro Hac Vice by Attorney Michael R Levinson for\n HSN, Inc.. (APPROVED, FEE PAID 2\u2212576) (ehs, ) (Entered: 06/17/2011)\n06/22/2011 39 APPLICATION to Appear Pro Hac Vice by Attorney Mark L Varboncouer for\n Sprint Nextel Corporation. (APPROVED, FEE PAID 2\u2212586) (ehs, ) (Entered:\n 06/22/2011)\n06/23/2011 40 APPLICATION to Appear Pro Hac Vice by Attorney David E Finkelson for Sprint\n Nextel Corporation. (APPROVED, FEE PAID 2\u2212282) (ehs, ) (Entered:\n 06/23/2011)\n A0006\n\f Case: 15-142 Document: 2-2 Page: 9 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 4 of 35\n06/23/2011 41 NOTICE of Voluntary Dismissal by TQP Development, LLC (Attachments: # 1\n Text of Proposed Order)(Ni, Hao) (Entered: 06/23/2011)\n06/27/2011 42 ORDER \u2212 granting 27 Notice of Voluntary Dismissal. Dft 1\u2212800\u2212Flowers.com Inc\n is hereby dismissed without prejudice. All attorney fees and costs are to be borne\n by the party that incurred them. Signed by Judge T. John Ward on 6/27/2011. (ch, )\n (Entered: 06/27/2011)\n07/06/2011 43 APPLICATION to Appear Pro Hac Vice by Attorney Anthony W Brooks for\n Newegg, Inc.. (APPROVED, FEE PAID 6\u22123973) (ehs, ) (Entered: 07/06/2011)\n07/06/2011 44 APPLICATION to Appear Pro Hac Vice by Attorney Bryan P Clark for Newegg,\n Inc.. (APPROVED, FEE PAID 6\u22123973)(ehs, ) (Entered: 07/06/2011)\n07/06/2011 45 APPLICATION to Appear Pro Hac Vice by Attorney Kent E Baldauf, Jr for\n Newegg, Inc.. (APPROVED, FEE PAID 6\u22126973) (ehs, ) (Entered: 07/06/2011)\n07/06/2011 46 Unopposed MOTION for Extension of Time to File Answer /Respond to Plaintiff's\n Complaint by Micro Electronics, Inc.. (Attachments: # 1 Text of Proposed\n Order)(Wilcox, Melvin) (Entered: 07/06/2011)\n07/11/2011 47 NOTICE of Attorney Appearance by Matthew Colagrosso on behalf of QVC, Inc.\n (Colagrosso, Matthew) (Entered: 07/11/2011)\n07/11/2011 48 ANSWER to 1 Complaint, Affirmative Defenses, COUNTERCLAIM against TQP\n Development, LLC by QVC, Inc..(Durst, Timothy) (Entered: 07/11/2011)\n07/11/2011 49 CORPORATE DISCLOSURE STATEMENT filed by QVC, Inc. identifying\n Corporate Parent Liberty Media Corporation for QVC, Inc.. (Durst, Timothy)\n (Entered: 07/11/2011)\n07/11/2011 50 HSN, Inc.'s ANSWER to 1 Complaint,, COUNTERCLAIM against TQP\n Development, LLC by HSN, Inc..(Lanser, Joseph) (Entered: 07/11/2011)\n07/11/2011 51 CORPORATE DISCLOSURE STATEMENT filed by HSN, Inc. identifying Other\n Affiliate Liberty Media Corporation for HSN, Inc.. (Lanser, Joseph) (Entered:\n 07/11/2011)\n07/11/2011 52 ORDER granting 46 Motion for Extension of Time to Answer. Dft Micro\n Electronics deadline is extended to 7/26/2011. Signed by Judge T. John Ward on\n 7/11/2011. (ch, ) (Entered: 07/11/2011)\n07/11/2011 Answer Due Deadline Updated for Micro Electronics, Inc. to 7/26/2011. (ch, )\n (Entered: 07/11/2011)\n07/11/2011 53 ANSWER to 1 Complaint,, COUNTERCLAIM against TQP Development, LLC\n by Alticor, Inc., Amway Corp..(Hanasz, Joseph) (Entered: 07/11/2011)\n07/11/2011 54 ANSWER to 1 Complaint,, COUNTERCLAIM against TQP Development, LLC\n by Newegg, Inc..(Yarbrough, Herbert) (Entered: 07/11/2011)\n07/11/2011 55 CORPORATE DISCLOSURE STATEMENT filed by Amway Corp. identifying\n Corporate Parent Alticor Corporate Enterprises Inc. for Amway Corp.. (Hanasz,\n Joseph) (Entered: 07/11/2011)\n07/11/2011 56 CORPORATE DISCLOSURE STATEMENT filed by Alticor, Inc. identifying\n Corporate Parent Solstice Holdings Inc. for Alticor, Inc.. (Hanasz, Joseph)\n (Entered: 07/11/2011)\n07/14/2011 57 MOTION to Dismiss with Prejudice (Stipulated) by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Spangler, Andrew) (Entered:\n 07/14/2011)\n07/14/2011 58 APPLICATION to Appear Pro Hac Vice by Attorney Saritha K Tice for Verizon\n Communications, Inc..(APPROVED, FEE PAID 2\u2212617) (ehs, ) (Entered:\n 07/14/2011)\n07/14/2011 59 APPLICATION to Appear Pro Hac Vice by Attorney Michael E Joffre for Verizon\n Communications, Inc.. (APPROVED, FEE PAID 2\u2212617) (ehs, ) (Entered:\n 07/14/2011)\n A0007\n\f Case: 15-142 Document: 2-2 Page: 10 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 5 of 35\n07/14/2011 60 Defendant Cellco Partnership's ANSWER to 1 Complaint, Affirmative Defenses\n and, COUNTERCLAIM against TQP Development, LLC by Cellco\n Partnership.(Smith, Melissa) (Entered: 07/14/2011)\n07/14/2011 61 CORPORATE DISCLOSURE STATEMENT filed by Cellco Partnership\n identifying Corporate Parent Verizon Communications Inc., Corporate Parent\n Vodafone Group PLC for Cellco Partnership. (Smith, Melissa) (Entered:\n 07/14/2011)\n07/14/2011 62 Defendant Verizon Communications Inc.'s ANSWER to 1 Complaint, Affirmative\n Defenses and, COUNTERCLAIM against TQP Development, LLC by Verizon\n Communications, Inc..(Smith, Melissa) (Entered: 07/14/2011)\n07/14/2011 63 CORPORATE DISCLOSURE STATEMENT filed by Verizon Communications,\n Inc. (Smith, Melissa) (Entered: 07/14/2011)\n07/18/2011 64 ORDER granting 57 Motion to Dismiss. All claims and counterclaims asserted in\n this suit between Plaintiff, TQP Development, LLC, and Defendant, Micro\n Electronics, Inc., are hereby dismissed with prejudice, subject to the terms of that\n certain agreement entitled PATENTS IN SUIT SETTLEMENT AGREEMENT\n dated June 8, 2011. It is further ORDERED that all attorneys fees and costs are to\n be borne by the party that incurred them. Signed by Judge T. John Ward on\n 7/18/2011. (ch, ) (Entered: 07/18/2011)\n07/19/2011 65 Unopposed MOTION to Substitute Party by TQP Development, LLC. (Ni, Hao)\n (Additional attachment(s) added on 7/20/2011: # 1 Text of Proposed Order) (ch, ).\n (Entered: 07/19/2011)\n07/25/2011 66 ORDER granting 65 Motion to Substitute Party. Sprint/United Management\n Company substituted for Sprint Nextel Corporation terminated. Signed by Judge T.\n John Ward on 7/22/11. (ehs, ) (Entered: 07/25/2011)\n07/25/2011 67 ANSWER to 1 Complaint, by Sprint/United Management Company.(Hargrove,\n Lindsey) (Entered: 07/25/2011)\n07/25/2011 68 CORPORATE DISCLOSURE STATEMENT filed by Sprint/United Management\n Company identifying Corporate Parent Sprint Nextel Corporation for Sprint/United\n Management Company. (Hargrove, Lindsey) (Entered: 07/25/2011)\n07/25/2011 69 RESPONSE to 53 Answer to Complaint, Counterclaim of Amway Corp. and\n Alticor Inc. by TQP Development, LLC. (Ni, Hao) (Entered: 07/25/2011)\n07/25/2011 70 RESPONSE to 50 Answer to Complaint, Counterclaim of HSN, Inc. by TQP\n Development, LLC. (Ni, Hao) (Entered: 07/25/2011)\n07/25/2011 71 RESPONSE to 54 Answer to Complaint, Counterclaim of Newegg Inc. by TQP\n Development, LLC. (Ni, Hao) (Entered: 07/25/2011)\n07/25/2011 72 RESPONSE to 48 Answer to Complaint, Counterclaim of QVC, Inc. by TQP\n Development, LLC. (Ni, Hao) (Entered: 07/25/2011)\n08/01/2011 73 ANSWER to 62 Answer to Complaint, Counterclaim by TQP Development,\n LLC.(Ni, Hao) (Entered: 08/01/2011)\n08/01/2011 74 ANSWER to 60 Answer to Complaint, Counterclaim by TQP Development,\n LLC.(Ni, Hao) (Entered: 08/01/2011)\n08/12/2011 75 CORPORATE DISCLOSURE STATEMENT filed by Newegg, Inc. (Yarbrough,\n Herbert) (Entered: 08/12/2011)\n10/05/2011 76 MISC. ORDER 11\u22121 REASSIGNING CASE. Case reassigned to Judge David\n Folsom for all further proceedings. Judge T. John Ward no longer assigned to case.\n Signed by Judge David Folsom on 10\u22123\u221211. (jml, ) (Entered: 10/05/2011)\n11/17/2011 77 APPLICATION to Appear Pro Hac Vice by Attorney Karen L Carroll for\n Sprint/United Management Company. (APPROVED FEE PAID) 2\u2212817 (ch, )\n (Entered: 11/17/2011)\n12/19/2011 Case reassigned to Judge Rodney Gilstrap re: misc order 11\u22122. Judge David\n Folsom no longer assigned to the case. (rvw, ) (Entered: 12/19/2011)\n A0008\n\f Case: 15-142 Document: 2-2 Page: 11 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 6 of 35\n01/04/2012 78 ORDER REASSIGNING CASE. Case reassigned to Judge David Folsom for all\n further proceedings. Judge Rodney Gilstrap no longer assigned to case. Signed by\n Judge Rodney Gilstrap on 1/4/2012. (ch, ) (Entered: 01/04/2012)\n02/16/2012 79 NOTICE by TQP Development, LLC of Readiness for a Scheduling Conference\n (Ni, Hao) (Entered: 02/16/2012)\n02/21/2012 80 ORDER REFERRING CASE to Magistrate Judge Caroline Craven. Signed by\n Judge David Folsom on 2/21/2012. (ch, ) (Entered: 02/21/2012)\n02/22/2012 81 NOTICE OF SCHEDULING CONFERENCE, PROPOSED DEADLINES FOR\n SCHEDULING AND DISCOVERY ORDER, ( Scheduling Conference set for\n 3/27/2012 10:00 AM in Ctrm 403 (Texarkana) before Magistrate Judge Caroline\n Craven.). Signed by Magistrate Judge Caroline Craven on 2/21/2012. (sm, )\n (Entered: 02/22/2012)\n02/23/2012 82 ORDER that case is TRANSFERRED to the docket of Honorable Michael\n Schneider. Signed by Judge David Folsom on 2/22/2012. (sm, ) (Entered:\n 02/23/2012)\n02/23/2012 Judge Michael H. Schneider added as presiding judge. Judge David Folsom no\n longer assigned to case. (sm, ) (Entered: 02/23/2012)\n02/28/2012 83 APPLICATION to Appear Pro Hac Vice by Attorney Patrick T Muffo for HSN,\n Inc.,Patrick T Muffo for HSN, Inc.. (APPROVED, FEE PAID 2\u2212942) (ehs, )\n (Entered: 02/28/2012)\n03/01/2012 84 NOTICE by TQP Development, LLC of Change of Firm Name (Spangler,\n Andrew) (Entered: 03/01/2012)\n03/01/2012 85 NOTICE of Attorney Appearance by James A Fussell, III on behalf of TQP\n Development, LLC (Fussell, James) (Entered: 03/01/2012)\n03/16/2012 86 Opposed MOTION to Stay by Alticor, Inc., Amway Corp., Cellco Partnership,\n HSN, Inc., Newegg, Inc., QVC, Inc., Sprint/United Management Company,\n Verizon Communications, Inc.. (Attachments: # 1 Text of Proposed Order)(Smith,\n Melissa) (Entered: 03/16/2012)\n03/23/2012 87 REPORT of Rule 26(f) Planning Meeting. (Ni, Hao) (Entered: 03/23/2012)\n03/26/2012 88 NOTICE of Attorney Appearance by Earl Glenn Thames, Jr on behalf of HSN, Inc.\n (Thames, Earl) (Entered: 03/26/2012)\n03/27/2012 89 MOTION PRACTICE ORDER. Signed by Magistrate Judge Caroline Craven on\n 3/27/2012. (sm, ) (Entered: 03/27/2012)\n03/27/2012 90 PROTECTIVE ORDER. Signed by Magistrate Judge Caroline Craven on\n 3/27/2012. (sm, ) (Entered: 03/27/2012)\n03/27/2012 91 ORDER REGARDING E\u2212DISCOVERY IN PATENT CASES. Signed by\n Magistrate Judge Caroline Craven on 3/27/2012. (sm, ) (Entered: 03/27/2012)\n03/28/2012 92 Minute Entry for proceedings held before Magistrate Judge Caroline Craven:\n Scheduling Conference held on 3/27/2012. (Court Reporter Libby Crawford.) (lfs, )\n (Entered: 03/28/2012)\n04/02/2012 93 RESPONSE in Opposition re 86 Opposed MOTION to Stay filed by TQP\n Development, LLC. (Fenster, Marc) (Entered: 04/02/2012)\n04/06/2012 94 Unopposed MOTION for Extension of Time to File Scheduling Order by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Ni, Hao) (Entered:\n 04/06/2012)\n04/09/2012 95 First Amended ANSWER to 1 Complaint,, COUNTERCLAIM against TQP\n Development, LLC by HSN, Inc..(Muffo, Patrick) (Entered: 04/09/2012)\n04/09/2012 96 ORDER granting 94 Motion for Extension of Time to File Scheduling order up to\n and including April 13, 2012. Signed by Magistrate Judge Caroline Craven on\n 4/9/2012. (sm, ) (Entered: 04/09/2012)\n A0009\n\f Case: 15-142 Document: 2-2 Page: 12 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 7 of 35\n04/10/2012 97 Unopposed MOTION to Withdraw as Attorney (Matthew Colagrosso) by QVC,\n Inc.. (Attachments: # 1 Text of Proposed Order)(Durst, Timothy) (Entered:\n 04/10/2012)\n04/10/2012 98 NOTICE of Attorney Appearance by Keith D Willis on behalf of QVC, Inc.\n (Willis, Keith) (Entered: 04/10/2012)\n04/10/2012 99 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n March 27, 2012, Scheduling Conference before The Honorable Magistrate Judge\n Caroline M. Craven. Court Reporter/Transcriber: Libby Crawford, CSR, Telephone\n number: 903.794.4067 Ext. 237 or lcrawford@cableone.net.

NOTICE RE\n REDACTION OF TRANSCRIPTS: The parties have seven (7) business days\n to file with the Court a Notice of Intent to Request Redaction of this\n transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov

Transcript\n may be viewed at the court public terminal or purchased through the Court\n Reporter/Transcriber before the deadline for Release of Transcript Restriction.\n After that date it may be obtained through PACER. Redaction Request due\n 5/4/2012. Redacted Transcript Deadline set for 5/14/2012. Release of Transcript\n Restriction set for 7/12/2012. (Crawford, Libby) (Entered: 04/10/2012)\n04/11/2012 100 ORDER granting 97 Motion to Withdraw as Attorney for Defendant QVC.\n Attorney Matthew Colagrosso terminated. Signed by Magistrate Judge Caroline\n Craven on April 11, 2012. (rml, ) (Entered: 04/11/2012)\n04/12/2012 101 Submission of Proposed Agreed Docket Control/Scheduling order by Alticor, Inc.,\n Amway Corp., Cellco Partnership, HSN, Inc., Newegg, Inc., Sprint/United\n Management Company, TQP Development, LLC, Verizon Communications, Inc..\n (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order, # 2 Text of\n Proposed Order Proposed Order Regarding joint Case Management Statement)(Ni,\n Hao) (Entered: 04/12/2012)\n04/13/2012 102 REPLY to Response to Motion re 86 Opposed MOTION to Stay DEFENDANTS'\n REPLY IN SUPPORT OF THEIR MOTION TO STAY filed by Alticor, Inc., Amway\n Corp., Cellco Partnership, HSN, Inc., Newegg, Inc., QVC, Inc., Sprint/United\n Management Company, Verizon Communications, Inc.. (Smith, Melissa) (Entered:\n 04/13/2012)\n04/17/2012 103 SCHEDULING AND DISCOVERY ORDER: Pretrial Conference set for\n 9/30/2013 09:00 AM in Ctrm 403 (Texarkana) before Magistrate Judge Caroline\n Craven. Amended Pleadings due by 4/27/2012. Discovery due by 6/14/2013.\n Dispositive Motions due by 6/28/2013.. Signed by Magistrate Judge Caroline\n Craven on 4/16/2012. (sm, ) (Entered: 04/17/2012)\n04/17/2012 NOTICE of Hearing on Motion 86 Opposed MOTION to Stay : Motion Hearing\n set for 5/11/2012 11:00 AM in Ctrm 403 (Texarkana) before Magistrate Judge\n Caroline Craven. (lfs, ) (Entered: 04/17/2012)\n04/18/2012 104 SUR\u2212REPLY to Reply to Response to Motion re 86 Opposed MOTION to Stay\n filed by TQP Development, LLC. (Fenster, Marc) (Entered: 04/18/2012)\n04/25/2012 105 AMENDED ANSWER to 1 Complaint, AFFIRMATIVE DEFENSES AND,\n COUNTERCLAIM against TQP Development, LLC by Verizon Communications,\n Inc.. (Smith, Melissa) (Entered: 04/25/2012)\n04/25/2012 106 AMENDED ANSWER to 1 Complaint, AFFIRMATIVE DEFENSES AND,\n COUNTERCLAIM against TQP Development, LLC by Cellco Partnership.\n (Smith, Melissa) (Entered: 04/25/2012)\n04/25/2012 107 RESPONSE to 95 Answer to Complaint, Counterclaim of HSN, Inc. by TQP\n Development, LLC. (Ni, Hao) (Entered: 04/25/2012)\n04/26/2012 108 Amended ANSWER to 1 Complaint, by Sprint/United Management\n Company.(Hargrove, Lindsey) (Entered: 04/26/2012)\n04/27/2012 109 AMENDED ANSWER to 1 Complaint,, COUNTERCLAIM against TQP\n Development, LLC by Alticor, Inc., Amway Corp.. (Hanasz, Joseph) (Entered:\n\n A0010\n\f Case: 15-142 Document: 2-2 Page: 13 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 8 of 35\n\n 04/27/2012)\n04/27/2012 110 NOTICE of Discovery Disclosure by HSN, Inc. (Muffo, Patrick) (Entered:\n 04/27/2012)\n04/27/2012 111 NOTICE by Newegg, Inc. of Initial Disclosures (Brooks, Anthony) (Entered:\n 04/27/2012)\n04/27/2012 112 NOTICE of Discovery Disclosure by Sprint/United Management Company Initial\n Disclosures in Compliance with Scheduling Order (Hargrove, Lindsey) (Entered:\n 04/27/2012)\n04/27/2012 113 NOTICE of Discovery Disclosure by QVC, Inc. (Initial Discovery Disclosures\n served) (Durst, Timothy) (Entered: 04/27/2012)\n04/27/2012 114 NOTICE of Discovery Disclosure by Alticor, Inc., Amway Corp. (Hanasz, Joseph)\n (Entered: 04/27/2012)\n05/01/2012 115 NOTICE of Discovery Disclosure by Verizon Communications, Inc. (Tice, Saritha)\n (Entered: 05/01/2012)\n05/01/2012 116 NOTICE of Discovery Disclosure by Cellco Partnership (Tice, Saritha) (Entered:\n 05/01/2012)\n05/02/2012 117 Joint MOTION to Amend/Correct 103 Scheduling Order, (Agreed Discovery\n Limitations) by Alticor, Inc., Amway Corp., Cellco Partnership, HSN, Inc.,\n Newegg, Inc., QVC, Inc., Sprint/United Management Company, TQP\n Development, LLC, Verizon Communications, Inc.. (Attachments: # 1 Text of\n Proposed Order)(Durst, Timothy) (Entered: 05/02/2012)\n05/03/2012 118 ORDER granting 117 Motion to Amend/Correct Scheduling and Discovery Order\n AMENDING to include discovery limitations agreed to in the parties joint case\n mgt statement. Signed by Magistrate Judge Caroline Craven on 5/3/2012. (sm, )\n (Entered: 05/03/2012)\n05/11/2012 119 Minute Entry for proceedings held before Magistrate Judge Caroline Craven:\n Motion Hearing held on 5/11/2012 re 86 Opposed MOTION to Stay filed by\n Verizon Communications, Inc., HSN, Inc., Cellco Partnership, Amway Corp.,\n Newegg, Inc., Alticor, Inc., QVC, Inc., Sprint/United Management Company.\n (Court Reporter Libby Crawford.) (lfs, ) (Entered: 05/11/2012)\n05/11/2012 120 RESPONSE to 109 Amended Answer to Complaint, Counterclaim of Alticor, Inc.,\n Amway Corp by TQP Development, LLC. (Ni, Hao) (Entered: 05/11/2012)\n05/11/2012 121 RESPONSE to 106 Amended Answer to Complaint, Counterclaim of Cellco\n Partnership by TQP Development, LLC. (Ni, Hao) (Entered: 05/11/2012)\n05/11/2012 122 RESPONSE to 105 Amended Answer to Complaint, Counterclaim of Verizon\n Communications, Inc by TQP Development, LLC. (Ni, Hao) (Entered: 05/11/2012)\n05/18/2012 123 ORDER denying WITHOUT PREJUDICE 86 Motion to Stay. Signed by\n Magistrate Judge Caroline Craven on 5/18/2012. (sm, ) (Entered: 05/18/2012)\n05/30/2012 124 STIPULATION for Damages and Discovery for Claims Against Sprint/United\n Management Company and Related Sprint Entities by Sprint/United Management\n Company. (Hargrove, Lindsey) (Entered: 05/30/2012)\n06/06/2012 125 Unopposed MOTION to Substitute Party by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Ni, Hao) (Entered: 06/06/2012)\n06/08/2012 126 ORDER granting 125 Motion to Substitute Party. Verizon Communications\n TERMINATED and Verizon Data Services becomes a dft as to all claims and\n counterclaims between TQP. Verizon Communications is DISMISSED without\n prejudice. Signed by Judge Michael H. Schneider on June 8, 2012. (rml, ) (Entered:\n 06/08/2012)\n06/13/2012 127 NOTICE of Discovery Disclosure by HSN, Inc. (Muffo, Patrick) (Entered:\n 06/13/2012)\n A0011\n\f Case: 15-142 Document: 2-2 Page: 14 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 9 of 35\n06/13/2012 128 NOTICE of Discovery Disclosure by Alticor, Inc., Amway Corp. (Hanasz, Joseph)\n (Entered: 06/13/2012)\n06/13/2012 129 NOTICE of Discovery Disclosure by QVC, Inc. (Willis, Keith) (Entered:\n 06/13/2012)\n06/13/2012 130 NOTICE of Discovery Disclosure by Sprint/United Management Company in\n Compliance with Local Rule 3\u22124(a) (Hargrove, Lindsey) (Entered: 06/13/2012)\n06/13/2012 131 NOTICE of Discovery Disclosure by Newegg, Inc. (Brooks, Anthony) (Entered:\n 06/13/2012)\n06/13/2012 132 NOTICE of Discovery Disclosure by QVC, Inc. on behalf of all Defendants\n (Willis, Keith) (Entered: 06/13/2012)\n06/13/2012 133 NOTICE of Discovery Disclosure by Cellco Partnership, Verizon Data Services\n LLC (Tice, Saritha) (Entered: 06/13/2012)\n06/19/2012 134 CORPORATE DISCLOSURE STATEMENT filed by TQP Development, LLC\n (Hoffman, Adam) (Entered: 06/19/2012)\n07/02/2012 135 CORPORATE DISCLOSURE STATEMENT filed by Verizon Data Services LLC\n (Tice, Saritha) (Entered: 07/02/2012)\n07/11/2012 136 NOTICE of Attorney Appearance by Daniel H Brean on behalf of Newegg, Inc.\n (Brean, Daniel) (Entered: 07/11/2012)\n07/11/2012 137 STIPULATION of Dismissal by Sprint/United Management Company, TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Ni, Hao) (Entered:\n 07/11/2012)\n07/16/2012 138 ORDER OF DISMISSAL With Prejudice re 137 Stipulation of Dismissal filed by\n TQP Development, LLC, Dismissing all claims and counterclaims asserted\n between plaintiff and Sprint/United Management Company. Signed by Judge\n Michael H. Schneider on 7/14/2012. (sm, ) (Entered: 07/16/2012)\n08/14/2012 139 ORDER REGARDING CLAIM CONSTRUCTION BRIEFING regarding for\n efficiency purposes, one Defendant will be designated as Lead Defendant for\n briefing and arguing claim construction issues and defendants must file a joint\n notice designating the Lead Defendant 10 days prior to the deadline to exchange\n proposed terms of contruction. Signed by Magistrate Judge Caroline Craven on\n 8/14/2012. (sm, ) (Entered: 08/14/2012)\n08/31/2012 140 MOTION for modification of Order on Claim Construction Briefing and objection\n to orderby Alticor, Inc., Amway Corp., HSN, Inc., Newegg, Inc.. (Attachments: # 1\n Text of Proposed Order)(Brooks, Anthony) Modified on 9/4/2012 (sm, ). (Entered:\n 08/31/2012)\n09/04/2012 141 NOTICE by Alticor, Inc., Amway Corp., Cellco Partnership, HSN, Inc., Newegg,\n Inc., QVC, Inc., Verizon Data Services LLC of Designating Lead Defendant\n (Brooks, Anthony) (Entered: 09/04/2012)\n09/05/2012 142 STIPULATION of Dismissal by Cellco Partnership, TQP Development, LLC,\n Verizon Data Services LLC. (Attachments: # 1 Text of Proposed Order)(Ni, Hao)\n (Entered: 09/05/2012)\n09/10/2012 143 ORDER granting 142 Stipulation of Dismissal filed by TQP Development, LLC,\n Cellco Partnership, Verizon Data Services LLC. Verizon Data Services LLC, and\n Cellco Partnership terminated. Signed by Judge Michael H. Schneider on 9/10/12.\n (mrm, ) (Entered: 09/10/2012)\n09/12/2012 144 Joint MOTION to Coordinate Claim Construction Briefing by Alticor, Inc.,\n Amway Corp., HSN, Inc., Newegg, Inc., QVC, Inc., TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Brooks, Anthony) (Entered:\n 09/12/2012)\n09/12/2012 145 Additional Attachments to Main Document (Cert of Conference): 144 Joint\n MOTION to Coordinate Claim Construction Briefing.. (Brooks, Anthony)\n Modified on 9/13/2012 (sm, ). (Entered: 09/12/2012)\n A0012\n\f Case: 15-142 Document: 2-2 Page: 15 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 10 of 35\n09/14/2012 146 ORDER granting 144 Motion to Coordinate Claim Construction Briefing. Signed\n by Magistrate Judge Caroline Craven on 9/14/12. (bas) (Entered: 09/14/2012)\n09/17/2012 147 RESPONSE to Motion re 140 MOTION Objection to Order on Claim Construction\n Briefing and Motion to Modify same filed by TQP Development, LLC. (Hoffman,\n Adam) (Entered: 09/17/2012)\n09/20/2012 148 ORDER MODIFYING CLAIM CONSTRUCTION PROCEDURES granting in\n part and denying in part 140 Motion to modify claim construction. Signed by\n Magistrate Judge Caroline Craven on 9/20/2012. (sm, ) (Entered: 09/20/2012)\n09/20/2012 149 NOTICE of Discovery Disclosure by Alticor, Inc., Amway Corp., HSN, Inc.,\n Newegg, Inc., QVC, Inc. (Hanasz, Joseph) (Entered: 09/20/2012)\n10/02/2012 150 MOTION for Leave to File Supplemental Complaint by TQP Development, LLC.\n (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Hoffman, Adam)\n (Entered: 10/02/2012)\n10/19/2012 151 RESPONSE in Opposition re 150 MOTION for Leave to File Supplemental\n Complaint filed by HSN, Inc., Newegg, Inc., QVC, Inc.. (Attachments: # 1 Exhibit\n A)(Brooks, Anthony) (Entered: 10/19/2012)\n10/19/2012 152 Joint MOTION to Dismiss by Alticor, Inc., Amway Corp., TQP Development,\n LLC. (Attachments: # 1 Text of Proposed Order)(Ni, Hao) (Entered: 10/19/2012)\n10/23/2012 153 ORDER, granting 152 Joint MOTION to Dismiss filed by Alticor, Inc., TQP\n Development, LLC, Amway Corp. Amway Corp., and Alticor, Inc. terminated.\n Signed by Judge Michael H. Schneider on 10/22/12. (mrm, ) (Entered: 10/23/2012)\n10/31/2012 154 Joint MOTION to Dismiss by QVC, Inc., TQP Development, LLC. (Attachments:\n # 1 Text of Proposed Order)(Ni, Hao) (Entered: 10/31/2012)\n11/01/2012 155 ***FILED IN ERROR, PLEASE IGNORE.***RESPONSE in Support re 150\n MOTION for Leave to File Supplemental Complaint filed by TQP Development,\n LLC. (Hoffman, Adam) Modified on 11/2/2012 (sm, ). (Entered: 11/01/2012)\n11/02/2012 ***FILED IN ERROR, WRONG EVENT USED, ATTY MUST REFILE.\n Document # 155, Response in support. PLEASE IGNORE.***\n\n (sm, ) (Entered: 11/02/2012)\n11/02/2012 156 ORDER GRANTING 154 Joint MOTION to Dismiss filed by TQP Development,\n LLC, QVC, Inc. QVC terminated.. Signed by Judge Michael H. Schneider on\n 11/2/2012. (sm, ) (Entered: 11/02/2012)\n11/02/2012 157 REPLY to Response to Motion re 150 MOTION for Leave to File Supplemental\n Complaint filed by TQP Development, LLC. (Hoffman, Adam) (Entered:\n 11/02/2012)\n11/12/2012 158 SUR\u2212REPLY to Reply to Response to Motion re 150 MOTION for Leave to File\n Supplemental Complaint filed by HSN, Inc., Newegg, Inc.. (Brooks, Anthony)\n (Entered: 11/12/2012)\n11/19/2012 159 Joint MOTION for Protective Order by HSN, Inc., Newegg, Inc., TQP\n Development, LLC. (Attachments: # 1 [Proposed] Protective Order)(Brooks,\n Anthony) (Entered: 11/19/2012)\n11/20/2012 160 PROTECTIVE ORDER. Signed by Magistrate Judge Caroline Craven on\n 11/20/2012. (sm, ) (Entered: 11/20/2012)\n11/26/2012 161 NOTICE by HSN, Inc., Newegg, Inc. JOINT NOTICE OF COMPLIANCE WITH\n P.R. 4\u22122 (Muffo, Patrick) (Entered: 11/26/2012)\n12/07/2012 162 NOTICE by HSN, Inc. JOINT CLAIM CONSTRUCTION AND PREHEARING\n STATEMENT (Muffo, Patrick) (Entered: 12/07/2012)\n12/17/2012 163 NOTICE by TQP Development, LLC of Parties Agreed Upon and Scheduled\n Mediation (Hoffman, Adam) (Entered: 12/17/2012)\n A0013\n\f Case: 15-142 Document: 2-2 Page: 16 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 11 of 35\n12/18/2012 164 ORDER REASSIGNING REFERRAL. Case reassigned to Magistrate Judge Roy S\n Payne for all pretrial purposes. Magistrate Judge Caroline Craven no longer\n assigned to case. Signed by Judge Michael H. Schneider on 12/17/12. (mrm, )\n (Entered: 12/18/2012)\n01/04/2013 NOTICE of Hearing:Markman Hearing RESET for 3/12/2013 01:30 PM in Mag\n Ctrm (Marshall) before Magistrate Judge Roy S Payne. Pretrial Conference RESET\n for 9/30/2013 09:00 AM in Mag Ctrm (Marshall) before Magistrate Judge Roy S\n Payne. (jml) (Entered: 01/04/2013)\n01/07/2013 165 NOTICE of Attorney Appearance by Paul Anthony Kroeger on behalf of TQP\n Development, LLC (Kroeger, Paul) (Entered: 01/07/2013)\n01/14/2013 166 Order reassigning this case to United States District Judge Rodney Gilstrap and\n referring this case to United States Magistrate Judge Roy Payne per General Order\n 13\u22123. For proposed scheduling order see Appendix E to General Order 13\u22123.\n Judge Michael H. Schneider no longer assigned to the case. (tlh, ) (Entered:\n 01/14/2013)\n01/22/2013 167 NOTICE of Attorney Appearance by James J Bosco, Jr on behalf of Newegg, Inc.\n (Bosco, James) (Entered: 01/22/2013)\n01/30/2013 ORDER. In preparation for the March 12, 2013 Markman Hearing, Plaintiff is\n directed to file its Opening Claim Construction Brief no later than February 11,\n 2013. Defendants are directed to file their Responsive Brief no later than 14 days\n later. Plaintiff may file a Reply Brief no later than 7 days after Defendants file their\n Responsive Brief. The Joint Claim Construction Chart is to be filed no later than\n March 7, 2013. Signed by Magistrate Judge Roy S. Payne on 1/30/2013. (rsp1)\n (Entered: 01/30/2013)\n01/31/2013 168 ORDER \u2212 consolidating the cases listed in the above\u2212caption for pretrial purposes\n only. Case No. 2:11\u2212cv\u2212248 is designated as the lead case. ALL FUTURE\n FILINGS MUST BE MADE IN THE LEAD CASE UNTIL THIS\n CONSOLIDATION ORDER IS VACATED. Signed by Magistrate Judge Roy S.\n Payne on 1/31/2013. (ch, ) Modified on 1/31/2013 (ch, ). (Entered: 01/31/2013)\n02/01/2013 169 ORDER, (Markman Hearing set for 3/12/2013 01:30 PM before Magistrate Judge\n Roy S. Payne., Jury Selection set for 11/4/2013 09:00AM before Judge Rodney\n Gilstrap., Pretrial Conference set for 10/16/2013 09:30 AM before Magistrate\n Judge Roy S. Payne.). Signed by Magistrate Judge Roy S. Payne on 2/1/2013. (ch,\n ) (Entered: 02/01/2013)\n02/07/2013 170 Joint MOTION to Dismiss WITH PREJUDICE by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Hoffman, Adam) (Entered:\n 02/07/2013)\n02/08/2013 171 ORDER granting 170 Motion to Dismiss with Prejudice allclaims asserted between\n them in TQP Development, LLC v. Allianz Life Insurance Company of North\n America, Case No. 2:11\u2212cv\u2212249. Signed by Magistrate Judge Roy S. Payne on\n 2/8/13. (ehs, ) (Entered: 02/08/2013)\n02/11/2013 172 CLAIM CONSTRUCTION BRIEF filed by TQP Development, LLC.\n (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5\n Exhibit E)(Hoffman, Adam) (Entered: 02/11/2013)\n02/11/2013 173 ***FILED IN ERROR PER ATTORNEY***Unopposed MOTION for\n Extension of Time to File DEFENDANTS' MOTION FOR EXTENSION OF TIME\n FOR CLAIM CONSTRUCTION BRIEFING AND HEARING by McAfee\n Inc.(Parker, Robert) Modified on 2/12/2013 (ehs, ). (Entered: 02/11/2013)\n02/12/2013 ORDER resetting Markman Hearing and briefing deadlines (Markman Hearing set\n for 3/28/2013 09:00 AM in Mag Ctrm (Marshall) before Magistrate Judge Roy S.\n Payne.),. Signed by Magistrate Judge Roy S. Payne on 2/12/13. (ehs, ) (Entered:\n 02/12/2013)\n02/12/2013 174 MOTION to Compel by HSN, Inc., Newegg, Inc.. (Attachments: # 1 Exhibit A, # 2\n Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit\n G)(Muffo, Patrick) (Additional attachment(s) added on 2/13/2013: # 8 Text of\n\n A0014\n\f Case: 15-142 Document: 2-2 Page: 17 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 12 of 35\n\n Proposed Order) (sm, ). (Entered: 02/12/2013)\n02/15/2013 NOTICE of Hearing:Markman Hearing RESET for 3/12/2013 01:30 PM in Mag\n Ctrm (Marshall) before Magistrate Judge Roy S. Payne. (jml) (Entered:\n 02/15/2013)\n02/15/2013 175 Submission of PROPOSED DOCKET CONTROL ORDER by TQP Development,\n LLC. (Attachments: # 1 Exhibit A)(Kroeger, Paul) (Entered: 02/15/2013)\n02/20/2013 176 Joint MOTION to Stay All Pending Deadlines (for 30 days) by Disney Online,\n TQP Development, LLC. (Attachments: # 1 Text of Proposed Order)(Unis, Joseph)\n (Entered: 02/20/2013)\n02/25/2013 177 Joint MOTION to Dismiss DEFENDANT DEERE &COMPANY by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul)\n (Entered: 02/25/2013)\n02/25/2013 178 CLAIM CONSTRUCTION BRIEF filed by Aflac Incorporated, Alaska Airlines,\n Inc., Branch Bank and Trust Company, CHS, Inc., Caterpillar Inc., Deere\n &Company, Disney Online, Expedia, Inc, Fareportal, Inc., Farmers Group, Inc.,\n HSN, Inc., Horizon Air Industries, Inc., Hotwire, Inc., Humana Inc., McAfee Inc,\n Newegg, Inc., Orbitz, LLC, Rite Aid Corporation, State Farm Mutual Automobile\n Insurance Company, The Boeing Company, The Medical Protective Company,\n Valero Energy Corporation, Valero Marketing and Supply Company.\n (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5\n Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Errata H, # 9 Exhibit I, # 10 Exhibit J,\n # 11 Exhibit L, # 12 Exhibit M, # 13 Exhibit N, # 14 Exhibit O, # 15 Exhibit P, #\n 16 Exhibit Q, # 17 Exhibit R, # 18 Exhibit S, # 19 Exhibit T, # 20 Exhibit U, # 21\n Exhibit V, # 22 Exhibit W, # 23 Exhibit X, # 24 Exhibit Y, # 25 Exhibit Z)(Parker,\n Robert) (Entered: 02/25/2013)\n02/25/2013 179 SEALED PATENT ADDITIONAL ATTACHMENTS to Main Document: 178\n Claim Construction Brief filed by Defendants (Attachments: # 1 Exhibit K)(Parker,\n Robert) (Entered: 02/25/2013)\n02/26/2013 180 NOTICE by McAfee Inc re 178 Claim Construction Brief,,, ERRATA TO\n CORRECT PAGE NUMBERING ON DOCKET 178 \u2212 CLAIM CONSTRUCTION\n BRIEF FILED BY DEFENDANTS (Attachments: # 1 Errata TO CORRECT PAGE\n NUMBERING ON DKT. 178)(Parker, Robert) (Entered: 02/26/2013)\n02/26/2013 181 Joint MOTION to Dismiss JEFFERIES &COMPANY, INC. by TQP Development,\n LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered:\n 02/26/2013)\n02/27/2013 182 NOTICE of Attorney Appearance by Ricardo Joel Bonilla on behalf of CHS, Inc.,\n Deere &Company, Expedia, Inc, Hotwire, Inc., Orbitz, LLC (Bonilla, Ricardo)\n (Entered: 02/27/2013)\n02/27/2013 183 NOTICE of Attorney Appearance by Wasif H Qureshi on behalf of CHS, Inc.,\n Expedia, Inc, Hotwire, Inc., Orbitz, LLC (Qureshi, Wasif) (Entered: 02/27/2013)\n02/27/2013 184 ORDER \u2212 The Court sua sponte VACATES the Consolidation Order with respect\n to member case No. 2:12\u2212CV\u221259. All orders entered in the lead case prior to this\n Order shall continue to apply in the former member case. The Court intends to\n keep the former member case on the same schedule as the consolidated action, and\n to hold joint settings (e.g,. Markman hearing) whenappropriate. Signed by\n Magistrate Judge Roy S. Payne on 2/27/2013. (ch, ) (Entered: 02/27/2013)\n02/27/2013 185 ORDER The Court sua sponte VACATES the Consolidation Order with respect to\n member case No. 2:11\u2212CV\u2212396. All orders entered in the lead case prior to this\n Order shall continue to apply in the former member case. The Court intends to\n keep the former member case on the same schedule as the consolidated action, and\n to hold joint settings (e.g,. Markman hearing) when appropriate. Signed by\n Magistrate Judge Roy S. Payne on 2/27/2013. (ch, ) (Entered: 02/27/2013)\n02/27/2013 186 ORDER granting 177 Motion to Dismiss. Dft Deere &Company are hereby\n dismissed with prejudice. Signed by Magistrate Judge Roy S. Payne on 2/27/2013.\n (ch, ) (Entered: 02/27/2013)\n A0015\n\f Case: 15-142 Document: 2-2 Page: 18 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 13 of 35\n02/27/2013 187 Unopposed MOTION to Withdraw as Attorney by CHS, Inc., Deere &Company,\n Hotwire, Inc., Orbitz, LLC. (Attachments: # 1 Text of Proposed Order)(Du, Jane)\n (Entered: 02/27/2013)\n02/28/2013 188 ORDER appointing David Keyzer as the courts technical advisor.. Signed by\n Magistrate Judge Roy S. Payne on 2/28/2013. (ch, ) (Entered: 02/28/2013)\n02/28/2013 189 ORDER granting 187 Motion to Withdraw as Attorney. Attorney Jane J Du\n terminated. Signed by Magistrate Judge Roy S. Payne on 2/28/2013. (ch, )\n (Entered: 02/28/2013)\n02/28/2013 190 Joint MOTION to Dismiss DEFENDANTS VALERO ENERGY CORPORATION\n AND VALERO MARKETING AND SUPPLY COMPANY by TQP Development,\n LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered:\n 02/28/2013)\n03/04/2013 191 ORDER granting 190 Motion to Dismiss. All claims and counterclaims between\n TQP and Valero Energy Corp and Valero Marketing &Supply Co in case\n 2:11cv399 with prejudice, all attorneys' fees and costs are to be borne by the party\n that incurred them. Signed by Magistrate Judge Roy S. Payne on 3/3/13. (ehs, )\n (Entered: 03/04/2013)\n03/04/2013 192 REPLY to 178 Claim Construction Brief filed by TQP Development, LLC.\n (Hoffman, Adam) (Entered: 03/04/2013)\n03/04/2013 193 RESPONSE in Opposition re 174 MOTION to Compel filed by TQP Development,\n LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5\n Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Affidavit OF ERICH\n SPANGENBERG, # 10 Text of Proposed Order)(Hoffman, Adam) (Entered:\n 03/04/2013)\n03/05/2013 194 ORDER granting Stipulated Motion for Dismissal with prejudice of all claims and\n counterclaims between pltf and deft Jefferies &Company Inc. All attorneys' fees\n and costs are to be borne by the party that incurred them. Motions terminated: 181\n Joint MOTION to Dismiss JEFFERIES &COMPANY, INC. filed by TQP\n Development, LLC.. Signed by Magistrate Judge Roy S. Payne on 3/4/13. (ehs, )\n (Entered: 03/05/2013)\n03/05/2013 195 ***FILED IN ERROR, PLEASE IGNORE***NOTICE by TQP Development,\n LLC of Attorney Withdrawal (Attachments: # 1 Text of Proposed Order)(Ni, Hao)\n Modified on 3/6/2013 (sm, ). (Entered: 03/05/2013)\n03/06/2013 196 NOTICE of Attorney Appearance by David Nicholas Patariu on behalf of Rite Aid\n Corporation (Patariu, David) (Entered: 03/06/2013)\n03/06/2013 197 Unopposed MOTION to Withdraw as Attorney by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Ni, Hao) (Entered: 03/06/2013)\n03/06/2013 ***FILED IN ERROR, WRONG EVENT USED. Document # 195, Notice.\n PLEASE IGNORE.***\n (sm, ) (Entered: 03/06/2013)\n03/07/2013 ORDER granting 197 Motion to Withdraw as Attorney. Attorney Hao Ni\n terminated. (No PDF Document Attached). Signed by Magistrate Judge Roy S.\n Payne on March 7, 2013. (jml) (Entered: 03/07/2013)\n03/08/2013 198 NOTICE by TQP Development, LLC OF SUBMISSION OF TECHNICAL\n TUTORIAL (Attachments: # 1 Exhibit A)(Hoffman, Adam) (Entered: 03/08/2013)\n03/08/2013 199 SUBMISSION OF JOINT CLAIM CONSTRUCTION CHART filed by TQP\n Development, LLC. (Attachments: # 1 Exhibit A(Hoffman, Adam) (Entered:\n 03/08/2013)\n03/08/2013 200 NOTICE by McAfee Inc OF SERVICE OF DEFENDANTS' TECHNOLOGY\n TUTORIAL (Parker, Robert) (Entered: 03/08/2013)\n03/11/2013 201 NOTICE of Settlement and Motion to Stay by Alaska Airlines, Inc., Horizon Air\n Industries, Inc., TQP Development, LLC (Attachments: # 1 Text of Proposed\n\n A0016\n\f Case: 15-142 Document: 2-2 Page: 19 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 14 of 35\n\n Order Granting Motion to Stay)(Drake, Kirby) (Entered: 03/11/2013)\n03/11/2013 202 NOTICE by McAfee Inc JOINT SUBMISSION OF PROPOSED CLAIM TERMS\n AND ORDER FOR ARGUMENT AT MARKMAN HEARING (Attachments: # 1\n Exhibit A)(Parker, Robert) (Entered: 03/11/2013)\n03/11/2013 203 REPLY to Response to Motion re 174 MOTION to Compel filed by HSN, Inc.,\n Newegg, Inc.. (Attachments: # 1 Exhibit H)(Muffo, Patrick) (Entered: 03/11/2013)\n03/12/2013 204 ORDER re 201 Notice of Settlement filed by TQP Development, LLC, Horizon\n Air Industries, Inc., and Alaska Airlines, Inc. The parties are ORDERED to file\n dismissal papers within 30 days. Defendants' request to be excused from the claim\n construction hearing is DENIED. Defendants may choose to not attend the hearing,\n but they will be bound by the outcome of the hearing. Signed by Magistrate Judge\n Roy S. Payne on 3/12/2013. (rsp1) (Entered: 03/12/2013)\n03/12/2013 205 Minute Entry for proceedings held before Magistrate Judge Roy S. Payne:\n Markman Hearing held on 3/12/2013. (Court Reporter Shelly Holmes, CSR.)\n (Attachments: # 1 Attorney Sign\u2212in Sheet) (jml) (Entered: 03/13/2013)\n03/15/2013 206 Joint MOTION to Dismiss DEFENDANTS ALASKA AIRLINES, INC. AND\n HORIZON AIR INDUSTRIES, INC. by TQP Development, LLC. (Attachments: # 1\n Text of Proposed Order)(Hoffman, Adam) (Entered: 03/15/2013)\n03/19/2013 207 ORDER granting 206 Motion to Dismiss. All claims and counterclaims asserted in\n TQP Development, LLC v. Alaska Air Group, Inc., C.A. 11\u2212CV\u2212398, between\n plaintiff TQP Development, LLC and defendants Alaska Airlines, Inc. and Horizon\n Air Industries, Inc. are hereby dismissed with prejudice. All attorneys fees and\n costs are to be borne by the party that incurred them. Signed by Magistrate Judge\n Roy S. Payne on 3/18/13. (ehs, ) (Entered: 03/19/2013)\n03/22/2013 208 SUR\u2212REPLY to Reply to Response to Motion re 174 MOTION to Compel filed by\n TQP Development, LLC. (Hoffman, Adam) (Entered: 03/22/2013)\n03/25/2013 209 Joint MOTION to Dismiss Without Prejudice by Branch Bank and Trust Company,\n Radware, Inc.. (Attachments: # 1 Text of Proposed Order)(Craft, Roger) (Entered:\n 03/25/2013)\n04/08/2013 210 ORDER granting 209 Motion to Dismiss. All claims for relief asserted between\n BBTand Radware herein are dismissed without prejudice. Signed by Magistrate\n Judge Roy S. Payne on 4/8/2013. (ch, ) (Entered: 04/08/2013)\n04/08/2013 211 DOCKET CONTROL ORDER \u2212 Motions due by 9/23/2013., Proposed Pretrial\n Order due by 10/7/2013., Jury Selection set for 11/4/2013 09:00AM before Judge\n Rodney Gilstrap., Pretrial Conference set for 10/16/2013 09:30 AM before\n Magistrate Judge Roy S. Payne. Signed by Magistrate Judge Roy S. Payne on\n 4/8/2013. (ch, ) (Entered: 04/08/2013)\n04/17/2013 212 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 3/12/13 (Claim Construction Hearing) before Judge Roy Payne. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 663\u22125082\n (shellyholmes@skynetcountry.com).

NOTICE RE REDACTION OF\n TRANSCRIPTS: The parties have seven (7) business days to file with the\n Court a Notice of Intent to Request Redaction of this transcript. If no such\n Notice is filed, the transcript will be made remotely electronically available to\n the public without redaction after 90 calendar days. The policy is located on\n our website at www.txed.uscourts.gov

Transcript may be viewed at the court\n public terminal or purchased through the Court Reporter/Transcriber before the\n deadline for Release of Transcript Restriction. After that date it may be obtained\n through PACER.. Redaction Request due 5/13/2013. Redacted Transcript Deadline\n set for 5/23/2013. Release of Transcript Restriction set for 7/19/2013. (sholmes, )\n (Entered: 04/17/2013)\n04/30/2013 213 Joint MOTION to Dismiss DEFENDANT HUMANA, INC. by TQP Development,\n LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered:\n 04/30/2013)\n A0017\n\f Case: 15-142 Document: 2-2 Page: 20 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 15 of 35\n05/02/2013 214 ORDER granting 213 Motion to Dismiss. All claims and counterclaims asserted\n between plaintiff TQP Development, LLC and defendant Human, Inc. in TQP\n Development, LLC v. Aflac Incorporated, C.A. No. 11\u2212CV\u2212397, are hereby\n dismissed with prejudice. Signed by Magistrate Judge Roy S. Payne on 5/1/2013.\n (ch, ) (Entered: 05/02/2013)\n05/06/2013 215 Emergency MOTION to Compel DEFENDANT EXPEDIA, INC. TO RESPOND\n TO FIRST SET OF INTERROGATORIES AND TO PRODUCE WITNESS(ES)\n FOR 30(b)(6) DEPOSITION by TQP Development, LLC. (Attachments: # 1\n Exhibit A to Motion to Compel, # 2 Exhibit B to Motion to Compel, # 3 Affidavit\n of Paul A. Kroeger In Support of Motion to Compel, # 4 Text of Proposed\n Order)(Kroeger, Paul) (Entered: 05/06/2013)\n05/07/2013 216 Joint MOTION to Dismiss DEFENDANT THE MEDICAL PROTECTIVE\n COMPANY by TQP Development, LLC. (Attachments: # 1 Text of Proposed\n Order)(Kroeger, Paul) (Additional attachment(s) added on 5/8/2013: # 2 REVISED\n ORDER) (sm, ). (Entered: 05/07/2013)\n05/08/2013 217 MOTION to Dismiss Based on Plaintiff's Failure to Provide Infringement\n Contentions by Expedia, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text\n of Proposed Order)(Qureshi, Wasif) (Entered: 05/08/2013)\n05/10/2013 218 ORDER granting 216 Motion to Dismiss. The Medical Protective Company, are\n hereby dismissed with prejudice. Signed by Magistrate Judge Roy S. Payne on\n 5/9/2013. (ch, ) (Entered: 05/10/2013)\n05/13/2013 219 Unopposed MOTION for Extension of Time to File Response/Reply as to 215\n Emergency MOTION to Compel DEFENDANT EXPEDIA, INC. TO RESPOND\n TO FIRST SET OF INTERROGATORIES AND TO PRODUCE WITNESS(ES)\n FOR 30(b)(6) DEPOSITIONEmergency MOTION to Compel DEFENDANT\n EXPEDIA, INC. TO RESPOND TO FIRST SET OF INTERROGATORIES AND TO\n PRODUCE WITNESS(ES) FOR 30(b)(6) DEPOSITION Defendant Expedia, Inc.'s\n Unopposed Motion to Amend Deadlines for Response to Plaintiff's Emergency\n Motion to Compel by Expedia, Inc. (Attachments: # 1 Text of Proposed\n Order)(Qureshi, Wasif) (Entered: 05/13/2013)\n05/14/2013 220 Unopposed MOTION to Amend the Parties' Protective Order by Aflac\n Incorporated, Branch Bank and Trust Company, CHS, Inc., Expedia, Inc, Farmers\n Group, Inc., HSN, Inc., Hotwire, Inc., McAfee Inc, Newegg, Inc., Orbitz, LLC,\n Rite Aid Corporation, State Farm Mutual Automobile Insurance Company, TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Parker, Robert)\n (Additional attachment(s) added on 5/15/2013: # 2 REVISED ORDER) (ch, ).\n (Entered: 05/14/2013)\n05/15/2013 221 FIRST AMENDED PROTECTIVE ORDER. Signed by Magistrate Judge Roy S.\n Payne on 5/15/2013. (ch, ) (Entered: 05/15/2013)\n05/15/2013 222 ORDER granting 219 Motion for Extension of Time to File Response/Reply to\n Emergency Motion to Compel. Hearing in Open Court on 5/22/2013 @ 10:00 am.\n Signed by Magistrate Judge Roy S. Payne on 5/15/2013. (ch, ) (Entered:\n 05/15/2013)\n05/15/2013 ORDER Setting Hearing on Motion 215 Emergency MOTION to Compel\n DEFENDANT EXPEDIA, INC. TO RESPOND TO FIRST SET OF\n INTERROGATORIES AND TO PRODUCE WITNESS(ES) FOR 30(b)(6)\n DEPOSITIONEmergency MOTION to Compel DEFENDANT EXPEDIA, INC. TO\n RESPOND TO FIRST SET OF INTERROGATORIES AND TO PRODUCE\n WITNESS(ES) FOR 30(b)(6) DEPOSITION : Motion Hearing set for 5/22/2013\n 10:00 AM before Magistrate Judge Roy S. Payne.. Signed by Magistrate Judge\n Roy S. Payne on 5/15/2013. (ch, ) (Entered: 05/15/2013)\n05/15/2013 223 RESPONSE in Opposition re 215 Emergency MOTION to Compel DEFENDANT\n EXPEDIA, INC. TO RESPOND TO FIRST SET OF INTERROGATORIES AND TO\n PRODUCE WITNESS(ES) FOR 30(b)(6) DEPOSITIONEmergency MOTION to\n Compel DEFENDANT EXPEDIA, INC. TO RESPOND TO FIRST SET OF\n INTERROGATORIES AND TO PRODUCE WITNESS(ES) FOR 30(b)(6)\n DEPOSITION filed by Expedia, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, #\n 3 Exhibit C, # 4 Text of Proposed Order)(Qureshi, Wasif) (Entered: 05/15/2013)\n A0018\n\f Case: 15-142 Document: 2-2 Page: 21 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 16 of 35\n05/17/2013 224 RESPONSE to Motion re 217 MOTION to Dismiss Based on Plaintiff's Failure to\n Provide Infringement Contentions filed by TQP Development, LLC. (Attachments:\n # 1 Exhibit 1, # 2 Exhibit 2, # 3 Text of Proposed Order)(Kroeger, Paul) (Entered:\n 05/17/2013)\n05/17/2013 225 REPLY to Response to Motion re 215 Emergency MOTION to Compel\n DEFENDANT EXPEDIA, INC. TO RESPOND TO FIRST SET OF\n INTERROGATORIES AND TO PRODUCE WITNESS(ES) FOR 30(b)(6)\n DEPOSITIONEmergency MOTION to Compel DEFENDANT EXPEDIA, INC. TO\n RESPOND TO FIRST SET OF INTERROGATORIES AND TO PRODUCE\n WITNESS(ES) FOR 30(b)(6) DEPOSITION (AND OPPOSITION TO CROSS\n MOTION FOR PROTECTIVE ORDER) filed by TQP Development, LLC.\n (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Kroeger, Paul) (Entered: 05/17/2013)\n05/20/2013 226 CLAIM CONSTRUCTION MEMORANDUM AND ORDER. Signed by\n Magistrate Judge Roy S. Payne on 5/20/2013. (ch, ) (Entered: 05/20/2013)\n05/20/2013 227 Cross MOTION for Protective Order by Expedia, Inc. (Attachments: # 1 Text of\n Proposed Order)(Qureshi, Wasif) (Entered: 05/20/2013)\n05/20/2013 228 NOTICE by Branch Bank and Trust Company for Issuance of Subpoena to F5\n Networks, Inc., Subpoena (Phipps, Charles) (Entered: 05/20/2013)\n05/20/2013 229 ***FILED IN ERROR, PLEASE IGNORE***RESPONSE in Support re 217\n MOTION to Dismiss Based on Plaintiff's Failure to Provide Infringement\n Contentions filed by Expedia, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit\n C)(Qureshi, Wasif) Modified on 5/21/2013 (sm, ). (Entered: 05/20/2013)\n05/20/2013 230 ***DEFICIENT DOCUMENT, PLEASE IGNORE***SEALED\n ADDITIONAL ATTACHMENTS to Main Document: 229 Response in Support of\n Motion. Exhibit B (Qureshi, Wasif) Modified on 5/21/2013 (sm, ). Modified on\n 5/21/2013 (sm, ). (Entered: 05/20/2013)\n05/20/2013 231 SUR\u2212REPLY to Reply to Response to Motion re 215 Emergency MOTION to\n Compel DEFENDANT EXPEDIA, INC. TO RESPOND TO FIRST SET OF\n INTERROGATORIES AND TO PRODUCE WITNESS(ES) FOR 30(b)(6)\n DEPOSITIONEmergency MOTION to Compel DEFENDANT EXPEDIA, INC. TO\n RESPOND TO FIRST SET OF INTERROGATORIES AND TO PRODUCE\n WITNESS(ES) FOR 30(b)(6) DEPOSITION filed by Expedia, Inc. (Attachments: #\n 1 Exhibit A, # 2 Exhibit C)(Qureshi, Wasif) Modified on 5/21/2013 (sm, ).\n (Entered: 05/20/2013)\n05/20/2013 232 ***DEFICIENT DOCUMENT, PLEASE IGNORE***SEALED\n ADDITIONAL ATTACHMENTS to Main Document: 231 Sur\u2212Reply to Reply to\n Response to Motion,. (Qureshi, Wasif) Modified on 5/21/2013 (sm, ). (Entered:\n 05/20/2013)\n05/20/2013 233 RESPONSE in Opposition re 227 Cross MOTION for Protective Order filed by\n TQP Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger,\n Paul) (Entered: 05/20/2013)\n05/21/2013 ***FILED IN ERROR, WRONG EVENT USED, ATTY MUST REFILE.\n Document # 229, Response in support. PLEASE IGNORE.***\n (sm, ) (Entered: 05/21/2013)\n05/21/2013 NOTICE of DEFICIENCY regarding the 230, Sealed Additional Attachment,\n submitted by Expedia, Inc., due to not include a cert of authority to seal, exhibits\n not attached separately and linked to a filed in error document. Correction should\n be made by 1 business day and refiled. (sm, ) (Entered: 05/21/2013)\n05/21/2013 NOTICE FROM CLERK re 231 Sur\u2212Reply to Reply to Response to Motion. This\n entry has been modified to reflect that it is Only a Surreply to 215 Emergency\n Motion since a response to #227 has not been filed yet so a reply canot be filed at\n this time. (sm, ) (Entered: 05/21/2013)\n05/21/2013 NOTICE of DEFICIENCY regarding the #232 Sealed Additional Attachment\n submitted by Expedia, Inc. No certificate of authority to seal and exhibits not\n\n A0019\n\f Case: 15-142 Document: 2-2 Page: 22 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 17 of 35\n\n separately attached. Correction should be made by 1 business day and refiled. (sm,\n ) (Entered: 05/21/2013)\n05/21/2013 234 REPLY to Response to Motion re 217 MOTION to Dismiss Based on Plaintiff's\n Failure to Provide Infringement Contentions filed by Expedia, Inc. (Attachments: #\n 1 Exhibit A, # 2 Exhibit C)(Qureshi, Wasif) (Entered: 05/21/2013)\n05/21/2013 235 SEALED ADDITIONAL ATTACHMENTS to Main Document: 234 Reply to\n Response to Motion. (Attachments: # 1 Exhibit B)(Qureshi, Wasif) (Entered:\n 05/21/2013)\n05/21/2013 236 SEALED ADDITIONAL ATTACHMENTS to Main Document: 231 Sur\u2212Reply to\n Reply to Response to Motion,. (Attachments: # 1 Exhibit B)(Qureshi, Wasif)\n (Entered: 05/21/2013)\n05/22/2013 237 Minute Entry for proceedings held before Magistrate Judge Roy S. Payne: Motion\n Hearing held on 5/22/2013 re 215 Emergency MOTION to Compel DEFENDANT\n EXPEDIA, INC. TO RESPOND TO FIRST SET OF INTERROGATORIES AND TO\n PRODUCE WITNESS(ES) FOR 30(b)(6) DEPOSITIONEmergency MOTION to\n Compel DEFENDANT EXPEDIA, INC. TO RESPOND TO FIRST SET OF\n INTERROGATORIES AND TO PRODUCE WITNESS(ES) FOR 30(b)(6)\n DEPOSITION filed by TQP Development, LLC. (Court Reporter Shelly Holmes.)\n (bga, ) (Entered: 05/23/2013)\n05/28/2013 238 DEMAND for Trial by Jury by Branch Bank and Trust Company. (Phipps,\n Charles) (Entered: 05/28/2013)\n05/31/2013 239 Joint MOTION to Dismiss DEFENDANT FAREPORTAL, INC. by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul)\n (Entered: 05/31/2013)\n06/03/2013 240 ORDER granting 239 Motion to Dismiss. Dft Fareportal Inc is hereby dismissed\n with Prejudice. Signed by Magistrate Judge Roy S. Payne on 6/3/2013. (ch, )\n (Entered: 06/03/2013)\n06/07/2013 241 Joint MOTION to Dismiss DEFENDANT DISNEY ONLINE by TQP Development,\n LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered:\n 06/07/2013)\n06/07/2013 242 ***FILED IN ERROR. WRONG CASE. PLEASE IGNORE.***ORDER\n granting 176 Motion to Stay. All deadlines are hereby stayed until July 23, 2013 or\n further order by the Court. Signed by Judge Rodney Gilstrap on 6/7/2013. (ch, )\n Modified on 6/10/2013 (ch, ). (Entered: 06/07/2013)\n06/10/2013 ***FILED IN ERROR. CLERK FILED IN WRONG CASE PLEASE\n DISREGARD Document # 242, Order. PLEASE IGNORE.***\n\n (ch, ) (Entered: 06/10/2013)\n06/10/2013 243 Joint MOTION to Amend/Correct DOCKET CONTROL ORDER (DKT. NO. 211)\n by TQP Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger,\n Paul) (Entered: 06/10/2013)\n06/11/2013 244 ORDER amending docket control order # 211 (Complete Fact Discovery and file\n Motions to Compel Discovery due by 8/5/2013., To serve Disclosures for Expert\n Witness List due by 6/24/2013.), Deadline to Exchange Privilege Logs due\n 6/11/13. Motions terminated: 243 Joint MOTION to Amend/Correct DOCKET\n CONTROL ORDER (DKT. NO. 211) filed by TQP Development, LLC.. Signed by\n Magistrate Judge Roy S. Payne on 6/11/13. (ehs, ) (Entered: 06/11/2013)\n06/12/2013 245 Agreed MOTION to Dismiss DEFENDANT AFLAC INCORPORATED by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul)\n (Entered: 06/12/2013)\n06/13/2013 246 ORDER granting 245 Motion to Dismiss. Dft Aflac Incorporated is hereby\n dismissed without prejudice. Signed by Magistrate Judge Roy S. Payne on\n 6/13/2013. (ch, ) (Entered: 06/13/2013)\n A0020\n\f Case: 15-142 Document: 2-2 Page: 23 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 18 of 35\n06/14/2013 247 Joint MOTION to Amend/Correct FURTHER AMEND THE DOCKET CONTROL\n ORDER by TQP Development, LLC. (Attachments: # 1 Text of Proposed\n Order)(Kroeger, Paul) (Entered: 06/14/2013)\n06/17/2013 248 Letter Brief filed by Expedia, Inc (Attachments: # 1 Exhibit A)(Qureshi, Wasif)\n (Entered: 06/17/2013)\n06/17/2013 249 Letter Brief filed by Hotwire, Inc. (Attachments: # 1 Exhibit A)(Qureshi, Wasif)\n (Entered: 06/17/2013)\n06/17/2013 250 Letter Brief filed by Orbitz, LLC (Attachments: # 1 Exhibit A)(Qureshi, Wasif)\n (Entered: 06/17/2013)\n06/17/2013 251 ***DEFICIENT DOCUMENT, PLEASE IGNORE***SEALED Letter Brief\n filed by State Farm Mutual Automobile Insurance Company. (Attachments: # 1\n Exhibit A)(Fenton, Truman) Modified on 6/18/2013 (sm, ). (Entered: 06/17/2013)\n06/17/2013 252 Letter Brief filed by Branch Bank and Trust Company. (Attachments: # 1 Exhibit\n A)(Phipps, Charles) (Entered: 06/17/2013)\n06/17/2013 253 Letter Brief filed by Newegg, Inc., (Attachments: # 1 Exhibit A (Letter\n Brief))(Brooks, Anthony) Modified on 6/18/2013 (sm, ). (Entered: 06/17/2013)\n06/18/2013 NOTICE FROM CLERK re 253 Notice of Compliance \u2212 Letter Brief. THis entry\n was modified to reflect that the letter brief is only filed by Newegg instead of all\n parties previously entered. (sm, ) (Entered: 06/18/2013)\n06/18/2013 NOTICE of DEFICIENCY regarding the #251 Sealed Letter Brief submitted by\n State Farm Mutual Automobile Insurance Company. No certificate of authority to\n seal statement was included. Correction should be made by 1 business day and\n refiled. (sm, ) (Entered: 06/18/2013)\n06/18/2013 254 SEALED Letter Brief filed by State Farm Mutual Automobile Insurance Company.\n (Attachments: # 1 Exhibit A)(Fenton, Truman) (Entered: 06/18/2013)\n06/19/2013 255 Joint MOTION to Amend/Correct DEADLINE TO COMPLETE MEDIATION by\n TQP Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger,\n Paul) (Entered: 06/19/2013)\n06/21/2013 256 ORDER granting 255 Motion to Amend docket control order. Deadline extended to\n 7/20/13 to complete mediation. Signed by Magistrate Judge Roy S. Payne on\n 6/20/13. (ehs, ) (Entered: 06/21/2013)\n06/24/2013 257 Agreed MOTION to Amend/Correct DOCKET CONTROL ORDER (DKT. NO.\n 211) by HSN, Inc.. (Attachments: # 1 Text of Proposed Order)(Muffo, Patrick)\n (Entered: 06/24/2013)\n06/24/2013 258 Joint MOTION to Dismiss DEFENDANT CHS, INC. by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered: 06/24/2013)\n06/25/2013 259 ORDER granting 258 Motion to Dismiss all claims and counterclaims asserted\n between TQP Development, LLC and CHS, Inc., all attorneys fees and costs are to\n be borne by the party that incurred them. Signed by Magistrate Judge Roy S. Payne\n on 6/25/13. (ehs, ) (Entered: 06/25/2013)\n06/25/2013 260 ORDER granting 257 Motion to Amend docket control order. Deadline extended to\n complete Fact Discovery and file Motions to Compel related to ATTreset to\n 7/22/13. Signed by Magistrate Judge Roy S. Payne on 6/25/13. (ehs, ) (Entered:\n 06/25/2013)\n06/26/2013 261 Joint MOTION to Dismiss DEFENDANT STATE FARM MUTUAL\n AUTOMOBILE INSURANCE COMPANY by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered: 06/26/2013)\n06/27/2013 262 Joint MOTION to Dismiss DEFENDANT RITE AID CORPORATION by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul)\n (Entered: 06/27/2013)\n06/28/2013 263 ORDER \u2212 The Court has received Mr. Keyzers invoice for services through March\n 14, 2013 payment to be promptly made Signed by Magistrate Judge Roy S. Payne\n A0021\n\f Case: 15-142 Document: 2-2 Page: 24 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 19 of 35\n\n on 6/27/13. (ehs, ) (Entered: 06/28/2013)\n07/01/2013 264 ORDER granting 262 Motion to Dismiss With Prejudice of all claims and\n counterclaims asserted between plaintiff TQP Development, LLC and defendant\n Rite Aid Corporation. All attorneys fees and costs are to be borne by the party that\n incurred them. Signed by Magistrate Judge Roy S. Payne on 7/1/13. (ehs, )\n (Entered: 07/01/2013)\n07/01/2013 265 ORDER granting 261 Motion to Dismiss With Prejudice of all claims and\n counterclaims asserted between TQP Development, LLC and State Farm Mutual\n Automobile Insurance Company. All attorneys fees and costs are to be borne by the\n party that incurred them. Signed by Magistrate Judge Roy S. Payne on 7/1/13. (ehs,\n ) (Entered: 07/01/2013)\n07/01/2013 266 RESPONSE to Notice of Compliance \u2212 Letter Brief re 253 Notice of Compliance\n \u2212 Letter Brief filed by CHS, Inc., Expedia, Inc, HSN, Inc., Newegg, Inc., Hotwire,\n Inc., Farmers Group, Inc., Branch Bank and Trust Company, State Farm Mutual\n Automobile Insurance Company, Orbitz, LLC filed by TQP Development, LLC.\n (Attachments: # 1 Exhibit 1\u2212Letter Brief)(Kroeger, Paul) (Entered: 07/01/2013)\n07/01/2013 267 RESPONSE to Notice of Compliance \u2212 Letter Brief re 248 Notice of Compliance\n \u2212 Letter Brief filed by Expedia, Inc Filed by TQP Development, LLC filed by TQP\n Development, LLC. (Attachments: # 1 Exhibit 1\u2212Letter Brief)(Hoffman, Adam)\n (Entered: 07/01/2013)\n07/01/2013 268 RESPONSE to Notice of Compliance \u2212 Letter Brief re 249 Notice of Compliance\n \u2212 Letter Brief filed by Hotwire, Inc. Filed by TQP Development, LLC filed by TQP\n Development, LLC. (Attachments: # 1 Exhibit 1\u2212Letter Brief)(Hoffman, Adam)\n (Entered: 07/01/2013)\n07/01/2013 269 RESPONSE to Notice of Compliance \u2212 Letter Brief re 250 Notice of Compliance\n \u2212 Letter Brief filed by Orbitz, LLC Filed by TQP Development, LLC filed by TQP\n Development, LLC. (Attachments: # 1 Exhibit 1\u2212Letter Brief)(Hoffman, Adam)\n (Entered: 07/01/2013)\n07/02/2013 270 RESPONSE to Notice of Compliance \u2212 Letter Brief re 252 Notice of Compliance\n \u2212 Letter Brief filed by Branch Bank and Trust Company filed by TQP\n Development, LLC. (Attachments: # 1 Exhibit 1\u2212Letter Brief)(Hoffman, Adam)\n (Entered: 07/02/2013)\n07/03/2013 ORDER finding as moot 176 Motion to Stay. Signed by Magistrate Judge Roy S.\n Payne on 7/3/2013. (rsp1, ) (Entered: 07/03/2013)\n07/03/2013 ORAL ORDER granting 215 Motion to Compel; denying 227 Motion for\n Protective Order (See hearing minutes, Dkt. No. 237). Signed by Magistrate Judge\n Roy S. Payne on 3/22/2013. (rsp1) (Entered: 07/03/2013)\n07/03/2013 NOTICE of Hearing on Motion 150 MOTION for Leave to File Supplemental\n Complaint, 174 MOTION to Compel : Motion Hearing set for 7/19/2013 09:30\n AM in Mag Ctrm (Marshall) before Magistrate Judge Roy S. Payne. (bga, )\n (Entered: 07/03/2013)\n07/03/2013 271 ORDER granting 241 Motion to Dismiss \u2212 for Dismissal With Prejudice of all\n claims asserted by plaintiff TQP Development, LLC against defendant Disney\n Online in the lead consolidated case, TQP Development, LLC v. 1\u2212800\n Flowers.com, Inc., Case No. 2:11\u2212cv\u2212248, and TQP Development, LLC v.\n DirecTv, Inc., Case No. 2:11\u2212cv\u2212399, and all counterclaims by Disney Online\n against TQP dismissed as moot. All attorneys fees and costs are to be borne by the\n party that incurred them. Signed by Magistrate Judge Roy S. Payne on 7/3/13. (ehs,\n ) (Entered: 07/03/2013)\n07/05/2013 272 ORDER granting in part and denying in part 247 Motion to Amend the Docket\n Control Order as it related to Defendants Expedia and Farmers Group. Signed by\n Magistrate Judge Roy S. Payne on 7/5/2013. (rsp1) (Entered: 07/05/2013)\n07/08/2013 273 Letter Brief filed by Expedia, Inc (Attachments: # 1 Exhibit Exhibit A)(Qureshi,\n Wasif) (Entered: 07/08/2013)\n A0022\n\f Case: 15-142 Document: 2-2 Page: 25 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 20 of 35\n07/08/2013 274 Letter Brief filed by Hotwire, Inc. (Attachments: # 1 Exhibit Exhibit A)(Qureshi,\n Wasif) (Entered: 07/08/2013)\n07/08/2013 275 Letter Brief filed by Orbitz, LLC (Attachments: # 1 Exhibit Exhibit A)(Qureshi,\n Wasif) (Entered: 07/08/2013)\n07/08/2013 276 Letter Brief filed by Newegg, Inc. (Attachments: # 1 Exhibit A)(Brooks, Anthony)\n (Entered: 07/08/2013)\n07/08/2013 277 Notice of Reply Letter Brief re 252 filed by Branch Bank and Trust Company.\n (Attachments: # 1 Exhibit A)(Unis, Joseph) Modified on 7/9/2013 (sm, ). (Entered:\n 07/08/2013)\n07/08/2013 278 Joint MOTION to Dismiss DEFENDANT HSN, INC. by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered: 07/08/2013)\n07/09/2013 279 Unopposed MOTION to Withdraw as Attorney by Hotwire, Inc.. (Attachments: # 1\n Text of Proposed Order)(Hall, Eric) (Entered: 07/09/2013)\n07/09/2013 280 ORDER granting 278 Motion to Dismiss all claims and counterclaims asserted\n between plaintiff TQP Development, LLC and defendant HSN, Inc.. All attorneys\n fees and costs are to be borne by the party that incurred them. Signed by Magistrate\n Judge Roy S. Payne on 7/9/13. (ehs, ) (Entered: 07/09/2013)\n07/09/2013 281 Joint MOTION to Amend/Correct FURTHER, THE DOCKET CONTROL ORDER\n by TQP Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger,\n Paul) (Entered: 07/09/2013)\n07/10/2013 282 ORDER granting 279 Motion to Withdraw as Attorney. Attorney Eric Brinn Hall\n terminated as counsel for Defendant Hotwire, Inc.. Signed by Magistrate Judge\n Roy S. Payne on 7/10/13. (ehs, ) (Entered: 07/10/2013)\n07/10/2013 283 ORDER granting 281 Motion to Amend the Docket Control Order. July 30, 2013\n Serve Disclosures for Rebuttal Expert Witnesses. August 14, 2013 Deadline to\n Complete Expert Discovery. August 21, 2013 File Dispositive Motions or Motions\n to Strike Expert Testimony (including Daubert Motions). Signed by Magistrate\n Judge Roy S. Payne on 7/10/13. (ehs, ) (Entered: 07/10/2013)\n07/11/2013 284 NOTICE by Newegg, Inc. of Partial Withdrawal of 174 Motion to Compel (Brean,\n Daniel) (Entered: 07/11/2013)\n07/16/2013 285 Joint MOTION to Stay All Pending Deadlines (for 30 days) by Farmers Group,\n Inc.. (Attachments: # 1 Text of Proposed Order)(Bahler, David) (Entered:\n 07/16/2013)\n07/17/2013 286 Unopposed MOTION to Withdraw as Attorney by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Fenster, Marc) (Entered: 07/17/2013)\n07/17/2013 287 ORDER denying 285 Motion to Stay all Deadlines. Signed by Magistrate Judge\n Roy S. Payne on 7/17/2013. (ch, ) (Entered: 07/17/2013)\n07/18/2013 288 ORDER granting 286 Motion to Withdraw Attorney of Record, Kevin P. Burke.\n Signed by Magistrate Judge Roy S. Payne on 7/18/13. (mrm, ) (Entered:\n 07/18/2013)\n07/19/2013 289 ORDER granting 150 Motion for Leave to File a Supplemental Complaint. Signed\n by Magistrate Judge Roy S. Payne on 7/19/2013. (rsp1) (Entered: 07/19/2013)\n07/19/2013 294 Minute Entry for proceedings held before Magistrate Judge Roy S. Payne: Motion\n Hearing held on 7/19/2013 re 174 MOTION to Compel filed by HSN, Inc.,\n Newegg, Inc. (Court Reporter Jill McFadden.) (bga, ) (Entered: 07/30/2013)\n07/22/2013 290 MEMORANDUM ORDER denying motion # 174 to compel. The parties are\n directed to meet and confer on the expenses and, if the matter is not resolved\n beforehand, Plaintiff shall file a motion to fix expenses within 21 days. Signed by\n Magistrate Judge Roy S. Payne on 7/19/13. (ehs, ) (Entered: 07/22/2013)\n07/22/2013 291 SUPPLEMENTAL COMPLAINT FOR PATENT INFRINGEMENT against\n Alticor, Inc., Amway Corp., HSN, Inc., Newegg, Inc., QVC, Inc., filed by TQP\n Development, LLC.(Hoffman, Adam) Modified on 7/23/2013 (sm, ). (Entered:\n A0023\n\f Case: 15-142 Document: 2-2 Page: 26 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 21 of 35\n\n 07/22/2013)\n07/23/2013 292 Joint MOTION to Dismiss DEFENDANT FARMERS GROUP, INC. by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul)\n (Entered: 07/23/2013)\n07/23/2013 NOTICE OF CHANGE OF OFFICIAL COURT REPORTER AND\n INSTRUCTIONS REGARDING DAILY TRANSCRIPTS : Effective August 1,\n 2013, Shelly Holmes will become the Official Court Reporter for this Court due to\n the retirement of Susan Simmons as Official Court Reporter. To the extent the\n current Docket Control Order in this case directs contact with Ms. Simmons to\n arrange for daily transcripts, you should (on and after August 1, 2013) contact\n Shelly Holmes at: Shelly_Holmes@txed.uscourts.gov in lieu of contacting Ms.\n Simmons, in this regard. (jml) (Entered: 07/23/2013)\n07/24/2013 293 ORDER granting 292 Motion to Dismiss with prejudice all claims and\n counterclaims asserted between plaintiff TQP Development, LLC and defendant\n Farmers Group, Inc.. All attorneys fees and costs are to be borne by the party that\n incurred them. Signed by Magistrate Judge Roy S. Payne on 7/24/13. (ehs, )\n (Entered: 07/24/2013)\n08/05/2013 295 Opposed MOTION to Vacate Expenses Award by Newegg, Inc.. (Attachments: # 1\n Text of Proposed Order)(Baldauf, Kent) (Additional attachment(s) added on\n 8/6/2013: # 2 REVISED ORDER (no lines)) (sm, ). (Entered: 08/05/2013)\n08/05/2013 296 NOTICE by Farmers Group, Inc. OF REQUEST FOR TERMINATION OF\n ELECTRONIC NOTICES (Bahler, David) (Entered: 08/05/2013)\n08/05/2013 297 ANSWER to 291 Supplemental Complaint, COUNTERCLAIM against TQP\n Development, LLC by Newegg, Inc..(Brooks, Anthony) Modified on 8/6/2013 (sm,\n ). (Entered: 08/05/2013)\n08/08/2013 298 Joint MOTION to Amend/Correct 211 Order, Set Deadlines/Hearings,, (DOCKET\n CONTROL ORDER) by TQP Development, LLC. (Attachments: # 1 Text of\n Proposed Order)(Kroeger, Paul) (Entered: 08/08/2013)\n08/09/2013 299 Opposed MOTION to Consolidate Cases FOR TRIAL by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered: 08/09/2013)\n08/13/2013 300 NOTICE by Alaska Airlines, Inc. Reuqest for Termination of Electronic Notice\n (Klemchuk, Darin) (Entered: 08/13/2013)\n08/13/2013 301 NOTICE by Alaska Airlines, Inc. Request for Termination of Electronic Notice\n (Drake, Kirby) (Entered: 08/13/2013)\n08/15/2013 302 RESPONSE in Opposition re 295 Opposed MOTION to Vacate Expenses Award\n filed by TQP Development, LLC. (Kroeger, Paul) (Entered: 08/15/2013)\n08/21/2013 303 ***FILED IN ERROR, PLEASE IGNORE***RESPONSE in Support re 295\n Opposed MOTION to Vacate Expenses Award filed by Newegg, Inc.. (Brean,\n Daniel) Modified on 8/21/2013 (sm, ). (Entered: 08/21/2013)\n08/21/2013 ***FILED IN ERROR, WRONG EVENT USED, ATTY MUST REFILE.\n Document # 303, Response in support. PLEASE IGNORE.***\n\n (sm, ) (Entered: 08/21/2013)\n08/21/2013 304 SEALED MOTION Daubert to Exclude the Opinions and Testimony of TQP's\n Damages Expert Stephen L. Becker, Ph.D. by Newegg, Inc., Expedia Inc., Hotwire\n Inc and Orbitz LLC (Attachments: # 1 Exhibit A\u22121, # 2 Exhibit A\u22122, # 3 Exhibit\n A\u22123, # 4 Exhibit A\u22124, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit\n E)(Brean, Daniel) Modified on 8/22/2013 (sm, ). (Entered: 08/21/2013)\n08/21/2013 305 REPLY to Response to Motion re 295 Opposed MOTION to Vacate Expenses\n Award filed by Newegg, Inc.. (Brean, Daniel) (Entered: 08/21/2013)\n08/21/2013 306 Letter Brief filed by Branch Bank and Trust Company (Attachments: # 1\n Exhibit)(Lein, Paul) (Entered: 08/21/2013)\n A0024\n\f Case: 15-142 Document: 2-2 Page: 27 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 22 of 35\n08/21/2013 307 SEALED MOTION to Exclude the opinions of expert Becker by Branch Bank and\n Trust Company. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4\n Exhibit D, # 5 Exhibit E)(Lein, Paul) (Entered: 08/21/2013)\n08/22/2013 NOTICE FROM CLERK re 304 SEALED MOTION Daubert to Exclude the\n Opinions and Testimony of TQP's Damages Expert Stephen L. Becker, Ph.D.. This\n text entry was modified, Per Atty, to add 3 other dfts as filer (Expedia, Hotwire and\n Orbitz). Text entry previously had just Newegg. (sm, ) (Entered: 08/22/2013)\n08/22/2013 308 NOTICE of Attorney Appearance by Judith Lynn Meadow on behalf of TQP\n Development, LLC (Meadow, Judith) (Entered: 08/22/2013)\n08/22/2013 309 NOTICE of Amended Certificate of Service by Branch Bank and Trust Company\n re 307 SEALED MOTION to Exclude the Opinions of TQP Expert Becker (Lein,\n Paul) (Entered: 08/22/2013)\n08/26/2013 310 SUR\u2212REPLY to Reply to Response to Motion re 295 Opposed MOTION to\n Vacate Expenses Award filed by TQP Development, LLC. (Kroeger, Paul)\n (Entered: 08/26/2013)\n08/26/2013 311 SEALED RESPONSE to Notice of Compliance \u2212 Letter Brief re 306 Notice of\n Compliance \u2212 Supplemental Letter Brief filed by Branch Bank and Trust Company\n filed by TQP Development, LLC. (Attachments: # 1 Exhibit 1\u2212Letter\n Brief)(Kroeger, Paul) (Entered: 08/26/2013)\n08/27/2013 NOTICE of Hearing: Pretrial Conference set for 10/3/2013 09:00 AM in Mag Ctrm\n (Marshall) before Magistrate Judge Roy S. Payne. The parties are instructed to\n meet and confer and submit a proposed amended docket control order by no later\n than August 30, 2013.(bga, ) (Entered: 08/27/2013)\n08/29/2013 312 ORDER denying 298 Motion to Amend the Docket Control Order. Signed by\n Magistrate Judge Roy S. Payne on 8/29/2013. (rsp1) (Entered: 08/29/2013)\n08/29/2013 313 SEALED RESPONSE to Motion re 299 Opposed MOTION to Consolidate Cases\n FOR TRIAL filed by Expedia, Inc, Hotwire, Inc., Newegg, Inc., Orbitz, LLC.\n (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Qureshi, Wasif)\n (Entered: 08/29/2013)\n08/30/2013 314 ORDER VACATING 168 Order to consolidate with respect to the following cases:\n TQP Development, LLC v. Alaska Air Group, Inc., et al., Case No. 2:11\u2212CV\u2212 398\n and TQP Development, LLC v. Branch Banking and Trust Co., Case No.\n 2:12\u2212CV\u221255. All orders entered in the lead case prior to this order will continue to\n be in effect in each member case. As no other member case is currently pending,\n the Clerk is directed to close the lead case. Signed by Magistrate Judge Roy S.\n Payne on 8/29/13. (ehs, ) (Entered: 08/30/2013)\n08/30/2013 315 Joint MOTION to Amend/Correct 211 Order, Set Deadlines/Hearings,, by\n Newegg, Inc., TQP Development, LLC. (Attachments: # 1 Text of Proposed\n Order)(Brooks, Anthony) (Additional attachment(s) added on 9/3/2013: # 2\n Revised Order (no signature lines)) (sm, ). (Entered: 08/30/2013)\n08/30/2013 316 Joint MOTION to Amend/Correct 211 Order, Set Deadlines/Hearings,, by Branch\n Bank and Trust Company. (Attachments: # 1 Text of Proposed Order)(Lein, Paul)\n (Entered: 08/30/2013)\n09/06/2013 317 NOTICE by Newegg Inc of Compliance pursuant to the Agreed Proposed Docket\n Control Order re Service of Pretrial Disclosures (Brooks, Anthony) (Entered:\n 09/06/2013)\n09/09/2013 318 REPLY to Response to Motion re 299 Opposed MOTION to Consolidate Cases\n FOR TRIAL filed by TQP Development, LLC. (Kroeger, Paul) (Entered:\n 09/09/2013)\n09/09/2013 319 NOTICE by TQP Development, LLC Of Compliance (Hoffman, Adam) (Entered:\n 09/09/2013)\n09/09/2013 320 ***VACATED per Order # 327 *** Emergency SEALED MOTION MOTION\n TO COMPEL A FURTHER SESSION OF DEPOSITION OF DEFENDANTS\n INVALIDITY EXPERT DR. WHITFIELD DIFFIE AND FOR MONETARY\n A0025\n\f Case: 15-142 Document: 2-2 Page: 28 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 23 of 35\n\n SANCTIONS by TQP Development, LLC. (Attachments: # 1 Text of Proposed\n Order, # 2 Declaration of Paul Kroeger, # 3 Exhibit 1, # 4 Exhibit 2)(Kroeger,\n Paul) Modified on 9/18/2013 (ehs, ). (Entered: 09/09/2013)\n09/09/2013 321 SEALED RESPONSE to Motion re 304 SEALED MOTION Daubert to Exclude\n the Opinions and Testimony of TQP's Damages Expert Stephen L. Becker, Ph.D.\n filed by TQP Development, LLC. (Attachments: # 1 Text of Proposed Order, # 2\n Affidavit of Adam Hoffman, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit\n 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit\n 9)(Hoffman, Adam) (Entered: 09/09/2013)\n09/09/2013 322 SEALED RESPONSE to Motion re 307 SEALED MOTION filed by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order, # 2 Affidavit of\n Adam Hoffman, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7\n Exhibit 5)(Hoffman, Adam) (Entered: 09/09/2013)\n09/10/2013 NOTICE of Hearing on Motion 320 Emergency SEALED MOTION MOTION TO\n COMPEL A FURTHER SESSION OF DEPOSITION OF DEFENDANTS\n INVALIDITY EXPERT DR. WHITFIELD DIFFIE AND FOR MONETARY\n SANCTIONS : Motion Hearing set for 9/18/2013 02:00 PM in Mag Ctrm\n (Marshall) before Magistrate Judge Roy S. Payne. Any response to the motion is\n due by 9/16/13.(bga, ) (Entered: 09/10/2013)\n09/13/2013 323 SEALED DEFENDANTS' REPLY to Response to Motion re 304 SEALED\n MOTION Daubert to Exclude the Opinions and Testimony of TQP's Damages\n Expert Stephen L. Becker, Ph.D. filed by Expedia, Inc, Hotwire, Inc., Newegg Inc,\n Orbitz, LLC. (Attachments: # 1 Exhibit A)(Brean, Daniel) (Entered: 09/13/2013)\n09/16/2013 324 SEALED DEFENDANTS' RESPONSE to TQP's Motion re 320 Emergency\n SEALED MOTION MOTION TO COMPEL A FURTHER SESSION OF\n DEPOSITION OF DEFENDANTS INVALIDITY EXPERT DR. WHITFIELD\n DIFFIE AND FOR MONETARY SANCTIONS filed by Branch Bank and Trust\n Company, Expedia, Inc, Hotwire, Inc., Newegg Inc, Orbitz, LLC. (Attachments: #\n 1 Affidavit of James J. Bosco with Exhibits A, B, and C, # 2 Affidavit of Joseph A.\n Unis, Jr. with Exhibit A, # 3 Affidavit of Whitfield Diffie, Ph.D. with Exhibit\n A)(Brooks, Anthony) (Entered: 09/16/2013)\n09/16/2013 325 SEALED REPLY to Response to Motion re 307 SEALED MOTION Daubert to\n Exclude the Opinions and Testimony of TQP's Damages Expert Stephen L. Becker,\n Ph.D. filed by Branch Bank and Trust Company. (Lein, Paul) (Entered:\n 09/16/2013)\n09/17/2013 326 Unopposed MOTION to Vacate ITS MOTION TO COMPEL A FURTHER\n SESSION OF DEPOSITION OF DEFENDANTS' INVALIDITY EXPERT DR.\n WHITFIELD DIFFIE AND FOR MONETARY SANCTIONS by TQP Development,\n LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul) (Entered:\n 09/17/2013)\n09/18/2013 327 ***ORDER cancelling Motion Hearing of 9/18/13*** \u2212\u2212 GRANTING Motion #\n 326 Unopposed MOTION to Vacate Its Motion to Compel a further Session of\n Deposition of Defendants' Invalidity Expert Dr. Whitfield Diffie and for Monetary\n Sanctions filed by TQP Development, LLC, 320 Emergency SEALED MOTION\n Motion to compel a further session of Deposition of Defendants Invalidity Expert\n Dr. Whitfield Diffie and for Monetary Sanctions filed by TQP Development, LLC..\n Signed by Magistrate Judge Roy S. Payne on 9/17/13. (ehs, ) Modified on\n 9/18/2013 (ehs, ) (Entered: 09/18/2013)\n09/19/2013 328 ORDER REOPENING CASE \u2212 Newegg Inc reinstated, other aspects of the Courts\n Order Vacating the Consolidation Order (Dkt. No. 314, filed August 30, 2013)\n remain in effect. Signed by Magistrate Judge Roy S. Payne on 9/19/13. (ehs, )\n (Entered: 09/19/2013)\n09/19/2013 329 SEALED Sur\u2212Reply In Opposition to Motion re 299 Opposed MOTION to\n Consolidate Cases FOR TRIAL filed by Expedia, Inc, Hotwire, Inc., Newegg Inc,\n Orbitz, LLC. (Qureshi, Wasif) (Entered: 09/19/2013)\n A0026\n\f Case: 15-142 Document: 2-2 Page: 29 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 24 of 35\n09/23/2013 330 Joint MOTION to Amend/Correct DOCKET CONTROL ORDER by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order)(Kroeger, Paul)\n (Entered: 09/23/2013)\n09/23/2013 331 SEALED SUR\u2212REPLY to Response to Motion re 307 SEALED MOTION filed\n by TQP Development, LLC. (Attachments: # 1 Affidavit Declaration of Adam\n Hoffman, # 2 Exhibit 6)(Hoffman, Adam) (Entered: 09/23/2013)\n09/23/2013 332 SEALED SUR\u2212REPLY to Response to Motion re 304 SEALED MOTION\n Daubert to Exclude the Opinions and Testimony of TQP's Damages Expert Stephen\n L. Becker, Ph.D. filed by TQP Development, LLC. (Attachments: # 1 Affidavit\n Declaration of Adam Hoffman, # 2 Exhibit 10)(Hoffman, Adam) (Entered:\n 09/23/2013)\n09/24/2013 333 ORDER AMENDING DEADLINES, ( Motions in Limine due by 9/30/2013.,\n Pretrial Order due by 10/7/2013., Jury Selection set for 11/4/2013 09:00 AM in\n Ctrm 106 (Marshall) before Judge Rodney Gilstrap., Pretrial Conference set for\n 10/16/2013 09:00 AM in Mag Ctrm (Marshall) before Magistrate Judge Roy S.\n Payne. Signed by Magistrate Judge Roy S. Payne on 9/24/13. (ehs, ) (Entered:\n 09/24/2013)\n09/25/2013 334 Unopposed MOTION to Amend/Correct FURTHER AMEND DOCKET\n CONTROL ORDER RE JURY SELECTION DATE IN LIGHT OF RECENTLY SET\n CONFLICT SCHEDULE by TQP Development, LLC. (Attachments: # 1 Exhibit 1,\n # 2 Text of Proposed Order)(Kroeger, Paul) (Entered: 09/25/2013)\n09/26/2013 335 **STRUCK PER ORDER # 338 ** ORDER on Letter Briefs. Signed by\n Magistrate Judge Roy S. Payne on 9/25/13. (ehs, ) Modified on 9/27/2013 (mrm, ).\n (Entered: 09/26/2013)\n09/27/2013 336 NOTICE TO PARTIES RE JURY SELECTION \u2212 Jury Selection set for\n 11/12/2013 and 11/18/2013 09:00AM before Judge Rodney Gilstrap.. Signed by\n Judge Rodney Gilstrap on 9/27/2013. (ch, ) (Entered: 09/27/2013)\n09/27/2013 337 ORDER denying 248 Letter Brief filed by Expedia, Inc, denying 252 Letter Brief\n filed by Branch Bank and Trust Company, denying 253 Letter Brief filed by CHS,\n Inc., Expedia, Inc, HSN, Inc., Newegg, Inc., Hotwire, Inc., Farmers Group, Inc.,\n Branch Bank and Trust Company, State Farm Mutual Automobile Insurance\n Company, Orbitz, LLC, denying 306 Letter Brief filed by Branch Bank and Trust\n Company,denying 250 Letter Brief filed by Orbitz, LLC,denying 249 Letter Brief\n filed by Hotwire, Inc. Signed by Magistrate Judge Roy S. Payne on 9/26/13. (mrm,\n ) (Entered: 09/27/2013)\n09/27/2013 338 ORDER; striking 335 Order. Signed by Magistrate Judge Roy S. Payne on 9/26/13.\n (mrm, ) (Entered: 09/27/2013)\n09/30/2013 339 NOTICE by TQP Development, LLC OF REQUEST FOR DAILY TRANSCRIPT\n AND REAL TIME REPORTING OF COURT PROCEEDINGS (Hoffman, Adam)\n (Entered: 09/30/2013)\n09/30/2013 340 NOTICE of Designation of Attorney in Charge to Marc A Fenster on behalf of\n TQP Development, LLC (Fenster, Marc) (Entered: 09/30/2013)\n09/30/2013 341 NOTICE by Newegg Inc of Request for Daily Transcript and Real Time Reporting\n of Court Proceedings (Brooks, Anthony) (Entered: 09/30/2013)\n09/30/2013 342 SEALED PATENT MOTION MOTIONS IN LIMINE by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit\n 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10\n Exhibit 9, # 11 Exhibit 10)(Hoffman, Adam) (Entered: 09/30/2013)\n09/30/2013 343 SEALED PATENT MOTION OPPOSED MOTIONS IN LIMINE by Newegg, Inc..\n (Attachments: # 1 Text of Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4\n Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G)(Brean,\n Daniel) (Entered: 09/30/2013)\n10/02/2013 344 NOTICE of Attorney Appearance by Benjamin T Wang on behalf of TQP\n Development, LLC (Wang, Benjamin) (Entered: 10/02/2013)\n A0027\n\f Case: 15-142 Document: 2-2 Page: 30 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 25 of 35\n10/03/2013 345 NOTICE of Attorney Appearance by Michael T Boardman on behalf of TQP\n Development, LLC (Boardman, Michael) (Entered: 10/03/2013)\n10/07/2013 346 ***FILED IN ERROR, PER ATTY, PLEASE IGNORE***SEALED PATENT\n RESPONSE NEWEGG' OPPOSITION TO TQP'S SEALED PATENT MOTIONS\n IN LIMINE re 342 filed by Newegg, Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit\n B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8\n Exhibit H)(Brean, Daniel) Modified on 10/8/2013 (sm, ). (Entered: 10/07/2013)\n10/07/2013 347 SEALED PATENT RESPONSE to SEALED PATENT MOTION re 343 SEALED\n PATENT MOTION OPPOSED MOTIONS IN LIMINE filed by TQP Development,\n LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5\n Exhibit 5)(Kroeger, Paul) (Entered: 10/07/2013)\n10/08/2013 348 Proposed Pretrial Order JOINT PROPOSED PRETRIAL ORDER by TQP\n Development, LLC. (Attachments: # 1 Exhibit 1\u2212A, # 2 Exhibit 1\u2212B, # 3 Exhibit\n 2\u2212A, # 4 Exhibit 2\u2212B, # 5 Exhibit 3\u2212A, # 6 Exhibit 3\u2212B, # 7 Exhibit 4, # 8 Exhibit\n 5\u2212A, # 9 Exhibit 5\u2212B)(Kroeger, Paul) (Entered: 10/08/2013)\n10/08/2013 ***FILED IN ERROR, PER ATTY, ATTY IS REFILING. Document # 346,\n Sealed Response. PLEASE IGNORE.***\n\n (sm, ) (Entered: 10/08/2013)\n10/08/2013 349 SEALED PATENT RESPONSE Newegg's Opposition to TQP's SEALED\n PATENT MOTIONS IN LIMINE re 342 filed by Newegg Inc. (Attachments: # 1\n Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F,\n # 7 Exhibit G, # 8 Exhibit H)(Brean, Daniel) (Entered: 10/08/2013)\n10/11/2013 350 NOTICE by TQP Development, LLC OF AGREEMENTS REACHED DURING\n MEET AND CONFER REGARDING OUTSTANDING OBJECTIONS AND\n MOTIONS IN LIMINE (Kroeger, Paul) (Entered: 10/11/2013)\n10/11/2013 351 ORDER REGARDING PRETRIAL CONFERENCE \u2212. Signed by Magistrate\n Judge Roy S. Payne on 10/11/2013. (ch, ) (Entered: 10/11/2013)\n10/15/2013 352 Proposed Pretrial Order AMENDMENT to Joint Final Pretrial Order by Newegg,\n Inc., TQP Development, LLC. (Attachments: # 1 Exhibit Amended Exhibit 3\u2212A, #\n 2 Exhibit Amended Exhibit 3\u2212B)(Kroeger, Paul) (Entered: 10/15/2013)\n10/16/2013 353 Minute Entry for proceedings held before Magistrate Judge Roy S. Payne: Initial\n Pretrial Conference held on 10/16/2013. (Court Reporter Carla Sims.)\n (Attachments: # 1 Attorney Sign\u2212in Sheet) (bga, ) (Entered: 10/18/2013)\n10/18/2013 354 ***DEFICIENT DOCUMENT, PLEASE IGNORE***MOTION in Limine TO\n EXCLUDE EVIDENCE AND ARGUMENT RELATING TO PROSECUTION\n HISTORY ESTOPPEL TO THE JURY by TQP Development, LLC. (Attachments:\n # 1 Exhibit)(Fenster, Marc) Modified on 10/21/2013 (sm, ). (Entered: 10/18/2013)\n10/18/2013 355 ***FILED IN ERROR, PLEASE IGNORE***Additional Attachments to Main\n Document: 354 MOTION in Limine TO EXCLUDE EVIDENCE AND\n ARGUMENT RELATING TO PROSECUTION HISTORY ESTOPPEL TO THE\n JURY.. (Fenster, Marc) Modified on 10/21/2013 (sm, ). (Entered: 10/18/2013)\n10/18/2013 356 ***DEFICIENT DOCUMENT, PLEASE IGNORE***MOTION to Strike\n NEWEGG, INC.S LICENSE AND PATENT EXHAUSTION DEFENSES by TQP\n Development, LLC. Responses due by 10/22/2013 (Attachments: # 1 Text of\n Proposed Order, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Fenster, Marc)\n Modified on 10/21/2013 (sm, ). (Entered: 10/18/2013)\n10/21/2013 NOTICE of DEFICIENCY regarding the #354, #355, #356 Motions and additional\n attachment submitted by TQP Development, LLC. No certificate of conference\n were included in the motion in limine or motion to strike and exhibits were not\n properly identified per local rules. #355 was attachment to 354 which can be\n attached when refiled. Corrections should be made by 1 business day and motions\n refiled. These Documents are now TERMINATED. (sm, ) (Entered: 10/21/2013)\n A0028\n\f Case: 15-142 Document: 2-2 Page: 31 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 26 of 35\n10/21/2013 357 NOTICE of Attorney Appearance by Alan D Albright on behalf of Newegg, Inc.\n (Albright, Alan) (Entered: 10/21/2013)\n10/21/2013 358 SEALED MOTION IN LIMINE TO EXCLUDE EVIDENCE AND ARGUMENT\n RELATING TO PROSECUTION HISTORY ESTOPPEL TO THE JURY by TQP\n Development, LLC. (Attachments: # 1 Text of Proposed Order, # 2 Exhibit\n 1)(Fenster, Marc) (Entered: 10/21/2013)\n10/21/2013 359 SEALED MOTION TO STRIKE NEWEGG, INC.S LICENSE AND PATENT\n EXHAUSTION DEFENSES by TQP Development, LLC. (Attachments: # 1 Text of\n Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Fenster,\n Marc) (Entered: 10/21/2013)\n10/21/2013 364 Minute Entry for proceedings held before Magistrate Judge Roy S. Payne: Interim\n Pretrial Conference held on 10/21/2013. (Court Reporter Carla Sims.) (bga, )\n (Entered: 10/23/2013)\n10/22/2013 360 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 10/16/13 before Judge Roy S Payne. Court Reporter/Transcriber: Carla A\n Sims,Telephone number: 903\u2212646\u22122374.\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER. Redaction Request\n due 11/15/2013. Redacted Transcript Deadline set for 11/25/2013. Release of\n Transcript Restriction set for 1/23/2014. (ehs, ) (Entered: 10/22/2013)\n10/22/2013 361 ***STRICKEN PER ORDER # 376 Defendant Newegg Inc.'s SEALED\n PATENT RESPONSE to Plaintiff TQP's SEALED PATENT MOTION re 359\n TO STRIKE NEWEGG, INC.S LICENSE AND PATENT EXHAUSTION\n DEFENSES filed by Newegg Inc. (Attachments: # 1 Text of Proposed\n Order)(Brooks, Anthony) Modified on 11/4/2013 (ehs, ). (Entered: 10/22/2013)\n10/22/2013 362 Defendant Newegg's SEALED PATENT RESPONSE to Plaintiff TQP's SEALED\n PATENT MOTION re 358 MOTION IN LIMINE TO EXCLUDE EVIDENCE AND\n ARGUMENT RELATING TO PROSECUTION HISTORY ESTOPPEL TO THE\n JURY filed by Newegg Inc. (Attachments: # 1 Text of Proposed Order)(Brooks,\n Anthony) (Entered: 10/22/2013)\n10/22/2013 363 NOTICE by TQP Development, LLC of Supplemental Authority in Support of its\n Motion to Consolidate (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit\n C)(Boardman, Michael) (Entered: 10/22/2013)\n10/23/2013 NOTICE of Hearing: Final Pretrial Conference set for 10/29/2013 01:30 PM in\n Mag Ctrm (Marshall) before Magistrate Judge Roy S. Payne. (bga, ) (Entered:\n 10/23/2013)\n10/24/2013 365 ***FILED IN ERROR, PLEASE IGNORE***NOTICE by Expedia, Inc,\n Hotwire, Inc., Orbitz, LLC re 363 Notice (Other) Defendants' Response to\n Plaintiff's Notice of Supplemental Authority (Attachments: # 1 Exhibit 1, # 2\n Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(McNabnay,\n Neil) Modified on 10/25/2013 (sm, ). (Entered: 10/24/2013)\n10/25/2013 ***FILED IN ERROR, WRONG EVENT USED, ATTY MUST REFILE.\n Document # 365, Notice. PLEASE IGNORE.***\n\n (sm, ) (Entered: 10/25/2013)\n10/25/2013 366 RESPONSE to 363 Plaintiff's Notice of Supplemental Authority filed by Expedia,\n Inc, Hotwire, Inc., Orbitz, LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3\n Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(McNabnay, Neil) (Entered:\n 10/25/2013)\n A0029\n\f Case: 15-142 Document: 2-2 Page: 32 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 27 of 35\n10/28/2013 367 ORDER Regarding Priority for Trial. Signed by Magistrate Judge Roy S. Payne on\n 10/28/2013. (rsp2) (Entered: 10/28/2013)\n10/29/2013 368 NOTICE by Newegg Inc re 352 Proposed Pretrial Order re Third Amended Exhibit\n List (Attachments: # 1 Exhibit A)(Brooks, Anthony) (Entered: 10/29/2013)\n10/29/2013 369 NOTICE by TQP Development, LLC re 348 Proposed Pretrial Order,\n (Attachments: # 1 Exhibit 3\u2212A TQPs Fourth Amended Trial Exhibit List)(Kroeger,\n Paul) (Entered: 10/29/2013)\n10/29/2013 373 Minute Entry for proceedings held before Magistrate Judge Roy S. Payne: Final\n Pretrial Conference held on 10/29/2013. (Court Reporter Carla Sims.) (bga, )\n (Entered: 11/01/2013)\n10/30/2013 370 NOTICE of Attorney Appearance by Judith Lynn Meadow on behalf of TQP\n Development, LLC (Meadow, Judith) (Entered: 10/30/2013)\n10/30/2013 371 ORDER REGARDING EXHIBITS signed by Judge Rodney Gilstrap on 10/30/13.\n (bas, ) (Entered: 10/30/2013)\n10/31/2013 372 ORDER Granting and Denying in Part 299 Opposed MOTION to Consolidate\n Cases FOR TRIAL filed by TQP Development, LLC ORDERING that Consenting\n Defendants will be joined for trial and that Newegg and Consenting Defendants\n will Not be joined for trial. Signed by Magistrate Judge Roy S. Payne on\n 10/30/2013. (sm, ) (Entered: 10/31/2013)\n11/01/2013 374 NOTICE by TQP Development, LLC NOTICE OF ASSERTED CLAIMS AND\n INVALIDITY THEORIES AND PRIOR ART REFERENCES (Fenster, Marc)\n (Entered: 11/01/2013)\n11/04/2013 375 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 10/21/2013 before Judge Roy S. Payne. Court Reporter/Transcriber: Carla A. Sims,\n CSR, RPR,Telephone number: 903\u2212646\u22122374.\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER. Redaction Request\n due 11/28/2013. Redacted Transcript Deadline set for 12/9/2013. Release of\n Transcript Restriction set for 2/6/2014. (ch, ) (Entered: 11/04/2013)\n11/04/2013 376 ORDER granting 359 Sealed Motion\u2212 Neweggs License and Patent Exhaustion\n defenses are stricken # 31 . Signed by Magistrate Judge Roy S. Payne on 11/4/13.\n (ehs, ) (Entered: 11/04/2013)\n11/05/2013 377 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 10/29/13 (Pre\u2212trial Hearing) before Judge Roy Payne. Court Reporter/Transcriber:\n Carla A. Sims, CSR RPR,Telephone number: (903) 646\u22122374.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 11/29/2013. Redacted Transcript Deadline set for 12/9/2013. Release of\n Transcript Restriction set for 2/6/2014. (sholmes, ) (Entered: 11/05/2013)\n11/05/2013 ORDER finding as moot 330 Motion to Amend/Correct. Signed by Magistrate\n Judge Roy S. Payne on 11/5/13. (rsp2) (Entered: 11/05/2013)\n A0030\n\f Case: 15-142 Document: 2-2 Page: 33 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 28 of 35\n11/05/2013 ORDER finding as moot 334 Motion to Amend/Correct. Signed by Magistrate\n Judge Roy S. Payne on 11/5/2013. (rsp3) (Entered: 11/05/2013)\n11/06/2013 378 REPORT of Mediation by Robert Faulkner. Mediation result: matter did not\n settle(Faulkner, Robert) (Entered: 11/06/2013)\n11/08/2013 379 ORDER granting 358 Sealed Motion in Limine. Signed by Magistrate Judge Roy\n S. Payne on 11/7/2013. (ch, ) (Entered: 11/08/2013)\n11/11/2013 380 NOTICE by TQP Development, LLC (AMENDED) OF ASSERTED CLAIMS AND\n INVALIDITY THEORIES AND PRIOR ART REFERENCE (Attachments: # 1\n Exhibit 1)(Fenster, Marc) (Entered: 11/11/2013)\n11/11/2013 381 Emergency SEALED MOTION in Limine to Exclude Evidence and Argument\n Regarding Settlement with Expedia, Inc., Hotwire, Inc., and Orbitz, LLC by TQP\n Development, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of\n Proposed Order)(Fenster, Marc) (Entered: 11/11/2013)\n11/12/2013 382 ORDER denying # 304 SEALED MOTION Daubert to Exclude the Opinions and\n Testimony of TQP's Damages Expert Stephen L. Becker, Ph.D. filed by Newegg,\n Inc.. Signed by Magistrate Judge Roy S. Payne on 11/12/13. (ehs, ) (Entered:\n 11/12/2013)\n11/12/2013 383 ORDER \u2212 Defendant Newegg, Inc. shall file its response to TQPs motion by the\n end the day, Wednesday, November 13, 2013. Neweggs response should focus its\n discussion on the prejudice TQP alleges will result from showing jurors licenses\n with provisions that are contingent, in part, on their verdict. Signed by Magistrate\n Judge Roy S. Payne on 11/12/13. (ehs, ) (Entered: 11/12/2013)\n11/13/2013 384 NOTICE of Attorney Appearance by Edward R Reines on behalf of Newegg Inc\n (Reines, Edward) (Entered: 11/13/2013)\n11/13/2013 385 Newegg's SEALED PATENT RESPONSE to TQP's SEALED PATENT MOTION\n re 381 Emergency SEALED MOTION in Limine to Exclude Evidence and\n Argument Regarding Settlement with Expedia, Inc., Hotwire, Inc., and Orbitz, LLC\n filed by Newegg Inc. (Attachments: # 1 Exhibit A)(Brean, Daniel) (Entered:\n 11/13/2013)\n11/14/2013 386 NOTICE of Intent to Request Redaction by Anthony W Brooks re 377\n Transcript,,,. (Brooks, Anthony) (Entered: 11/14/2013)\n11/14/2013 387 ORDER granting in part and denying in part 342 Sealed Patent Motion; granting in\n part and denying in part 343 Sealed Patent Motion. Signed by Magistrate Judge\n Roy S. Payne on 11/14/13. (ehs, ) (Entered: 11/14/2013)\n11/14/2013 388 NOTICE by TQP Development, LLC JOINT FINAL DEPOSITION\n DESIGNATIONS (Fenster, Marc) (Entered: 11/14/2013)\n11/15/2013 389 ORDER granting 381 Sealed Motion GRANTED\u2212\u2212evidence and argument\n regarding the terms of the two recent Alaska Airlines settlement agreements are\n excluded from trial. Signed by Magistrate Judge Roy S. Payne on 11/15/13. (ehs, )\n (Entered: 11/15/2013)\n11/15/2013 390 ORDER that TQP is hereby precluded from re\u2212litigating these two issues at trial in\n the instant case. Signed by Judge Rodney Gilstrap on 11/15/13. (ehs, ) (Entered:\n 11/15/2013)\n11/15/2013 391 Proposed Jury Instructions by TQP Development, LLC. (Attachments: # 1 Exhibit\n 1)(Wang, Benjamin) (Entered: 11/15/2013)\n11/15/2013 392 NOTICE by TQP Development, LLC re 348 Proposed Pretrial Order, AMENDED\n EXHIBIT 3\u2212A Fifth Amended Trial Exhibit List (Attachments: # 1 Exhibit\n 3\u2212A)(Kroeger, Paul) (Entered: 11/15/2013)\n11/17/2013 393 Emergency MOTION for Reconsideration re 390 Order by TQP Development,\n LLC. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Fenster, Marc)\n (Entered: 11/17/2013)\n A0031\n\f Case: 15-142 Document: 2-2 Page: 34 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 29 of 35\n11/18/2013 394 ORDERS that if Dft chooses to file a Response to Plaintiffs Motion 393 Motion for\n Reconsideration, shall do so by or before 7:00 pm today 11/18/2013. Signed by\n Judge Rodney Gilstrap on 11/18/2013. (ch, ) (Entered: 11/18/2013)\n11/18/2013 395 NOTICE by TQP Development, LLC (Second Supplemental) OF ASSERTED\n CLAIMS AND INVALIDITY THEORIES AND PRIOR ART REFERENCE\n (Attachments: # 1 Exhibit A)(Fenster, Marc) (Entered: 11/18/2013)\n11/18/2013 396 RESPONSE to Motion re 393 Emergency MOTION for Reconsideration re 390\n Order filed by Newegg Inc. (Brooks, Anthony) (Entered: 11/18/2013)\n11/18/2013 397 NOTICE by TQP Development, LLC REVISED FINAL JOINT DEPOSITION\n DESIGNATIONS (Fenster, Marc) (Entered: 11/18/2013)\n11/18/2013 423 Minute Entry for proceedings held before Judge Rodney Gilstrap: Jury Selection\n held on 11/18/2013. (Court Reporter Shelly Holmes, CSR.) (Attachments: # 1\n Attorney Attendance Sheet) (jml) (Entered: 12/02/2013)\n11/19/2013 424 Minute Entry for proceedings held before Judge Rodney Gilstrap: Jury Trial held\n on 11/19/2013. (Court Reporter Shelly Holmes, CSR.) (Attachments: # 1 Attorney\n Attendance Sheet) (jml) (Entered: 12/02/2013)\n11/20/2013 425 Minute Entry for proceedings held before Judge Rodney Gilstrap: Jury Trial held\n on 11/20/2013. (Court Reporter Shelly Holmes, CSR.) (Attachments: # 1 Attorney\n Attendance Sheet) (jml) (Entered: 12/02/2013)\n11/21/2013 398 TRIAL BRIEF re Claim Construction Issue by Newegg Inc. (Attachments: # 1\n Exhibit Preliminary Claim Constructions)(Brooks, Anthony) (Entered: 11/21/2013)\n11/21/2013 399 NOTICE of Attorney Appearance by Andrew Thompson Gorham on behalf of\n Newegg Inc (Gorham, Andrew) (Entered: 11/21/2013)\n11/21/2013 426 Minute Entry for proceedings held before Judge Rodney Gilstrap: Jury Trial held\n on 11/21/2013. (Court Reporter Shelly Holmes, CSR.) (Attachments: # 1 Attorney\n Attendance Sheet) (jml) (Entered: 12/02/2013)\n11/22/2013 400 ORDER denying 295 Opposed MOTION to Vacate Expenses Award filed by\n Newegg, Inc. The parties are directed to meet and confer on the expenses and, if\n the matter is not resolved beforehand, Plaintiff shall file a motion to fix expenses\n within 21 days. Signed by Magistrate Judge Roy S. Payne on 11/22/13. (mrm, )\n (Entered: 11/22/2013)\n11/22/2013 427 Minute Entry for proceedings held before Judge Rodney Gilstrap: Jury Trial held\n on 11/22/2013. (Court Reporter Shelly Holmes, CSR.) (Attachments: # 1 Attorney\n Attendance Sheet) (jml) (Entered: 12/02/2013)\n11/25/2013 401 NOTICE by TQP Development, LLC AMENDED PROPOSED JURY\n INSTRUCTIONS AND VERDICT FORM (Attachments: # 1 Exhibit A Revised\n Proposed Jury Instructions, # 2 Exhibit B Redline Revised Proposed Jury\n Instructions, # 3 Exhibit C TQP's Amended Proposed Verdict Form)(Wang,\n Benjamin) (Entered: 11/25/2013)\n11/25/2013 402 Opposed MOTION for Judgment on the Pleadings by TQP Development, LLC.\n (Attachments: # 1 Text of Proposed Order)(Fenster, Marc) (Entered: 11/25/2013)\n11/25/2013 403 MOTION for Judgment as a Matter of Law of Non\u2212infringement by Newegg Inc.\n (Attachments: # 1 Text of Proposed Order)(Brooks, Anthony) (Entered:\n 11/25/2013)\n11/25/2013 404 MOTION for Judgment as a Matter of Law re Damages by Newegg Inc.\n (Attachments: # 1 Text of Proposed Order)(Brooks, Anthony) (Entered:\n 11/25/2013)\n11/25/2013 405 MOTION for Judgment as a Matter of Law re Invalidity by Newegg Inc.\n (Attachments: # 1 Text of Proposed Order)(Brooks, Anthony) (Entered:\n 11/25/2013)\n11/25/2013 406 TRIAL BRIEF re Opposition to Closing Demonstrative by Newegg Inc.\n (Attachments: # 1 Exhibit A)(Brooks, Anthony) (Entered: 11/25/2013)\n A0032\n\f Case: 15-142 Document: 2-2 Page: 35 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 30 of 35\n11/25/2013 407 JURY VERDICT. (jml) (Entered: 11/26/2013)\n11/25/2013 408 SEALED Jury Notes. (jml) (Entered: 11/26/2013)\n11/25/2013 409 TQP Final Exhibit List. (jml) (Entered: 11/27/2013)\n11/25/2013 410 Newegg Final Exhibit List. (jml) (Entered: 11/27/2013)\n11/25/2013 428 Minute Entry for proceedings held before Judge Rodney Gilstrap: Jury Trial\n completed on 11/25/2013. (Court Reporter Shelly Holmes, CSR.) (Attachments: #\n 1 Attorney Attendance Sheet) (jml) (Entered: 12/02/2013)\n11/27/2013 411 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/18/13 (Jury Selection) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 412 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/19/13 Trial Transcript (Morning Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) Modified on 11/27/2013 (ch, ).\n (Entered: 11/27/2013)\n11/27/2013 413 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/19/13 Trial Transcript (Afternoon Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 414 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/20/13 Trial Transcript (Morning Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n A0033\n\f Case: 15-142 Document: 2-2 Page: 36 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 31 of 35\n\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 415 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/20/13 Trial Transcript (Afternoon Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 416 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/21/13 Trial Transcript (Morning Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 417 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/21/13 Trial Transcript (Afternoon Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 418 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/22/13 Trial Transcript (Morning Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n\n A0034\n\f Case: 15-142 Document: 2-2 Page: 37 Filed: 07/06/2015\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 32 of 35\n\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 419 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/22/13 Trial Transcript (Afternoon Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 420 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/25/13 Trial Transcript (Morning Transcript) before Judge Rodney Gilstrap.\n Court Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903)\n 923\u22127464.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 421 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/25/13 Trial Transcript (Afternoon Session) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n11/27/2013 422 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on\n 11/25/13 Trial Transcript (Notes/Verdict) before Judge Rodney Gilstrap. Court\n Reporter/Transcriber: Shelly Holmes, CSR,Telephone number: (903) 923\u22127464.\n\n NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7)\n business days to file with the Court a Notice of Intent to Request Redaction of\n this transcript. If no such Notice is filed, the transcript will be made remotely\n\n A0035\n\f Case: 15-142 Document: 2-2 Page: 38 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 33 of 35\n\n electronically available to the public without redaction after 90 calendar days.\n The policy is located on our website at www.txed.uscourts.gov\n Transcript may be viewed at the court public terminal or purchased through the\n Court Reporter/Transcriber before the deadline for Release of Transcript\n Restriction. After that date it may be obtained through PACER.. Redaction Request\n due 12/23/2013. Redacted Transcript Deadline set for 1/2/2014. Release of\n Transcript Restriction set for 2/28/2014. (sholmes, ) (Entered: 11/27/2013)\n12/05/2013 429 ORDER; the Court hereby ORDERS that the parties meet and confer regarding a\n proposed schedule suggesting how to proceed with Newegg's equitable defenses of\n equitable estoppel and laches. The parties are instructed to jointly submit such a\n proposal to the Court within ten (10) days of this date. Signed by Judge Rodney\n Gilstrap on 12/5/13. (mrm, ) (Entered: 12/05/2013)\n12/14/2013 430 Joint Submission of Proposals and Schedules Regarding Equitable Defenses by\n Newegg Inc. and TQP Development, LLC pursuant to Court Order [Dkt. 429].\n (Brean, Daniel) (Entered: 12/14/2013)\n12/20/2013 431 ORDER regarding briefing schedule on Newegg's equitable defenses of laches and\n equitable estoppel. Signed by Judge Rodney Gilstrap on 12/20/13. (bas, ) (Entered:\n 12/20/2013)\n01/06/2014 432 SEALED PATENT MOTION for Judgment on Laches by Newegg Inc.\n (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5\n Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Brean, Daniel) (Additional\n attachment(s) added on 1/6/2014: # 9 Text of Proposed Order) (ch, ). (Entered:\n 01/06/2014)\n01/06/2014 ***DISREGARD THIS FILED IN ERROR, WAS DOCKETED IN WRONG\n CASE******FILED IN ERROR. NOT A PRETRIAL ORDER Document #\n 47, Pretrial Order. PLEASE IGNORE.***\n (ch, ) Modified on 1/6/2014 (ch, ). (Entered: 01/06/2014)\n01/23/2014 433 Plaintiff TQP Development, LLC's Opposition SEALED RESPONSE to Motion re\n 432 SEALED PATENT MOTION for Judgment on Laches filed by TQP\n Development, LLC. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4\n Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Affidavit Spangenberg\n Declaration)(Fenster, Marc) (Entered: 01/23/2014)\n02/03/2014 434 REPLY to Response to Motion re 432 SEALED PATENT MOTION for Judgment\n on Laches filed by Newegg, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3\n Exhibit C)(Brean, Daniel) (Entered: 02/03/2014)\n02/10/2014 435 SEALED SUR\u2212REPLY to Response to Motion re 432 SEALED PATENT\n MOTION for Judgment on Laches filed by TQP Development, LLC. (Fenster,\n Marc) (Entered: 02/10/2014)\n02/17/2014 436 MOTION for Judgment as a Matter of Law re Rule 50(b) by Newegg Inc.\n Responses due by 3/6/2014 (Attachments: # 1 Exhibit A (Trial Demonstratives), #\n 2 Text of Proposed Order)(Brean, Daniel) (Entered: 02/17/2014)\n02/17/2014 437 SEALED MOTION \u2212 Rule 59 Motion for a New Trial by Newegg, Inc..\n (Attachments: # 1 Exhibit A (Report of Dr. Jaeger), # 2 Text of Proposed\n Order)(Brean, Daniel) (Entered: 02/17/2014)\n02/25/2014 438 Joint MOTION to Amend/Correct BRIEFING SCHEDULE ON DEFENDANT'S\n MOTION FOR NEW TRIAL AND MOTION FOR JUDGMENT AS A MATTER OF\n LAW by TQP Development, LLC. (Attachments: # 1 Text of Proposed\n Order)(Kroeger, Paul) (Entered: 02/25/2014)\n02/26/2014 439 ORDER, BRIEFING SCHEDULE ON DEFENDANTS' MOTION FOR NEW\n TRIAL AND MOTION FOR JUDGMENT AS A MATTER OF LAW, terming\n 438 Joint Motion to Amend the Schedule. Signed by Judge Rodney Gilstrap on\n 2/26/14. (mrm, ) (Entered: 02/26/2014)\n A0036\n\f Case: 15-142 Document: 2-2 Page: 39 Filed: 07/06/2015\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 34 of 35\n03/18/2014 440 RESPONSE in Opposition re 436 MOTION for Judgment as a Matter of Law re\n Rule 50(b) filed by TQP Development, LLC. (Attachments: # 1 Exhibit 1, # 2\n Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Text of Proposed Order)(Kroeger, Paul)\n (Entered: 03/18/2014)\n03/18/2014 441 SEALED RESPONSE to Motion re 437 SEALED MOTION \u2212 Rule 59 Motion for\n a New Trial filed by TQP Development, LLC. (Attachments: # 1 Exhibit A, # 2\n Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(Fenster, Marc) (Entered:\n 03/18/2014)\n04/03/2014 442 REPLY to Response to Motion re 437 SEALED MOTION \u2212 Rule 59 Motion for a\n New Trial filed by Newegg Inc. (Attachments: # 1 Exhibit A \u2212 Excerpts of\n Stubblebine Report)(Brean, Daniel) (Entered: 04/03/2014)\n04/03/2014 443 REPLY to Response to Motion re 436 MOTION for Judgment as a Matter of Law\n re Rule 50(b) filed by Newegg Inc. (Attachments: # 1 Exhibit A \u2212 Excerpts of\n Stubblebine Report)(Brean, Daniel) (Entered: 04/03/2014)\n04/14/2014 444 SUR\u2212REPLY to Reply to Response to Motion re 437 SEALED MOTION \u2212 Rule\n 59 Motion for a New Trial filed by TQP Development, LLC. (Fenster, Marc)\n (Entered: 04/14/2014)\n04/14/2014 445 SUR\u2212REPLY to Reply to Response to Motion re 436 MOTION for Judgment as a\n Matter of Law re Rule 50(b) filed by TQP Development, LLC. (Attachments: # 1\n Exhibit 3, # 2 Exhibit 4)(Fenster, Marc) (Entered: 04/14/2014)\n04/16/2014 446 NOTICE by Newegg Inc of Request for Hearing on Post\u2212Trial Motions (Brean,\n Daniel) (Entered: 04/16/2014)\n06/04/2014 447 NOTICE by Newegg Inc re 437 SEALED MOTION \u2212 Rule 59 Motion for a New\n Trial, 436 MOTION for Judgment as a Matter of Law re Rule 50(b) re NOTICE\n OF SUPPLEMENTAL AUTHORITY (Attachments: # 1 Exhibit A (Slip\n Opinion))(Brooks, Anthony) (Entered: 06/04/2014)\n06/13/2014 448 Unopposed MOTION to Withdraw as Attorney Debby E. Gunter by Newegg Inc,\n Newegg, Inc.. (Attachments: # 1 Text of Proposed Order)(Yarbrough, Herbert)\n (Entered: 06/13/2014)\n06/16/2014 449 ORDER granting 448 Motion to Withdraw as Attorney. Attorney Debra Elaine\n Gunter terminated. Signed by Magistrate Judge Roy S. Payne on 6/16/2014. (ch, )\n (Entered: 06/16/2014)\n06/30/2014 450 NOTICE by Newegg Inc re 437 SEALED MOTION \u2212 Rule 59 Motion for a New\n Trial, 436 MOTION for Judgment as a Matter of Law re Rule 50(b) re Notice of\n Supplemental Authority (Attachments: # 1 Exhibit A (Memorandum Opinion and\n Order))(Brooks, Anthony) (Entered: 06/30/2014)\n07/08/2014 451 ORDER \u2212 The Court hereby ORDERS, sua sponte, that TQP shall file a single\n response to the arguments raised in Neweggs two Notices of Supplemental\n Authority within ten (10) days of this date. Signed by Judge Rodney Gilstrap on\n 07/08/2014. (nkl, ) (Entered: 07/08/2014)\n07/18/2014 452 RESPONSE to 450 Notice (Other), 447 Notice (Other), Plaintiff TQP\n Development, LLC's Response to Defendant NewEgg, Inc.'s Notices of\n Supplemental Authorities filed by TQP Development, LLC. (Attachments: # 1\n Exhibit A)(Kroeger, Paul) (Entered: 07/18/2014)\n07/25/2014 453 NOTICE by Newegg Inc re 437 SEALED MOTION \u2212 Rule 59 Motion for a New\n Trial, 436 MOTION for Judgment as a Matter of Law re Rule 50(b) re Second\n Notice of Subsequent Authority (Attachments: # 1 Exhibit A)(Brean, Daniel)\n (Entered: 07/25/2014)\n08/07/2014 454 MEMORANDUM OPINION AND ORDER. Signed by Judge Rodney Gilstrap on\n 08/07/2014. (nkl, ) Modified on 8/13/2014 (nkl, ). (Entered: 08/07/2014)\n08/11/2014 455 ORDER re 454 Sealed Order. Signed by Judge Rodney Gilstrap on 08/08/2014.\n (nkl, ) (Entered: 08/11/2014)\n A0037\n\f Case: 15-142 Document: 2-2 Page: 40 Filed: 07/06/2015\n\n\n\n\n Case: 2:11-cv-00248-JRG As of: 06/05/2015 12:56 PM CDT 35 of 35\n08/11/2014 456 NOTICE by Newegg Inc re 455 Order re Joint Notice Regarding Redaction of\n Laches Order (Brean, Daniel) (Entered: 08/11/2014)\n08/12/2014 457 ORDER re 454 Sealed Order. Signed by Judge Rodney Gilstrap on 08/12/2014.\n (nkl, ) (Entered: 08/12/2014)\n11/13/2014 458 NOTICE by Newegg Inc of Renewed Request for Hearing on Post\u2212Trial Motions\n (Baldauf, Kent) (Entered: 11/13/2014)\n\n\n\n\n A0038\n\f Case: 15-142 Document: 2-2 Page: 41 Filed: 07/06/2015\n\n\n lllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll\n US005412730A\nUnited States Patent [191 [11] Patent Number: 5,412,730\nJones [45] Date of Patent: May 2, 1995\n\n[54] ENCRYPTED DATA TRANSMISSION 4,985,919 1/1991 Naruse et al ....................... 380/9 X\n SYSTEM EMPLOYING MEANS FOR Primary Examiner-Bemarr E. Gregory\n RANDOMLY ALTERING THE ENCRYPTION Attorney, Agent, or Firm-Allegretti & Witcoff, Ltd.\n KEYS\n [57] ABSTRACT\n[75] Inventor: Michael F. Jones, Nashua, N.H.\n A modem suitable for transmitting encrypted data over\n[73] Assignee: Telequip Corporation, Hollis, N.H. voice-grade telephone line. The modem is implemented\n by the combination of integrated circuit components\n[21] Appl. No.: 872,674 including a microprocessor, a serial communications\n controller which communicates with connected data\n[22] Filed: Apr. 23, 1992 terminal equipment, and a modulator/demodulator for\n translating between voice band tone signals and digital\n Related U.S. Application Data data. Pseudo random number generators are employed\n[63] Continuation-in-part of Ser. No. 418,178, Oct. 6, 1989,\n at both the transmitting and receiving stations to supply\n abandoned. identical sequences of encryption keys to a transmitting\n encoder and a receiving decoder. An initial random\n[51] Int. Cl.6 ............................................... H04L 9/00 number seed value is made available to both stations.\n[52] U.S. CI\u2022.......................................... 380/46; 380/9; The random number generators are advanced at times\n 380/21; 380/29; 380/49 determined by predetermined characteristics of the data\n[58] Field of Search ................... 380/9, 20, 21, 43, 44, being transmitted so that, after transmission has taken\n 380/49,50,18,46,29 place, the common encryption key can be known only\n to the transmitting and receiving stations.\n[56] References Cited\n U.S. PATENT DOCUMENTS 2 Claims, 5 Drawing Sheets\n 4,809,327 2/1989 Shima .................................... 380/44 Microfiche Appendix Included\n 4,876,716 10/1989 Okamoto ............................... 380/21 (2 Microfiche, 119 Pages)\n\n\n r\u00b7-------\u2022-------------------------------------\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u2022\u00b7-------------\n TRANSMITTING STATION,11\n\n DATA ....\n ,. ENCRYPTOR\n SOURCE\n 1rl CIPHER-~\u00b7\n 15../ t\n BLOCK PSEUDO-RANDOM\n - ~23\n r - COUNTER NUMBER GENERATOR\n 21\n .__\n ------------------~-------------------------~--------------------------- i'-.\n INTERVAL NUMBER RANDOM NUMBER SEED\n ---\n 13\n -------------------~--------------------------~--------------------------\u00b7 1---- ---.\n\n .r- BLOCK PSEUDO-RANDOM 27\n 29 COUNTER NUMBER GENERATOR l---J\n ~~\n\n\n\n DATA\n UTILIZATION DECRYPTOR ...\n CIRCUIT L _I\n\n \"'-- 33 31\n RECEIVING STATION, 12\n ~----------------------------------------------------------------------------------\n\n\n\n\n A0039\n\f Case: 15-142 Document: 2-2 Page: 42 Filed: 07/06/2015\n\n\n\n\nU.S. Patent May 2, 1995 Sheet 1 of 5 5,412,730\n\n\n\n r\u2022\u2022\u00b7\u00b7------------------\u00b7\u00b7-----------------------------\u00b7--\u00b7----------\u00b7--------------\n TRANSMITTING STATION, 11\n\n DATA\n ENCRYPTOR\n SOURCE\n 1Y CIPHER-~\u00b7\n 15_/ ,, t\n BLOCK PSEUDO-RANDOM\n COUNTER 1'--23\n r- NUMBER GENERATOR\n\n\n\n ---------~~--------~-----------------------~----------------\u00b7---------- ---\n INTERVAL NUMBER RANDOM NUMBER SEED \"\"-.._\n 13\n -------------------~--------------------------~-------------------------- ---- --'\"I\n\n\n\n ,-- BLOCK PSEUDO-RANDOM\n _37\n 29 COUNTER NUMBER GENERATOR\n\n 4\n\n\n DATA\n UTILIZATION\n ..,\n ~\n I DECRYPTOR ..,\n CIRCUIT I ,~\n\n\n\n\n \"-._' 31\n 33 RECEIVING STATION, 12\n ~----------------------------------------------------------------------------------\n Fig. 1\n\n\n TODTE\n\n\n ~121 r\u00b7\u00b7------------------------------ 1\n I\n\n\n\n\n -1 D~ I\n I\n\n SERIAL\n !(120\n I\n\n\n\n DISPLAY COMMUNICATIONS\n MODEM\n UNIT\n +-fl.e\n i:r TO\n CONTROLLER ELEPHONE\n I\n\n\n\n '---t------~~~----c_;-1Jp_j\n ETWORK\n \u2022I'\n , \"---111 N\n DATA BUS, 107\n\n ,,\n\n Fig. 2\n MICROPROCESSOR ~\n ADDRESS\n BUS, 105\n \u2022 MEMORY\n SUBSYSTEM\n \\...__ 101\n \"--\u00b7103\n\n\n\n A0040\n\f \u2022\n e\n ~Vee rJJ.\n \u2022\n REQA Fig. 3A \"'C\n ;:Jr REO a INT\n IRQ ;\n ~ ~\n ~ In II'*Tl SRDY ~:l~ l ARDY\n RXD\n Case: 15-142\n\n\n\n\n --l-A00-7\n It-ITO a- t 15m\n TO\n 1m\n DISPlAY, \u2022. wz. 129\n ..ew\n ~~-----~-------- PCS3 READ\n ~\n 109 RXD\n ~ ~\n WRITE {103 J-..)\n ~ TMRINO I I \n\n\n\n\nA0043\n\f Case: 15-142 Document: 2-2 Page: 46 Filed: 07/06/2015\n\n\n\n\nU.S. Patent May 2, 1995 Sheet 5 of 5 5,412,730\n\n\n\n\n ------------------------------------------------------------------------\u00b7-----------------\n DATA TRANSMITTING STATION 11\n DATA ENCRYPTOR\n SOURCE -4~ COMP- ~\n RESSOR\n\n 15/ 34--' 111 +\n BLOCK PSEUDO-RANDOM ERROR \"'-36\n 21..1 COUNTER , NUMBER GENERATOR r+ CONTROL\n .--39 ~ffi ,\n + {\n + 23\n CIPHER-TEXT\n\n ae_ ...\n PSEUDO-RANDOM\n NUMBER GENERATOR\n c\n 50\n KEY MEMORY\n\n\n\n ----------------------------------------------------------------------------------\n . 13,\n\n r\u2022\u2022\u2022\u2022\n ---------------------------------------------------------------------------------\u00b7--i\u2022\n \u2022\u2022\n SO...f\n 40,_r\n PSEUDO-RANDOM\n NUMBER GENERATOR ..... KEY MEMORY\n\n\n + J 11\n BLOCK\n \"*\n PSEUDO-RANDOM\n ERROR\n 29\"1. COUNTER\n ,\n NUMBER GENERATOR f+- CONTROL\n DECODER\n /35 31-........\n\n DATA DATA\n -* '-27\n\n\n UTIUZATION\n ....\n .,. DECOMP- ~ DECRYPTOR\n CIRCUIT RESSOR\n \"'t33 RECEIVING STATION 12\n\n \u00b7----------------------------------------------------------------------------------------~\n\n\n\n Fig. 4\n\n\n\n\n A0044\n\f Case: 15-142 Document: 2-2 Page: 47 Filed: 07/06/2015\n\n\n\n\n 5,412,730\n 1 2\n values for the generator of the interval numbers) may be\n ENCRYPTED DATA TRANSMISSION SYSTEM associated with each of a plurality of remote locations\n EMPLOYING MEANS FOR RANDOMLY with whom secured communication is required, so that\n ALTERING THE ENCRYPTION KEYS the data on any given link is decipherable only by the\n 5 authorized receiving station, even though other stations\n BACKGROUND OF THE INVENTION may have identical communication and decryption\n This is a continuation-in-part of application Ser. No. hardware.\n07/418,178 filed on Oct. 6, 1989. As a consequence of the foregoing feature, the inven-\n A computer program listing is submitted herewith as tion may be used to advantage to control communica-\na microfiche appendix having 119 frames on 2 micro- 10 tions within a network. A key memory is provided\nfiche. which permits a unique serial number identifying a\n This invention relates to data transmissions systems remote unit to be stored along with the current encryp-\nand, more particularly, to systems for transmitting enci- tion key value, the serial number and key value being\nphered data. stored on command from the local unit or by being\n Data encryption provides security for transmitted 15 downloaded from a remote unit which serves as the\ndata by scrambling the \"clear text\" data into \"cipher host or network supervisor. Once the host station has\ntext\". Typically, the transmitted data is scrambled in a supplied the initial seed value keys to the units forming\nmanner selected by a unique key value (such as a 56-bit the two terminal locations for a given link and transmis-\nbinary number) and unscrambled, at the receiving sta- sion over that link begins, the host is no longer \"knows\"\ntion, by a reverse process that requires the same key 20\n the encryption key values since they are dependent\nvalue be known.\n upon the nature of the transmissions over the link. Con-\n For increased data security, the encryption key value\n sequently, link security cannot be compromised even by\nmay be changed frequently to further reduce the likeli-\nhood that an unauthorized party may decipher the data. an \"insider\" who is in possession of the initial key values\nIn such systems, new key values are sent at intervals 25 supplied by the host.\"\nfrom the transmitting station to the receiving station. As contemplated by still another feature of the inven-\nThe keys may be generated by a random number gener- tion, the encryption and decryption may advanta-\nator located at the transmitting end, encrypted in accor- geously be accomplished within a modem unit which\ndance with the currently active key, and transmitted also performs data compression and decompression, as\nalong with the other data. At the receiving station, the 30 well as error-handling functions. Advantageously, the\nencrypted key is extracted from the data stream, deci- compression, encryption and error-coding functions\nphered, and substituted at a designated time for the may all be performed (in that sequence) at the transmit-\nprior key. In such a system, if any of the transmitted ting station by the same processor, while a like proces-\nkeys are deciphered, the successive keys may be deci- sor at the receiving end is suitably programmed to pro-\nphered as well, so that all of the transmitted information 35 vide, in sequence, the error control, decryption, and\nmay be decoded. decompression functions.\n In accordance with a principle feature of the present The principles of the invention may be applied to\ninvention, pseudo-random number generators are em- advantage in terminals connected as part of a secured\nployed at both the transmitting and receiving stations to communication network operating under central con-\nsupply a like sequence of encryption keys to both the 40 trol. A key memory at each terminal may be loaded, by\nencryptor and decryptor, without these keys being a secure communication from the central control, with\ntransmitted in any form over the transmission facility. encryption keys associated with other terminals with\nIn accordance with the invention, to permit the two which secured communication is authorized. In this\nstations to communicate, each supplied in advance with way, the central control can selectively permit or pro-\na random number seed value which exclusively deter- 45 hibit any terminal from decoding communications from\nmines the numerical content of the sequence of numeric any other terminal on a dynamically changing basis.\nvalues generated by each of the two pseudo-random\n This and other features and advantages of the inven-\ngenerators. In order that the two generators switch\n tion may be more clearly understood by considering the\nfrom one output key value to the next in synchronism,\n following detailed description of specific embodiments\nmeans are employed at both the transmitting and receiv- 50\n of the invention.\ning stations to monitor the flow of transmitted data and\nto advance the random number generator each time the BRIEF DESCRIPTION OF THE DRAWINGS\ntransmitted data satisfies a predetermined condition.\n The monitoring function can advantageously be per- In the course of the detailed description to follow,\nformed simply by counting the units of data being trans- 55 reference will frequently be made to the attached draw-\nmitted and by advancing each pseudo-random key gen- ings, in which:\nerator each time the count reaches an agreed-upon in- FIG. 1 is a functional block diagram illustrating the\nterval number. In this way, no additional synchroniza- basic signal processing steps which embody the inven-\ntion information needs to be added to the data stream. tion;\nFor even greater security, the interval number (which 60 FIG. 2 is a hardware block diagram which shows a\nmust be reached before the key is switched) may itself modem apparatus of the type contemplated by the in-\nbe a changing value generated by a random number vention;\ngenerator, so that the duration during which a given FIGS. 3A, 3B and 3C are schematic representations\nkey is active changes from key to key at times which are which, in combination, illustrate a preferred embodi-\npredictable only by the authorized recipient. 65 ment of the modem apparatus of FIG. 2; and\n In accordance with still another feature of the inven- FIG. 4 is a functional block diagram illustrating en-\n tion, different random number seed values and different hanced signal processing capabilities used in the pre-\ninterval numbers (or different random number seed ferred embodiment of the invention.\n\n\n\n\n A0045\n\f Case: 15-142 Document: 2-2 Page: 48 Filed: 07/06/2015\n\n\n\n\n 5,412,730\n 3 4\n generator 23. Each time the current count reaches the\n DESCRIPTION OF THE PREFERRED\n interval number, the pseudo-random number generator\n EMBODIMENT\n 27 is advanced. Since the internal makeup of random\n FIG. 1-Basic Processing number generator 27 is identical to that of generator 23,\n FIG. 1 illustrates the manner in which the data being 5 and since it is supplied with the same seed value, and\ntransmitted is subjected to a sequence of signal process- since block counter 29 is supplied with the same interval\ning steps as contemplated by the present invention. number value as that supplied to the block counter 21,\nThese processing steps are executed at a transmitting exactly the same sequence of keys will be supplied to\nstation 11 and at a receiving station 12 connected to the random number generators 23 and 27, and the keys\nopposite ends of a communications channel 13. 10 will change at precisely the same time (relative to the\n At the transmitting station 11, a source of data 15 data stream) to accurately decipher the transmitted\nsupplies a serial data stream to the data input of an data.\nencryptor 17. The data from source 15 may take sub- Of course, in order for the receiving station to suc-\nstantially any form, such as a file of text characters, each cessfully decipher the incoming cipher text, the receiv-\nencoded as a 8-bit byte, or a file of numerical binary 15 ing station 12 must be provided (in some fashion) with\ninformation expressed in 16-bit or 32-bit words. A block both the correct seed value and the correct interval\ncounter 21 monitors the stream of data from the source number. These values are supplied to the receiving\n15 and generates an \"advance signal\" each time the data station in advance of the transmission by any secure\nmeets a predetermined condition. Advantageously, the means. However, once the receiver possesses these\nblock counter 21 may simply count the number of bytes 20 values, no further information is required to decipher\n(characters), words or blocks of data being transmitted, the transmissions. No key values, key verification val-\ncompare the current count with a predetermined 37 ues, or key synchronization signals need accompany the\ninterval number\" and produce an advance signal each transmitted ciphered text to control or coordinate the\ntime the current count reaches the interval number (at encryption or decryption processing, even though the\nwhich time the current count is reset to 0). 25\n encryption keys are continuously changing to enhance\n The advance signal produced by block counter 21 is security.\nsupplied to the advance input of a pseudo-random num-\nber generator 23 which supplies a sequence of encryp- FIG. 2-Hardware\ntion key values to the key input of the encryptor 17. The\n The principles of the present invention may be advan-\ncontent of the key sequence is predetermined by the 30\n tageously implemented in a data communications\ncombination of(l) the internal makeup ofthe generator\n modem having a hardware architecture of the type\n23 and by (2) a supplied random number seed value\nwhich initializes the generator 23. The generator 23 generally depicted in FIG. 2 of the drawings. As\nresponds to each advance signal from block counter 21 shown, the modem operates under the supervisory con-\nby changing its output to the next successive encryption 35 trol of a microprocessor 101 such as the model 80188\nkey value. Thus, for example, the combination of microprocessor available from Intel Corporation. The\ncounter 21 and generator 23 operate to change the en- instructions and data operated on by the microproces-\ncryption key each time total number of bytes transmit- sor 101 are stored in a memory subsystem 103 which is\nted is an exact multiple of the predetermined interval composed of both read-only memory (advantageously\nnumber. 40 implemented as EPROM memory) and random access\n The encryptor 17 translates fixed length segments of memory (RAM). Memory subsystem 103 is coupled to\nthe data from source 15 (\"clear text\") into fixed-length the microprocessor 101 by a memory address bus 105\n\"cipher text\" output segments, each segment translation and a data bus 107.\ntaking place in a manner uniquely determined by the The data bus 107 also provides a data path to three\nencryption key currently supplied by the pseudo-ran- 45 peripheral devices: a display 109, a serial communica-\ndom number generator 23. The encryptor 17 (and the tions controller (SCC) 111, and a modem module 113.\ndecryptor 19, to be discussed) may advantageously The SCC 111 may take the form of an integrated circuit\nemploy the accepted NBIS Data Encryption Standard such as the model 82530 controller manufactured by\n(DES), which codes and decodes data in 64-bit (8 byte) Intel Corporation. The modem module 113 may be\nunits in accordance with a 56-bit key. The block 50 constructed using a modem unit 115, model R9696 chip\ncounter 21 need not supply advance signals on bound- set available from Rockwell International Corporation,\naries between encryption units, nor does the generator a cooperating set of integrated circuits capable of per-\n23 need to provide new key value precisely on encryp- forming trellis-coded modulation and demodulation\ntion unit boundaries. Instead, the encryptor 17 may meeting the V.32 9600 baud communications protocol\nbuffer the new keys temporarily, using it for the first 55 standard, as well as the V.22 bis standard, and further\ntime on the next successive encryption unit of data. includes analog/digital conversion circuits which pro-\n At the receiving station 12, the incoming cipher text vide an interface to a direct access adapter (DAA) 117.\nis applied to the data input of the decryptor 31 whose The adapter 117 may take the form of a type CH1828\nkey input is connected to receive a sequence of keys integrated circuit DAA available from Cermetek Mi-\nfrom the pseudo-random number generator 27. The 60 croelectronics, Inc.\nclear text output from the decryptor 31 is applied to a The modem hardware shown in FIG. 2 is used at\ndata utilization device 33 and is monitored by a block both ends of the communications channel. At the trans-\ncounter 29 which supplies advance signals to the num- mitting end, data to be transmitted is supplied by the\nber generator 27. Block counter 29 performs the identi- connected data terminal equipment (DTE) via the serial\ncal function as that performed by the counter 21 at the 65 port 121 (e.g., a RS-232c or RS-422 standard port). The\ntransmitting station 11 and hence supplies advance sig- asynchronous serial interface with the DTE typically\nnals to the generator 27 at precisely the same times operates under the combined control of the micro-\n(relative to the data stream) that counter 21 advances processor 101 and the sec 111 in accordance with a\n\n\n\n\n A0046\n\f Case: 15-142 Document: 2-2 Page: 49 Filed: 07/06/2015\n\n\n\n\n 5,412,730\n 5 6\nstandard interface protocol,(e.g., the V.42 standard employed to implement the RS-422 interface standard.\nprotocol). The DTE (data teiminal equipment) may be The line drivers 139 (U20), 141 (U21), and 147 (U24) are\nany terminal or computer adapted to communicate via employed to implement the RS-232 interface standard.\nthis standard port using the selected serial protocol. It will be readily appreciated by those skilled in the art\n The encryption/decryption processing is essentially 5 that although two types of interfaces are depicted, only\n\"transparent\" to the DTE; that is, the data is enciphered one interface is actually utilized at one time. The inte-\nand deciphered without effecting the content of the grated circuits employed to implement the interface\ndata sent by or received by the DTE. However, it is standard not used are unnecessary.\ndesirable to permit the connected DTE to send com- FIG. 3C illustrates the modem unit 115, the direct\nmands (such as extensions to the standard \"AT com- 10 access adapter (DAA) 117, the telephone interface 120,\nmand set\") which will control encryption processing, and various supporting logic. The micro-switch bank\nturning encryption ON and OFF, and accepting seed 155 (SW2) provide the user the option of \"hard-wiring\"\nvalues and interval numbers entered as \"passwords\" the baud rate settings for the modem unit 115. In opera-\ndirectly from the connected DTE.\n tion, the switch settings of the micro-switch bank 155\n Data signals from the DTE which are to be transmit- 15\n are passed to the modem unit 115, via the octal buffer\nted are encrypted as described above and shown in\n 145 (U23), when the modem hardware is powered-up or\nFIG. 1, the random number seed values and the interval\n reset.\nnumber values being pre-supplied to the microproces-\nsor 101 and stored in memory subsystem 103. At the TABLE I, below, provides information on the model\nreceiving end, the modem module 113 shown in FIG. 2 20 or type of devices employed in the modem hardware\nreceives the incoming data (typically as a 9600 baud illustrated in FIGS. 3A, 3B, and 3C. TABLE 1 also\ntrellis-coded signal adapted for transmission over the provides one of several manufactures and/or suppliers\nanalog telephone link) and converts that incoming sig- of the devices. TABLE 1 references the devices by\nnal into data which is processed by microprocessor 101 \"Drawing Reference Characters\" and \"Device Refer-\nand supplied via the SCC 111 to the connected DTE. In 25 ence Designations\" consistent with their usage in FIGS.\nthe receiving mode, microprocessor 101 decrypts the 3A, 3B, and 3C.\ndata as illustrated by the receiving station 12 in FIG. 1. TABLE 1\n FIGS. 3A, 3B and 3C-Preferred Embodiment Drawing Device\n Ref. Ref.\n FIGS. 3A, 3B and 3C, in combination, illustrate a 30 Char. Desig. Type Manufacturer\npreferred embodiment of the modem hardware shown ----....;;~-..:..:.....-------------\n 101 U1 80188 Motorola, Inc.\nin FIG. 2. It should be noted that the devices illustrated 103a U2 27C256 Intel Corporation\nin FIGS. 3A, 3B and 3C which are common to the 103b U3 27C256 Intel Corporation\nfunctional units in FIG. 2 are designated by identical 103c U4 JEDEC Intel Corporation\n\"Drawing Reference Characters\". 35\n 103d us JEDEC Intel Corporation\n 119 U6 74ALS373 Texas Instruments, Inc.\n FIG. 3A illustrates the microprocessor 101, the mem- 123 us 74HC163 Texas Instruments, Inc.\nory subsystem 103, and various supporting logic. The 124 U9 74HC163 Texas Instruments, Inc.\ncrystal inputs X1 and X2 to the microprocessor 101 125 UIO 74HC163 Texas Instruments, Inc.\n 127 U11 24ASOO Texas Instruments, Inc.\nprovides an external connection for a fundamental 129 Ul2 74AS04 Texas Instruments, Inc.\nmode parallel resonant crystal 157 (Y1). The resonant 40 131 U13 74AS04 Texas Instruments, Inc.\ncrystal 157 is utilized by the internal oscillator of the 133 Ul4 DS1232 Dallas Semiconductor\nmicroprocessor 101 to generate the clock signal, 135 UIS 74ASOO Texas Instruments, Inc.\nCLKOUT. In a preferred embodiment, the resonant 137 U16 74ASOO Texas Instruments, Inc.\n 111 U17 82530 Intel Corporation\ncrystal 157 has a fundamental frequency of 14.7456 115 UIS R9696-DP Rockwell International Corp.\nMhz. 45 117 Ul9 CH1828 Cermetek Microelectronics, Inc.\n The memory subsystem 103 includes memory devices 139 U20 74HC126 Motorola, Inc.\n103a-d. The \"jumper points\" are designated as \"E1-- 141 U21 DS14C88 Motorola, Inc.\n 143 U22 74HC374 Texas Instruments, Inc.\nE12\". The \"jumper points\" facilitate implementing var-\n 145 U23 74HC540 Texas Instruments, Inc.\nious types of memory devices and memory configura- 147 U24 Motorola, Inc.\ntions employed by the memory subsystem 103. The 50 149 U25 26LS31 Motorola, Inc.\nmemory subsystem 103 is discussed in detail below. 151 U26 26LS32 Motorola, Inc.\n FIG. 3B illustrates the serial communications con- 153 B CMB06 Star Micronics\n 155 SW2\ntroller (SCC) 111, the serial port 121, the data terminal 157 Y1\nequipment (DTE), and various supporting logic. The\nintegrated circuits 123, 124, 125, 127, 129, 131, 135 and 55\n137 are utilized to time delay various signals from the The manufacturer specification sheets, commonly\nmicroprocessor 101 and thereby provide orderly opera- known as \"Data Sheets\", for the device model or type\u00b7\ntion between the microprocessor 101, the sec 111 and indicated above are hereby incorporated by reference.\nthe modem unit 115. These integrated circuits also gen- As mentioned above, the memory subsystem 103\nerate the synchronous ready signal and asynchronous 60 includes memory devices 103a-d. The memory subsys-\nready signal, SRDY and ARDY, respectively. tem 103 may be implemented using RAM, ROM and/or\n As mentioned above, the data terminal equipment PROM type memory devices. TABLE 1 indicates the\n(DTE) communicates with the modem hardware over memory devices 103a and 103b are type 27C256, ultra\nthe serial port 121 (e.g., a RS-232c or a RS-422 standard violet erasable programmable read only memories (UV\nport). FIG. 3B illustrates interface configurations to 65 PROMs) manufactured by Intel Corporation. When\nimplement both a RS-232 interface standard and a RS- either of memory devices 103a or 103b is a PROM type\n422 interface standard. The differential line drivers 149 device, then both 103a and 103b should be implemented\n(U25) and the differential line receivers 151 (U26) are using PROM type devices.\n\n\n\n\n A0047\n\f Case: 15-142 Document: 2-2 Page: 50 Filed: 07/06/2015\n\n\n\n\n 5,412,730\n 7 8\n Memory devices 103a and 103b may also be type\nHM62256LP-SL series or HM62256LFP-SL series FIG. 4-Enhancements\nCMOS static RAM manufactured by Hitachi America, The principles of the invention may be advanta-\nLtd. Further, memory devices 103c and 103d may also geously employed to encipher and decipher data which\nbe type HM62256LP-SL series or HM62256LFP-SL 5 is also compressed for enhanced transmission efficiency\nseries CMOS static RAM. It will be appreciated by one and combined with error detection/correction coding.\nskilled in the art that a JEDEC type RAM, memory Moreover, the invention may utilize a key storage sys-\ndevices 103c and 103d, is a RAM that conforms to the tem to store unique keys for different called and calling\nindustry standards regarding the integrated circuit parties, and may employ means for varying the interval\npackaging. The type HM62256LP-SL series or 10 number in a random fashion so that the time durations\nHM62256LFP-SL series CMOS static RAM devices during which particular encryption keys are active\nmeet JEDEC standards. varies in unpredictable ways. These further enhance-\n The storage capacity of the memory subsystem 103 ments to the system are depicted in FIG. 4 of the draw-\nmay be increased or decreased in relation to modem ings which illustrates the preferred embodiment of the\nhardware and/or modem software requirements. For 15 invention.\nexample, memory subsystem 103 may be configured If the data signals are to be \"compressed\" for in-\nusing 128K type, 256K type, and/or 512K type creased transmission efficiency (e.g., by Huffman en-\nRAMs/ROMs/PROMs. The \"jumper points\" facilitate coding or the like), the compression processing of the\nimplementing various memory device types and mem- data should precede encryption, because the encryption\nory configurations of the memory subsystem 103. The 20 process inherently randomizes the data, eliminating the\nmanufacturer, by way of a memory device's data sheet, redundancy upon which efficient compression depends.\nprovides configuration instructions. These instructions On the other hand, error control processing (such as\ndictate \"jumper point\" usage. adding cyclic redundancy check (CRC) block checking\n The power and ground pins for the integrated cir- codes) is best done after encryption in accordance with\ncuits, the buzzer 153, and the micro-switch bank 155 of 25 the invention, because successful synchronization of the\nthe modem hardware are not depicted in FIGS. 3A, 3B advance signals from the block counters 21 and 29 re-\nand 3C. TABLE 2, below, provides power and ground quires substantially error-free data transmission (which\npin connections for the devices used to implement the the error-checking protocols insure).\nmodem hardware illustrated in FIGS. 3A, 3B and 3C. As contemplated by the present invention, data com-\nIn particular, TABLE 2 indicates the pin connections to 30 pression, data encryption, and error control functions\n +5V, digital ground, analog ground, and +I -12V. may all be performed by a single control processor.\nTABLE 2 references the devices by the \"Drawing Thus, when a modem of the class shown in FIG. 2 of\nReference Characters\" and \"Device Reference Desig- the drawings is employed, the microprocessor 101 oper-\nnations\" consistent with their usage in FIGS. 3A, 3B, ates on the outgoing data stream by first performing\nand 3C. 35 data compression, then performing the encryption step,\n TABLE2\nDrawing Device Digital Analog\nReference Character Reference Designation +5 V Pin(s) Ground Pin(s) Ground Pin(s) + I2 V - I2 V\n101 Ul 9, 21,43 26, 46, 47, 50, 60\n103a U2 28 14\n103b U3 28 14\n103c U4 28 14\n103d us 28 14\n119 U6 20 1, 10\n123 us 1, 4, 5, 7, 10, 16 3, 6, 8\n124 U9 6, 10, 16 3, 4, 5, 8\n125 UIO 1, 4, 10, 13, 14 7\n127 Ul1 14 7\nI29 Ul2 I4 7\nI31 Ul3 I4 7\nI33 Ul4 8 3, 4\n135 UIS 14 7\nI37 Ul6 I4 7\nIII Ul7 7, 8, 9 3I\nI IS UIS 1, 45, 6I 29, 37, 53 30, 31 32 36\n117 Ul9 3, 4 I IO\n139 U20 I4 7, I2, I3\nI4I U2I 7 14\nI43 U22 20 I, 10\nI45 U23 20 IO\nI47 U24 I4 7\nI49 U25 16 8, I2, IS\nISI U26 I6 8, 12\nI 53 B Power Ground\nISS SW2 16 9\n\n\n The bypass capacitors are not illustrated in FIGS. and finally performing the error detection/protection\n3A, 3B and 3C. It will be appreciated by those skilled in processing before forwarding the data on to the modem\nthe art that these capacitors have a first terminal con- 65 module 113 for trellis coding and digital-to-analog con-\nnected to the power pin of the integrated circuit and a version for transmission over the telephone network.\nsecond terminal to ground. These type capacitors may The signal processing functions used in this enhanced\nhave a capacitance value of about 0.01 microfarad. arrangement are shown in FIG. 4 of the drawings. In\n\n\n\n\n A0048\n\f Case: 15-142 Document: 2-2 Page: 51 Filed: 07/06/2015\n\n\n\n\n 5,412,730\n 9 10\nFIG. 4, the functional units employed in the basic sys- the central station permits one network user to transmit\ntem shown in FIG. 1 are designated by the same numer- to a single other user, or to \"broadcast\" to selected,\nals used in FIG. 1, and the description of those units authorized users on the network only, while enabling all\nneed not be repeated. terminals to use the network for unsecured transmis-\n A data compressor 34 is shown connected between 5 sions.\nthe data source 15 and the encryptor 17. In the hard- The key memory within each station modem unit\nware as seen in FIG. 2, data compression may be conve- includes a lookup table comprising a plurality of entries,\nniently performed by the microprocessor 101 on the each of which stores control information concerning\ndata from the DTE obtained via the SCC 111. At the another station in the network. Advantageously, each\nreceiving station 12 as seen in FIG. 4, a data decompres- 10 table entry specifies:\nsor 35 is connected between the decryptor 31 and the (1) the serial number which identifies a remote hard-\ndata utilization device 33. Note also that, as depicted in ware unit (and which corresponds to a serial num-\nFIG. 4, the data is monitored by the block counter 21 ber stored in the non-volatile memory of that re-\nprior to compression, rather than afterwards. Corre- mote unit);\nspondingly, at the receiving station 12, the block 15 (2) the current encryption key value (e.g. an 8 digit\ncounter 29 monitors the data flow after it is decom- DES encryption key) to be uS@d for communica-\npressed. In this way, both counters monitor the same tions to and from that remote station; and\ndata stream. Both could be reconnected to monitor the (3) an optional dial-up telephone number (or compa-\ncompressed data stream if desired, however. rable routing information used by the network\n Error control processing is done by the error control 20 switching system).\ncoder 36 which, for example, might add cyclic redun- A switch operated by a physical key is also advanta-\ndancy check data to the data being transmitted to per- geously included in each station unit and has \"security\nmit data correction in the error detector/corrector 37 at enabled\" and \"security disabled\" positions. The key\nthe receiving end, or to initiate a retransmission under memory can only be loaded with values identifying one\nthe active error correction protocol. This error correc- 25 or more remote units with whom communications are\ntion processing (at both ends) may be advantageously authorized when the switch is in the \"security disabled\"\nperformed by the same microprocessor that performs position (typically when the unit is being set up by an\nthe data compression and encryption functions. authorized operator who has the physical key needed to\n To further enhance the security of the transmission, disable the security switch). At that time, the table can\nthe duration of the interval during which each given 30 be loaded either from a remote (host) station or by a\nkey is active may be changed in a pseudo-random fash- local command which takes the form of an extension to\nion. For this purpose, a pseudo-random number genera- the standard modem AT command set. That load com-\ntor 38 is used at the transmitting station 11 to supply the mand take the form:\ninterval numbers to the block counter 21. The generator\n38 is advanced to a new number each time an advance 35 AT JSN KDESKEY PHONENUM\nsignal is received from the output of block counter 21\nover line 39 (so that a new interval number is supplied where AT is the AT command prefix, JSN is the letter\nto the block counter 21 each time it advances the en- \"J\" immediately followed by the serial number of the\ncryption key generator 23). Block counter 21 may sim- remote station with which communications is autho-\nply load the interval number from generator 38 into an 40 rized, KDESKEY is the letter \"K\" immediately fol-\naccumulator which is then decremented toward zero lowed by an 8 character DES encryption key, and\nwhen it emits- the advance signal to generator 23, at PHONENUM is the standard routing code (e.g. dial-up\nwhich time it is loaded with a new and different interval phone number string). In the preferred embodiment, up\nnumber from generator 38. At the receiving station 12, to 1000 serial numbers and keys, and up to 100 optional\na pseudo-random generator 40 (which performs the 45 dial-up phone number strings (each with up to 39 digits)\nsame pseudo-random number generating process as the may stored in the key memory lookup table.\ngenerator 38 at the transmitting station 11) supplies a To make a secured transmission, the calling station\nsequence of interval numbers to counter 29. Generator uses PHONENUM to establish the connection, normal\n40 is advanced by the advance signals from counter 29 modem handshaking procedures are executed to estab-\nwhich also advance the encryption key generator 27. 50 lish a working data connection, including standard pa-\n The random number generators 23 and 38 at the rameter negotiations (e.g. the V.42 parameters if that\ntransmitting station obtain their seed values from a key protocol is being used). If the security key is enabled,\nmemory 50. Key memory 50 stores the random number and a secure transmission is being requested by the\nkeys indexed by destination (along with telephone dial- caller, the answering modem will not send its parameter\n up numbers for automatic dialing). Similarly, at the- 55 message (the V.42 XID frame) until it receives one from\nreceiving station, the seed values for the remote termi- the originator, this initial message including the (unen-\nnals from which the receiving station is authorized to crypted) originator's serial number. The answering\n receive information are stored in a key memory 60 modem uses the received serial number to select the\nconnected to supply seed values to the generators 27 locally stored encryption key corresponding to that\n and 40. The key memories eliminates the need for au- 60 serial number, and encrypts its responsive XID frame\nthorized users to remember and enter keys before each using the fetched key. Thereafter, all transmissions be-\n transmission or reception. tween the originating and answering modems are en-\n In addition, the use of key memories allows the sta- crypted and the encryption keys at each end of the\n tions to be operated as terminals in a secure network secure ling are thereafter altered in accordance with the\n under the control of a central station which, in separate 65 encryption algorithm as heretofore described.\n transmissions over different secure links, enters (and In accordance with an important feature of this ar-\n erases) the keys needed by authorized sending andre- rangement, the host system may initially authorize com-\n ceiving stations connected to the network. In this way, munication between two connected units by supplying\n\n\n\n\n A0049\n\f Case: 15-142 Document: 2-2 Page: 52 Filed: 07/06/2015\n\n\n\n\n 5,412,730\n 11 12\nthe appropriate serial numbers and initial key values \"MODEM.H\" is a \"C\" computer language program\n(unique to an authorized link), but as soon as transmis- that provides definitions and parameters for the firm-\nsion begins between the two units over the authorized ware of the modem unit 115. The \"SCC.ASM\" is an\nlink, the encryption keys are changed in ways that are assembly language program that facilitates interfacing\nunknowable to the host. As a consequence, knowledge 5 with the SCC 111. The \"STARTUP.ASM\" is an assem-\nof the initial seed values supplied by the host are of no bly language program that performs initial setup and\nfurther value and cannot be used to monitor ongoing POST routines. The \"TEST.C\" is a \"C\" computer\ncommunications over the authorized link. language routine that performs self-test and power-on\n Programming self-check. The \"UTIL.C\" is a \"C\" computer language\n 10 routine that performs utility routines for the modem\n The encryption and decryption operations may be unit 115.\nperformed by special purpose devices, such as those The computer program modules written in the \"C\"\nwidely sold to implement the DES standard encryption computer language are specifically designed for \"MI-\nmethod. As noted, however, the encryption function CROSOFT C 5.1\". It should be noted that computer\ncan be less expensively added by suitable programming 15 languages other than \"C\" may be employed to perform\nof the microprocessor 101 to perform this function as the function for which the \"C\" computer language\nwell as the control, compression, and error handling modules were so designed.\nfunctions. Various preferred embodiments of the present inven-\n Working computer programs for use with an 80188 tion have been described. It is understood, however,\nmicroprocessor appear in the computer program listing 20 that changes and modifications can be made without\nin the microfiche appendix. These computer programs departing from the true scope and spirit of the present\nperform the encryption, decryption, control, compres-\n invention as defined by the following claims, which are\nsion, and error handling functions. The computer pro-\n to be interpreted in view of the foregoing.\ngram listing appearing in the microfiche appendix in-\n What is claimed is:\ncludes 14 modules, arranged alphabetically therein, 25\n 1. A method for transmitting data comprising a se-\nnamed: (1) \"COMM.C\"; (2) \"COMMAND.C\"; (3)\n quence of blocks in encrypted form over a communica-\n\"DISPLAY.ASM\"; (4) \"DISPLAY.H\"; (5) \"EN-\nCRYPT.ASM\"; (6) \"EQUS. INC\"; (7) \"KEY_SCHD. tion link from a transmitter to a receiver comprising, in\nASM\"; (8) \"MAIN. C\"; (9) \"MODEM. ASM\"; (10) combination, the steps of:\n\"MODEM.H\"; (11) \"SCC.ASM\"; (12) \"START- 30 providing a seed value to both said transmitter and\n.ASM\"; (13)\"TEST.C\"; and (14) \"UTIL. C\". receiver,\n In the microfiche appendix, each computer program generating a first sequence of pseudo-random key\nmodule includes a comment section followed by a com- values based on said seed value at said transmitter,\nputer program listing. Comments are also interspersed each new key value in said sequence being pro-\nwithin the program listing. Each program is briefly 35 duced at a time dependent upon a predetermined\ndescribed below. characteristic of the data being transmitted over\n The \"COMM.C\" is\u00b7 a \"C\" computer language pro- said link,\ngram that performs communication routines. The encrypting the data sent over said link at said trans-\n\"COMMAND.C\" is also a \"C\" computer language mitter in accordance with said first sequence,\nprogram that performs command processing routines. 40 generating a second sequence of pseudo-random key\nThe \"DISPLAY.ASM\" is an assembly language pro- values based on said seed value at said receiver,\ngram that performs display initialization and display each new key value in said sequence being pro-\ninterface. The \"DISPLAY.H\" is a \"C\" computer lan- duced at a time dependent upon said predetermined\nguage program whose function is to output LCD dis- characteristic of said data transmitted over said link\nplay strings. The \"ENCRYPT.ASM\" is an assembly 45 such that said first and second sequences are identi-\nlanguage program having the function \"KEY_SCHD cal to one another a new one of said key values in\nASM\" which calculates a sequence of 16 key-related said first and said second sequences being produced\nvalues required in the DES algorithm. This sequence is each time a predetermined number of said blocks\npre-calculated when the DES key is changed to in- are transmitted over said link, and\ncrease the speed of encryption and/or decryption. 50 decrypting the data sent over said link at said receiver\n The \"EQUS.INC\" is an assembly language listing in accordance with said second sequence.\nthat defines assembly language names used in the sys- 2. The method as set forth in claim 1 further including\ntem. The \"MAIN.C\" is a \"C\" computer language pro- the step of altering said predetermined number of blocks\ngram that performs modem supervisory control. The each time said new key value in said first and said sec-\n\"MODEM.ASM\" is an assembly language program 55 ond sequences is produced.\nthat facilitates interfacing with the modem unit 115. The * * * * *\n\n\n 60\n\n\n\n\n 65\n\n\n\n\n A0050\n\f Case: 15-142 Document: 2-2 Page: 53 Filed: 07/06/2015\n\n\n\n\n UNITED STATES PATENT AND TRADEMARK OFFICE\n CERTIFICATE OF CORRECTION\nPATENT NO. : 5,412,730 Cl Page 1 of 1\nAPPLICATION NO. : 90/011405\nDATED : September 20, 2011\nINVENTOR(S) : Michael F. Jones\n\nIt is certified that error appears in the above-identified patent and that said Letters Patent is hereby corrected as shown below:\n\n\n On the Title page item (73), change \"Top\" to --TOP--; and\n\n On the Title page item (56) under U.S. Patent Documents, line 6, change \"Herbem\" to --Hebem--.\n\n On the Title page item (56), second col. line 1, under Other Publications change \"Encrption\" to\n --Encryption--.\n\n Page 2, first column, line 3, change \"Herbem\" to --Hebem--; and\n\n line 35, change \"Frosch et al.\" to --Doland--.\n\n Page 2, second column, line 15, change \"Institute\" to --Institution--;\n\n line 31, change \"Entemtainment\" to --Entertainment--;\n\n line 46, change \"Des\" to --DES--; and\n\n line 55, change \"Communication\" to --Communications--.\n\n Page 3, first column, line 3, change \"unkown\" to --unknown--; and\n\n line 11, change \"Cryptogprahy\" to --Cryptography--.\n\n Page 3, second column, lines 5-6, change\n \"http://groups.google.com/sci.crypt/browse_frm/month/1987 -09\" to\n --http://groups.google.com/ group/sci.crypt/browse_frm/month/1987 -09--; and\n\n line 28, change \"Philadephia\" to --Philadelphia--.\n\n\n\n\n Signed and Sealed this\n Third Day of April, 2012\n\n\n\n\n David J. Kappos\n Director of the United States Patent and Trademark Office\n\n\n\n\n A0051\n\f Case: 15-142 Document: 2-2 Page: 54 Filed: 07/06/2015\n\n\n\n\n UNITED STATES PATENT AND TRADEMARK OFFICE\n CERTIFICATE OF CORRECTION\nPATENT NO. : 5,412,730 Cl Page 1 of2\nAPPLICATION NO. : 90/011405\nDATED : September 20, 2011\nINVENTOR(S) : Michael F. Jones\n\nIt is certified that error appears in the above-identified patent and that said Letters Patent is hereby corrected as shown below:\n\n\n On the Title page item (73), change \"Top\" to --TQP--; and\n\n On the Title page item (56), under U.S. Patent Documents, line 6, change \"Herbem\" to --Hebem--.\n\n On the Title page item (56), second col. line 1, under Other Publications, change \"Encrption\" to\n --Encryption--.\n\n Page 2, first column, line 3, change \"Herbem\" to --Hebem--; and\n\n line 35, change \"Frosch et al.\" to --Doland--.\n\n Page 2, second column, line 15, change \"Institute\" to --Institution--;\n\n line 31, change \"Entemtainment\" to --Entertainment--;\n\n line 46, change \"Des\" to --DES--; and\n\n line 55, change \"Communication\" to --Communications--.\n\n Page 3, first column, line 3, change \"unkown\" to --unknown--; and\n\n line 11, change \"Cryptogprahy\" to --Cryptography--.\n\n\n\n\n This certificate supersedes the Certificate of Correction issued April 3, 2012.\n\n\n Signed and Sealed this\n Fourth Day of September, 2012\n\n\n ~-JJ:\u2022t-.~\n David J. Kappos\n Director of the United States Patent and Trademark Office\n\n\n\n\n A0052\n\f Case: 15-142 Document: 2-2 Page: 55 Filed: 07/06/2015\n\n\n\n\nCERTIFICATE OF CORRECTION (continued) Page 2 of2\nU.S. Pat. No. 5,412,730 Cl\n\n Page 3, second column, lines 5-6, change\n \"http://groups.google.com/sci.crypt/browse_frm/month/1987 -09\" to\n --http://groups.google.com/ group/sci.crypt/browse_frm/month/1987 -09--; and\n\n line 28, change \"Philadephia\" to --Philadelphia--.\n\n\n\n\n A0053\n\f Case: 15-142 Document: 2-2 Page: 56 Filed: 07/06/2015\n\n\n 111111 1111111111111111111111111111111111111111111111111111111111111\n US005412730Cl\n\n c12) EX PARTE REEXAMINATION CERTIFICATE (8548th)\nUnited States Patent c1o) Number: US 5,412,730 Cl\nJones (45) Certificate Issued: Sep. 20, 2011\n\n(54) ENCRYPTED DATA TRANSMISSION FOREIGN PATENT DOCUMENTS\n SYSTEM EMPLOYING MEANS FOR\n CA 1 189 925 7/1985\n RANDOMLY ALTERING ENCRYPTION KEYS CA 1 209 664 8/1986\n EP 0 002 580 6/1979\n(75) Inventor: Michael F. Jones, Nashua, NH (US) EP 0 028 273 5/1981\n EP 0 063 332 10/1982\n(73) Assignee: Top Development, LLC, Marshall, TX EP 0 093 525 1111983\n (US) EP 0 148 960 7/1985\n EP 0 197 392 10/1986\nReexamination Request: GB 1 295 572 1111972\n No. 90/011,405, Dec. 27, 2010 GB 2 008 363 5/1979\n GB 2067871 7/1981\nReexamination Certificate for: GB 2 076 615 12/1981\n Patent No.: 5,412,730 GB 2 151 886 7/1985\n GB 2 188 514 9/1987\n Issued: May 2, 1995\n JP 60-003242 111985\n Appl. No.: 07/872,674 wo wo 87/00377 111987\n Filed: Apr. 23, 1992 wo wo 87/03442 6/1987\n wo wo 88/10541 12/1988\n Related U.S. Application Data OTHER PUBLICATIONS\n(63) Continuation-in-part of application No. 07/418,178, filed on NBIS Data Encrption Standard, National Institute of Stan-\n Oct. 6, 1989, now abandoned. dards and Technology, Dec. 30, 1993, available at http://\n(51) Int. Cl. graphcomp/info/crypt/des.txt on Jun. 2, 2011, pp. 1-5.\n H04L 9100 (2006.01) (Continued)\n\n(52) U.S. Cl. .......................... 380/46; 380/262; 380/266; Primary Examiner-Minh Dieu Nguyen\n 380/29 (57) ABSTRACT\n(58) Field of Classification Search ........................ None\n See application file for complete search history. A modem suitable for transmitting encrypted data over\n voice-grade telephone line. The modem is implemented by\n the combination of integrated circuit components including\n(56) References Cited\n a microprocessor, a serial communications controller which\n U.S. PATENT DOCUMENTS communicates with connected data terminal equipment, and\n a modulator/demodulator for translating between voice band\n 1,295,572 A 2/1919 Newcomb tone signals and digital data. Psuedo random number gen-\n 1,310,719 A 7/1919 Vernam erators are employed at both the transmitting and receiving\n 1,320,908 A 1111919 Parker stations to supply identical sequences of encryption keys to a\n 1,356,546 A 10/1920 Morehouse\n transmitting encoder and a receiving decoder. An initial ran-\n 1,479,846 A 111924 Vernam\n dom number seed value is made available to both stations.\n 1,510,441 A 9/1924 Herbern\n 1,522,775 A 111925 Friedman The random number generators are advanced at times deter-\n 1,533,252 A 4/1925 Koch mined by predetermined characteristics of the data being\n 1,598,673 A 9/1926 Blackwell et al. transmitted so that, after transmission has taken place, the\n common encryption key can be known only to the transmit-\n (Continued) ting and receiving stations.\n\n\n\n\n A0054\n\f Case: 15-142 Document: 2-2 Page: 57 Filed: 07/06/2015\n\n\n\n\n US 5,412,730 Cl\n Page 2\n\n\n\n U.S. PATENT DOCUMENTS 4,924,516 A 511990Bremer et a!.\n 4,930,139 A 511990Chandler et al.\n1,657,411 A 111928 Scherbius 4,933,971 A 611990Be stock et a!.\n1,683,072 A 911928 Herbern 4,935,961 A 611990Gargiulo et a!.\n1,848,291 A 311932 Hitt 4,980,913 A 1211990Skret\n1,861,857 A 611932 Hebern 5,003,596 A 311991Wood\n2,373,890 A 411945 Hebern 5,058,158 A 1011991Matias eta!.\n2,401,855 A 611946 Briggs eta!. 5,067,156 A 1111991Martin\n2,403,280 A 7I 1946 Hicks 5,253,294 A 1011993Maurer\n3,546,380 A 1211970 Sturzlager 6,097,812 A 812000Friedman\n3,659,046 A 411972 Angeleri eta!. 6,912,284 B1 612005 Palmatier\n3,702,900 A 1111972 Sturzinger\n3,752,920 A 811973 Gemperle OTHER PUBLICATIONS\n3,781,472 A 1211973 Goode eta!.\n3,798,359 A 311974 Feistel American National Standard Institute (ANSI), Accredited\n3,798,360 A 311974 Feistel Standards Committee X9, Financial Services, American\n3,852,534 A 1211974 Tilk National Standard Institute (ANSI), Financial Institute Key\n3,958,081 A 511976 Ehrsam eta!. Management (Wholesale), Apr. 4, 1985.\n4,071,693 A 111978 Frutiger Ayoub, Encryption with Keyed Random Permutations, Elec-\n4,074,066 A 211978 Ehrsam eta!. tronics Letters, v.17 issue 17, Aug. 20, 1981; pp. 583-585.\n4,078,152 A 311978 Tuckerman, III\n Bounas, Direct Determination of a Seed Binary Matrix,\n4,107,458 A 811978 Constant\n Information Processing Letters, v.20, issue 1, Jan. 2, 1985;\n4,133,973 A 111979 Branscome eta!.\n4,133,974 A 111979 Morgan pp. 47-50.\n4,157,453 A 611979 Rosen Bright et a!., Cryptography Using Modular Software Ele-\n4,157,454 A 611979 Becker ments, AFIPS Conference Proceedings, v.45, 1976; pp.\n4,170,714 A 1011979 Branscome eta!. 113-123.\n4,176,246 A 1111979 Gaetzi Brown, Europe Holds Challenges for Voice, Data Protec-\n4,179,663 A 1211979 Vasseur tion, Government Computer News, v.7, No. 21, 1998.\n4,195,196 A 311980 Feistel Claassen et a!., Secure Communication Procedure for ISDN,\n4,200,770 A 411980 Hellman eta!.\n Comsig '88, 1988.\n4,202,051 A 511980 Davida eta!.\n Defendant's Ticketmaster Entertainment, Inc. et al., Invalid-\n4,203,166 A 511980 Ehrsam eta!.\n4,229,818 A 1011980 Matyas et al. ity Contentions of TQP Development, LLC v. Ticketmaster\n4,249,180 A 211981 Eberle et al. Enterntainment, Inc. et al., Civil Action 2:09-cv-279 TJW,\n4,304,962 A 1211981 Fracassi eta!. currently pending in the U.S. District Court for the Eastern\n4,310,720 A 111982 Check, Jr. District of Texas, Marshall Division, dated Oct. 27, 2010;\n4,316,055 A 211982 Feistel pp. 1-521 (including Exhibits A-C).\n4,319,079 A 311982 Best Diffie et a!., Privacy and Authentication: An Introduction to\nRE30,957 E 611982 Feistel Cryptography, Proceedings of the IEEE, v.67, No.3, Mar.\n4,341,925 A 711982 Frosch eta!.\n 1979,pp.397-427.\n4,369,332 A 111983 Campbell, Jr.\n4,369,333 A 111983 Gemperle et a!. Edwards, Concerns Over Data Security Stimulate Counter-\n4,369,434 A 111983 Mueller measures, Communications News, v.21, 1984.\n4,429,180 A 111984 Unkenholz Ehrsam et a!., A Cryptographic Key Management Scheme\n4,433,211 A 211984 McCalmont et al. For Implementing The Data Encryption Standard, IBM Sys-\n4,442,527 A 411984 Munday tems Journall7, No.2, 1978, pp. 106-125.\n4,447,672 A 511984 Nakamura Federal Information Processing Standards, Data Encryption\n4,484,027 A 1111984 Lee et al. Standard, Federal Information Processing Standards, Jan.\n4,578,530 A 311986 Zeidler\n 15, 1977.\n4,628,359 A 1211986 Okada et al.\n4,634,808 A 111987 Moerder Federal Information Processing Standards, Des Modes of\n4,649,233 A 311987 Basset al. Operation, Federal Information Processing Standards, Pub-\n4,652,990 A 311987 Pail en eta!. lication 81, Dec. 2, 1980.\n4,654,480 A 311987 Weiss Feistel, Cryptography and Computer Privacy, Scientific\n4,694,491 A 911987 Horne et a!. American, v.228, No.5, May 1973, pp. 15-23.\n4,723,246 A 211988 Weldon, Jr. Feistel et a!., Some Cryptographic Techniques for\n4,747,139 A 511988 Taaffe Machine-to-Machine Data Communications, Proceedings\n4,754,482 A 611988 Weiss\n4,771,458 A 911988 Citta eta!.\n ofthe IEEE, v.63, issue 11, Nov. 1975; pp. 1545-1554.\n4,791,669 A 1211988 Kage Goyal eta!., Encryption Using Random Keys: A Scheme for\n4,797,921 A 111989 Shiraishi Secure Communication, IEEE, 1988.\n4,797,922 A 111989 Massey et a!. Gersho, Perfect Secrecy Encryption ofAnalog Signals, IEEE\n4,802,217 A 111989 Michener Journal on Selected Areas in Communications, v.Sac-2, No.\n4,811,394 A 311989 Ragavan eta!. 3, May 1984.\n4,827,507 A 511989 Marry et a!. Ingermarsson et a!., A Conference Key Distribution System,\n4,856,063 A 811989 McCalmont\n IEEE Transactions on Information Theory, v.28, No. 5, Sep.\n4,860,353 A 811989 Brown\n4,864,615 A 911989 Bennett eta!.\n 1982.\n4,888,800 A 1211989 Marshall eta!. Jansen et a!., Modes of Blockcipher Algorithms and Their\n4,890,324 A 1211989 Jansen Protection Against Active Eavesdropping, Advances in\nRE33,189 E 311990 Lee et al. Cryptology-Eurocrypt '87, 1987.\n\n\n\n\n A0055\n\f Case: 15-142 Document: 2-2 Page: 58 Filed: 07/06/2015\n\n\n\n\n US 5,412,730 Cl\n Page 3\n\n\n\nKahn, The Codebreakers: The Comprehensive History of Proctor, A Self-Synchronizing Cascaded Cipher System with\nSecret Communication from Ancient Times to the Internet, Dynamic Control of Error Propagation, Proceedings of\nPublisher: unkown; 1967. CRYPTO 84 on Advances in Cryptology, 1985; pp. 174-192.\nKahn, The Codebreakers: The First Comprehensive History Repa, Naive cipher, with questions, sci.crypt Newsgroup,\nof Secret Communication from Ancient Times to the Thresh- available at http://groups.google.com/sci.crypt/browse_\nold of Outer Space, Publisher: unknown, 1967. frm/month/1987-09, Sep. 18, 1987.\nKahn, The Codebreakers: The Story of Secret Writing, Rosati, A High Speed Data Encryption Processor for Public\nWeidenfeld and Nicolson, 1967, pp. 1-10. Key Cryptography, IEEE Customs Integrated Circuits Con-\nKaliski, Jr. eta!., Is the Data Encryption Standard a Group?, ference, 1989.\nJournal ofCryptology, v.1, 1988, pp. 3-36.\n Savage, Some Simple Self-Synchronizing Digital Data\nKranakis, Primality and Cryptogprahy, Wiley-Teubner, Sec-\n Scramblers, The Bell System Technical Journal, Feb. 1967,\ntion 4.1, 1986.\n pp.449-487.\nKent, Encryption Based Protection Protocols for Interactive\nUser Communication, MIT/LCS/TR-162, May 1976. Shannon, Communication Theory of Secrecy Systems, Bell\nLu, Random Ciphering Bounds on a Class ofSecrecy System System Technical Journal28, Oct. 31, 1949; pp. 656-715.\nand Discrete Message Sources, IEEE Transactions on Infor- Simmons, Symmetric and Asymmetric Encryption, Sandia\nmation Theory, v.25, No.4, Jul. 1979. Laboratories, Albuquerque, New Mexico, Computing Sur-\nMatyas et a!., Generation, distribution and installation of veys, v.ll, No.4, Dec. 1979.\ncryptographic keys, IBM Systems Journal17, No.2, 1978, Jones, New Encryption System Increases Data Security,\npp. 126-137. Gale Group, Mar. 1991; pp. 1.\nMeyer eta!., Cryptography: A New Dimension in Computer Vernam, Cipher Printing Telegraph Systems for Secret Wire\nData Security: A Guide for the Design and Implementation and Radio Telegraphic Communications, Journal of the\nof Secure Systems, John Wiley & Sons, 1982. IEEE, v. 55, Feb. 1926.\nMeyer, Enciphering Data for Secure Transmission, Com- Voydock eta!., Security Mechanisms in High-Level Network\nputer Design, Apr. 1974; pp. 129-134. Protocols, ACM Computing Surveys, v.15, 1983; pp.\nMjolsnes, A Simple Technique for Diffusing Cryptoperiods, 135-171.\nDiv. of Computer Science and Telematics ELAB-RUNIT,\nThe Norwegian Institute of Technology, N-7034, Advances Wagner, Using Algorithms as Keys in Stream Ciphers,\nin Cryptology-EUROCRYPT '89, Workshop on the Theory Drexel University, Mathematics and Computer Science,\nand Application of Cryptographic Techniques, Houthalen, Philadephia, PA 19104; Publisher; unknown, 1986, pp.\nBelgium, Apr. 10-23. 149-155.\nOrceyre eta!., An Approach to Secure Voice Communication Wagner et a!., Encrypted Database Design: Specialized\nBased on Data Encryption Standard, Communications Approaches, 1986 IEEE Symposium on Security and Pri-\nMagazine, IEEEv. 16, issue 6, Nov. 1978; pp. 41-50. vacy, 1986;pp. 148-153.\nPayne et a!., Orderly Enumeration of Nonsingular Binary Diffie & Hellman, \"Privacy & Authentication: An Introduc-\nMatrices Applied to Text Encryption, Communications ofthe tion to Cryptography,\" Proceedings of the IEEE, vol. 67, No.\nACM, v.21, issue 4, Apr. 1978, pp. 259-263. 3,Mar. 1979,pp. 397-427.\n\n\n\n\n A0056\n\f Case: 15-142 Document: 2-2 Page: 59 Filed: 07/06/2015\n\n\n\n\n US 5,412,730 Cl\n 1 2\n EX PARTE 5. The method of claim 1, wherein said provided seed\n REEXAMINATION CERTIFICATE value is one of a number of different seed values indexed by\n destination for a plurality of remote locations with which\n ISSUED UNDER 35 U.S. C. 307\n secure communication is required.\n THE PATENT IS HEREBY AMENDED AS 6. The method of claim 1, wherein said provided seed\n INDICATED BELOW.\n value is one ofa number of different seed values for a plural-\n Matter enclosed in heavy brackets [ ] appeared in the ity of remote locations with which secure communication is\npatent, but has been deleted and is no longer a part of the required.\npatent; matter printed in italics indicates additions made 10 7. The method of claim 1,further comprising:\nto the patent.\n selecting the seed value from a number of different seed\nAS A RESULT OF REEXAMINATION, IT HAS BEEN values for a plurality of remote locations with which\n DETERMINED THAT: secure communication is required.\n 15\n 8. The method of claim 1,further comprising:\n The patentability of claims 1-2 is confirmed. associating different ones of seed values with each of a\n plurality of remote locations with which secured com-\n New claims 3-10 are added and determined to be patent-\nable. munication is required.\n 9. The method of any one of claims 3, 4, 5, 6, 7, or 8,\n 20\n 3. The method of claim 1, further comprising: further comprising:\n at said transmitter, associating with each of a plurality of adding error control information to the data sent over\n remote locations with which secured communication is said link, wherein the error control information is\n required different seed values, and\n added prior to transmitting the data over said link\n wherein said provided seed value is one of said different\n seed values. 25\n 10. The method of claim 9, further comprising:\n 4. The method of claim 3, further comprising: compressing the data prior to encrypting the data.\n storing the different seed values indexed by remote loca-\n tion. * * * * *\n\n\n\n\n A0057\n\f Case: 15-142 Document: 2-2 Page: 60 Filed: 07/06/2015\n\n\n\n\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 1 of 70 PageID #: 8599\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\nTQP DEVELOPMENT, LLC,\n\n Plaintiff,\n\n v. NO. 2:11-CV-248-JRG\n\n1-800-FLOWERS.COM, INC., et al.,\n\n Defendants.\n\n\n NEWEGG\u2019S RULE 50(b) MOTION FOR JUDGMENT AS A MATTER OF LAW\n\n\n\n\n A0058\n\f Case: 15-142 Document: 2-2 Page: 61 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 2 of 70 PageID #: 8600\n\n\n\n\n TABLE OF CONTENTS\n\nI. LEGAL STANDARD ............................................................................................................... 2\n\nII. ARGUMENT ............................................................................................................................ 3\n\n A.\u00a0 NO REASONABLE JURY COULD HAVE FOUND INFRINGEMENT OR ACTIVE INDUCEMENT OF\n INFRINGEMENT ...................................................................................................................... 3\n\n 1. TQP Failed to Prove that Newegg's Accused Website Systems Satisfied All\n Claim Requirements ...................................................................................................... 4\n\n a. TQP Failed To Prove The \u201cHave Been Sent\u201d Requirement ................................... 4\n\n b. TQP Failed to Prove the \u201cPredetermined Number of Blocks\u201d Requirement .......... 9\n\n c. TQP Failed to Prove the \u201cGenerating First/Second Sequence[s]\u201d Requirements . 10\n\n 2.\u00a0 There is No Evidence that Newegg Performed, or Controlled or Directed, All the Steps\n of the Claimed Method ................................................................................................ 10\n\n 3.\u00a0 TQP Presented No Evidence of Even a Single Instance of Direct Infringement\n During the Patent Term ............................................................................................... 13\n\n a. \u00a0 TQP Failed to Prove That Newegg Or Its Customers Actually Used RC4 During\n the Patent Term .................................................................................................... 14\n\n b.\u00a0 TQP Failed to Prove How SSL was Implemented on the Accused NetScalers\n During the Patent Term ........................................................................................ 17\n\n 4.\u00a0 TQP Failed to Present Sufficient Evidence that Newegg is Liable for Active Inducement\n of Infringement ............................................................................................................ 19\n\n B.\u00a0 NO REASONABLE JURY COULD HAVE FOUND THE ASSERTED CLAIMS VALID OVER THE\n PRIOR ART OF RECORD ....................................................................................................... 21\n\n 1.\u00a0 The Prior Inventions of RC4 and Lotus Notes Including RC4 Invalidate the Asserted\n Claims Under 35 U.S.C. \u00a7 102(g) ................................................................................ 22\n\n a.\u00a0 RSA Invented The Claimed Subject Matter Of The \u2019730 Patent First .................. 23\n\n b.\u00a0 RSA Did Not Abandon, Suppress, Or Conceal RC4, and Iris Associates Did Not\n Abandon Suppress or Conceal Lotus Notes With RC4 ........................................ 25\n\n 2.\u00a0 The Prior Public Knowledge or Use of RC4 or Lotus Notes with RC4 Invalidate the\n Asserted Claims Under 35 U.S.C. \u00a7\u00a7 102(a)/(b) .......................................................... 31\n\n i\n A0059\n\f Case: 15-142 Document: 2-2 Page: 62 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 3 of 70 PageID #: 8601\n No. 2:11-CV-248-JRG\n\n\n\n 3.\u00a0 The Prior Offers for Sale and Sale of RC4 and Lotus Notes Incorporating RC4\n Invalidate the Asserted Claims Under 35 U.S.C. \u00a7 102(b) ........................................... 34\n\n 4.\u00a0 The Asserted Claims Are Invalid Over the 1982 Denning Textbook, a Prior Printed\n Publication, Under 35 U.S.C. \u00a7 102(a)/(b) .................................................................. 36\n\n a.\u00a0 Denning Anticipates All Asserted Claims of the \u2019730 Patent ............................... 38\n\n b.\u00a0 TQP\u2019s Disputes Concerning Denning are Without Merit ..................................... 42\n\n 5.\u00a0 The Asserted Claims Are Obvious as a Matter of Law Under 35 U.S.C. \u00a7 103 ........... 45\n\n a.\u00a0 RC4 Alone Renders the Asserted Claims Obvious............................................... 47\n\n b.\u00a0 Denning Alone Renders the Asserted Claims Obvious ........................................ 48\n\n c.\u00a0 Combinations of RC4, Lotus Notes with RC4, and Denning Render the Asserted\n Claims Obvious.................................................................................................... 50\n\n C.\u00a0 NO REASONABLE JURY COULD HAVE FOUND NEWEGG LIABLE FOR THE $2.3 MILLION\n DAMAGES VERDICT ............................................................................................................. 51\n\n 1.\u00a0 Legal Background ....................................................................................................... 51\n\n 2.\u00a0 TQP Did Not Provide Legally Viable Evidence to Support Its Damages Claim .......... 52\n\n a.\u00a0 The RSA Licenses Are Not Comparable to the \u2019730 Patent ................................. 53\n\n b.\u00a0 Dr. Becker\u2019s Royalty Tranches Were Arbitrarily Selected and Find No Support in\n the Record ............................................................................................................ 56\n\n 3.\u00a0 TQP\u2019s Position is Undermined by Compelling Evidence ............................................. 58\n\nIII. CONCLUSION ....................................................................................................................... 60\u00a0\n\n\n\n\n ii\n A0060\n\f Case: 15-142 Document: 2-2 Page: 63 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 12 of 70 PageID #: 8610\n No. 2:11-CV-248-JRG\n\n\n was from 2013, after the \u2019730 Patent expired. TQP may not rely on such evidence to prove\n\n infringement during the damages period. Finally, TQP failed to prove that Newegg actively\n\n induced infringement by intending to cause infringement or acting with culpable intent. For any\n\n one of these reasons, the Court should grant Newegg\u2019s motion.\n\n 1. TQP Failed to Prove that Newegg\u2019s Accused Website Systems Satisfied All\n Claim Requirements\n\n It was TQP\u2019s burden at trial to prove that Newegg\u2019s website met all the claim requirements.\n\n The failure to establish that the accused product meets all limitations of the claim requires\n\n judgment as a matter of law. See Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1321\n\n (Fed. Cir. 2009); Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 980-981 (Fed. Cir. 1999)\n\n (judgment as a matter of law of non-infringement is appropriate when no reasonable fact finder\n\n could determine \u201cthat the accused devices meet every limitation of the properly construed claims\u201d).\n\n Here, TQP withdrew its doctrine of equivalents case. Thus, it was required to show that Newegg\n\n satisfied every limitation literally, but TQP failed to carry its burden of proof as a matter of law.\n\n a. TQP Failed To Prove The \u201cHave Been Sent\u201d Requirement\n\n All the asserted claims require: \u201ca new one of said key values in said first and said second\n\n sequences being produced each time a predetermined number of said blocks are transmitted over\n\n said link.\u201d PX-1, \u2019730 Patent, at Claim 1. The Court construed this claim requirement to mean \u201ca\n\n new key value in the first and second sequence is used each time a predetermined number of\n\n blocks have been sent from the transmitter over the communications link.\u201d Dkt. No. 226, at 22.\n\n TQP\u2019s infringement theory is that a single byte of data is the \u201cpredetermined number of\n\n blocks.\u201d Trial Tr. Nov. 20, 2013 AM, at 12:24-13:5; 23:2-6 (\u201cQ. What is the predetermined\n\n number of blocks in SSL and RC4? A. RC4 defines a predetermined number of blocks in one\u2014as\n\n one, and it\u2019s the\u2014it is that way within SSL or TLS as well.\u201d). Thus, the only legitimate reading of\n\n 4\n A0069\n\f Case: 15-142 Document: 2-2 Page: 64 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 13 of 70 PageID #: 8611\n No. 2:11-CV-248-JRG\n\n\n this construction in this case is that a new key value must be used at the transmitter for encrypting\n\n the next block only after each prior encrypted block has already been transmitted over the link \u2013\n\n not before. A block of data must be encrypted and sent over the communication link before the\n\n next block is encrypted. TQP failed to prove that Newegg\u2019s NetScalers met this requirement.\n\n TQP\u2019s expert, Dr. Jaeger, did not address the \u201chave been sent\u201d requirement on direct\n\n examination\u2014he merely conclusorily asserted that the claim element is generally satisfied. Trial\n\n Tr. Nov. 20, 2013 AM, at 17:25-18:21 (\u201cQ. Does Newegg's use of SSL and RC4 meet all the\n\n requirements of Element 1(e)? A. I find that it does, yes.\u201d). Dr. Jaeger then confirmed on cross,\n\n using the following demonstrative from his direct examination, that the one-byte \u201cblock\u201d in\n\n Newegg\u2019s system is not transmitted when the next key value is used by the transmitter:\n\n\n\n\n Dr. Jaeger\u2019s Demonstratives, attached as Ex. A, at Slide 68.\n\n Q [I]n this animation\u2014you show that we\u2019ve got one block, the green block,\n and two blocks\u2014the second block, the blue block\u2014block, they\u2019ve been\n encrypted already, correct?\n\n 5\n A0070\n\f Case: 15-142 Document: 2-2 Page: 65 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 14 of 70 PageID #: 8612\n No. 2:11-CV-248-JRG\n\n\n A As is shown here, yes.\n Q And they\u2019ve each been encrypted using a different key value, correct?\n A Block 1 was encrypted with a different key value than Block 2, yes.\n Q So Block 2, the blue block, is being encrypted using a new key value before\n Block 1 has been transmitted across the communication link, correct?\n A That\u2019s correct.\n\n Trial Tr. Nov. 20, 2013 AM, at 130:11-23; see also id at 54:22-55:5 (admitting that multiple bytes\n\n are transmitted en masse in Newegg\u2019s accused system, not one at a time). TQP\u2019s expert thus\n\n openly acknowledged that, under his infringement theory, the new key value is used to encrypt the\n\n next byte before the previously encrypted block has been sent over the communication link. The\n\n Court\u2019s claim construction is not met by Newegg\u2019s accused system.\n\n Newegg\u2019s technical expert, Dr. Stubblebine, confirmed non-infringement by examining the\n\n same demonstrative slide prepared by Dr. Jaeger shown above. Trial Tr. Nov. 21, 2013 PM, at\n\n 32:17-25 (\u201cThe Court's construction says that new key value in the first and second sequence is\n\n used each time a predetermined number of blocks have been sent from the transmitter over the\n\n communication link. And what Dr. Jaeger was accusing as that predetermined number is one\n\n block. And so one block has got to be sent before you use the next key to encrypt the next block,\n\n and that's not what's going on.\u201d). It is beyond any reasonable dispute that Newegg\u2019s system does\n\n not send an encrypted block over the communication link before the next key is used to encrypt.\n\n As a result, Newegg is entitled to a judgment of non-infringement as a matter of law.\n\n TQP initially disputed but ultimately conceded that Newegg\u2019s reading of the claim\n\n language and the construction is correct. During the claim construction phase of this case Newegg\n\n proposed that the phrase \u201cblocks are transmitted over said link\u201d be interpreted to require that the\n\n \u201cblocks have been sent from the transmitter over the communication link.\u201d Dkt. 226 [Claim\n\n Construction Order] at 18. Newegg\u2019s briefing clearly explained that the new key value at the\n\n transmitter must not be used until after the prior block already has been sent over the link. Dkt.\n\n 6\n A0071\n\f Case: 15-142 Document: 2-2 Page: 66 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 15 of 70 PageID #: 8613\n No. 2:11-CV-248-JRG\n\n\n 178, at 20 (\u201c[U]se of the past tense here indicates that the invention does not switch to the next key\n\n value until after the predetermined number of data blocks have been transmitted.\u201d).\n\n TQP initially opposed the inclusion of the phrase \u201chave been sent.\u201d Dkt. 172, at 5-6.\n\n TQP\u2019s briefing on the issue was conclusory and unconvincing, essentially going no further than\n\n expressing its belief that the \u201chave been sent\u201d language was redundant and unnecessary. Dkt. 172,\n\n at 5-6. However at oral argument, TQP argued that \u201chave been sent\u201d should not be included in the\n\n construction because it supposedly changed to the past tense the requirement that the first block be\n\n sent when the next block is transmitted, making it \u201cawkward.\u201d Markman Tr., Dkt. 212 at 51:15-\n\n 20 (\u201cthe concern is this, it\u2019s changing the present tense, \u2018are transmitted,\u2019 to the past tense, \u2018have\n\n been sent.\u2019\u201d). Specifically, TQP contended: \u201c[t]he key values in the first sequence are in the\n\n transmitter. Those values are being produced before the data is transmitted. So changing it to\n\n \u2018have been sent\u2019 seems awkward to us.\u201d Id. at 51:11-52:5. Despite this supposed disagreement,\n\n TQP characterized the difference between \u201care transmitted\u201d and \u201chave been sent\u201d as \u201cvery close\u201d\n\n and \u201ca minor issue.\u201d Id. at 55:11-56:12. In fact, TQP\u2019s counsel ultimately conceded that its\n\n concerns were addressed by the Court\u2019s ultimate construction: \u201cTo the extent that the Court's\n\n construction is indicating that a new key value is used past tense each time a predetermined\n\n number of blocks have been sent from the transmitter over the communication link, I think that\n\n may be broad enough to address the concern that I\u2019ve raised.\u201d Id.\n\n In the subsequent Claim Construction Order, this Court rejected TQP\u2019s arguments and\n\n adopted a construction requiring that the \u201cblocks have been sent from the transmitter\u201d because \u201cthe\n\n claim explicitly refers to transmission, not to encryption or to some other step of preparing for\n\n transmission.\u201d Dkt. 226 at 21. TQP never objected to this construction. In sum, the parties\n\n already debated during claim construction whether the new key value had to be used at the\n\n\n\n 7\n A0072\n\f Case: 15-142 Document: 2-2 Page: 67 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 16 of 70 PageID #: 8614\n No. 2:11-CV-248-JRG\n\n\n transmitter after the block had been sent. The Court found that it did and TQP, after initially\n\n raising apparently grammatical rather than substantive concerns, accepted the construction.\n\n Nevertheless, at trial, TQP suddenly contended that the requirement of the new key value\n\n being used to encrypt a second block before the first encrypted block has been sent over the link\n\n supposedly did not relate to the new key value in the transmitter, but rather only the new key value\n\n on the receiver side. TQP argued that encryption at the transmitter was irrelevant because the two\n\n sequences of key values are identical and the claim step at issue appears in a paragraph describing\n\n the generation of the second sequence of key values at the receiver. Trial Tr. Nov. 25, 2013 PM, at\n\n 113:8-114:17. But again, at the claim construction hearing, TQP\u2019s counsel accepted the Court\u2019s\n\n construction and acknowledged in the context of this very claim construction issue that the \u201ckey\n\n values in the first sequence are in the transmitter.\u201d Markman Tr. at 51-52.\n\n In its mid-trial attempt to sidestep the claim constructions and backpedal from its previous\n\n positions taken on the record, TQP first notes that this claim step starts with the language\n\n \u201cgenerating a second sequence of pseudo-random key values based on said seed value at said\n\n receiver.\u201d TQP asserts that this means the relevant clause (whose construction is at issue) \u201csaid\n\n first and said second sequences being produced each time a predetermined number of said blocks\n\n are transmitted over said link\u201d must only relate to the receiver side.\n\n But TQP does not get a \u201cdo-over\u201d on claim construction. The claim requirement at issue\n\n expressly refers to the \u201cfirst sequence\u201d of key values, which is the sequence on the transmitter side,\n\n as this Court previously held. This is because the second step of the claim requires the step of\n\n \u201cgenerating a first sequence of pseudo-random key values based on said seed value at said\n\n transmitter.\u201d Only the second sequence is at the receiver side. Thus, by the plain text of the\n\n claim, the requirement that a new key value is used after the previously encrypted block \u201cha[s]\n\n\n\n 8\n A0073\n\f Case: 15-142 Document: 2-2 Page: 68 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 436 Filed 02/17/14 Page 17 of 70 PageID #: 8615\n No. 2:11-CV-248-JRG\n\n\n been sent\u201d applies to both the first sequence in the transmitter and the second sequence in the\n\n receiver: \u201ca new one of said key values in said first and said second sequences being produced\n\n each time a predetermined number of said blocks are transmitted over said link.\u201d The new key\n\n values are undeniably required to be used at both the transmitter and the receiver after a\n\n predetermined number of blocks have been sent over the communication link.\n\n Because TQP\u2019s reading of the claim construction is inconsistent with a plain reading of the\n\n Court\u2019s construction and the claim, and it is undisputed that Newegg does not transmit a block of\n\n encrypted data before encryption of a new block of data, Newegg is entitled to a judgment as a\n\n matter of law that it does not infringe the \u2019730 Patent.\n\n b. TQP Failed to Prove the \u201cPredetermined Number of Blocks\u201d Requirement\n\n The claim requires a \u201cpredetermined number of blocks.\u201d This claim language requires a\n\n plurality of blocks\u2014a single block is insufficient to constitute the claimed \u201cblocks.\u201d Yet TQP\u2019s\n\n trial position was that a single block can satisfy the \u201cblocks\u201d requirement. Trial Tr. Nov. 20, 2013\n\n AM, at 23:2-6 (\u201cQ. What is the predetermined number of blocks in SSL and RC4? A. RC4\n\n defines a predetermined number of blocks in one\u2014as one, and it\u2019s the\u2014it is that way within SSL\n\n or TLS as well.\u201d). This distinction\u2014between the one block asserted by TQP as satisfying the\n\n claim requirement and the multiple blocks actually required\u2014is important because the patent\n\n describes the invention as involving the counting of blocks as a part of the allegedly inventive\n\n encryption scheme. \u2019730 Patent, at Col. 3 and Fig. 1. A single block, in addition to being\n\n inconsistent with the plain meaning of the plural claim language, does not require counting and is\n\n thus inconsistent with the patent\u2019s teaching that the blocks need to be counted. See Claim\n\n Construction Order, Dkt. 226 at 30 (noting that \u201cuse of the plural term \u2018blocks\u2019 in Claim 1 of the\n\n \u2019730 patent weighs in favor of finding that two or more blocks are required\u201d and that \u201c[n]othing in\n\n\n\n 9\n A0074\n\f Case: 15-142 Document: 2-2 Page: 69 Filed: 07/06/2015\n Case 2:11-cv-00248-JRG Document 436-1 Filed 02/17/14 Page 12 of 14 PageID #: 8680\n\n\n\n\n RC4\n\n\n\n\n Source: \u2018730 Patent,\n Fig. 1 (PX1)\n\n\n\nCourt\u2019s construction:\n\u201ca new key value in the first and second sequence is used each time a\npredetermined number of blocks have been sent from the transmitter over the\ncommunication link\u201d 68\n A0139\n\f Case: 15-142 Document: 2-2 Page: 70 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 450 Filed 06/30/14 Page 1 of 7 PageID #: 9171\n NO. 2:11-CV-248-JRG\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\nTQP DEVELOPMENT, LLC,\n\n Plaintiff,\n\n v. NO. 2:11-CV-248-JRG\n\n1-800-FLOWERS.COM, INC., et al.,\n\n Defendants.\n\n\n NOTICE OF SUBSEQUENT AUTHORITY\n\n Defendant Newegg Inc. (\u201cNewegg\u201d) respectfully submits the Memorandum Opinion and\n\nOrder in TQP Development, LLC v. Intuit Inc., Case No. 2:12-cv-180, Dkt. 192 (attached as Exhibit\n\nA) (the \u201cIntuit Opinion\u201d), which issued on June 20, 2014, as subsequent authority supporting\n\nNewegg\u2019s Rule 50(b) Motion for Judgment as a Matter of Law (Dkt. No. 436) and its Rule 59\n\nMotion for a New Trial (Dkt. No. 437).1 The Intuit Opinion finds non-infringement\u2014as a matter\n\nof law\u2014of the same patent, based on the same claim requirement, applied to identical accused\n\nsystems, as are involved in the Newegg case. The reasoning in the Intuit Opinion, combined with\n\nTQP\u2019s utter failure of proof in the trial against Newegg, is dispositive of Newegg\u2019s post-trial\n\nmotions. Accordingly, the Court should enter a judgment of non-infringement.\n\n In the Intuit Opinion, Judge Bryson, sitting by designation in this District, granted summary\n\njudgment of non-infringement because the accused systems did not meet the following element of\n\nasserted claim 1 of U.S. Patent No. 5,412,730 (the \u201c\u2019730 Patent\u201d): \u201ca new one of said key values\n\n\n\n1\n This notice supplements the arguments presented in Newegg\u2019s Rule 50(b) Motion for Judgment as a Matter of Law\n(Dkt. No. 436) and its Rule 59 Motion for a New Trial (Dkt. No. 437) and accompanying briefing. Thus, Newegg\nexpressly preserves and does not waive the arguments presented therein.\n\n 1\n A0142\n\f Case: 15-142 Document: 2-2 Page: 71 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 450 Filed 06/30/14 Page 2 of 7 PageID #: 9172\n NO. 2:11-CV-248-JRG\n\nin said first and said second sequences being produced each time a predetermined number of said\n\nblocks are transmitted over said link.\u201d Judge Bryson held that this requirement was not practiced\n\nby systems identical to Newegg\u2019s, (see Intuit Opinion, Ex. A at 18 n.3), because the production of\n\nkey values in the accused systems is completely unrelated to the transmission of a predetermined\n\nnumber of blocks. Intuit Opinion, Ex. A at 20. The Intuit Opinion decisively establishes that TQP\n\nfailed to prove infringement as a matter of law for the same reasons as set forth in Newegg\u2019s Rule\n\n50(b) motion.\n\n In the Intuit case, Judge Bryson flatly rejected TQP\u2019s primary argument opposing\n\nNewegg\u2019s post-trial motions that the \u201ca new one of said key values\u201d requirement applies only to\n\nthe receiver. See, e.g., TQP\u2019s Opp. Br., Dkt. 440 at 5 n.4. Indeed, Judge Bryson noted that this\n\n\u201climitation requires that a new key value be produced at the transmitter \u2018each time a predetermined\n\nnumber of blocks are transmitted over said link.\u2019\u201d Intuit Opinion, Ex. A at 18 (emphasis added).\n\nThis concept is expressly reflected in the language of Judge Bryson\u2019s construction of that term:\n\n For both the first and second sequences, at the transmitter and at the receiver\n respectively, a new key value is produced each time a predetermined number of\n blocks are transmitted over the link. The term \u2018produced\u2019 as used in that sentence,\n means \u2018generated\u2019 or \u2018supplied.\u2019 The phrase \u2018are transmitted\u2019 means \u2018are being\n transmitted\u2019 or \u2018have been transmitted.\u2019\n\nIntuit Opinion, Ex. A at 17. Originally, in the Intuit case, the claim construction of the \u201ca new one\n\nof said key values\u201d requirement had been agreed upon by the parties to be identical to the one\n\ngiven to the jury in the TQP v. Newegg trial. See TQP Development, LLC v. Intuit Inc., Case No.\n\n2:12-cv-180, Dkt. 135 at Ex. A, 5 (\u201ca new key value in the first and second sequence is used each\n\ntime a predetermined number of blocks have been sent from the transmitter over the\n\ncommunication link\u201d). Ultimately, however, in Intuit, Judge Bryson adopted the above broader\n\nconstruction, the final sentence of which was intended \u201cto define the term \u2018are transmitted\u2019 to mean\n\n\n\n 2\n A0143\n\f Case: 15-142 Document: 2-2 Page: 72 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 450 Filed 06/30/14 Page 3 of 7 PageID #: 9173\n NO. 2:11-CV-248-JRG\n\n\u2018is being transmitted or has been transmitted\u2019 for both the transmitter and receiver.\u201d Id. (emphasis\n\nadded). Clearly, Judge Bryson\u2019s construction underscores the error of TQP\u2019s \u201creceiver only\u201d\n\nargument. Beyond that, however, Judge Bryson reaffirmed Newegg\u2019s principal argument that\n\nNewegg does not meet the \u201ca new one of said key values\u201d requirement because that limitation\n\nrequires the production of a new key value only upon transmission of a predetermined number of\n\nblocks.\n\n In the Intuit Opinion, Judge Bryson held as a matter of law that the \u201ca new one of said key\n\nvalues\u201d requirement was absent from systems identical to Newegg\u2019s, despite adopting a\n\nconstruction broader than the one at issue in the Newegg litigation.2 TQP produced no evidence\n\nthat the production of key values depends on or had any other relationship to when a predetermined\n\nnumber of blocks \u201chave been transmitted\u201d or \u201care being transmitted\u201d over the communication\n\nlink.3 Id. at 20-24. Judge Bryson explained that \u201ckey values in the accused systems change for\n\neach new block that enters the transmitter, not each time a single block is placed on the\n\ncommunication link by the transmitter,\u201d and that \u201ceach time an additional block enters the\n\n[accused] transmitter, the key value is changed, no matter how many blocks are in the transmitter\n\nat that time.\u201d Id. at 21. In other words, \u201c[i]n the patented method, a new key value is produced\n\neach time a predetermined number of data blocks are transmitted, whereas in the accused systems\n\na new key value is produced each time the transmitter receives a predetermined number of data\n\nblocks (one, in the case of defendants\u2019 systems) . . . .\u201d Id. at 22.\n\n\n\n\n2\n In the Newegg litigation, the controlling construction requires production of a new key value when a predetermined\nnumber of blocks \u201chave been sent\u201d from the transmitter over the communication link, whereas Judge Bryson\u2019s Intuit\nconstruction requires production of a new key value when a predetermined number of blocks \u201chave been transmitted\u201d\nor \u201care being transmitted.\u201d\n3\n As Newegg demonstrated at trial, TQP failed to address this aspect of the claim construction even in Dr. Jaeger\u2019s\nexpert report. Trial Tr. Nov. 19, 2013 AM, at 6:15-8:15 (identifying Dr. Jaeger\u2019s failure to use the correct claim\nconstruction of the \u201ca new one of said key values\u201d requirement).\n\n 3\n A0144\n\f Case: 15-142 Document: 2-2 Page: 73 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 450 Filed 06/30/14 Page 4 of 7 PageID #: 9174\n NO. 2:11-CV-248-JRG\n\n Moreover, in the Intuit Opinion, Judge Bryson noted that Dr. Jaeger\u2019s testimony and\n\ndemonstrative in the Newegg trial showed that the accused systems encrypted multiple blocks of\n\ndata, each with a different key value, but that the transmitter retained those blocks until all were\n\nready to be placed on the communication link. Intuit Opinion, Ex. A at 18-19; see also Dkt. 436\n\nat 5-6 (citing additional admissions of Dr. Jaeger that all blocks are encrypted with a different key\n\nvalue without regard to whether a predetermined number of blocks have been transmitted). This\n\nevidence, however, \u201cdoes not establish that the production of new key values corresponds to times\n\nwhen a predetermined number of blocks \u2018have been transmitted\u2019 or times when a predetermined\n\nnumber of blocks \u2018are being transmitted,\u2019 i.e., when there is a predetermined number of blocks in\n\nthe transmitter.\u201d Id. at 20. According to Judge Bryson, at most, Dr. Jaeger\u2019s evidence suggests\n\nthat, in the accused systems, \u201cblocks that enter the transmitter serve only to increase the number\n\nof blocks in the transmitter by one [the predetermined number] because nothing is output onto the\n\ncommunication channel until some relatively large number of blocks have been encrypted.\u201d Id. at\n\n21.\n\n Judge Bryson\u2019s reasoning and analysis applies equally to Newegg\u2019s Rule 50(b) and 59\n\nmotions since Newegg\u2019s systems are identical to those in the Intuit case. Here, TQP has failed to\n\nprove any relationship between the production of new key values and the transmission of a\n\npredetermined number of blocks over the communication link. See Dkt. 436 at 4-9; Dkt. 437 at 1-\n\n4. The controlling claim construction in the present litigation requires a new key value to be used\n\neach time a predetermined number of blocks \u201chave been sent,\u201d which is virtually identical to the\n\n\u201chave been transmitted\u201d portion of Judge Bryon\u2019s Intuit construction. Moreover, even under the\n\n\u201care being transmitted\u201d construction advocated by TQP in its opposition to Newegg\u2019s Rule 50(b)\n\nmotion (see Dkt. 440 at 2 n.2), the Intuit Opinion demonstrates that the \u201ca new one of said key\n\n\n\n 4\n A0145\n\f Case: 15-142 Document: 2-2 Page: 74 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 450 Filed 06/30/14 Page 5 of 7 PageID #: 9175\n NO. 2:11-CV-248-JRG\n\nvalues\u201d requirement cannot be present in Newegg\u2019s accused systems because new key values are\n\nproduced only when the predetermined number of blocks are received \u2013 not when they \u201care being\n\ntransmitted\u201d over the link.\n\n As Judge Bryson succinctly noted, \u201c[n]othing in the evidence shows that a new key value\n\nis produced at the transmitter \u2018each time\u2019 a predetermined number of blocks have been transmitted\n\nover the link or are in the transmitter awaiting transmission.\u201d Intuit Opinion, Ex. A at 20. Just as\n\nTQP was unable to find any evidence from the Newegg trial to survive summary judgment of non-\n\ninfringement in the Intuit case, TQP is unable to find any trial evidence to support a verdict of\n\ninfringement in the present litigation.\n\n For these reasons, and the reasons set forth in Newegg\u2019s Rule 50(b) Motion for a Judgment\n\nas a Matter of Law (Dkt. 436), Newegg is entitled to a judgment as a matter of law that it does not\n\ninfringe the \u2019730 Patent. 4\n\n\n\n\nDated: June 30, 2014 Respectfully submitted,\n\n By: /s/ Anthony W. Brooks\n Kent E. Baldauf, Jr.\n James J. Bosco, Jr.\n Daniel H. Brean\n Anthony W. Brooks\n THE WEBB LAW FIRM\n One Gateway Center\n 420 Ft. Duquesne Boulevard, Suite 1200\n Pittsburgh, PA 15222\n Tel: (412) 471-8815\n Fax: (412) 471-4094\n kbaldaufjr@webblaw.com\n jbosco@webblaw.com\n dbrean@webblaw.com\n abrooks@webblaw.com\n\n4\n Because judgment as a matter of law is warranted, there is no need to reach Newegg\u2019s Rule 59 New Trial Motion,\nbut Judge Bryson\u2019s reasoning in the Intuit Opinion also supports Newegg\u2019s arguments presented therein.\n\n 5\n A0146\n\f Case: 15-142 Document: 2-2 Page: 75 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 450 Filed 06/30/14 Page 6 of 7 PageID #: 9176\n NO. 2:11-CV-248-JRG\n\n\n\n Alan Albright\n BRACEWELL & GUILIANI\n 111 Congress Avenue\n Suite 2300\n Austin, TX 78701-4061\n Tel: (512) 494-3620\n Fax: (512) 479-3920\n alan.albright@bgllp.com\n\n Edward R. Reines\n WEIL, GOTSHAL & MANGES LLP\n 201 Redwood Shores Parkway\n Redwood Shores, CA 94065\n Tel: (650) 802-3000\n Fax: (650) 802-3100\n edward.reines@weil.com\n\n Trey Yarbrough (Texas Bar No. 22133500)\n YARBROUGH WILCOX PLLC\n 100 E. Ferguson St., Ste. 1015\n Tyler, Texas 75702\n Tel: (903) 595-3111\n Fax: (903) 595-0191\n trey@yw-lawfirm.com\n\n Attorneys for Defendant Newegg Inc.\n\n\n\n\n 6\n A0147\n\f Case: 15-142 Document: 2-2 Page: 76 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 450 Filed 06/30/14 Page 7 of 7 PageID #: 9177\n NO. 2:11-CV-248-JRG\n\n\n CERTIFICATE OF SERVICE\n\n This is to certify that on June 30, 2014, a true and correct copy of the foregoing document\n\nwas served on all counsel of record via the Court\u2019s ECF system.\n\n\n /s/ Anthony W. Brooks\n Attorney for Newegg Inc.\n\n\n\n\n A0148\n\f Case: 15-142 Document: 2-2 Page: 77 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 453 Filed 07/25/14 Page 1 of 4 PageID #: 9246\n NO. 2:11-CV-248-JRG\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\nTQP DEVELOPMENT, LLC,\n\n Plaintiff,\n\n v. NO. 2:11-CV-248-JRG\n\n1-800-FLOWERS.COM, INC., et al.,\n\n Defendants.\n\n\n SECOND NOTICE OF SUBSEQUENT AUTHORITY\n\n Defendant Newegg Inc. respectfully submits the Memorandum Opinion and Order in TQP\n\nDevelopment, LLC v. Intuit Inc., Case No. 2:12-cv-180, Dkt. No. 203 (attached as Exhibit A, the\n\n\u201cSecond Intuit Opinion\u201d), which issued on July 23, 2014, as additional subsequent authority\n\nsupporting Newegg\u2019s Rule 50(b) Motion for Judgment as a Matter of Law (Dkt. No. 436) and its\n\nRule 59 Motion for a New Trial (Dkt. No. 437).\n\n Newegg previously notified the Court that summary judgment of non-infringement was\n\nentered against TQP in the Intuit case, and explained the relevance of that decision to Newegg\u2019s\n\npending post-trial motions. Dkt. No. 450. TQP submitted a response to Newegg\u2019s notice, in which\n\nTQP noted that it had filed a motion for reconsideration regarding the Intuit summary judgment\n\ndecision. Dkt. No. 452, at 4.\n\n The attached Second Intuit Opinion denied TQP\u2019s motion for reconsideration and\n\nreaffirmed the decision to enter summary judgment of non-infringement against TQP. The Court\n\nrejected TQP\u2019s argument that the original Intuit decision applied an incorrect claim construction,\n\nholding that \u201cthe language of the disputed limitation clearly requires a connection between the\n\n\n\n 1\n A0149\n\f Case: 15-142 Document: 2-2 Page: 78 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 453 Filed 07/25/14 Page 2 of 4 PageID #: 9247\n NO. 2:11-CV-248-JRG\n\ntransmission of data blocks and the change in key values.\u201d Second Intuit Opinion, at 2. The Court\n\nalso rejected TQP\u2019s argument that it had created a genuine issue of material fact on infringement,\n\nholding that \u201cTQP never introduced evidence sufficient to show that the \u2018a new one of said key\n\nvalues\u2019 limitation is practiced by the accused systems.\u201d Id. at 7-8 (explaining that \u201c[t]he fact that\n\nevery block that is encrypted will also be transmitted does not mean that encryption and\n\ntransmission are the same or that the steps of encryption and transmission would correspond to\n\nkey changes in the same way.\u201d); see also id. at 10 (further explaining that \u201cwhat matters is that a\n\nnew key value is produced \u2018each time\u2019 a single block is being transmitted or a single block has\n\nbeen transmitted, not simply that each block gets a new key value.\u201d).\n\n Newegg respectfully submits that the reasoning of the Second Intuit Opinion, like the initial\n\nIntuit decision (see Dkt. No. 45), is equally applicable to Newegg\u2019s post-trial motions and warrants\n\nentry of judgment as a matter of law of non-infringement.\n\n\n\n\nDated: July 25, 2014 Respectfully submitted,\n\n By: /s/ Daniel H. Brean\n Kent E. Baldauf, Jr.\n James J. Bosco, Jr.\n Daniel H. Brean\n Anthony W. Brooks\n THE WEBB LAW FIRM\n One Gateway Center\n 420 Ft. Duquesne Boulevard, Suite 1200\n Pittsburgh, PA 15222\n Tel: (412) 471-8815\n Fax: (412) 471-4094\n kbaldaufjr@webblaw.com\n jbosco@webblaw.com\n dbrean@webblaw.com\n abrooks@webblaw.com\n\n\n\n\n 2\n A0150\n\f Case: 15-142 Document: 2-2 Page: 79 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 453 Filed 07/25/14 Page 3 of 4 PageID #: 9248\n NO. 2:11-CV-248-JRG\n\n\n\n\n Alan Albright\n BRACEWELL & GUILIANI\n 111 Congress Avenue\n Suite 2300\n Austin, TX 78701-4061\n Tel: (512) 494-3620\n Fax: (512) 479-3920\n alan.albright@bgllp.com\n\n Edward R. Reines\n WEIL, GOTSHAL & MANGES LLP\n 201 Redwood Shores Parkway\n Redwood Shores, CA 94065\n Tel: (650) 802-3000\n Fax: (650) 802-3100\n edward.reines@weil.com\n\n Trey Yarbrough (Texas Bar No. 22133500)\n YARBROUGH WILCOX PLLC\n 100 E. Ferguson St., Ste. 1015\n Tyler, Texas 75702\n Tel: (903) 595-3111\n Fax: (903) 595-0191\n trey@yw-lawfirm.com\n\n Counsel for Newegg Inc.\n\n\n\n\n 3\n A0151\n\f Case: 15-142 Document: 2-2 Page: 80 Filed: 07/06/2015\n\n\n\n\nCase 2:11-cv-00248-JRG Document 453 Filed 07/25/14 Page 4 of 4 PageID #: 9249\n\n\n\n CERTIFICATE OF SERVICE\n\n This is to certify that on July 25, 2014, a true and correct copy of the foregoing document\n\nwas served on all counsel of record via the Court\u2019s ECF system.\n\n\n /s/ Daniel H. Brean\n Counsel for Newegg Inc.\n\n\n\n\n A0152\n\f Case: 15-142 Document: 2-2 Page: 81 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG-RSP Document 446 Filed 04/16/14 Page 1 of 3 PageID #: 9147\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\n TQP DEVELOPMENT, LLC,\n\n Plaintiff,\n\n v. NO. 2:11-CV-248-JRG\n\n 1-800-FLOWERS.COM, INC., et al.,\n\n Defendants.\n\n\n NOTICE OF REQUEST FOR HEARING ON POST-TRIAL MOTIONS\n\n Defendant Newegg Inc. (\u201cNewegg\u201d) hereby respectfully requests that this Honorable Court\n\n hold a hearing on Newegg\u2019s Rule 50(b) Motion for Judgment as a Matter of Law and Rule 59 Motion\n\n for a New Trial (Dkt. Nos. 436 and 437, respectively). Briefing on Newegg\u2019s motions is now complete,\n\n and Newegg respectfully submits that it believes a hearing will be beneficial to the parties and the\n\n Court in resolving the numerous issues presented in the motions.\n\n\n\n Dated: April 16, 2014 Respectfully submitted,\n\n By: /s/ Daniel H. Brean\n Kent E. Baldauf, Jr.\n James J. Bosco, Jr.\n Daniel H. Brean\n Anthony W. Brooks\n THE WEBB LAW FIRM\n One Gateway Center\n 420 Ft. Duquesne Boulevard, Suite 1200\n Pittsburgh, PA 15222\n Tel: (412) 471-8815\n kbaldaufjr@webblaw.com\n jbosco@webblaw.com\n dbrean@webblaw.com\n abrooks@webblaw.com\n\n 1\n A0153\n\f Case: 15-142 Document: 2-2 Page: 82 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG-RSP Document 446 Filed 04/16/14 Page 2 of 3 PageID #: 9148\n NO. 2:11-CV-248-JRG\n\n Alan Albright\n BRACEWELL & GUILIANI\n 111 Congress Avenue\n Suite 2300\n Austin, TX 78701-4061\n Tel: (512) 494-3620\n Fax: (512) 479-3920\n alan.albright@bgllp.com\n\n Edward R. Reines\n WEIL, GOTSHAL & MANGES LLP\n 201 Redwood Shores Parkway\n Redwood Shores, CA 94065\n Tel: (650) 802 3000\n Fax: (650) 802 3100\n edward.reines@weil.com\n\n Trey Yarbrough (Texas Bar No. 22133500)\n Debra E. Gunter (Texas Bar No. 24012752)\n YARBROUGH WILCOX GUNTER PLLC\n 100 E. Ferguson St., Ste. 1015\n Tyler, Texas 75702\n Tel: (903) 595-3111\n Fax: (903) 595-0191\n trey@yw-lawfirm.com\n Counsel for Newegg Inc.\n\n\n\n\n 2\n A0154\n\f Case: 15-142 Document: 2-2 Page: 83 Filed: 07/06/2015\n\n\n\n\nCase 2:11-cv-00248-JRG-RSP Document 446 Filed 04/16/14 Page 3 of 3 PageID #: 9149\n NO. 2:11-CV-248-JRG\n\n\n\n CERTIFICATE OF SERVICE\n\n I certify that a true and correct copy of the foregoing document was served on April 16, 2014\n\n upon all counsel of record via the Court\u2019s ECF system.\n\n /s/ Daniel H. Brean\n Counsel for Newegg Inc.\n\n\n\n\n A0155\n\f Case: 15-142 Document: 2-2 Page: 84 Filed: 07/06/2015\n\n Case 2:11-cv-00248-JRG Document 458 Filed 11/13/14 Page 1 of 3 PageID #: 9290\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\n TQP DEVELOPMENT, LLC,\n\n Plaintiff,\n\n v. NO. 2:11-CV-248-JRG\n\n 1-800-FLOWERS.COM, INC., et al.,\n\n Defendants.\n\n\n NOTICE OF RENEWED REQUEST FOR HEARING ON POST-TRIAL MOTIONS\n\n Defendant Newegg Inc. (\u201cNewegg\u201d) respectfully renews its request that this Honorable Court hold a\n\nhearing on Newegg\u2019s Rule 50(b) Motion for Judgment as a Matter of Law and Rule 59 Motion for a New Trial\n\n(Dkt. Nos. 436 and 437, respectively).\n\n Briefing on Newegg\u2019s post-trial motions has been complete since April 14, 2014. Following the jury\n\nverdict that was rendered in this case on November 25, 2013, awarding TQP damages in the amount of\n\n$2,300,000 (Dkt. No. 407), Newegg has endured the uncertainty of whether the verdict will stand or whether\n\nit will be discarded for the reasons set forth in Newegg\u2019s post-trial motions. The sizable verdict has been kept\n\non Newegg\u2019s books, which affects Newegg\u2019s ability to make certain business decisions. Additionally, with\n\nTQP being a patent assertion entity and not an operating company, delay of judgment increases the likelihood\n\nthat TQP will disperse its funds and assets, which may prevent Newegg from recovering fees or costs from\n\nTQP in the event that Newegg ultimately prevails in this case.1\n\n\n1\n Newegg has been in similar situations in the past. In one instance, Newegg was unable to collect substantial costs awarded\nto it because the plaintiff filed for bankruptcy. Kelora Systems, LLC v. Target Corp. et al., No. 11-1548 (C.D. Cal.) at ECF\nNos. 543, 551 (Newegg\u2019s award of costs in the amount of $28,304.80 and subsequent mooting of motion to appoint receiver\ndue to Kelora\u2019s bankruptcy). In another instance, the plaintiff underwent a massive corporate restructuring shortly after\nNewegg filed its motions for attorneys\u2019 fees and costs. Macrosolve, Inc. v. Antenna Software, Inc. et al., No. 6:11-cv-00287,\nECF Nos. 557, 558 (E.D. Tex. March 27, 2014).\n\n A0156\n\f Case: 15-142 Document: 2-2 Page: 85 Filed: 07/06/2015\n Case 2:11-cv-00248-JRG Document 458 Filed 11/13/14 Page 2 of 3 PageID #: 9291\n NO. 2:11-CV-248-JRG\n\n Newegg respectfully resubmits that it believes a hearing will be beneficial to the parties and the Court\n\nin resolving the numerous issues presented in the motions and bringing this case to judgment.\n\n\nDated: November 13, 2014 Respectfully submitted,\n\n /s/ Kent E. Baldauf, Jr.\n Kent E. Baldauf, Jr.\n James J. Bosco, Jr.\n Daniel H. Brean\n Anthony W. Brooks\n THE WEBB LAW FIRM\n One Gateway Center\n 420 Ft. Duquesne Boulevard, Suite 1200\n Pittsburgh, PA 15222\n Tel: (412) 471-8815\n kbaldaufjr@webblaw.com\n\n Alan Albright\n BRACEWELL & GUILIANI\n 111 Congress Avenue\n Suite 2300\n Austin, TX 78701-4061\n Tel: (512) 494-3620\n Fax: (512) 479-3920\n alan.albright@bgllp.com\n\n Edward R. Reines\n WEIL, GOTSHAL & MANGES LLP\n 201 Redwood Shores Parkway\n Redwood Shores, CA 94065\n Tel: (650) 802 3000\n Fax: (650) 802 3100\n edward.reines@weil.com\n\n Trey Yarbrough (Texas Bar No. 22133500)\n YARBROUGH WILCOX\n 100 E. Ferguson St., Ste. 1015\n Tyler, Texas 75702\n Tel: (903) 595-3111\n Fax: (903) 595-0191\n trey@yw-lawfirm.com\n\n Counsel for Newegg Inc.\n\n\n\n 2\n A0157\n\f Case: 15-142 Document: 2-2 Page: 86 Filed: 07/06/2015\n\n\n\n\nCase 2:11-cv-00248-JRG Document 458 Filed 11/13/14 Page 3 of 3 PageID #: 9292\n NO. 2:11-CV-248-JRG\n\n\n CERTIFICATE OF SERVICE\n\n I certify that a true and correct copy of the foregoing document was served on November 13,\n\n2014 upon all counsel of record via the Court\u2019s ECF system.\n\n\n\n /s/ Kent E. Baldauf, Jr.\n Counsel for Newegg Inc.\n\n\n\n\n A0158\n\f Case: 15-142 Document: 2-2 Page: 87 Filed: 07/06/2015\n\n\n\n\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 1 of 41 PageID #: 2286\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\nTQP DEVELOPMENT, LLC, \u00a7\n \u00a7\n Case No. 2:11-CV-248-JRG-RSP\n v. \u00a7\n CONSOLIDATED\n \u00a7\n1-800-FLOWERS.COM, INC., et al. \u00a7\n\n CLAIM CONSTRUCTION\n MEMORANDUM AND ORDER\n\n On March 12, 2013, the Court held a hearing to determine the proper construction of the\n\ndisputed claim terms in United States Patent No. 5,412,730. After considering the arguments\n\nmade by the parties at the hearing and in the parties\u2019 claim construction briefing (Dkt. Nos. 172,\n\n178, and 192), the Court issues this Claim Construction Memorandum and Order.\n\n\n\n\n A0159\n\f Case: 15-142 Document: 2-2 Page: 88 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 2 of 41 PageID #: 2287\n\n\n\n TABLE OF CONTENTS\n\nBACKGROUND ........................................................................................................................... 3\u00a0\nAPPLICABLE LAW .................................................................................................................... 4\u00a0\nCONSTRUCTION OF AGREED TERMS ................................................................................ 7\u00a0\nCONSTRUCTION OF DISPUTED TERMS ............................................................................. 8\u00a0\n A. \u201cseed value\u201d .......................................................................................................................... 8\u00a0\n B. \u201cproviding a seed value to both said transmitter and receiver\u201d .......................................... 12\u00a0\n C. \u201ca new one of said key values in said first and second sequences being produced each\n time a predetermined number of said blocks are transmitted over said link\u201d........................... 18\u00a0\n D. \u201ceach new key value in said sequence being produced at a time dependent upon a\n predetermined characteristic of the data being transmitted over said link\u201d and \u201ceach new\n key value in said sequence being produced at a time dependent upon said predetermined\n characteristic of said data transmitted over said link\u201d .............................................................. 22\u00a0\n E. \u201csequence of blocks in encrypted form\u201d ............................................................................. 27\u00a0\n F. \u201cpredetermined\u201d................................................................................................................... 31\u00a0\n G. \u201cdata\u201d .................................................................................................................................. 34\u00a0\n H. \u201cblock\u201d ................................................................................................................................ 36\u00a0\n I. \u201ccommunication link from a transmitter to a receiver\u201d ........................................................ 39\u00a0\nCONCLUSION ........................................................................................................................... 41\u00a0\n\n\n\n\n -2-\n A0160\n\f Case: 15-142 Document: 2-2 Page: 89 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 3 of 41 PageID #: 2288\n\n\n\n BACKGROUND\n\n Plaintiff asserts United States Patent No. 5,412,730 (\u201cthe \u2018730 Patent\u201d), titled \u201cEncrypted\n\nData Transmission System Employing Means for Randomly Altering the Encryption Keys.\u201d The\n\n\u2018730 Patent issued on May 2, 1995, and claims priority to a patent application filed on October 6,\n\n1989. Defendants submit that the \u2018730 Patent has expired. Dkt. No. 180 at 1.\n\n The Court has construed the \u2018730 Patent four times: TQP Development, LLC v. Merrill\n\nLynch & Co., Inc., et al., No. 2:08-CV-471, Dkt. No. 383 (E.D. Tex. Mar. 28, 2011) (\u201cMerrill\n\nLynch I\u201d); id., Dkt. No. 512 (May 19, 2012) (\u201cMerrill Lynch II\u201d); TQP Development, LLC v.\n\nBarclays PLC, et al., No. 2:09-CV-88, Dkt. 165 (E.D. Tex. Mar. 28, 2011) (\u201cBarclays\u201d); and\n\nTQP Development, LLC v. Ticketmaster Entertainment, Inc., No. 2:09-CV-279, Dkt. No. 232\n\n(E.D. Tex. Sept. 23, 2011) (\u201cTicketmaster\u201d).\n\n In general, the \u2019730 Patent relates to secure communication through the use of pseudo-\n\nrandom encryption keys. A sequence of pseudo-random keys is generated based on a seed value\n\nand an algorithm, and keys are selected depending upon the message data that is being sent over\n\nthe transmission medium. The transmitter and receiver are thereby able to generate the same\n\nsequence of keys without the security risk of transmitting keys from the transmitter to the\n\nreceiver or vice versa. The term \u201cpseudo-random\u201d means that the sequence has no apparent\n\nregularities unless the seed value and algorithm are known or determined. Merrill Lynch I at 23;\n\nDkt. No. 172 at 2-3. The abstract of the \u2018730 Patent states:\n\n A modem suitable for transmitting encrypted data over voice-grade telephone\n line. The modem is implemented by the combination of integrated circuit\n components including a microprocessor, a serial communications controller\n which communicates with connected data terminal equipment, and a\n modulator/demodulator for translating between voice band tone signals and\n digital data. Pseudo random number generators are employed at both the\n transmitting and receiving stations to supply identical sequences of encryption\n keys to a transmitting encoder and a receiving decoder. An initial random number\n\n -3-\n A0161\n\f Case: 15-142 Document: 2-2 Page: 90 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 4 of 41 PageID #: 2289\n\n\n\n seed value is made available to both stations. The random number generators are\n advanced at times determined by predetermined characteristics of the data being\n transmitted so that, after transmission has taken place, the common encryption\n key can be known only to the transmitting and receiving stations.\n\n The \u2018730 Patent, in its original form, contained one independent claim and one dependent\n\nclaim. An Ex Parte Reexamination Certificate issued on September 20, 2011, confirming the\n\noriginal claims and adding eight more dependent claims.\n\n Claim 1 of the \u2018730 Patent recites:\n\n 1. A method for transmitting data comprising a sequence of blocks in encrypted\n form over a communication link from a transmitter to a receiver comprising, in\n combination, the steps of:\n providing a seed value to both said transmitter and receiver,\n generating a first sequence of pseudo-random key values based on said\n seed value at said transmitter, each new key value in said sequence being\n produced at a time dependent upon a predetermined characteristic of the data\n being transmitted over said link,\n encrypting the data sent over said link at said transmitter in accordance\n with said first sequence,\n generating a second sequence of pseudo-random key values based on said\n seed value at said receiver, each new key value in said sequence being produced\n at a time dependent upon said predetermined characteristic of said data\n transmitted over said link such that said first and second sequences are identical to\n one another[,] a new one of said key values in said first and said second sequences\n being produced each time a predetermined number of said blocks are transmitted\n over said link, and\n decrypting the data sent over said link at said receiver in accordance with\n said second sequence.\n\n APPLICABLE LAW\n\n \u201cIt is a \u2018bedrock principle\u2019 of patent law that \u2018the claims of a patent define the invention\n\nto which the patentee is entitled the right to exclude.\u2019\u201d Phillips v. AWH Corp., 415 F.3d 1303,\n\n1312 (Fed. Cir. 2005) (en banc) (quoting Innova/Pure Water Inc. v. Safari Water Filtration Sys.,\n\nInc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). To determine the meaning of the claims, courts start\n\nby considering the intrinsic evidence. See id. at 1313; C.R. Bard, Inc. v. U.S. Surgical Corp.,\n\n388 F.3d 858, 861 (Fed. Cir. 2004); Bell Atl. Network Servs., Inc. v. Covad Commc\u2019ns Group,\n\n\n -4-\n A0162\n\f Case: 15-142 Document: 2-2 Page: 91 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 5 of 41 PageID #: 2290\n\n\n\nInc., 262 F.3d 1258, 1267 (Fed. Cir. 2001). The intrinsic evidence includes the claims\n\nthemselves, the specification, and the prosecution history. See Phillips, 415 F.3d at 1314; C.R.\n\nBard, 388 F.3d at 861. Courts give claim terms their ordinary and accustomed meaning as\n\nunderstood by one of ordinary skill in the art at the time of the invention in the context of the\n\nentire patent. Phillips, 415 F.3d at 1312-13; Alloc, Inc. v. Int\u2019l Trade Comm\u2019n, 342 F.3d 1361,\n\n1368 (Fed. Cir. 2003).\n\n The claims themselves provide substantial guidance in determining the meaning of\n\nparticular claim terms. Phillips, 415 F.3d at 1314. First, a term\u2019s context in the asserted claim\n\ncan be very instructive. Id. Other asserted or unasserted claims can aid in determining the\n\nclaim\u2019s meaning because claim terms are typically used consistently throughout the patent. Id.\n\nDifferences among the claim terms can also assist in understanding a term\u2019s meaning. Id. For\n\nexample, when a dependent claim adds a limitation to an independent claim, it is presumed that\n\nthe independent claim does not include the limitation. Id. at 1314-15.\n\n \u201c[C]laims \u2018must be read in view of the specification, of which they are a part.\u2019\u201d Id.\n\n(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc)).\n\n\u201c[T]he specification \u2018is always highly relevant to the claim construction analysis. Usually, it is\n\ndispositive; it is the single best guide to the meaning of a disputed term.\u2019\u201d Id. (quoting Vitronics\n\nCorp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)); Teleflex, Inc. v. Ficosa N. Am.\n\nCorp., 299 F.3d 1313, 1325 (Fed. Cir. 2002). This is true because a patentee may define his own\n\nterms, give a claim term a different meaning than the term would otherwise possess, or disclaim\n\nor disavow the claim scope. Phillips, 415 F.3d at 1316. In these situations, the inventor\u2019s\n\nlexicography governs. Id. The specification may also resolve the meaning of ambiguous claim\n\nterms \u201cwhere the ordinary and accustomed meaning of the words used in the claims lack\n\n\n\n -5-\n A0163\n\f Case: 15-142 Document: 2-2 Page: 92 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 6 of 41 PageID #: 2291\n\n\n\nsufficient clarity to permit the scope of the claim to be ascertained from the words alone.\u201d\n\nTeleflex, 299 F.3d at 1325. But, \u201c\u2018[a]lthough the specification may aid the court in interpreting\n\nthe meaning of disputed claim language, particular embodiments and examples appearing in the\n\nspecification will not generally be read into the claims.\u201d Comark Commc\u2019ns, Inc. v. Harris\n\nCorp., 156 F.3d 1182, 1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc.,\n\n848 F.2d 1560, 1571 (Fed. Cir. 1988)); accord Phillips, 415 F.3d at 1323. The prosecution\n\nhistory is another tool to supply the proper context for claim construction because a patent\n\napplicant may also define a term in prosecuting the patent. Home Diagnostics, Inc., v. Lifescan,\n\nInc., 381 F.3d 1352, 1356 (Fed. Cir. 2004) (\u201cAs in the case of the specification, a patent\n\napplicant may define a term in prosecuting a patent.\u201d).\n\n Although extrinsic evidence can be useful, it is \u201cless significant than the intrinsic record\n\nin determining the legally operative meaning of claim language.\u201d Phillips, 415 F.3d at 1317\n\n(quoting C.R. Bard, 388 F.3d at 862). Technical dictionaries and treatises may help a court\n\nunderstand the underlying technology and the manner in which one skilled in the art might use\n\nclaim terms, but technical dictionaries and treatises may provide definitions that are too broad or\n\nmay not be indicative of how the term is used in the patent. Id. at 1318. Similarly, expert\n\ntestimony may aid a court in understanding the underlying technology and determining the\n\nparticular meaning of a term in the pertinent field, but an expert\u2019s conclusory, unsupported\n\nassertions as to a term\u2019s definition are entirely unhelpful to a court. Id. Generally, extrinsic\n\nevidence is \u201cless reliable than the patent and its prosecution history in determining how to read\n\nclaim terms.\u201d Id.\n\n In general, prior claim construction proceedings involving the same patents-in-suit are\n\n\u201centitled to reasoned deference under the broad principles of stare decisis and the goals\n\n\n\n -6-\n A0164\n\f Case: 15-142 Document: 2-2 Page: 93 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 7 of 41 PageID #: 2292\n\n\n\narticulated by the Supreme Court in Markman, even though stare decisis may not be applicable\n\nper se.\u201d Maurice Mitchell Innovations, LP v. Intel Corp., No. 2:04-CV-450, 2006 WL 1751779,\n\nat *4 (E.D. Tex. June 21, 2006). The Court nonetheless conducts an independent evaluation\n\nduring claim construction proceedings. See, e.g., Texas Instruments, Inc. v. Linear Techs. Corp.,\n\n182 F. Supp. 2d 580, 589-90 (E.D. Tex. 2002); Burns, Morris & Stewart Ltd. P\u2019ship v. Masonite\n\nInt\u2019l Corp., 401 F. Supp. 2d 692, 697 (E.D. Tex. 2005); Negotiated Data Solutions, Inc. v. Apple,\n\nInc., No. 2:11-CV-390, 2012 WL 6494240 (E.D. Tex. Dec. 13, 2012).\n\n CONSTRUCTION OF AGREED TERMS\n\n Term Construction\n\u201cbased on said seed value\u201d \u201cbased exclusively on said seed value\u201d\n\u201cassociating different ones of seed values with \u201cwhen secured communication is required with\neach of a plurality of remote locations with two or more remote locations, associating a\nwhich secured communication is required\u201d different seed value with each of the remote\n locations\u201d\n\u201cassociating with each of a plurality of remote \u201cwhen secured communication is required with\nlocations with which secured communication is two or more remote locations, associating, at\nrequired different seed values\u201d the transmitter, a different seed value with each\n of the remote locations\u201d\n\u201cencrypting the data\u201d \u201cconverting clear text data into cipher text\u201d\n\u201cdecrypting the data\u201d \u201cconverting cipher text into clear text\u201d\n\u201cpseudo-random key values\u201d \u201ca sequence of numbers that are generated by\n supplying a seed value to an algorithm, the\n sequence of numbers have no apparent\n regularities unless the seed value and algorithm\n are known or determined\u201d\n\u201csaid provided seed value is one of a number of \u201cwhen secured communication is required with\nseed values for a plurality of remote locations two or more remote locations, providing more\nwith which secured communication is required\u201d than one seed value for a number of the remote\n locations for which secured communication is\n required\u201d\n\nDkt. No. 172 at 2-3.\n\n\n\n -7-\n A0165\n\f Case: 15-142 Document: 2-2 Page: 94 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 8 of 41 PageID #: 2293\n\n\n\n CONSTRUCTION OF DISPUTED TERMS\n\n As a preliminary matter, Plaintiff\u2019s opening brief proposed, without argument, that the\n\nCourt adopt several of its prior constructions. See Dkt. No. 172 at 3-4. Defendants, in their\n\nresponse brief, stated that as to the terms \u201cdata being transmitted over said link\u201d and\n\n\u201cpredetermined number of said blocks,\u201d Plaintiff \u201cdid not include these terms as disputed terms\n\nrequiring construction in the Local P.R. 4-3 Joint Claim Construction and Prehearing Statement.\u201d\n\nDkt. No. 180 at 3 n.2. Defendants requested that the Court \u201cdefer ruling on these two terms until\n\nthe parties have an opportunity to confer on them and raise focused disputes, if any, to the\n\nCourt.\u201d Id. at 4 n.2. In its reply brief, Plaintiff did not address these two terms apart from the\n\nconstruction of larger terms (see Dkt. No. 192), and the parties did not address these two terms at\n\nthe March 12, 2013 hearing. The two terms at issue therefore need not be construed.\n\nA. \u201cseed value\u201d\n\nPlaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\nNo construction necessary \u201cinitial value\u201d\n\nDkt. No. 172 at 13.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff argues that \u201cDefendants\u2019 construction is confusing and unnecessary.\u201d Dkt. No.\n\n172 at 13. Plaintiff also notes that in the preferred embodiment, \u201cthe seed value is not the \u2018initial\n\nvalue\u2019 for this sequence, instead [it] is what determines what will be the initial value in the\n\nsequence.\u201d Id. Plaintiff further urges that Defendants\u2019 proposed construction \u201cwould potentially\n\nconfuse the jury between the seed value supplied prior to decryption and the \u2018first sequence\u2019 of\n\nkey values that are generated . . . .\u201d Id.\n\n\n\n\n -8-\n A0166\n\f Case: 15-142 Document: 2-2 Page: 95 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 9 of 41 PageID #: 2294\n\n\n\n Defendants respond that the specification consistently uses the term \u201cseed value\u201d to refer\n\nto an \u201cinitial\u201d value that is provided in advance. Dkt. No. 180 at 6. Defendants also rely upon\n\n\u201cthe generally-understood meaning of \u2018seed\u2019\u201d as meaning a \u201csource or beginning; a germ.\u201d Id.\n\nat 7 (citing Ex. C, The American Heritage Dictionary of the English Language 1633 (3d ed.\n\n1992)). Defendants also cite a technical dictionary that defines \u201cseed\u201d as \u201c[a]n initial number\n\nused by an algorithm such as a random number generator.\u201d Id. at 7-8 (citing Ex. F, McGraw-Hill\n\nDictionary of Scientific and Technical Terms 1782 (5th ed. 1994)). Defendants emphasize that\n\n\u201cthe seed value is not \u2018any\u2019 value, but rather is confirmed in the claims and throughout the\n\nspecification to be the \u2018initial\u2019 value used to generate the keys.\u201d Id. at 9. Finally, Defendants\n\nnote that \u201calthough the phrases \u2018providing a seed value to both said transmitter and receiver\u2019 and\n\n\u2018based on said seed value\u2019 were construed in previous cases, the Court did not address the\n\nmeaning of \u2018seed value\u2019 within that phrase.\u201d Id.\n\n Plaintiff replies that \u201creplacing the word \u2018seed\u2019 with \u2018initial,\u2019\u201d as Defendants have\n\nproposed, \u201cdoes not appear to provide any further clarification.\u201d Dkt. No. 192 at 9. Plaintiff\n\nreiterates that \u201cDefendants\u2019 construction would potentially confuse the jury between the seed\n\nvalue supplied prior to decryption and the \u2018first sequence\u2019 of key values that are generated to\n\ndecrypt . . . .\u201d Id. at 10.\n\n At the March 12, 2013 hearing, Defendants urged that in order to fully address the\n\nparties\u2019 dispute, the Court\u2019s construction should explain that the seed value is not generated as\n\npart of the key generation process. In response, Plaintiff cited PPG Industries v Guardian\n\nIndustries Corp., 156 F.3d 1351 (Fed. Cir. 1998), for the proposition that \u201cafter the court has\n\ndefined the claim with whatever specificity and precision is warranted by the language of the\n\n\n\n\n -9-\n A0167\n\f Case: 15-142 Document: 2-2 Page: 96 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 10 of 41 PageID #: 2295\n\n\n\n claim and the evidence bearing on the proper construction, the task of determining whether the\n\n construed claim reads on the accused product is for the finder of fact.\u201d Id. at 1355.\n\n (2) Analysis\n\n Although Plaintiff argues that this term should not be construed, the briefing\n\n demonstrates that the parties have a \u201cfundamental dispute regarding the scope of a claim term,\u201d\n\n and the Court has a duty to resolve the dispute. O2 Micro Int\u2019l Ltd. v. Beyond Innovation Tech.\n\n Co., 521 F.3d 1351, 1362-63 (Fed. Cir. 2008).\n\n Claim 1 recites, in relevant part (emphasis added):\n\n 1. A method for transmitting data comprising a sequence of blocks in encrypted\n form over a communication link from a transmitter to a receiver comprising, in\n combination, the steps of:\n providing a seed value to both said transmitter and receiver,\n generating a first sequence of pseudo-random key values based on said\n seed value at said transmitter, . . .\n generating a second sequence of pseudo-random key values based on said\n seed value at said receiver, . . . .\n\n The Abstract of the \u2018730 Patent states that \u201c[a]n initial random number seed value is\n\n made available to both [the transmitting and receiving] stations.\u201d The specification discloses\n\n \u201cseed values\u201d multiple times, including in the context of an initial key:\n\n In accordance with a principle feature of the present invention, pseudo-random\n number generators are employed at both the transmitting and receiving stations to\n supply a like sequence of encryption keys to both the encryptor and decryptor,\n without these keys being transmitted in any form over the transmission facility.\n In accordance with the invention, to permit the two stations to communicate, each\n [is] supplied in advance with a random number seed value which exclusively\n determines the numerical content of the sequence of numeric values generated by\n each of the two pseudo-random generators.\n\n \u2018730 Patent at 1:37-48 (emphasis added).\n\n Once the host station has supplied the initial seed value keys to the units forming\n the two terminal locations for a given link and transmission over that link begins,\n the host . . . no longer \u201cknows\u201d the encryption key values since they are\n dependent upon the nature of the transmissions over the link. Consequently, link\n\n\n - 10 -\n A0168\n\f Case: 15-142 Document: 2-2 Page: 97 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 11 of 41 PageID #: 2296\n\n\n\n security cannot be compromised even by an \u201cinsider\u201d who is in possession of the\n initial key values supplied by the host.\n\n Id. at 2:17-25 (emphasis added).\n\n The random number generators 23 and 38 at the transmitting station obtain their\n seed values from a key memory 50. Key memory 50 stores the random number\n keys indexed by destination (along with telephone dial-up numbers for automatic\n dialing). Similarly, at the receiving station, the seed values for the remote\n terminals from which the receiving station is authorized to receive information\n are stored in a key memory 60 connected to supply seed values to the generators\n 27 and 40. The key memories eliminate[] the need for authorized users to\n remember and enter keys before each transmission or reception.\n\n Id. at 9:51-62 (emphasis added).\n\n [K]nowledge of the initial seed values supplied by the host are of no further value\n and cannot be used to monitor ongoing communications over the authorized link.\n\n Id. at 11:5-8 (emphasis added).\n\n These disclosures suggest that the \u201cseed value\u201d may be an initial key in the preferred\n\n embodiment, but such a limitation should not be imported into the term \u201cseed value\u201d as used in\n\n the claims. Comark Commc\u2019ns, 156 F.3d at 1187; accord Phillips, 415 F.3d at 1323.\n\n Defendants\u2019 proposal of \u201cinitial value,\u201d which might be read to require that the \u201cseed value\u201d is\n\n itself a key, is therefore hereby expressly rejected.\n\n Nonetheless, the claim language and the above-quoted portions of the specification are\n\n consistent with Defendants\u2019 argument that the \u201cseed value\u201d is provided in advance of key\n\n generation and, therefore, is not created as part of the claimed key generation process. Any other\n\n interpretation would read the word \u201cseed\u201d out of the claim. Thus, the plain meaning of \u201cseed\n\n value\u201d is appropriate, but the Court provides additional explanation, as follows:\n\n\n\n\n - 11 -\n A0169\n\f Case: 15-142 Document: 2-2 Page: 98 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 12 of 41 PageID #: 2297\n\n\n\n The Court hereby construes \u201cseed value\u201d to have its plain meaning. The Court further\n\n hereby finds, as part of its construction: \u201cThe seed value is provided to the transmitter prior\n\n to generating the first sequence of pseudo-random key values, and the seed value is\n\n provided to the receiver prior to generating the second sequence of pseudo-random key\n\n values.\u201d\n\n B. \u201cproviding a seed value to both said transmitter and receiver\u201d\n\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n \u201cproviding the same seed value to both the \u201csupplying the same seed value to both said\n transmitter and receiver\u201d transmitter and receiver in advance of the first\n contact between the transmitter and receiver\n from a source other than the transmitter and\n receiver\u201d\n\n Dkt. No. 172 at 7.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff argues that here as in Merrill Lynch and Ticketmaster, the Court should reject\n\n Defendants\u2019 attempt \u201cto add a limitation that the seed value be provided \u2018from outside the\n\n transmitter and receiver\u2019 and to provide a temporal limitation as to when the seed value must be\n\n provided.\u201d Dkt. No. 172 at 8. First, Plaintiff submits that \u201c[t]he claims do not place any\n\n limitation on where the seed value originates.\u201d Id. Second, Plaintiff urges that \u201c[a]lthough the\n\n transmitter would be required to have the seed value to generate the encryption keys prior to\n\n transmission, there is no explicit requirement in the patent or file history that suggests that the\n\n receiver must also be provided the seed value prior to transmission.\u201d Id. at 9.\n\n Defendants respond that because the claims require \u201cproviding\u201d the seed value, it must\n\n come from a source external to both the transmitter and the receiver. Dkt. No. 180 at 10.\n\n Defendants also argue that because the transmitter and receiver must use the same seed value and\n\n\n\n - 12 -\n A0170\n\f Case: 15-142 Document: 2-2 Page: 99 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 13 of 41 PageID #: 2298\n\n\n\n because \u201cit is impossible for the same seed values to organically come into existence in both the\n\n transmitter and receiver,\u201d \u201cthey must originate from the same source, outside those devices.\u201d Id.\n\n at 11-12.\n\n In reply, Plaintiff reiterates that Merrill Lynch I and Ticketmaster rejected proposals \u201cto\n\n add (1) a limitation that the seed value be provided \u2018from outside the transmitter and receiver\u2019\n\n and (2) a temporal limitation as to when the seed value must be provided.\u201d Dkt. No. 192 at 5.\n\n Plaintiff also notes that \u201cat the time the seed value is provided to the transmitter and receiver it is\n\n located in the key memory stored within those items.\u201d Id. at 5. Finally, Plaintiff urges that\n\n \u201c[t]he invention of the [\u2018730] Patent would function as described as long as the seed value was\n\n provided to the receiver any time prior to decrypting the encrypted data sent over the link.\u201d Id.\n\n at 5-6.\n\n At the March 12, 2013 hearing, the parties discussed Figures 1 and 4. Whereas Figure 1\n\n depicts a seed value entering the transmitter and the receiver, Figure 4 does not. Plaintiff argued\n\n that Figure 4 thereby illustrates a seed value being internally generated. Defendants responded\n\n that Figure 4 does not depict any internal generation and, moreover, the specification discloses\n\n that the key memories shown in Figure 4 obtain the seed value from an external source.\n\n (2) Analysis\n\n In Merrill Lynch I, the Court noted disclosure with reference to Figure 4 that seed values\n\n could be obtained from \u201ckey memory 50\u201d within \u201ctransmitting station 11\u201d and \u201ckey memory 60\u201d\n\n within \u201creceiving station 12.\u201d Merrill Lynch I at 18-19. In Ticketmaster, the Court found that\n\n \u201c[a]lthough[] the transmitter would be required to have the seed value to generate the encryption\n\n keys prior to transmission, there is no explicit requirement in the patent or file history that\n\n suggests that the receiver must also be provided the seed value prior to transmission.\u201d\n\n\n\n - 13 -\n A0171\n\f Case: 15-142 Document: 2-2 Page: 100 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 14 of 41 PageID #: 2299\n\n\n\n Ticketmaster at 9; see id. at 12. Ticketmaster found, instead, that \u201c[t]he invention of the \u2018730\n\n patent would likewise function if the seed value was provided to the receiver any time prior to\n\n decrypting the encrypted data sent over the link.\u201d Id. at 9; see id. at 12.\n\n The specification discloses that the transmitter and receiver must be provided with the\n\n seed value in order to perform their respective functions:\n\n In accordance with the invention, to permit the two stations to communicate, each\n [is] supplied in advance with a random number seed value which exclusively\n determines the numerical content of the sequence of numeric values generated by\n each of the two pseudo-random generators. In order that the two generators\n switch from one output key value to the next in synchronism, means are employed\n at both the transmitting and receiving stations to monitor the flow of transmitted\n data and to advance the random number generator each time the transmitted data\n satisfies a predetermined condition.\n\n \u2018730 Patent at 1:43-53.\n\n Once the host station has supplied the initial seed value keys to the units forming\n the two terminal locations for a given link and transmission over that link begins,\n the host . . . no longer \u201cknows\u201d the encryption key values since they are\n dependent upon the nature of the transmissions over the link. Consequently, link\n security cannot be compromised even by an \u201cinsider\u201d who is in possession of the\n initial key values supplied by the host.\n\n Id. at 2:17-25.\n\n Of course, in order for the receiving station to successfully decipher the incoming\n cipher text, the receiving station 12 must be provided (in some fashion) with both\n the correct seed value and the correct interval number. These values are supplied\n to the receiving station in advance of the transmission by any secure means.\n\n Id. at 4:13-20.\n\n Data signals from the DTE [(data terminal equipment)] which are to be\n transmitted are encrypted as described above and shown in FIG. 1, the random\n number seed values and the interval number values being pre-supplied to the\n microprocessor 101 and stored in memory subsystem 103.\n\n Id. at 5:15-19.\n\n The random number generators 23 and 38 at the transmitting station obtain their\n seed values from a key memory 50. Key memory 50 stores the random number\n keys indexed by destination (along with telephone dial-up numbers for automatic\n\n - 14 -\n A0172\n\f Case: 15-142 Document: 2-2 Page: 101 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 15 of 41 PageID #: 2300\n\n\n\n dialing). Similarly, at the receiving station, the seed values for the remote\n terminals from which the receiving station is authorized to receive information are\n stored in a key memory 60 connected to supply seed values to the generators 27\n and 40. The key memories eliminate[] the need for authorized users to remember\n and enter keys before each transmission or reception.\n\n Id. at 9:51-60.\n\n A switch operated by a physical key is also advantageously included in each\n station unit and has \u201csecurity enabled\u201d and \u201csecurity disabled\u201d positions. The key\n memory can only be loaded with values identifying one or more remote units with\n whom communications are authorized when the switch is in the \u201csecurity\n disabled\u201d position (typically when the unit is being set up by an authorized\n operator who has the physical key needed to disable the security switch). At that\n time, the table can be loaded either from a remote (host) station or by a local\n command which takes the form of an extension to the standard modem AT\n command set. That load command take the form:\n\n AT JSN KDESKEY PHONENUM\n\n where AT is the AT command prefix, JSN is the letter \u201cJ\u201d immediately followed\n by the serial number of the remote station with which communications is\n authorized, KDESKEY is the letter \u201cK\u201d immediately followed by an 8 character\n DES encryption key, and PHONENUM is the standard routing code (e.g. dial-up\n phone number string). In the preferred embodiment, up to 1000 serial numbers\n and keys, and up to 100 optional dial-up phone number strings (each with up to 39\n digits) may [be] stored in the key memory lookup table.\n\n Id. at 10:21-46.\n\n In accordance with an important feature of this arrangement, the host system may\n initially authorize communication between two connected units by supplying the\n appropriate serial numbers and initial key values (unique to an authorized link),\n but as soon as transmission begins between the two units over the authorized link,\n the encryption keys are changed in ways that are unknowable to the host. As a\n consequence, knowledge of the initial seed values supplied by the host are of no\n further value and cannot be used to monitor ongoing communications over the\n authorized link.\n\n Id. at 10:66-11:8.\n\n\n\n\n - 15 -\n A0173\n\f Case: 15-142 Document: 2-2 Page: 102 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 16 of 41 PageID #: 2301\n\n\n\n Figures 1 and 4 of the \u2018730 Patent are reproduced here:\n\n\n\n\n - 16 -\n A0174\n\f Case: 15-142 Document: 2-2 Page: 103 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 17 of 41 PageID #: 2302\n\n\n\n On balance, Defendants have failed to justify their proposed limitation that the seed value\n\n must be provided to both the transmitter and the receiver before any contact between them.\n\n Instead, the above-quoted portions of the specification contemplate that the seed value need only\n\n be provided before any encrypted communication can be accomplished between the transmitter\n\n and the receiver. To that end, the seed value must be provided to the transmitter before a\n\n communication can be encrypted and must be provided to the receiver before the encrypted\n\n communication can be decrypted. Defendants\u2019 proposal to limit the claims to a preferred\n\n embodiment is hereby expressly rejected. Comark Commc\u2019ns, 156 F.3d at 1187; accord\n\n Phillips, 415 F.3d at 1323.\n\n Similarly, Defendants have failed to justify their proposed limitation that the seed value\n\n must be provided by a source other than either the transmitter or the receiver. The claim\n\n language does not recite a separate source. Further, Defendants have not shown that the claimed\n\n use of a pseudo-random sequence of encryption keys, which is based in part on the transmitted\n\n data, necessarily precludes the seed value from being provided by the transmitter or the receiver.\n\n As noted by the specification, once the seed value is provided and communication has\n\n commenced, the communication is secure, even if an intruder knows the seed value. See \u2018730\n\n Patent at 10:66-11:8. In short, the origin of the seed value is not a limitation of the claim.\n\n Defendants\u2019 proposal to limit the claims to a preferred embodiment is hereby expressly rejected.\n\n Comark Commc\u2019ns, 156 F.3d at 1187; see Phillips, 415 F.3d at 1323.\n\n The Court therefore hereby construes \u201cproviding a seed value to both said transmitter\n\n and receiver\u201d to mean \u201cproviding the same seed value to both the transmitter and\n\n receiver.\u201d\n\n\n\n\n - 17 -\n A0175\n\f Case: 15-142 Document: 2-2 Page: 104 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 18 of 41 PageID #: 2303\n\n\n\n C. \u201ca new one of said key values in said first and second sequences being produced each\n time a predetermined number of said blocks are transmitted over said link\u201d\n\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n \u201ca new key value in the first and second \u201cswitching to the next new key value in the first\n sequence is produced each time a and second sequences of key values each time a\n predetermined number of blocks are predetermined number of blocks have been sent\n transmitted over the link\u201d from the transmitter over the communication\n link\u201d\n\n Dkt. No. 172 at 5.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff proposes the construction reached in Barclays. Barclays at 18. Plaintiff argues\n\n that because key values cannot be \u201cswitched\u201d if they have not already been generated,\n\n Defendants\u2019 proposal improperly requires that key values must be generated in advance. Dkt.\n\n No. 172 at 5. Plaintiff submits that \u201cDefendants\u2019 proposal also improperly excludes the\n\n possibility, inconsistent with the specification, that multiple key values are generated at the same\n\n time.\u201d Id. at 6. Finally, Plaintiff argues that Defendants\u2019 proposal that \u201cblocks have been sent\n\n from the transmitter over the communication link\u201d is \u201credundant and unnecessary.\u201d Id.\n\n Defendants respond that although Barclays construed the disputed term, \u201ctwo important\n\n requirements were not addressed in that proceeding: what it means to (1) \u2018produce\u2019 a new key\n\n value in the sequence (2) each time blocks \u2018are transmitted.\u2019\u201d Dkt. No. 180 at 14. Defendants\n\n argue that \u201ccoordinated \u2018switching\u2019 of key values is critical to the invention, as it allows the\n\n transmitter and receiver to stay in sync.\u201d Id. Defendants further argue that the claims and the\n\n specification consistently explain that \u201cthe key value is not changed until after the blocks being\n\n counted have been transmitted.\u201d Id. at 17. Finally, Defendants argue that Plaintiff\u2019s proposed\n\n construction repeats the constituent terms \u201cproduced\u201d and \u201ctransmitted\u201d and thus fails to resolve\n\n the parties\u2019 dispute. Id. at 17 n.12.\n\n - 18 -\n A0176\n\f Case: 15-142 Document: 2-2 Page: 105 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 19 of 41 PageID #: 2304\n\n\n\n Plaintiff replies by reiterating its opening arguments and by urging that Defendants\u2019\n\n proposal adds an improper temporal limitation because \u201c[t]here is nothing to \u2018switch\u2019 to if the\n\n key values have not yet been produced.\u201d Dkt. No. 192 at 2.\n\n (2) Analysis\n\n Claim 1 recites (emphasis added):\n\n 1. A method for transmitting data comprising a sequence of blocks in encrypted\n form over a communication link from a transmitter to a receiver comprising, in\n combination, the steps of:\n providing a seed value to both said transmitter and receiver,\n generating a first sequence of pseudo-random key values based on said\n seed value at said transmitter, each new key value in said sequence being\n produced at a time dependent upon a predetermined characteristic of the data\n being transmitted over said link,\n encrypting the data sent over said link at said transmitter in accordance\n with said first sequence,\n generating a second sequence of pseudo-random key values based on said\n seed value at said receiver, each new key value in said sequence being produced\n at a time dependent upon said predetermined characteristic of said data\n transmitted over said link such that said first and second sequences are identical to\n one another[,] a new one of said key values in said first and said second\n sequences being produced each time a predetermined number of said blocks are\n transmitted over said link, and\n decrypting the data sent over said link at said receiver in accordance with\n said second sequence.\n\n In Barclays, the court agreed with Plaintiff\u2019s argument that \u201cwhat is important is that\n\n each key be used at precisely the right time relative to the data. It does not matter whether that\n\n key is generated at that time, or pre-generated and stored.\u201d Barclays at 16; see id. at 17.\n\n Barclays construed the disputed term to mean \u201ca new key value in the first and second sequence\n\n is produced each time a predetermined number of blocks are transmitted over the link.\u201d Id. at 18.\n\n The abstract of the \u2018730 Patent states (emphasis added):\n\n The random number generators are advanced at times determined by\n predetermined characteristics of the data being transmitted so that, after\n transmission has taken place, the common encryption key can be known only to\n the transmitting and receiving stations.\n\n\n - 19 -\n A0177\n\f Case: 15-142 Document: 2-2 Page: 106 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 20 of 41 PageID #: 2305\n\n\n\n The specification discloses counting blocks to determine when to advance to a new key value:\n\n In accordance with a principle feature of the present invention, pseudo-random\n number generators are employed at both the transmitting and receiving stations to\n supply a like sequence of encryption keys to both the encryptor and decryptor,\n without these keys being transmitted in any form over the transmission facility.\n In accordance with the invention, to permit the two stations to communicate, each\n [is] supplied in advance with a random number seed value which exclusively\n determines the numerical content of the sequence of numeric values generated by\n each of the two pseudo-random generators. In order that the two generators\n switch from one output key value to the next in synchronism, means are employed\n at both the transmitting and receiving stations to monitor the flow of transmitted\n data and to advance the random number generator each time the transmitted data\n satisfies a predetermined condition.\n\n The monitoring function can advantageously be performed simply by counting the\n units of data being transmitted and by advancing each pseudo-random key\n generator each time the count reaches an agreed-upon interval number. In this\n way, no additional synchronization information needs to be added to the data\n stream. For even greater security, the interval number (which must be reached\n before the key is switched) may itself be a changing value generated by a random\n number generator, so that the duration during which a given key is active changes\n from key to key at times which are predictable only by the authorized recipient.\n\n \u2018730 Patent at 1:37-65 (emphasis added).\n\n The advance signal produced by block counter 21 is supplied to the advance input\n of a pseudo-random number generator 23 which supplies a sequence of\n encryption key values to the key input of the encryptor 17. The content of the key\n sequence is predetermined by the combination of (1) the internal makeup of the\n generator 23 and by (2) a supplied random number seed value which initializes\n the generator 23. The generator 23 responds to each advance signal from block\n counter 21 by changing its output to the next successive encryption key value.\n Thus, for example, the combination of counter 21 and generator 23 operate to\n change the encryption key each time [the] total number of bytes transmitted is an\n exact multiple of the predetermined interval number.\n\n ***\n\n The block counter 21 need not supply advance signals on boundaries between\n encryption units, nor does the generator 23 need to provide new key value\n precisely on encryption unit boundaries. Instead, the encryptor 17 may buffer the\n new key[] temporarily, using it for the first time on the next successive encryption\n unit of data.\n\n ***\n\n\n - 20 -\n A0178\n\f Case: 15-142 Document: 2-2 Page: 107 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 21 of 41 PageID #: 2306\n\n\n\n Block counter 29 performs the identical function as that performed by the counter\n 21 at the transmitting station 11 and hence supplies advance signals to the\n generator 27 at precisely the same times (relative to the data stream) that counter\n 21 advances generator 23. Each time the current count reaches the interval\n number, the pseudo-random number generator 27 is advanced. Since the internal\n makeup of random number generator 27 is identical to that of generator 23, and\n since it is supplied with the same seed value, and since block counter 29 is\n supplied with the same interval number value as that supplied to the block counter\n 21, exactly the same sequence of keys will be supplied to the random number\n generators 23 and 27, and the keys will change at precisely the same time (relative\n to the data stream) to accurately decipher the transmitted data.\n\n Id. at 3:26-40, 3:50-56 & 3:64-4:12 (emphasis added).\n\n Thus, the \u2018730 Patent refers to \u201ca sequence of encryption key values\u201d and also to\n\n \u201cadvanc[ing] the random number generator,\u201d when a certain number of data units have been\n\n transmitted, so as to use a new encryption key. See id. at Abstract, 1:37-65 & 3:26-40. On\n\n balance, nothing in the \u2018730 Patent precludes generating a sequence of encryption key values in\n\n advance and then using the key values at appropriate times. As found in Barclays, Claim 1 does\n\n not specify whether the key is generated at the time of use or is generated ahead of time and then\n\n selected at the time of use. Barclays at 17 (\u201cThe claim further only requires that each new key\n\n be \u2018produced\u2019 at a specific time relative to the data. It does not matter whether that key is\n\n generated at that time, or pre-generated and stored.\u201d). To the extent Defendants are proposing\n\n that the new key value cannot be created until after the predetermined number of blocks have\n\n been transmitted, Defendants\u2019 proposal is hereby expressly rejected.\n\n Finally, as to the determination of whether \u201ca predetermined number of said blocks\u201d have\n\n been \u201ctransmitted over said link,\u201d the claim explicitly refers to transmission, not to encryption or\n\n to some other step of preparing for transmission.\n\n\n\n\n - 21 -\n A0179\n\f Case: 15-142 Document: 2-2 Page: 108 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 22 of 41 PageID #: 2307\n\n\n\n The Court therefore hereby construes \u201ca new one of said key values in said first and\n\n second sequences being produced each time a predetermined number of said blocks are\n\n transmitted over said link\u201d to mean \u201ca new key value in the first and second sequence is\n\n used each time a predetermined number of blocks have been sent from the transmitter over\n\n the communication link.\u201d\n\n D. \u201ceach new key value in said sequence being produced at a time dependent upon a\n predetermined characteristic of the data being transmitted over said link\u201d and \u201ceach new\n key value in said sequence being produced at a time dependent upon said predetermined\n characteristic of said data transmitted over said link\u201d\n\n \u201ceach new key value in said sequence being produced at a time dependent upon a\n predetermined characteristic of the data being transmitted over said link\u201d\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n \u201ca new key value in the first sequence is \u201ceach new key value in the first sequence is\n produced each time a condition based on a produced each time a predetermined number of\n predetermined characteristic of the transmitted blocks are transmitted over said link\u201d\n data is met at the transmitter\u201d\n \u201ceach new key value in said sequence being produced at a time dependent upon said\n predetermined characteristic of said data transmitted over said link\u201d\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n \u201ca new key value in the second sequence is \u201ceach new key value in the second sequence is\n produced each time a condition based on a produced each time a predetermined number of\n predetermined characteristic of the transmitted blocks are transmitted over said link\u201d\n data is met at the receiver\u201d\n\n Dkt. No. 172 at 6; Dkt. No. 180 at 17.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff proposes the constructions reached by the Court in Merrill Lynch I and\n\n Ticketmaster. Merrill Lynch I at 26-27; Ticketmaster at 17-18. Plaintiff argues that\n\n \u201cDefendants\u2019 proposed construction would effectively exclude th[e] preferred embodiment\n\n which provides the new key value based upon a varying interval number and not a\n\n \u2018predetermined number of blocks.\u2019\u201d Dkt. No. 172 at 7.\n\n - 22 -\n A0180\n\f Case: 15-142 Document: 2-2 Page: 109 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 23 of 41 PageID #: 2308\n\n\n\n Defendants respond that producing a new key value based on an \u201cinterval number\u201d of\n\n blocks transmitted over the communications link is \u201ca critical aspect of the claimed invention\u201d\n\n because \u201cit enables the transmitter and the receiver to switch from one key value to the next in\n\n sync with each other, without transmitting any additional information in the data stream across\n\n the communications link.\u201d Dkt. No. 180 at 19. As to Figure 4 of the \u2018730 Patent, Defendants\n\n respond that \u201c[a]lthough the embodiment depicted in Figure 4 allows for the interval number to\n\n actively vary over the course of a series of transmissions ([\u2018730 Patent] at 8:7-15, 9:29-50), the\n\n interval number is still under all circumstances a predetermined number of blocks that have been\n\n transmitted over the link.\u201d Dkt. No. 180 at 21. Defendants further cite Plaintiff\u2019s response to a\n\n motion for summary judgment in one of the present consolidated cases, in which Plaintiff stated:\n\n (1) the \u201cpredetermined characteristics relate to the \u2018correct interval number\u2019 described in some\n\n embodiments of the specification\u201d; (2) \u201c\u2018interval numbers\u2019 are represented in the claims by\n\n \u2018predetermined characteristic[s] of the data being transmitted\u2019 and \u2018predetermined number of\n\n said blocks\u2019\u201d; and (3) \u201cthe claimed method includes \u2018interval numbers\u2019 as part of the claim\n\n language requiring \u2018predetermined characteristic of the data\u2019/\u2018predetermined number of said\n\n blocks . . . .\u2019\u201d Id. at 21-22 (citing Case No. 2:12-CV-55, Dkt. No. 53 at 9-10 & 12; id., Dkt. No.\n\n 59 at 9-10).\n\n Plaintiff replies by reiterating that \u201cDefendants\u2019 proposed construction would effectively\n\n exclude th[e] preferred embodiment [shown in Figure 4], which provides the new key value\n\n based upon a varying interval number and not a \u2018predetermined number of blocks.\u2019\u201d Dkt. No.\n\n 192 at 4. Plaintiff also highlights disclosure in the specification that \u201cthe predetermined\n\n condition can be satisfied after counting \u2018the number of bytes (characters), words, or blocks of\n\n data transmitted.\u2019\u201d Id. (quoting \u2018730 Patent at 3:20-21). As to the summary judgment briefing\n\n\n\n - 23 -\n A0181\n\f Case: 15-142 Document: 2-2 Page: 110 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 24 of 41 PageID #: 2309\n\n\n\n cited by Defendants, Plaintiff replies that it \u201cnoted that the \u2018interval number\u2019 was the\n\n \u2018predetermined characteristic\u2019 in \u2018some embodiments,\u2019\u201d not necessarily in all embodiments. Id.\n\n at 4 n.1 (citing Dkt. No. 180 at 21).\n\n (2) Analysis\n\n Claim 1 recites (emphasis added):\n\n 1. A method for transmitting data comprising a sequence of blocks in encrypted\n form over a communication link from a transmitter to a receiver comprising, in\n combination, the steps of:\n providing a seed value to both said transmitter and receiver,\n generating a first sequence of pseudo-random key values based on said\n seed value at said transmitter, each new key value in said sequence being\n produced at a time dependent upon a predetermined characteristic of the data\n being transmitted over said link,\n encrypting the data sent over said link at said transmitter in accordance\n with said first sequence,\n generating a second sequence of pseudo-random key values based on said\n seed value at said receiver, each new key value in said sequence being produced\n at a time dependent upon said predetermined characteristic of said data\n transmitted over said link such that said first and second sequences are identical\n to one another[,] a new one of said key values in said first and said second\n sequences being produced each time a predetermined number of said blocks are\n transmitted over said link, and\n decrypting the data sent over said link at said receiver in accordance with\n said second sequence.\n\n In Merrill Lynch I, the Court clarified that the first disputed phrase relates to the first\n\n sequence and the transmitter and the second disputed phrase relates to the second sequence and\n\n the receiver. Merrill Lynch I at 26.\n\n The background of the invention states:\n\n The monitoring function can advantageously be performed simply by counting the\n units of data being transmitted and by advancing each pseudo-random key\n generator each time the count reaches an agreed-upon interval number.\n\n \u2018730 Patent at 1:54-58 (emphasis added). The specification discloses that the \u201cinterval number\u201d\n\n may be constant or may change every time the encryption key value is advanced:\n\n\n\n - 24 -\n A0182\n\f Case: 15-142 Document: 2-2 Page: 111 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 25 of 41 PageID #: 2310\n\n\n\n A block counter 21 monitors the stream of data from the source 15 and generates\n an \u201cadvance signal\u201d each time the data meets a predetermined condition.\n Advantageously, the block counter 21 may simply count the number of bytes\n (characters), words or blocks of data being transmitted, compare the current count\n with a predetermined 37 [\u201c]interval number\u201d and produce an advance signal each\n time the current count reaches the interval number (at which time the current\n count is reset to 0).\n\n The advance signal produced by block counter 21 is supplied to the advance input\n of a pseudo-random number generator 23 which supplies a sequence of\n encryption key values to the key input of the encryptor 17. The content of the key\n sequence is predetermined by the combination of (1) the internal makeup of the\n generator 23 and by (2) a supplied random number seed value which initializes\n the generator 23. The generator 23 responds to each advance signal from block\n counter 21 by changing its output to the next successive encryption key value.\n Thus, for example, the combination of counter 21 and generator 23 operate to\n change the encryption key each time [the] total number of bytes transmitted is an\n exact multiple of the predetermined interval number.\n\n Id. at 3:16-40 (emphasis added).\n\n To further enhance the security of the transmission, the duration of the interval\n during which each given key is active may be changed in a pseudo-random\n fashion. For this purpose, a pseudo-random number generator 38 is used at the\n transmitting station 11 to supply the interval numbers to the block counter 21.\n The generator 38 is advanced to a new number each time an advance signal is\n received from the output of block counter 21 over line 39 (so that a new interval\n number is supplied to the block counter 21 each time it advances the encryption\n key generator 23). Block counter 21 may simply load the interval number from\n generator 38 into an accumulator which is then decremented toward zero when it\n emits the advance signal to generator 23, at which time it is loaded with a new\n and different interval number from generator 38. At the receiving station 12, a\n pseudo-random generator 40 (which performs the same pseudo-random number\n generating process as the generator 38 at the transmitting station 11) supplies a\n sequence of interval numbers to counter 29. Generator 40 is advanced by the\n advance signals from counter 29 which also advance the encryption key generator\n 27.\n\n Id. at 9:29-50 (emphasis added).\n\n As to the prosecution history, Defendants have cited an amendment in which the\n\n applicant cancelled the original claims and added new claims containing the disputed terms.\n\n Dkt. No. 180, Ex. T, 12/4/1992 Amendment at 2. On balance, the prosecution history contains\n\n no \u201cdefinitive\u201d statements that limit the scope of the disputed terms. Omega Eng. v. Raytek\n\n - 25 -\n A0183\n\f Case: 15-142 Document: 2-2 Page: 112 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 26 of 41 PageID #: 2311\n\n\n\n Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003) (\u201cAs a basic principle of claim interpretation,\n\n prosecution disclaimer promotes the public notice function of the intrinsic evidence and protects\n\n the public\u2019s reliance on definitive statements made during prosecution.\u201d) (emphasis added). In\n\n particular, Defendants have not shown how this amendment warrants limiting \u201cpredetermined\n\n characteristic of said data\u201d to mean a \u201cpredetermined number of blocks.\u201d\n\n On balance, Defendants\u2019 proposal to limit the disputed terms to the preferred\n\n embodiments that employ an \u201cinterval number\u201d is hereby rejected. Comark Commc\u2019ns, 156 F.3d\n\n at 1187; see Phillips, 415 F.3d at 1323. Moreover, even if an interval number limitation were\n\n appropriate, reference to a \u201cpredetermined number of blocks\u201d might be read to exclude\n\n embodiments that use a varying interval between key value changes rather than a static,\n\n predetermined interval. Id. at 9:29-50; see id. at Fig. 4. Defendants\u2019 proposed constructions are\n\n therefore hereby expressly rejected.\n\n The Court accordingly hereby construes the disputed terms as set forth in the following\n\n chart:\n\n Term Construction\n \u201ceach new key value in said sequence being \u201ca new key value in the first sequence is\n produced at a time dependent upon a produced each time a condition based on a\n predetermined characteristic of the data predetermined characteristic of the\n being transmitted over said link\u201d transmitted data is met at the transmitter\u201d\n\n \u201ceach new key value in said sequence being \u201ca new key value in the second sequence is\n produced at a time dependent upon said produced each time a condition based on a\n predetermined characteristic of said data predetermined characteristic of the\n transmitted over said link\u201d transmitted data is met at the receiver\u201d\n\n\n\n\n - 26 -\n A0184\n\f Case: 15-142 Document: 2-2 Page: 113 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 27 of 41 PageID #: 2312\n\n\n\n E. \u201csequence of blocks in encrypted form\u201d\n\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n No construction necessary1 \u201ca sequence of blocks, encrypted together using\n the same key value for transmission, which\n signals to change the encryption key\u201d\n\n Dkt. No. 172 at 13; Dkt. No. 180 at 23.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff argues that based on the Court\u2019s prior construction of the term \u201cblock\u201d to mean\n\n \u201ca group of bits, such as a character, word, or other unit of data,\u201d a \u201csequence of blocks\u201d is\n\n simply a sequence of groups of bits. Dkt. No. 172 at 14. Plaintiff also argues that contrary to\n\n Defendants\u2019 proposal, nothing in the claim language or the specification requires that every\n\n transmission of a \u201csequence of blocks\u201d must change the encryption key. Id. In particular,\n\n Plaintiff submits that \u201cthe preferred embodiment could change its key after counting the blocks\n\n from multiple transmission[s], and not just one.\u201d Id.\n\n Defendants respond that the Court has not previously considered the present dispute,\n\n which is whether \u201cthe claimed \u2018sequence of blocks in encrypted form\u2019 must be encrypted\n\n together with the same key,\u201d as Defendants propose. Dkt. No. 180 at 23 (emphasis omitted).\n\n Defendants argue that \u201c[b]ecause the encryption key does not change until a predetermined\n\n number or sequence of blocks is transmitted, the blocks in each sequence of blocks are encrypted\n\n together with the same key.\u201d Id. at 23-24.\n\n Plaintiff replies that \u201cthe preferred embodiment can change its key after counting the\n\n blocks from multiple transmissions, and not just one.\u201d Dkt. No. 192 at 10. Plaintiff also argues\n\n\n\n\n 1\n Plaintiff submits that the disputed term is simply \u201csequence of blocks.\u201d Dkt. No. 172 at 13.\n - 27 -\n A0185\n\f Case: 15-142 Document: 2-2 Page: 114 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 28 of 41 PageID #: 2313\n\n\n\n that Defendants\u2019 proposal that only a predetermined number of blocks can change the encryption\n\n key is contrary to the disclosed embodiments in which the number of blocks can vary. Id.\n\n At the March 12, 2013 hearing, Plaintiff emphasized that as to the term \u201csaid blocks,\u201d\n\n which appears in the disputed term discussed in subsection C., above, the antecedent basis for\n\n \u201csaid blocks\u201d is \u201cblocks,\u201d not \u201csequence.\u201d\n\n (2) Analysis\n\n As a threshold matter, the parties do not appear to dispute the meaning of the constituent\n\n term \u201csequence.\u201d That term can therefore be used in the Court\u2019s construction without any\n\n elaboration.\n\n In Merrill Lynch I and Barclays, the Court construed the constituent term \u201cblock\u201d to\n\n mean \u201ca group of bits, such as a character, word, or other unit of data.\u201d Merrill Lynch I at 16;\n\n Barclays at 8.\n\n Claim 1 recites (emphasis added):\n\n 1. A method for transmitting data comprising a sequence of blocks in encrypted\n form over a communication link from a transmitter to a receiver comprising, in\n combination, the steps of:\n providing a seed value to both said transmitter and receiver,\n generating a first sequence of pseudo-random key values based on said\n seed value at said transmitter, each new key value in said sequence being\n produced at a time dependent upon a predetermined characteristic of the data\n being transmitted over said link,\n encrypting the data sent over said link at said transmitter in accordance\n with said first sequence,\n generating a second sequence of pseudo-random key values based on said\n seed value at said receiver, each new key value in said sequence being produced\n at a time dependent upon said predetermined characteristic of said data\n transmitted over said link such that said first and second sequences are identical to\n one another[,] a new one of said key values in said first and said second\n sequences being produced each time a predetermined number of said blocks are\n transmitted over said link, and\n decrypting the data sent over said link at said receiver in accordance with\n said second sequence.\n\n\n\n - 28 -\n A0186\n\f Case: 15-142 Document: 2-2 Page: 115 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 29 of 41 PageID #: 2314\n\n\n\n The specification discloses using a particular key to encrypt segments of data, advancing\n\n the key to a new value, and using the new key to encrypt more data:\n\n In order that the two generators switch from one output key value to the next in\n synchronism, means are employed at both the transmitting and receiving stations\n to monitor the flow of transmitted data and to advance the random number\n generator each time the transmitted data satisfies a predetermined condition.\n\n ***\n\n Thus, for example, the combination of counter 21 and generator 23 operate to\n change the encryption key each time [the] total number of bytes transmitted is an\n exact multiple of the predetermined interval number.\n\n The encryptor 17 translates fixed length segments of the data from source 15\n (\u201cclear text\u201d) into fixed-length \u201ccipher text\u201d output segments, each segment\n translation taking place in a manner uniquely determined by the encryption key\n currently supplied by the pseudo-random number generator 23.\n\n \u2018730 Patent at 1:50-58 & 3:36-46.\n\n Defendants\u2019 proposed construction appears to require multiple blocks. On one hand, use\n\n of a plural term does not always mandate a plurality. For example:\n\n In the phrase \u201c[plurality of . . .] projections with recesses therebetween,\u201d the use\n of \u201crecesses\u201d can be understood to mean a single recess where there are only two\n projections and more than one recess where there are three or more projections.\n Indeed, in the present context, if the patentees had wanted to require . . . more\n than one recess, it would have been natural to limit the claimed invention to an\n insert means with a \u201cplurality of recesses.\u201d\n\n Dayco Prods, Inc. v. Total Containment, Inc., 258 F.3d at 1328; see Versa Corp. v. Ag-Bag Int\u2019l\n\n Ltd., 392 F.3d 1325, 1330 (Fed. Cir. 2004) (as to the term \u201cmeans . . . for creating air channels,\u201d\n\n noting that \u201cin context, the plural can describe a universe ranging from one to some higher\n\n number, rather than requiring more than one item\u201d).\n\n On the other hand, the plural form of a noun generally refers to two or more, as found in\n\n Markem-Imaje Corp. v. Zipher Ltd., 657 F.3d 1293, 1297 (Fed. Cir. 2011), and Leggett & Platt,\n\n Inc. v. Hickory Springs Manufacturing Co., 285 F.3d 1353, 1357 (Fed. Cir. 2002). The Court\n\n\n - 29 -\n A0187\n\f Case: 15-142 Document: 2-2 Page: 116 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 30 of 41 PageID #: 2315\n\n\n\n addressed these cases and other relevant cases in Calypso Wireless, Inc., et al. v. T-Mobile USA,\n\n Inc., No. 2:08-CV-441, Dkt. No. 281 at 27-32 (E.D. Tex. Dec. 3, 2012) (discussing Flash Seats,\n\n LLC v. Paciolon, Inc., No. 07-575-JJF, 2010 WL 184080 (D. Del. Jan. 19, 2010), aff\u2019d, 469 Fed.\n\n App\u2019x 916 (Fed. Cir. 2012), Every Penny Counts, Inc. v. Bank of Am. Corp., No. 2:07-CV-42-\n\n FTM-29SPC, 2008 WL 4491113 (M.D. Fla. Sept. 29, 2008), and MOAEC, Inc. v. Pandora\n\n Media, Inc., No. 07-CV-654-BBC, 2008 WL 4500704 (W.D. Wis. Sept. 30, 2008)).\n\n Thus, the use of the plural form of \u201cblocks\u201d in Claim 1 of the \u2018730 Patent weighs in favor\n\n of finding that two or more blocks are required. Leggett & Platt, 285 F.3d at 1357 (\u201cAt the\n\n outset, the claim recites \u2018support wires\u2019 in the plural, thus requiring more than one welded\n\n \u2018support wire.\u2019\u201d). Nothing in the \u2018730 Patent is contrary to such a natural reading.\n\n As to the prosecution history, Defendants have submitted that in response to a rejection,\n\n the applicant narrowed \u201cdata\u201d to \u201cdata comprising a sequence of blocks,\u201d and added \u201ca new one\n\n of said key values in said first and said second sequences being produced each time a\n\n predetermined number of said blocks are transmitted over said link[.]\u201d Dkt. No. 180 at 24 (citing\n\n Ex. P, 7/8/1993 Office Action at 2; Ex. Y, 12/13/1993 Amendment After Final at 1-2).\n\n Nonetheless, Defendants have not identified any definitive statement by the patentee that all of\n\n the blocks in a \u201csequence of blocks\u201d must be encrypted using the same key value. Omega Eng.,\n\n 334 F.3d at 1324 (\u201cAs a basic principle of claim interpretation, prosecution disclaimer promotes\n\n the public notice function of the intrinsic evidence and protects the public\u2019s reliance on definitive\n\n statements made during prosecution.\u201d) (emphasis added).\n\n Finally, Defendants\u2019 proposal (that the recited \u201csequence\u201d is encrypted using the same\n\n key) would seem to require that every time a key new value is produced, all of the steps recited\n\n in Claim 1 must be performed again. Such an interpretation might arise from the preamble,\n\n\n\n - 30 -\n A0188\n\f Case: 15-142 Document: 2-2 Page: 117 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 31 of 41 PageID #: 2316\n\n\n\n which recites: \u201cA method for transmitting data comprising a sequence of blocks in encrypted\n\n form . . . .\u201d If the entire sequence is encrypted using the same key, then production of a new key\n\n must relate to transmission of a new sequence. Defendants have not argued that \u201ca sequence\u201d\n\n must refer to at least two sequences, so to the extent the claim encompasses transmission of a\n\n single sequence, the production of a new key might be read to require performing all of the\n\n recited steps again, including providing a seed value. Requiring a new seed value upon every\n\n key change would be inconsistent with the specification and even the claim language itself,\n\n which contemplates synchronized advancement through a sequence of key values that have been\n\n generated from a common seed value. Defendants\u2019 proposal, which would thus render the claim\n\n confusing and potentially inconsistent with itself and the specification, is accordingly disfavored.\n\n On balance, none of the evidence warrants requiring that all of the blocks in the recited\n\n \u201csequence of blocks\u201d must be encrypted using the same key. Defendants\u2019 proposal in that regard\n\n is hereby expressly rejected.\n\n The Court therefore hereby construes \u201csequence of blocks in encrypted form\u201d to mean\n\n \u201csequence of two or more blocks that have been encrypted.\u201d\n\n F. \u201cpredetermined\u201d\n\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n No construction necessary \u201cdetermined before any transmission over said\n communication link\u201d\n\n Dkt. No. 172 at 10; Dkt. No. 180 at 25.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff argues that \u201c[t]he term \u2018predetermined\u2019 is a commonly used term and does not\n\n need any construction\u201d and \u201csimply means to determine beforehand.\u201d Dkt. No. 172 at 11 (citing\n\n Ex. E, Merriam-Webster Dictionary (on-line version)). Plaintiff cites the finding in Ticketmaster\n\n - 31 -\n A0189\n\f Case: 15-142 Document: 2-2 Page: 118 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 32 of 41 PageID #: 2317\n\n\n\n that \u201cneither the claim language nor specification requires that the claimed \u2018predetermined\u2019\n\n characteristic or claimed \u2018predetermined\u2019 number of blocks be \u2018determined before any\n\n transmission,\u2019 instead it only requires that these be determined in advance of \u2018any\n\n communications,\u2019 not transmissions.\u201d Ticketmaster at 23.\n\n Defendants respond that \u201c[a]ccording to the claims and specification, the \u2018determining\u2019\n\n must occur before the encrypted transmissions commence.\u201d Dkt. No. 180 at 25. As to Plaintiff\u2019s\n\n reliance on Ticketmaster, Defendants submit they have no opposition to substituting\n\n \u201ccommunication\u201d for \u201ctransmission\u201d in their proposed construction. Id. at 26.\n\n Plaintiff replies by again emphasizing Ticketmaster. Dkt. No. 192 at 8.\n\n (2) Analysis\n\n Although Plaintiff argues that this term should not be construed, the briefing\n\n demonstrates that the parties have a \u201cfundamental dispute regarding the scope of a claim term,\u201d\n\n and the Court has a duty to resolve the dispute. O2 Micro, 521 F.3d at 1362-63.\n\n Claim 1 recites (emphasis added):\n\n 1. A method for transmitting data comprising a sequence of blocks in encrypted\n form over a communication link from a transmitter to a receiver comprising, in\n combination, the steps of:\n providing a seed value to both said transmitter and receiver,\n generating a first sequence of pseudo-random key values based on said\n seed value at said transmitter, each new key value in said sequence being\n produced at a time dependent upon a predetermined characteristic of the data\n being transmitted over said link,\n encrypting the data sent over said link at said transmitter in accordance\n with said first sequence,\n generating a second sequence of pseudo-random key values based on said\n seed value at said receiver, each new key value in said sequence being produced\n at a time dependent upon said predetermined characteristic of said data\n transmitted over said link such that said first and second sequences are identical to\n one another[,] a new one of said key values in said first and said second sequences\n being produced each time a predetermined number of said blocks are transmitted\n over said link, and\n\n\n\n - 32 -\n A0190\n\f Case: 15-142 Document: 2-2 Page: 119 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 33 of 41 PageID #: 2318\n\n\n\n decrypting the data sent over said link at said receiver in accordance with\n said second sequence.\n\n The specification discloses that for encryption and decryption to occur, certain information must\n\n be provided to the transmitter and the receiver \u201cin advance\u201d:\n\n In accordance with the invention, to permit the two stations to communicate, each\n [is] supplied in advance with a random number seed value which exclusively\n determines the numerical content of the sequence of numeric values generated by\n each of the two pseudo-random generators. In order that the two generators\n switch from one output key value to the next in synchronism, means are employed\n at both the transmitting and receiving stations to monitor the flow of transmitted\n data and to advance the random number generator each time the transmitted data\n satisfies a predetermined condition.\n\n The monitoring function can advantageously be performed simply by counting the\n units of data being transmitted and by advancing each pseudo-random key\n generator each time the count reaches an agreed-upon interval number. In this\n way, no additional synchronization information needs to be added to the data\n stream.\n\n \u2018730 Patent at 1:43-59 (emphasis added).\n\n Once the host station has supplied the initial seed value keys to the units forming\n the two terminal locations for a given link and transmission over that link begins,\n the host . . . no longer \u201cknows\u201d the encryption key values since they are\n dependent upon the nature of the transmissions over the link. Consequently, link\n security cannot be compromised even by an \u201cinsider\u201d who is in possession of the\n initial key values supplied by the host.\n\n Id. at 2:17-25 (emphasis added).\n\n Of course, in order for the receiving station to successfully decipher the incoming\n cipher text, the receiving station 12 must be provided (in some fashion) with both\n the correct seed value and the correct interval number. These values are supplied\n to the receiving station in advance of the transmission by any secure means.\n\n Id. at 4:13-20.\n\n As found in Ticketmaster, these disclosures, as well as the plain language of the claim,\n\n are consistent with construing \u201cpredetermined\u201d to refer to a determination that occurs before any\n\n communication involving data comprising a sequence of blocks that have been encrypted using\n\n the recited pseudo-random key values. Otherwise, the recited sequences of pseudo-random keys\n\n - 33 -\n A0191\n\f Case: 15-142 Document: 2-2 Page: 120 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 34 of 41 PageID #: 2319\n\n\n\n could not be generated and, in turn, the data could not be encrypted. Finally, at the March 12,\n\n 2013 hearing, Plaintiff\u2019s counsel stated that \u201cpredetermined\u201d refers to the same point in time\n\n regardless of whether the term is being used with respect to the transmitter or with respect to the\n\n receiver.\n\n The Court therefore hereby construes \u201cpredetermined\u201d to mean \u201cdetermined before\n\n any communication of a sequence of encrypted blocks.\u201d\n\n G. \u201cdata\u201d\n\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n No construction necessary \u201cserial data\u201d\n\n Dkt. No. 172 at 12.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff argues that \u201cdata\u201d is a \u201cbroad term\u201d and \u201c[n]othing in the claim language\n\n requires the data be transmitted, encrypted or decoded in a series.\u201d Dkt. No. 172 at 12.\n\n Defendants respond that the claims recite transmission of a \u201csequence\u201d of data blocks,\n\n which refers to serial data rather than parallel data. Dkt. No. 180 at 26. Defendants note that the\n\n applicant added this \u201csequence\u201d language to the claim during prosecution. See id., Ex. Y,\n\n 12/13/1993 Amendment After Final Rejection at 1-2.\n\n Plaintiff replies that \u201cDefendants improperly seek to import a limitation from the\n\n preferred embodiment to the claims by noting that the preferred embodiment makes use of a\n\n \u2018serial communication control,\u2019 a \u2018serial port,\u2019 \u2018serial interface,\u2019 and \u2018serial protocol.\u2019\u201d Dkt. No.\n\n 192 at 9.\n\n\n\n\n - 34 -\n A0192\n\f Case: 15-142 Document: 2-2 Page: 121 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 35 of 41 PageID #: 2320\n\n\n\n (2) Analysis\n\n In Barclays, the parties, including Plaintiff, agreed that the preamble phrase \u201cA method\n\n for transmitting data comprising a sequence of blocks in encrypted form over a communication\n\n link from a transmitter to a receiver comprising, in combination, the steps of\u201d is a limitation of\n\n the claim. Barclays at 9.\n\n The specification discloses \u201cdata\u201d multiple times, including in the context of serial\n\n communication:\n\n The monitoring function can advantageously be performed simply by counting the\n units of data being transmitted and by advancing each pseudo-random key\n generator each time the count reaches an agreed-upon interval number.\n\n \u2018730 Patent at 1:54-58 (emphasis added).\n\n At the transmitting station 11, a source of data 15 supplies a serial data stream to\n the data input of an encryptor 17.\n\n Id. at 3:11-13 (emphasis added).\n\n The encryptor 17 translates fixed length segments of the data from source 15\n (\u201cclear text\u201d) into fixed-length \u201ccipher text\u201d output segments, each segment\n translation taking place in a manner uniquely determined by the encryption key\n currently supplied by the pseudo-random number generator 23. The encryptor 17\n (and the decryptor 19, to be discussed) may advantageously employ the accepted\n NBIS Data Encryption Standard (DES), which codes and decodes data in 64-bit\n (8 byte) units in accordance with a 56-bit key. The block counter 21 need not\n supply advance signals on boundaries between encryption units, nor does the\n generator 23 need to provide new key value precisely on encryption unit\n boundaries. Instead, the encryptor 17 may buffer the new key[] temporarily,\n using it for the first time on the next successive encryption unit of data.\n\n Id. at 3:40-56 (emphasis added).\n\n The asynchronous serial interface with the DTE typically operates under the\n combined control of the microprocessor 101 and the SCC 111 in accordance with\n a standard interface protocol (e.g., the V.42 standard protocol). The DTE (data\n terminal equipment) may be any terminal or computer adapted to communicate\n via this standard port using the selected serial protocol.\n\n Id. at 4:65-5:4 (emphasis added).\n\n\n - 35 -\n A0193\n\f Case: 15-142 Document: 2-2 Page: 122 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 36 of 41 PageID #: 2321\n\n\n\n As mentioned above, the data terminal equipment (DTE) communicates with the\n modem hardware over the serial port 121 (e.g., a RS-232c or a RS-422 standard\n port).\n\n Id. at 5:62-65 (emphasis added).\n\n [E]rror control processing (such as adding cyclic redundancy check (CRC) block\n checking codes) is best done after encryption in accordance with the invention,\n because successful synchronization of the advance signals from the block\n counters 21 and 29 requires substantially error-free data transmission (which the\n error-checking protocols insure).\n\n Id. at 8:22-28 (emphasis added).\n\n On balance, the term \u201cdata\u201d is used generically and has not been imbued with any special\n\n meaning. The disclosure of \u201cserial data\u201d pertains to a preferred embodiment and is not required\n\n by any claim language or any definitive statements in the specification or the prosecution history.\n\n Comark Commc\u2019ns, 156 F.3d at 1187; accord Phillips, 415 F.3d at 1323; see Omega Eng., 334\n\n F.3d at 1324. Defendants\u2019 proposal to limit \u201cdata\u201d to serial data is therefore rejected.\n\n The Court accordingly hereby construes \u201cdata\u201d to have its plain meaning, and the Court\n\n hereby expressly rejects Defendants\u2019 proposal to limit \u201cdata\u201d to \u201cserial data.\u201d\n\n H. \u201cblock\u201d\n\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n \u201ca group of bits, such as a character, word, or \u201cfixed length segment of the data\u201d\n other unit of data\u201d\n\n Dkt. No. 172 at 9.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff proposes the construction reached by the Court in Merrill Lynch I. Merrill\n\n Lynch I at 16. Plaintiff argues that the claim language specifies no \u201cfixed length\u201d and that the\n\n specification discloses a block counter that may count units, words, or blocks of data of any size.\n\n Dkt. No. 172 at 10.\n\n\n\n - 36 -\n A0194\n\f Case: 15-142 Document: 2-2 Page: 123 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 37 of 41 PageID #: 2322\n\n\n\n Defendants respond that the specification describes encryption as being performed upon\n\n \u201cfixed length segments of the data.\u201d Dkt. No. 180 at 28 (citing \u2018730 Patent at 3:41-46).\n\n Defendants also argue that \u201c[t]he patent\u2019s description of block counting as being compression-\n\n sensitive further supports Defendants\u2019 proposed construction.\u201d Dkt. No. 180 at 28. Defendants\n\n further argue that Plaintiff\u2019s position is inconsistent with the prosecution history, in which the\n\n patentee \u201climit[ed] the scope of \u2018data\u2019 to \u2018data comprising a sequence of blocks,\u2019 to overcome\n\n the examiner\u2019s final rejection.\u201d Id. (citing Ex. Y, 12/13/1993 Amendment After Final Rejection\n\n at 1-2).\n\n Plaintiff replies that the specification discloses that \u201ca block counter may count \u2018groups\n\n of bits\u2019 of varying sizes or units of data, words, or blocks of data of any other size.\u201d Dkt. No.\n\n 192 at 7 (citing \u2018730 Patent at 1:54-58 & 3:19-25). Plaintiff also submits that Merrill Lynch I\n\n rejected the same prosecution history argument that Defendants are advancing here. Id. (citing\n\n Merrill Lynch I at 17).\n\n (2) Analysis\n\n As the Court stated in Merrill Lynch I, \u201cthe specification does not provide an explicit\n\n definition of the term \u2018blocks.\u2019\u201d Merrill Lynch I at 10; see id. at 12. As to the prosecution\n\n history, Merrill Lynch I noted: \u201cThe Court agrees that the applicant did limit the term \u2018data.\u2019\n\n However, what is unclear from the prosecution history is exactly how the term \u2018data\u2019 was\n\n narrowed by the amendment.\u201d Id. at 13. Merrill Lynch I found that \u201ccontrary to Defendants\u2019\n\n contention, it is unclear from the intrinsic record if the only defining feature of a block with\n\n which to narrow the term \u2018data\u2019 is length.\u201d Id. at 14 (internal citation and quotation marks\n\n omitted). Having considered the intrinsic evidence as well as extrinsic definitions submitted by\n\n the parties, Merrill Lynch I concluded that rather than specifying any particular length, \u201cthe term\n\n\n\n - 37 -\n A0195\n\f Case: 15-142 Document: 2-2 Page: 124 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 38 of 41 PageID #: 2323\n\n\n\n \u2018block\u2019 narrowed the term \u2018data\u2019 by requiring the data to be a group of bits, such as a character,\n\n word, or other unit of data.\u201d Id. at 16.\n\n The specification discloses various different groupings of data, and those groupings may\n\n indeed be fixed-length:\n\n The monitoring function can advantageously be performed simply by counting the\n units of data being transmitted and by advancing each pseudo-random key\n generator each time the count reaches an agreed-upon interval number.\n\n \u2018730 Patent at 1:54-58 (emphasis added).\n\n The data from source 15 may take substantially any form, such as a file of text\n characters, each encoded as a 8-bit byte, or a file of numerical binary\n information expressed in 16-bit or 32-bit words. A block counter 21 monitors the\n stream of data from the source 15 and generates an \u201cadvance signal\u201d each time the\n data meets a predetermined condition. Advantageously, the block counter 21 may\n simply count the number of bytes (characters), words or blocks of data being\n transmitted, compare the current count with a predetermined 37 [\u201c]interval\n number\u201d and produce an advance signal each time the current count reaches the\n interval number (at which time the current count is reset to 0).\n\n Id. at 3:13-25 (emphasis added).\n\n The encryptor 17 translates fixed length segments of the data from source 15\n (\u201cclear text\u201d) into fixed-length \u201ccipher text\u201d output segments, each segment\n translation taking place in a manner uniquely determined by the encryption key\n currently supplied by the pseudo-random number generator 23.\n\n Id. at 3:41-46 (emphasis added).\n\n Note also that, as depicted in FIG. 4, the data is monitored by the block counter\n 21 prior to compression, rather than afterwards. Correspondingly, at the receiving\n station 12, the block counter 29 monitors the data flow after it is decompressed.\n In this way, both counters monitor the same data stream. Both could be\n reconnected to monitor the compressed data stream if desired, however.\n\n Id. at 9:12-19.\n\n On balance, the claimed invention depends upon the transmitter and receiver counting\n\n blocks in the same manner, but nothing in the \u2018730 Patent requires that the blocks must be fixed-\n\n length. The above-quoted discussion of \u201cfixed length segments\u201d (id. at 3:41-46) thus relates to a\n\n\n - 38 -\n A0196\n\f Case: 15-142 Document: 2-2 Page: 125 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 39 of 41 PageID #: 2324\n\n\n\n preferred embodiment, and Defendants\u2019 proposal, which would import that limitation into the\n\n claims, is hereby expressly rejected. Comark Commc\u2019ns, 156 F.3d at 1187; accord Phillips, 415\n\n F.3d at 1323.\n\n The Court therefore hereby construes \u201cblock\u201d to mean \u201ca group of bits, such as a\n\n character, word, or other unit of data.\u201d\n\n I. \u201ccommunication link from a transmitter to a receiver\u201d\n\n Plaintiff\u2019s Proposed Construction Defendants\u2019 Proposed Construction\n No construction necessary \u201ca connection for communication between a\n transmitter and a receiver\u201d\n\n Dkt. No. 172 at 11.\n\n (1) The Parties\u2019 Positions\n\n Plaintiff argues that no construction is necessary because \u201cthe language is plain and can\n\n be easily understood and applied by the jury.\u201d Dkt. No. 172 at 11. Plaintiff also argues that\n\n \u201cDefendants\u2019 attempt to rewrite the claim language from a \u2018communication link from a\n\n transmitter to a receiver\u2019 to \u2018a connection for communication between a transmitter and a\n\n receiver\u2019 finds no support in the specification.\u201d Id. at 12.\n\n Defendants respond that their proposal \u201cclarifies that a link from a transmitter and a\n\n receiver is a connection between those two points.\u201d Dkt. No. 180 at 29. Defendants urge that\n\n \u201c[t]he communication channel or link must be the connection between the transmitting and\n\n receiving station\u2014rather than a part of the transmitting and receiving stations\u2014otherwise the\n\n claim language would contradict the specification.\u201d Id. at 30. Finally, Defendants submit that\n\n \u201c[c]ontrary to [Plaintiff\u2019s] assertions, Defendants\u2019 proposed construction does not require a\n\n \u2018direct\u2019 connection, but simply clarifies that the claimed link is between a transmitter and a\n\n receiver.\u201d Id.\n\n - 39 -\n A0197\n\f Case: 15-142 Document: 2-2 Page: 126 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 40 of 41 PageID #: 2325\n\n\n\n Plaintiff replies that the \u201ccommunication link 13\u201d shown in Figures 1 and 4 of the \u2018730\n\n Patent is simply an arrow, and Plaintiff argues that \u201c[n]othing in the specification or claims\n\n requires a \u2018connection\u2019 between the transmitter and receiver, simply that communications from\n\n one reach the other.\u201d Dkt. No. 192 at 8.\n\n (2) Analysis\n\n The specification discloses:\n\n FIG. 1 illustrates the manner in which the data being transmitted is subjected to a\n sequence of signal processing steps as contemplated by the present invention.\n These processing steps are executed at a transmitting station 11 and at a\n receiving station 12 connected to opposite ends of a communications channel 13.\n\n Id. at 3:5-10 (emphasis added).\n\n On balance, Defendants\u2019 proposed construction is unnecessary and would do little, if\n\n anything, to clarify the disputed term. Instead, the claim language is sufficiently clear such that\n\n the disputed term need not be construed. U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554,\n\n 1568 (Fed. Cir. 1997) (\u201cClaim construction is a matter of resolution of disputed meanings and\n\n technical scope, to clarify and when necessary to explain what the patentee covered by the\n\n claims, for use in the determination of infringement. It is not an obligatory exercise in\n\n redundancy.\u201d); see O2 Micro, 521 F.3d at 1362 (\u201c[D]istrict courts are not (and should not be)\n\n required to construe every limitation present in a patent\u2019s asserted claims.\u201d). To whatever extent\n\n Defendants are proposing that the \u201ccommunication link\u201d must be a wired connection or must be\n\n a direct connection (without any intermediate devices), Defendants\u2019 proposal is hereby expressly\n\n rejected.\n\n The Court therefore hereby construes \u201ccommunication link from a transmitter to a\n\n receiver\u201d to have its plain meaning.\n\n\n\n\n - 40 -\n A0198\n\f Case: 15-142 Document: 2-2 Page: 127 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 226 Filed 05/20/13 Page 41 of 41 PageID #: 2326\n.\n\n\n CONCLUSION\n\n The Court adopts the above constructions. The parties are ordered that they may not\n\n refer, directly or indirectly, to each other\u2019s claim construction positions in the presence of the\n\n jury. Likewise, the parties are ordered to refrain from mentioning any portion of this opinion,\n\n other than the actual definitions adopted by the Court, in the presence of the jury. Any reference\n\n to claim construction proceedings is limited to informing the jury of the definitions adopted by\n\n the Court.\n SIGNED this 3rd day of January, 2012.\n SIGNED this 20th day of May, 2013.\n\n\n\n\n ____________________________________\n ROY S. PAYNE\n UNITED STATES MAGISTRATE JUDGE\n\n\n\n\n - 41 -\n A0199\n\f Case: 15-142 Document: 2-2 Page: 128 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 1 of 16 PageID #: 3823\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\n TQP DEVELOPMENT, LLC, \u00a7\n \u00a7\n Plaintiff, \u00a7\n \u00a7\n v. \u00a7 CASE NO. 2:12-CV-180-WCB\n \u00a7\n \u00a7\n INTUIT INC., \u00a7\n \u00a7\n Defendant. \u00a7\n\n\n\n MEMORANDUM OPINION AND ORDER\n\n Before the Court are the parties\u2019 responses (Dkt. Nos. 148 and 149) to the Court\u2019s request\n\n for supplemental briefing (Dkt. No. 145). The Court sought supplemental briefs on one of the\n\n claim construction issues that arose in the course of proceedings on the defendants\u2019 motion for\n\n summary judgment of non-infringement. The claim construction issue in dispute relates to the\n\n limitation in independent claim 1 of TQP\u2019s U.S. Patent No. 5,412,730 (the \u2019730 patent) that\n\n recites \u201ca new one of said key values in said first and said second sequences being produced each\n\n time a predetermined number of said blocks are transmitted over said link.\u201d The Court now\n\n adopts a modified claim construction for the \u201ca new one of said key values\u201d limitation. Because\n\n the new construction appears to resolve the claim-construction issue on which the defendants\u2019\n\n motion for summary judgment of non-infringement was based, the Court DENIES the motion for\n\n summary judgment of non-infringement (Dkt. No. 118). In addition, the stay previously entered\n\n in this case (Dkt. No. 147) is VACATED.\n\n\n 1\n A0200\n\f Case: 15-142 Document: 2-2 Page: 129 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 2 of 16 PageID #: 3824\n\n\n\n\n I. Background\n\n Claim 1 of the \u2019730 patent recites as follows, with the disputed limitation underscored:\n\n 1. A method for transmitting data comprising a sequence of blocks in\n encrypted form over a communication link from a transmitter to a receiver\n comprising, in combination, the steps of:\n providing a seed value to both said transmitter and receiver,\n generating a first sequence of pseudo-random key values based on said\n seed value at said transmitter, each new key value in said sequence being\n produced at a time dependent upon a predetermined characteristic of the data\n being transmitted over said link,\n encrypting the data sent over said link at said transmitter in accordance\n with said first sequence,\n generating a second sequence of pseudo-random key values based on said\n seed value at said receiver, each new key value in said sequence being produced\n at a time dependent upon said predetermined characteristic of said data\n transmitted over said link such that said first and second sequences are identical to\n one another a new one of said key values in said first and said second sequences\n being produced each time a predetermined number of said blocks are transmitted\n over said link, and\n decrypting the data sent over said link at said receiver in accordance with\n said second sequence.\n\n Figure 1 of the patent, which is a schematic diagram of the components used to practice\n\n the claimed method, is reproduced below:\n\n\n\n\n 2\n A0201\n\f Case: 15-142 Document: 2-2 Page: 130 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 3 of 16 PageID #: 3825\n\n\n\n\n At the outset of the claim construction proceedings in this case, the parties agreed on a\n\n construction of the \u201ca new one of said key values\u201d limitation. The agreed-upon construction of\n\n that limitation read as follows: \u201cA new key value in the first and second sequence is used each\n\n time a predetermined number of blocks have been sent from the transmitter over the\n\n communication link.\u201d In the course of the briefing and argument of the summary judgment\n\n motion, however, it became clear that the agreement as to that claim construction language\n\n concealed a fundamental disagreement about the meaning of the limitation.\n\n Defendants Intuit and Hertz interpreted the limitation, as construed, to require that \u201cthe\n\n transmitter and the receiver . . . use a new key value each time the transmitted-block count\n\n reaches the predetermined number.\u201d (Dkt. No. 118, at 7). That is, the defendants took the\n\n position that \u201c[i]f a new key value is used at either the transmitter or receiver before the\n\n predetermined number of blocks of data have been sent, there can be no infringement.\u201d (Dkt.\n\n No. 118, at 3). The defendants further argued that the limitation, which refers to the \u201cnew one of\n\n said key values in said first and said second sequences,\u201d applies to both the transmitter and the\n\n receiver, which are identified with the \u201cfirst sequence of pseudo-random key values\u201d and the\n\n \u201csecond sequence of pseudo-random key values,\u201d respectively. More specifically, the\n\n defendants argued that the limitation requires a new key value to be produced at both the\n\n transmitter and the receiver each time a predetermined number of blocks of data is transmitted\n\n over the communication link.\n\n Relying on that interpretation of the \u201ca new one of said key values\u201d limitation, the\n\n defendants argued that the limitation requires the encryption of all data with the same encryption\n\n key until the \u201cpredetermined number of blocks have been\u201d transmitted. Because, according to\n\n\n 3\n A0202\n\f Case: 15-142 Document: 2-2 Page: 131 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 4 of 16 PageID #: 3826\n\n\n\n\n the defendants, the changes in the encryption key values in the accused systems are not triggered\n\n by the transmission of a predetermined number of blocks, they contended that they were entitled\n\n to summary judgment of non-infringement.\n\n TQP interpreted the claim language\u2014including the agreed-upon construction\u2014quite\n\n differently. TQP argued that the \u201ca new one of said key values\u201d limitation, which is part of the\n\n paragraph in the claim that deals with the receiver, applies only to the receiver and not to the\n\n transmitter. That is, according to TQP, the limitation \u201cconcerns when the receiver produces a\n\n sequence of pseudo-random key values\u201d (emphasis in original); it \u201cdoes not govern when or how\n\n the transmitter generates its sequence of pseudo-random key values.\u201d (Dkt. No. 132, at 7).\n\n Because, in TQP\u2019s view, the claim construction \u201conly places a limitation on when the receiver\n\n produces the new sequence of pseudo-random key values,\u201d (Dkt. No. 132, at 7), TQP contended\n\n that the defendants\u2019 arguments about when the new key value is used at the transmitter were\n\n beside the point and did not support the defendants\u2019 request for summary judgment.\n\n From the briefing and argument on the summary judgment motions, it was apparent to\n\n the Court that, despite the putative agreement between the parties over the construction of the \u201ca\n\n new one of said key values\u201d limitation, the parties interpreted the claim language very\n\n differently. Accordingly, the Court requested supplemental briefing from the parties as to how\n\n the agreed-upon construction of the limitation in question should be modified so as to resolve the\n\n dispute over the meaning of the claim. That briefing has been completed, and the parties have\n\n now produced new proposed constructions of the disputed claim language that are quite different\n\n from one another.\n\n\n\n\n 4\n A0203\n\f Case: 15-142 Document: 2-2 Page: 132 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 5 of 16 PageID #: 3827\n\n\n\n\n For its part, TQP has abandoned the agreed-upon claim construction in favor of a\n\n construction that essentially tracks the claim language verbatim. TQP\u2019s proposed construction of\n\n the \u201ca new one of said key values\u201d limitation reads: \u201ca new key value in the first and second\n\n sequence is produced each time a predetermined number of blocks are transmitted over the link.\u201d\n\n The defendants also departed from the previously agreed-upon language. They proposed\n\n an amended claim construction that reads as follows: \u201ca new key value in the first and second\n\n sequence is respectively used at said transmitter and at said receiver only after each time a\n\n predetermined number of blocks have been sent from the transmitter over the communication\n\n link.\u201d 1\n\n II. Discussion\n\n The \u201ca new one of said key values\u201d limitation was added to claim 1 during prosecution.\n\n It had originally been part of claim 9, which depended from original claim 8. Original claim 8\n\n contained the essence of what ultimately issued as claim 1, but without being limited to the\n\n\n\n\n 1\n TQP argues that its proposed claim construction tracks the construction adopted by the\n district court in TQP Development, LLC v. Barclays PLC, Case No. 2:09-cv-88 (E.D. Tex. Mar.\n 28, 2011) (Dkt. No. 165), one of the first in the series of TQP cases filed in this district. TQP\n urges the Court to follow that claim construction as a matter of stare decisis. While this Court\n attaches substantial weight to the prior claim construction orders in the TQP series of cases, any\n stare decisis effect of the claim construction order in the Barclays case is undercut by the fact\n that claim construction orders in later TQP cases adopted a different construction of the \u201ca new\n one of said key values\u201d limitation, which formed the basis for the claim construction on which\n the parties agreed in this case, and which TQP has now abandoned. See TQP Dev., LLC v. 1-\n 800-Flowers.com, Inc., Case No. 2:11-cv-248, at 22 (E.D. Tex. May 20, 2013) (Dkt. No. 226);\n TQP Dev., LLC v. Wells Fargo & Co., Case No. 2:12-cv-61, at 20 (E.D. Tex. Dec. 2, 2013)\n (Dkt. No. 187). Moreover, the fact that the parties disagree as to the meaning of the claim, both\n as construed in Barclays and as construed in 1-800-Flowers.com and Wells Fargo, requires the\n Court to conduct further claim construction, if possible, in order to minimize the risk of a dispute\n at trial over the meaning of the Court\u2019s claim construction orders.\n\n 5\n A0204\n\f Case: 15-142 Document: 2-2 Page: 133 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 6 of 16 PageID #: 3828\n\n\n\n\n transmission of data comprising a sequence of blocks and without the \u201ca new one of said key\n\n values\u201d limitation. Dependent claim 9 read as follows:\n\n 9. The method set forth in claim 8 wherein said data transmitted over said\n link comprises a sequence of blocks and wherein a new one of said key values in\n said first and said second sequences is produced each time a predetermined\n number of said blocks are transmitted over said link.\n\n The examiner rejected claim 8 as filed but agreed to allow the claim if the limitations of\n\n dependent claim 9 were added to claim 8. The applicant did so, albeit somewhat clumsily, and\n\n the combined claims ultimately issued as independent claim 1 in the \u2019730 patent.\n\n Because the \u201ca new one of said key values\u201d limitation began life as part of a dependent\n\n claim, the description of that limitation is found in the specification as part of the description of a\n\n preferred embodiment. That description occurs in two places in the specification. First, in the\n\n Background of the Invention, the specification provides:\n\n In order that the two [pseudo-random number] generators switch from one output\n key value to the next in synchronism, means are employed at both the transmitting\n and receiving stations to monitor the flow of transmitted data and to advance the\n random number generator each time the transmitted data satisfies a predetermined\n condition.\n The monitoring function can advantageously be performed simply by\n counting the units of data being transmitted and by advancing each pseudo-\n random key generator each time the count reaches an agreed-upon interval\n number.\n\n \u2019730 patent, col. 1, ll. 48-58.\n\n Second, in the Description of the Preferred Embodiment, the specification provides:\n\n A block counter 21 monitors the stream of data from the source 15 and generates\n an \u201cadvance signal\u201d each time the data meets a predetermined condition.\n Advantageously, the block counter 21 may simply count the number of bytes\n (characters), words or blocks of data being transmitted, compare the current count\n with a predetermined 37 interval number and produce an advance signal each time\n the current count reaches the interval number (at which time the current count is\n reset to 0).\n\n 6\n A0205\n\f Case: 15-142 Document: 2-2 Page: 134 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 7 of 16 PageID #: 3829\n\n\n\n\n \u2019730 patent, col. 3, ll. 16-25.\n\n A. A New One of Said Key Values \u201cIn Said First and Second Sequences\u201d\n\n The text of claim 1 and the specification make clear that in the claimed method the key\n\n values that are generated at the transmitter and the key values that are generated at the receiver\n\n are both produced each time the predetermined number of blocks is transmitted over the\n\n communication link. Despite TQP\u2019s argument to the contrary in its brief in response to the\n\n defendants\u2019 summary judgment motion, the limitation that recites \u201ca new one of said key values\n\n in said first and second sequences being produced each time a predetermined number of said\n\n blocks are transmitted over said link\u201d cannot sensibly be read any other way. The fact that the \u201ca\n\n new one of said key values\u201d limitation appears in the paragraph of claim 1 that relates to the\n\n receiver is entitled to little weight, as the plain language of the limitation refers to both the first\n\n sequence of pseudo-random key values (which is associated with the transmitter) and the second\n\n sequence of pseudo-random key values (which is associated with the receiver).\n\n The etiology of claim 1 supports that interpretation. In its original dependent claim form,\n\n that limitation was plainly not limited to the receiver, but applied to the key values produced at\n\n both the transmitter and the receiver. There is no indication in the prosecution history that the\n\n language from dependent claim 9 was intended to be given an altogether different meaning when\n\n it was added to independent claim 8. Certainly the fact that the language from dependent claim 9\n\n was placed at the end of the paragraph of the claim dealing with the receiver is not sufficient to\n\n support such a different interpretation.\n\n The argument made by TQP in its summary judgment response is also at odds with the\n\n specification. The specification describes the embodiment recited in the \u201ca new one of said key\n\n 7\n A0206\n\f Case: 15-142 Document: 2-2 Page: 135 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 8 of 16 PageID #: 3830\n\n\n\n\n values\u201d limitation as relating to the production of key values at the transmitter as well as the\n\n receiver. The specification states: \u201c[T]he combination of counter 21 and generator 23 [the\n\n counter and generator associated with the transmitter] operate to change the encryption key each\n\n time [the] total number of bytes transmitted is an exact multiple of the predetermined interval\n\n number. . . . At the receiving station 12, . . . [b]lock counter 29 performs the identical function as\n\n that performed by the counter 21 at the transmitting station 11 and hence supplies advance\n\n signals to the generator 27 [the generator associated with the receiving station] at precisely the\n\n same times (relative to the data stream) that counter 21 advances generator 23.\u201d \u2019730 patent, col.\n\n 3, line 36, to col. 4, line 1. Accordingly, the Court concludes that the \u201ca new one of said key\n\n values\u201d limitation applies to new key values being produced, not only at the receiver but also at\n\n the transmitter.\n\n That conclusion, however, does not resolve all the differences between the parties as to\n\n the construction of the \u201ca new one of said key values\u201d limitation. The two remaining problems\n\n are (1) the meaning of the verb \u201cproduced\u201d in that limitation, and (2) the meaning of the phrase\n\n \u201ceach time a predetermined number of said blocks are transmitted over said link.\u201d\n\n B. A New One of Said Key Values . . . \u201cBeing Produced\u201d\n\n The patent uses four verbs to describe actions taken with respect to seed values or key\n\n values, but it does not carefully distinguish among them. At various points, the patent refers to\n\n \u201cgenerating\u201d and \u201cproviding\u201d seed values or key values, and it also refers to seed values or key\n\n values being \u201csupplied\u201d or \u201cproduced,\u201d without any apparent distinction in meaning according to\n\n the verb selected. Claim 1 uses three of those verbs\u2014\u201cproviding,\u201d \u201cgenerating,\u201d and\n\n \u201cproduced.\u201d\n\n\n 8\n A0207\n\f Case: 15-142 Document: 2-2 Page: 136 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 9 of 16 PageID #: 3831\n\n\n\n\n The structure of claim 1 suggests that the verb \u201cproviding\u201d means conveying without\n\n necessarily generating. Thus, the first step of claim 1 recites \u201cproviding a seed value to both said\n\n transmitter and receiver,\u201d while the second and fourth steps of the claim recite \u201cgenerating a first\n\n sequence of pseudo-random key values\u201d and \u201cgenerating a second sequence of pseudo-random\n\n keys values.\u201d That distinction is supported by the specification, which uses \u201cproviding\u201d in a\n\n manner equivalent to \u201csupplying.\u201d See, e.g., \u2019730 patent, col. 4, ll. 13-17 (\u201c[I]n order for the\n\n receiving station to successfully decipher the incoming cipher text, the receiving station 12 must\n\n be provided (in some fashion) with both the correct seed value and the correct interval number.\n\n These values are supplied to the receiving station in advance of the transmission by any secure\n\n means.\u201d) (emphases added).\n\n The verb \u201cproduced\u201d presents more of a problem. The question with respect to\n\n \u201cproduced\u201d is whether it means the same thing as \u201cgenerated\u201d or something broader, such as\n\n \u201cgenerated or supplied.\u201d\n\n The term \u201cproduced\u201d is used in the same limitations of claim 1 as the verb \u201cgenerating.\u201d\n\n See \u2019730 patent, col. 12, ll. 32-37 (\u201cgenerating a first sequence of pseudo-random key values\n\n based on said seed value at said transmitter, each new key value in said sequence being produced\n\n at a time dependent upon a predetermined characteristic of the data being transmitted over said\n\n link\u201d) (emphases added); id., col. 12, ll. 40-44 (same with respect to second sequence of pseudo-\n\n random key numbers). The use of different terms in the same claim gives rise to an inference\n\n that the term \u201cproduced\u201d was intended to have a meaning different from \u201cgenerated,\u201d see\n\n Chicago Bd. of Options Exchange, Inc. v. Int\u2019l Sec. Exchange, LLC, 677 F.3d 1361, 1369 (Fed.\n\n Cir. 2012); CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co., 224 F.3d 1308, 1317 (Fed.\n\n\n 9\n A0208\n\f Case: 15-142 Document: 2-2 Page: 137 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 10 of 16 PageID #: 3832\n\n\n\n\n Cir. 2000), although that inference can be overcome if the contrary evidence is strong, see Baran\n\n v. Med. Device Techs., Inc., 616 F.3d 1309, 1316 (Fed. Cir. 2010); Bancorp Servs., L.L.C. v.\n\n Hartford Life Ins. Co., 359 F.3d 1367, 1373 (Fed. Cir. 2004).\n\n The specification shows that the two verbs are used interchangeably in the patent.\n\n Compare \u2019730 patent, col. 3, ll. 16-19 (\u201cA block counter 21 monitors the stream of data from the\n\n source 15 and generates an \u2018advance signal\u2019 each time the data meets a predetermined\n\n condition.\u201d) (emphasis added), with id., col. 3, ll. 19-25 (\u201cAdvantageously, the block counter 21\n\n may simply count the number of bytes . . . and produce an advance signal each time the current\n\n count reaches the interval number.\u201d) (emphasis added), and id., col. 3, ll. 26-28 (\u201cThe advance\n\n signal produced by block counter 21 is supplied to the advance input of a pseudo-random\n\n number generator 23, which supplies a sequence of encryption key values to the key input of the\n\n encryptor 17.\u201d) (emphasis added). The fact that \u201cproduction\u201d and \u201cgeneration\u201d may have the\n\n same meaning with regard to the advance signal, however, does not necessarily mean that the\n\n two terms have the same meaning with regard to the key values. While the specification\n\n describes the pseudo-random number generator as \u201crespond[ing] to each advance signal from\n\n block counter 21 by changing its output to the next successive encryption key value,\u201d \u2019730\n\n patent, col. 3, ll. 33-36, it does not specifically require that the generator respond to the advance\n\n signal by generating a new key value, as opposed to producing a new key value from a set of key\n\n values that had been previously generated and stored.\n\n Several of the previous claim construction orders in the TQP series of cases have\n\n addressed this issue, and they have all reached the conclusion that the term \u201cproduced\u201d is not\n\n limited to the meaning of \u201cgenerated.\u201d As the court explained in the Barclays claim construction\n\n\n 10\n A0209\n\f Case: 15-142 Document: 2-2 Page: 138 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 11 of 16 PageID #: 3833\n\n\n\n\n order, the claim \u201conly requires that each new key be \u2018produced\u2019 at a specific time relative to the\n\n data. It does not matter whether that key is generated at that time, or pre-generated and stored.\u201d\n\n TQP Dev., LLC v. Barclays PLC, Case No. 2:09-cv-88 (E.D. Tex. Mar. 28, 2011) (Dkt. No.\n\n 165), at 17; see also TQP Dev., LLC v. 1-800-Flowers.com, Inc., Case No. 2:11-cv-248, at 22\n\n (E.D. Tex. May 20, 2013) (Dkt. No. 226), at 21 (\u201cClaim 1 does not specify whether the key is\n\n generated at the time of use or is generated ahead of time and then selected at the time of use.\u201d);\n\n TQP Dev., LLC v. Wells Fargo & Co., Case No. 2:12-cv-61, at 20 (E.D. Tex. Dec. 2, 2013)\n\n (Dkt. No. 187), at 20 (same). Those prior claim construction decisions are entitled to stare\n\n decisis weight and are independently persuasive. In light of those orders, and after a careful\n\n analysis of the claims and the specification, the Court concludes that the inference that the claim\n\n terms \u201cproduced\u201d and \u201cgenerating\u201d have different meanings has not been overcome.\n\n Accordingly, the Court concludes that the term \u201cproduced\u201d in the \u201ca new one of said key values\u201d\n\n limitation is best construed to mean \u201cgenerated or supplied.\u201d\n\n C. \u201cEach Time A Predetermined Number of Said Blocks Are Transmitted\u201d\n\n The final, and most difficult, problem presented by the \u201ca new one of said key values\u201d\n\n limitation is to construe the phrase \u201ceach time a predetermined number of said blocks are\n\n transmitted over said link.\u201d The language of that phrase is deceptively simple. Although it\n\n seems facially unambiguous, the parties have quite different interpretations of it, and the task of\n\n construing it turns out to be more difficult than might at first appear.\n\n The defendants interpret the phrase \u201ceach time a predetermined number of said blocks are\n\n transmitted over said link\u201d to require that the new key value be used at the transmitter and\n\n receiver \u201conly after each time a predetermined number of blocks have been sent from the\n\n\n 11\n A0210\n\f Case: 15-142 Document: 2-2 Page: 139 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 12 of 16 PageID #: 3834\n\n\n\n\n transmitter over the communication link.\u201d (Dkt. 149, at 1). TQP, on the other hand, argues that\n\n there is no \u201ctemporal limitation between use of a new key value and transmission.\u201d According to\n\n TQP, the key value in the preferred embodiments is changed \u201cbased on an advance signal sent by\n\n the block counter when the block counter at the transmitter reaches a predetermined interval\n\n number before transmission.\u201d (Dkt. No. 148, at 2) (emphasis in original). Therefore, TQP\n\n argues, the defendants\u2019 claim construction cannot be correct, because it would exclude the\n\n principal embodiment described in the patent.\n\n The claim language, which refers to the new key values being produced \u201ceach time a\n\n predetermined number of said blocks are transmitted over said link\u201d does not expressly state\n\n whether the production of a new key value occurs only after the transmission takes place. That\n\n ambiguity is a consequence of the use of the verb phrase \u201care transmitted\u201d rather than, for\n\n example, the verb phrase \u201chave been transmitted.\u201d\n\n To be sure, the most natural reading of the claim language, standing alone, is that the new\n\n key value in the transmitter is produced after the predetermined number of blocks have been\n\n transmitted over the communication link. With that said, however, there are a number of reasons\n\n to view that \u201cnatural reading\u201d of the claim language skeptically. First, it is important to keep in\n\n mind that the \u201ca new one of said key values\u201d limitation came from a dependent claim in the\n\n original application. The only apparent role of the dependent claim was to specify that the\n\n \u201cpredetermined characteristic of the data\u201d in the independent claim could be limited to \u201ca\n\n predetermined number of said blocks,\u201d a preferred embodiment that is described in detail in the\n\n specification. See \u2019730 patent, col. 1, ll. 54-65; id. col. 3, line 19 to col. 4, line 24. There is no\n\n\n\n\n 12\n A0211\n\f Case: 15-142 Document: 2-2 Page: 140 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 13 of 16 PageID #: 3835\n\n\n\n\n indication, either in the prosecution history or in the specification, that the dependent claim was\n\n intended to otherwise modify the limitations of the independent claim.\n\n In the independent claim, both originally and in the issued patent, the \u201cgenerating\u201d clause\n\n pertaining to the transmitter provided for new key values at the transmitter to be produced \u201cat a\n\n time dependent upon a predetermined characteristic of the data being transmitted over said link\u201d\n\n (emphasis added). The \u201cgenerating\u201d clause pertaining to the receiver, by contrast, provided for\n\n the new key values at the receiver to be produced \u201cat a time dependent upon said predetermined\n\n characteristic of said data transmitted over said link\u201d (emphasis added). The reason for the use\n\n of the different terms \u201cbeing transmitted\u201d and \u201ctransmitted\u201d in the two clauses is clear: at the\n\n time the new key value is produced at the transmitter, the data has not yet been transmitted and is\n\n only in the middle of the process of \u201cbeing transmitted,\u201d because the data is located within the\n\n transmitter. At the time the new key value is produced at the receiver, however, the data\n\n necessarily has already been transmitted.\n\n The \u201ca new one of said key values\u201d limitation compressed those two different verb\n\n phrases into one\u2014\u201care transmitted\u201d\u2014because the limitation speaks to both the transmitter and\n\n the receiver. But the purpose of the dependent claim was to limit the predetermined\n\n characteristic of the data to a predetermined number of blocks. It seems unlikely that the\n\n patentee intended to use the combination of claims 8 and 9 to add a second, less explicit,\n\n limitation by requiring the transmitter to count blocks only after they have been transmitted. Yet\n\n if the Court were to adopt the defendants\u2019 interpretation of the verb phrase \u201care transmitted,\u201d it\n\n would have to attribute just that intention to the patentee.\n\n\n\n\n 13\n A0212\n\f Case: 15-142 Document: 2-2 Page: 141 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 14 of 16 PageID #: 3836\n\n\n\n\n The specification provides additional support for the broader reading of the \u201care\n\n transmitted\u201d language in claim 1. First, the specification uses the term \u201ctransmitted\u201d\n\n interchangeably with \u201cbeing transmitted.\u201d Compare \u2019730 patent, col. 1, ll. 50-53 (\u201c[M]eans are\n\n employed at both the transmitting and receiving stations to monitor the flow of transmitted data\n\n and to advance the random number generator each time the transmitted data satisfies a\n\n predetermined condition.\u201d) (emphasis added), and id., col. 3, ll. 36-40 (\u201cthe combination of\n\n counter 21 and generator 23 operate to change the encryption key each time total [sic: the total]\n\n number of bytes transmitted is an exact multiple of the predetermined interval number\u201d)\n\n (emphasis added), with id., col. 1, ll. 55-58 (the embodiment described in the \u201ca new one of said\n\n key values\u201d limitation is performed \u201csimply by counting the units of data being transmitted and\n\n by advancing each pseudo-random key generator each time the count reaches an agreed-upon\n\n interval number\u201d) (emphasis added), and id., col. 3, ll. 5-7 (\u201cFig. 1 illustrates the manner in\n\n which the data being transmitted is subjected to a sequence of signal processing steps.\u201d)\n\n (emphasis added), and id., col. 3, ll. 20-21 (the block counter \u201cmay simply count the number of\n\n bytes (characters), words or blocks of data being transmitted\u201d) (emphasis added). For that\n\n reason, it would be a mistake to conclude that the phrase \u201care transmitted\u201d must mean \u201chave\n\n been transmitted\u201d in the \u201ca new one of said key values\u201d limitation.\n\n More significantly, the interpretation of the claim that the defendants advocate would be\n\n at odds with a large portion of the specification that describes how the claimed invention and the\n\n preferred embodiment recited in claim 1 are employed. As illustrated in Figure 1, reproduced\n\n above, the data source in the transmitter is input to the block counter, which counts the number\n\n of blocks in the data stream. When the block counter detects that the proper predetermined\n\n\n 14\n A0213\n\f Case: 15-142 Document: 2-2 Page: 142 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 15 of 16 PageID #: 3837\n\n\n\n\n number of blocks have emerged from the data source, it signals the pseudo-random number\n\n generator to generate a new key value. That key value is fed to the encryptor, which encrypts the\n\n data stream, after which the data is transmitted to the receiver. That operation is depicted in\n\n Figure 1 and described in detail in the specification at column 3, lines 11-40. Yet if the claim\n\n language were interpreted to require that the new key value in the transmitter be produced only\n\n after a predetermined number of blocks has actually been transmitted through the communication\n\n link, that would describe an entirely different system from the one described and depicted in the\n\n specification. It is a well-established proposition that a claim interpretation that excludes a\n\n preferred embodiment is rarely, if ever, correct. Dow Chem. Co. v. Sumitomo Chem. Co., 257\n\n F.3d 1364, 1378 (Fed. Cir. 2001); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583\n\n (Fed. Cir. 1996). That is because \u201cit is unlikely that an inventor would define the invention in a\n\n way that excluded the preferred embodiment.\u201d Hoechst Celanese Corp. v. BP Chems. Ltd., 78\n\n F.3d 1575, 1581 (Fed. Cir. 1996). Accordingly, to adopt a claim construction that would exclude\n\n a preferred embodiment \u201cwould require highly persuasive evidentiary support.\u201d Rexnord Corp.\n\n v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001), quoting Vitronics, 90 F.3d at 1583.\n\n The construction proposed by the defendants would be inconsistent with the embodiment\n\n depicted in Figure 1 of the \u2019730 patent and described in the portion of the specification that\n\n relates to Figure 1. Absent clearer contrary evidence than is present in this case, the Court will\n\n not construe the claim language in a manner that excludes such a fundamental portion of the\n\n specification from the scope of claim 1 of the patent.\n\n The foregoing analysis leads the Court to adopt a modified construction of the \u201ca new\n\n one of said key values\u201d limitation: \u201cFor both the first and second sequences, at the\n\n\n 15\n A0214\n\f Case: 15-142 Document: 2-2 Page: 143 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB-RSP Document 152 Filed 02/21/14 Page 16 of 16 PageID #: 3838\n\n\n\n\n transmitter and at the receiver respectively, a new key value is produced each time a\n\n predetermined number of blocks are transmitted over the link. The term \u2018produced,\u2019 as\n\n used in that sentence, means \u2018generated\u2019 or \u2018supplied.\u2019 The phrase \u2018are transmitted\u2019\n\n means \u2018are being transmitted\u2019 with respect to the transmitter and \u2018have been transmitted\u2019\n\n with respect to the receiver.\u201d\n\n The defendants\u2019 motion for summary judgment of non-infringement (Dkt. No. 118) was\n\n predicated on the application of the previously agreed-upon claim construction, which has been\n\n modified in a manner that appears to resolve the issue on which the motion was based.\n\n Accordingly, the Court denies the motion for summary judgment. Because the Court has\n\n modified the claim construction, the Court will allow the defendants to file a new motion for\n\n summary judgment if they believe that they are entitled to summary judgment under the Court\u2019s\n\n modified construction of the \u201ca new one of said key values\u201d limitation. Any such new motion\n\n for summary judgment must be filed within 10 days of the date of this order.\n\n The order staying proceedings in this matter until the resolution of the defendants\u2019 two\n\n pending summary judgment motions (Dkt. No. 147) is now vacated, and the previously entered\n\n scheduling order will continue to be in effect.\n\n It is so ORDERED.\n\n SIGNED this 21st day of February, 2014.\n\n\n\n\n __________________________________________\n WILLIAM C. BRYSON\n UNITED STATES CIRCUIT JUDGE\n\n\n 16\n A0215\n\f Case: 15-142 Document: 2-2 Page: 144 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 1 of 24 PageID #: 5405\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\n TQP DEVELOPMENT, LLC, \u00a7\n \u00a7\n Plaintiff, \u00a7\n \u00a7\n v. \u00a7 CASE NO. 2:12-CV-180-WCB\n \u00a7\n \u00a7\n INTUIT INC., \u00a7\n \u00a7\n Defendant. \u00a7\n\n\n\n MEMORANDUM AND ORDER\n\n Before the Court is Defendants\u2019 Motion for Reconsideration of Denial of Summary\n\n Judgment of Non-infringement (Dkt. No. 155). Because it is apparent to the Court that its earlier\n\n claim construction needs to be refined, the Court will GRANT reconsideration of the claim\n\n construction issued in its previous order (Dkt. No. 152) in order to modify the construction\n\n slightly.\n\n In its earlier order, the Court granted the defendants permission to file a renewed motion\n\n for summary judgment if they believed that they were entitled to summary judgment based on\n\n the Court\u2019s new claim construction. See Dkt. No. 152, at 16. Rather than filing a renewed\n\n motion for summary judgment, the defendants have sought reconsideration of the Court\u2019s order\n\n denying summary judgment as part of their motion seeking reconsideration of the Court\u2019s claim\n\n construction order. Because the Court believes the plaintiff is not prejudiced by defendants\u2019\n\n choice to proceed in this fashion, the Court will treat the present motion as a renewed motion for\n\n\n 1\n A0216\n\f Case: 15-142 Document: 2-2 Page: 145 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 2 of 24 PageID #: 5406\n\n\n\n\n summary judgment, and will GRANT the renewed motion for summary judgment of\n\n noninfringement.\n\n I. Claim Construction\n\n The defendants raise several objections to the Court\u2019s construction of the phrase \u201care\n\n transmitted\u201d in claim 1 of TQP\u2019s patent, U.S. Patent No. 5,412,730 (\u201cthe \u2019730 patent\u201d). The\n\n Court construed that phrase to mean \u201care being transmitted\u201d with respect to the transmitter\n\n referenced in the claim, and \u201chave been transmitted\u201d with respect to the recited receiver.\n\n One of the defendants\u2019 claim construction arguments is persuasive. But first the Court\n\n will deal with the other claim-construction arguments, which are not.\n\n A. Grammar\n\n First, the defendants contend that the verb phrase \u201care transmitted\u201d is \u201cnot a verb tense\n\n that can reasonably be understood, consistently with English grammar, to include \u2018are being\n\n transmitted.\u2019\u201d The Court does not find that assertion persuasive. The phrase \u201care transmitted\u201d\n\n can indeed carry the sense of \u201care being transmitted,\u201d as in the sentence, \u201cThe messages are\n\n encoded each time they are transmitted.\u201d That sentence requires that encoding be associated\n\n with each transmission, but it does not require that the encoding take place only after the\n\n transmission has occurred. The language of the claim limitation in question, \u201ca new one of said\n\n key values in said first and said second sequences being produced each time a predetermined\n\n number of said blocks are transmitted over said link,\u201d is similarly ambiguous as to whether it\n\n refers to the production of new key values that occurs after an act of transmission takes place, or\n\n to the production of new key values that occurs either before or during the transmission.\n\n\n\n\n 2\n A0217\n\f Case: 15-142 Document: 2-2 Page: 146 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 3 of 24 PageID #: 5407\n\n\n\n\n Notwithstanding the defendants\u2019 insistence to the contrary, English usage does not require that\n\n the clause be read in the former sense and not the latter.\n\n Turning to principles of English grammar, the defendants argue that the phrase \u201care\n\n transmitted\u201d must refer to the data blocks having been transmitted, because the phrase is in the\n\n stative passive voice\u2014a passive construction in which a form of the verb \u201cto be\u201d is combined\n\n with the past participle form of another verb that is used as an adjective, e.g., \u201cWhen I arrived, I\n\n found that the courthouse was closed.\u201d But not all combinations of the verb \u201cto be\u201d and a word\n\n in past participle form are used as adjectives; they are often used instead to form simple passive\n\n verb phrases, e.g., \u201cThe courthouse was closed just three minutes before I arrived.\u201d In fact, the\n\n very sentence in which the defendants argue that the phrase \u201care transmitted\u201d is in the stative\n\n passive voice (i.e., that \u201ctransmitted\u201d is used as an adjective) contains another similarly\n\n structured phrase in which the verb accompanying the \u201cto be\u201d verb is clearly not used as an\n\n adjective. The sentence reads, in pertinent part: \u201cSpecifically, the phrase \u2018are transmitted\u2019 was\n\n drafted in the stative passive voice . . . .\u201d In that sentence, the verb \u201cdrafted\u201d is not used as an\n\n adjectival passive (\u201cthe drafted phrase\u201d), but as a simple verbal passive (\u201cthe phrase was drafted\n\n at some time in the past by someone\u201d). See Rodney Huddleston & Geoffrey K. Pullum, The\n\n Cambridge Grammar of the English Language 1436-39 (2002) (\u201cThere is a large-scale overlap\n\n between adjectives and the past participle form of verbs, and since the verb be can take\n\n complements headed by either of these categories we find a significant resemblance, and often\n\n an ambiguity, between a verbal passive and a complex-intransitive clause containing an\n\n adjectival passive as predicative complement.\u201d). Huddleston and Pullum give three instructive\n\n examples: \u201cThe kitchen window was broken by thieves\u201d (a verbal passive); \u201cThey were very\n\n\n 3\n A0218\n\f Case: 15-142 Document: 2-2 Page: 147 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 4 of 24 PageID #: 5408\n\n\n\n\n worried\u201d (an adjectival passive as predicative complement); and \u201cThey were married\u201d (in which\n\n the word \u201cmarried\u201d could play either role, with a very different meaning attached to each). Id. at\n\n 1436.\n\n The point of all this pedantry is that the phrase \u201care transmitted,\u201d as used in claim 1 of the\n\n \u2019730 patent can fairly be read as a dynamic verb phrase that describes the act of transmission, not\n\n a stative phrase that is used adjectivally to describe the data blocks as having been transmitted.\n\n For that reason, in the context of claim 1 of the \u2019730 patent the phrase \u201care transmitted\u201d conveys\n\n the occurrence of the act of transmission, but it does not restrict that act to the past. That is, to\n\n refer to a new key value \u201cbeing produced\u201d each time a predetermined number of blocks \u201care\n\n transmitted\u201d does not necessarily mean that the transmission of the blocks must have been\n\n completed before the new key value is produced. The events could be occurring simultaneously\n\n or in close succession, with the transmission onto the communication link occurring after the\n\n new key value is produced. Accordingly, contrary to the defendants\u2019 contention, the plain\n\n language of the claim does not dictate that the phrase \u201care transmitted\u201d must be interpreted to\n\n mean \u201conly after a predetermined number of blocks have been sent from the transmitter over the\n\n communication link.\u201d\n\n B. Excluding the Preferred Embodiment\n\n Second, and relatedly, the defendants argue that the Court has impermissibly redrafted\n\n the claim. That characterization is based on the defendants\u2019 contention that the meaning of the\n\n claim language is clear on its face and that the Court\u2019s construction departs from that clear\n\n meaning. The Court, however, concludes that the phrase \u201ceach time a predetermined number of\n\n said blocks are transmitted over said link\u201d in the fifth limitation of claim 1 of the \u2019730 patent is\n\n\n 4\n A0219\n\f Case: 15-142 Document: 2-2 Page: 148 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 5 of 24 PageID #: 5409\n\n\n\n\n ambiguous. For that reason, the Court regards its prior construction of that claim language as the\n\n product of interpretation, not redrafting.\n\n The Court bases its conclusion that the claim language is ambiguous on the reasons set\n\n forth above as well as the reasons given in the Court\u2019s prior order on this issue (Dkt. No. 152).\n\n In the present order, the Court will focus on describing in more detail one of the considerations\n\n that drove the Court\u2019s claim construction decision in the prior order\u2014the need for the claim, as\n\n construed, to read on the preferred embodiment featured in the patent.\n\n As the Court noted in its earlier order, the defendants\u2019 interpretation of the claim\n\n language would leave the preferred embodiment outside the scope of the claim, even though that\n\n embodiment is depicted in Figure 1 of the patent and is described in the specification as the\n\n preferred embodiment of the invention. That is a powerful factor cutting against adopting the\n\n defendants\u2019 interpretation.\n\n As explained in the Court\u2019s earlier order, the specification of the \u2019730 patent makes clear\n\n that Figure 1 depicts the essentials of the claimed method. The Description of the Preferred\n\n Embodiment begins: \u201cFig. 1 illustrates the manner in which the data being transmitted is\n\n subjected to a sequence of signal processing steps as contemplated by the present invention.\u201d\n\n \u2019730 patent, col. 3, ll. 5-7. It then describes the way the method of claim 1 is practiced. After\n\n describing the process of supplying a serial data stream to the data input of an encryptor, the\n\n specification states: \u201cA block counter 21 monitors the stream of data from the source 15 and\n\n generates an \u2018advance signal\u2019 each time the data meets a predetermined condition.\u201d Id., col. 3, ll.\n\n 16-19. Then, describing the particular preferred embodiment recited in claim 1, the specification\n\n states:\n\n\n 5\n A0220\n\f Case: 15-142 Document: 2-2 Page: 149 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 6 of 24 PageID #: 5410\n\n\n\n\n Advantageously, the block counter 21 may simply count the number of bytes\n (characters), words or blocks of data being transmitted, compare the current count\n with a predetermined 37 interval number and produce an advance signal each time\n the current count reaches the interval number (at which time the current count is\n reset to 0).\n\n Id., col. 3, ll. 19-25. After that, \u201c[t]he advance signal produced by block counter 21 is supplied\n\n to the advance input of a pseudo-random number generator 23 which supplies a sequence of\n\n encryption key values to the key input of the encryptor 17.\u201d Id., col. 3, ll. 26-29. The generator\n\n then \u201cresponds to each advance signal from block counter 21 by changing its output to the next\n\n successive encryption key value.\u201d Id., col. 3, ll. 33-36.\n\n That text, and its graphical representation in Figure 1, describes a process in which the\n\n data source is input to the block counter, which counts the number of blocks in the data stream.\n\n When the block counter detects that the proper predetermined number of blocks have been\n\n supplied by the data source, it signals the pseudo-random number generator to generate a new\n\n key value. That key value is provided to the encryptor, which encrypts the data stream, after\n\n which the data is placed on the communication link to the receiver.\n\n The problem with the defendants\u2019 proposed construction of the claim is that it would\n\n leave that preferred embodiment outside the scope of any claim of the \u2019730 patent. That is\n\n because the defendants\u2019 claim construction requires that the new key values in the transmitter be\n\n produced only after the predetermined number of blocks have been sent to the receiver, i.e., only\n\n after the blocks have been placed on the communication link to the receiver.\n\n On numerous occasions, the Federal Circuit has held that claim interpretations that\n\n exclude the preferred embodiment of the invention are disfavored. See Rambus Inc. v. Rea, 731\n\n F.3d 1248, 1253 (Fed. Cir. 2013) (\u201cA claim construction that excludes the preferred embodiment\n\n\n 6\n A0221\n\f Case: 15-142 Document: 2-2 Page: 150 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 7 of 24 PageID #: 5411\n\n\n\n\n \u2018is rarely, if ever, correct and would require highly persuasive evidentiary support.\u2019\u201d), quoting\n\n Adams Respiratory Therapeutics, Inc. v. Perrigo Co., 616 F.3d 1283, 1290 (Fed. Cir. 2010);\n\n Accent Packaging, Inc. v. Leggett & Platt, Inc., 707 F.3d 1318, 1326 (Fed. Cir. 2013) (\u201c[A]\n\n claim interpretation that excludes a preferred embodiment from the scope of the claim is rarely,\n\n if ever, correct.\u201d), quoting On-Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d\n\n 1133, 1138 (Fed. Cir. 2004); InterDigital Commc\u2019ns, LLC v. Int\u2019l Trade Comm\u2019n, 690 F.3d\n\n 1318, 1326 (Fed. Cir. 2012) (same); In re Katz Interactive Call Processing Patent Litig., 639 F.3d\n\n 1303, 1324 (Fed. Cir. 2011) (\u201c[T]here is a strong presumption against a claim construction that\n\n excludes a disclosed embodiment.\u201d); Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d\n\n 1379, 1383 (Fed. Cir. 2008) (\u201c[O]ur court has cautioned against interpreting a claim term in a\n\n way that excludes disclosed embodiments, when that term has multiple ordinary meanings\n\n consistent with the intrinsic record.\u201d); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1583-\n\n 84 (Fed. Cir. 1996) (same); Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1581\n\n (Fed. Cir. 1996) (\u201cWe share the district court's view that it is unlikely that an inventor would\n\n define the invention in a way that excluded the preferred embodiment, or that persons of skill in\n\n this field would read the specification in such a way.\u201d).\n\n The defendants argue that even if their proposed construction of the claim language\n\n excludes the embodiment depicted in Figure 1 of the \u2019730 patent, that does not matter, and their\n\n construction should be adopted anyway. 1 In making that argument, the defendants rely on cases\n\n\n 1\n The defendants do not acknowledge that their construction would mean that claim 1\n would not read on Figure 1 and the preferred embodiment described at column 3 of the patent.\n At the same time, however, their motion for reconsideration does not directly challenge the\n Court\u2019s finding that their construction would not read on that embodiment. Instead, pointing to\n another embodiment contained in a microfiche appendix of source code that was filed with the\n\n 7\n A0222\n\f Case: 15-142 Document: 2-2 Page: 151 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 8 of 24 PageID #: 5412\n\n\n\n\n in which the Federal Circuit has recognized exceptions to the general principle that claims should\n\n not be construed in a manner that excludes embodiments of the invention that are described in\n\n the specification.\n\n The Federal Circuit has identified four such exceptions.\n\n First, if the claim language is clear, the court will construe the claim according to its clear\n\n meaning, even though that construction results in the claim not reading on one of the described\n\n embodiments. See TIP Sys., LLC v. Phillips & Brooks/Gladwin, 529 F.3d 1364, 1373 (Fed. Cir.\n\n 2008) (\u201c[T]o construe the claim term to encompass the alternative embodiment in this case\n\n would contradict the language of the claims.\u201d); Rolls-Royce, PLC v. United Techs. Corp., 603\n\n F.3d 1325, 1334-35 (Fed. Cir. 2010); Lucent Techs., Inc. v. Gateway, Inc., 525 F.3d 1200, 1215-\n\n 16 (Fed. Cir. 2008).\n\n Second, construing a particular claim to exclude a particular embodiment is of little\n\n concern if a different claim in the patent or a related patent is construed to read on the\n\n embodiment. See PSN Ill., LLC v. Ivoclar Vivadent, Inc., 525 F.3d 1159, 1166 (Fed. Cir. 2008)\n\n (\u201c[C]ourts must recognize that disclosed embodiments may be within the scope of other allowed\n\n but unasserted claims.\u201d); August Tech. Corp. v. Camtek, Ltd., 655 F.3d 1278, 1285 (Fed. Cir.\n\n 2011); Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1383 (Fed. Cir. 2008);\n\n Intamin Ltd. v. Magnetar Techs., Corp., 483 F.3d 1328, 1336-37 (Fed. Cir. 2007); ACCO\n\n Brands, Inc. v. Micro Sec. Devices, Inc., 346 F.3d 1075, 1079 (Fed. Cir. 2003) (embodiments\n\n carried over from patent application and claimed in other patents).\n\n patent, they state that the source code embodiment \u201cis not foreclosed by anything\u201d in the\n preferred embodiment depicted in Figure 1. That assertion, however, is irrelevant to the question\n whether the embodiment described in Figure 1 and column 3 of the patent is consistent with the\n claim language as the defendants would construe it.\n\n 8\n A0223\n\f Case: 15-142 Document: 2-2 Page: 152 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 9 of 24 PageID #: 5413\n\n\n\n\n Third, sometimes patents are drafted so as to disclose unclaimed subject matter along\n\n with the subject matter that is within the scope of the claims; such action has the effect of\n\n dedicating the unclaimed subject matter to the public. See Johnson & Johnston Assocs. Inc. v.\n\n R.E. Serv. Co., 285 F.3d 1046, 1054 (Fed. Cir. 2002) (en banc) (\u201c[W]hen a patent drafter\n\n discloses but declines to claim subject matter . . . this action dedicates that unclaimed subject\n\n matter to the public.\u201d); Maxwell v. J. Baker, Inc., 86 F.3d 1098, 1108 (Fed. Cir. 1996); Unique\n\n Concepts, Inc. v. Brown, 939 F.2d 1558, 1562-63 (Fed. Cir. 1991).\n\n Fourth, sometimes claims are altered during prosecution in a way that leaves some\n\n disclosed embodiment or embodiments outside the scope of the amended claims. See N. Am.\n\n Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1346 (Fed. Cir. 2005) (\u201c[T]he fact\n\n that claims do not cover certain embodiments disclosed in the patent is compelled when\n\n narrowing amendments are made in order to gain allowance over prior art.\u201d); Rheox, Inc. v.\n\n Entact, Inc., 276 F.3d 1319, 1327 (Fed. Cir. 2002).\n\n None of those exceptions to the general rule applies in this case. First, as discussed\n\n above, the language of the claim is not \u201cplain\u201d; it certainly does not so clearly favor the\n\n defendants\u2019 construction that it overcomes the fact that under their construction the claim would\n\n not read on the principal preferred embodiment described in the specification. Second, there is\n\n no claim other than claim 1, either in the \u2019730 patent or in a related patent, that would read on the\n\n preferred embodiment under the defendants\u2019 claim construction. Third, there is no indication in\n\n the specification that the embodiment of Figure 1 was intended to be described in the\n\n specification but treated as unclaimed subject matter. Figure 1 and the associated text in column\n\n 3 of the patent is the principal preferred embodiment of the invention; moreover, Figure 1 is\n\n\n 9\n A0224\n\f Case: 15-142 Document: 2-2 Page: 153 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 10 of 24 PageID #: 5414\n\n\n\n\n described as \u201cillustrat[ing]\u201d the manner in which data being transmitted is subject to processing\n\n steps \u201cas contemplated by the present invention.\u201d \u2019730 patent, col. 3, ll. 5-7. The reference to\n\n Figure 1 as illustrating the operation of \u201cthe present invention\u201d makes clear that it is not simply\n\n unclaimed subject matter. To the contrary, Figure 1 and the portion of the specification that\n\n discusses it were plainly meant to constitute the core description of the invention claimed in the\n\n patent. Fourth, for the reasons explained in the earlier order in this case, the prosecution history\n\n does not justify reading claim 1 to exclude the embodiment found in Figure 1. The defendants\n\n disagree with the Court\u2019s analysis in that order and contend that the prosecution history explains\n\n the disconnect between the preferred embodiment and the defendants\u2019 proposed claim\n\n construction. Careful analysis of the prosecution history, however, shows that the defendants\u2019\n\n argument does not stand up.\n\n As the Court noted in its previous order, the prosecution history shows that what is now\n\n claim 1 was the product of a combination of an independent claim (original claim 8) and a\n\n dependent claim (original claim 9). That change had the effect of restricting the scope of claim 1\n\n to embodiments in which the \u201cpredetermined characteristic of the data being transmitted\u201d is a\n\n \u201cpredetermined number of said blocks.\u201d\n\n Claim 9 in the original application read as follows:\n\n 9. The method set forth in claim 8 wherein said data transmitted over said\n link comprises a sequence of blocks and wherein a new one of said key values in\n said first and said second sequences is produced each time a predetermined\n number of said blocks are transmitted over said link.\n\n The two elements of claim 9 were incorporated into claim 8 to make what is now claim 1. The\n\n words \u201ccomprising a sequence of blocks\u201d were added to the first limitation of claim 8, and the\n\n words \u201ca new one of said key values in said first and second sequences is produced each time a\n\n 10\n A0225\n\f Case: 15-142 Document: 2-2 Page: 154 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 11 of 24 PageID #: 5415\n\n\n\n\n predetermined number of said blocks are transmitted over said link\u201d were added to the fifth\n\n limitation of claim 8.\n\n Those changes had the effect of restricting claim 8 to a method in which the data to be\n\n transmitted is in the form of a sequence of blocks and in which new key values are produced\n\n each time a predetermined number of those blocks are transmitted over the communication link.\n\n In that form, the new claim corresponded to the embodiment described at column 3, lines 19-40,\n\n described above. There is no indication that the change to the independent claim was meant to\n\n have a second, more subtle effect of limiting the claim to cases in which the new key values in\n\n the first and second sequences are produced each time a predetermined number of blocks of data\n\n \u201chave already been sent,\u201d as would be required by the defendants\u2019 claim construction. 2 Hence,\n\n the prosecution history does not support the defendants\u2019 claim that the amendment to the\n\n independent claim had the effect of taking the principal preferred embodiment in the\n\n specification outside the scope of any of the patent claims.\n\n C. Revised Claim Construction\n\n The defendants next object to the Court\u2019s decision to construe the pertinent claim\n\n language differently from the construction to which the parties initially agreed, which was that\n\n\n 2\n The defendants take issue with this conclusion, arguing that in its previous order the\n Court did not explain its rationale for finding that the dependent claim added only a single\n limitation. In arguing to the contrary, they note that the applicant told the Patent and Trademark\n Office that the revised version of claim 8 \u201cincorporates the elements [plural] of claim 9 in their\n entirety into claim 8.\u201d That argument is unpersuasive. The reference to \u201cthe elements\u201d plainly\n denotes the two amendments to claim 8 that were made by inserting two portions of claim 9 into\n claim 8. Both of those amendments relate to the single substantive change made to claim 8, i.e.,\n to restrict the \u201cpredetermined characteristic of the data\u201d to \u201ca predetermined number of said\n blocks.\u201d There is no evidence to support the defendants\u2019 suggestion that the amendments were\n also intended to have the separate effect of requiring that the blocks of data \u201chave been sent\u201d\n when the key values are produced, as the defendants contend.\n\n 11\n A0226\n\f Case: 15-142 Document: 2-2 Page: 155 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 12 of 24 PageID #: 5416\n\n\n\n\n \u201care transmitted\u201d means \u201chave been sent.\u201d As the Court explained in its earlier order, the need\n\n for further construction of the limitation at issue arose because the apparent agreement between\n\n the parties as to the proper claim construction masked real disagreement about the meaning of\n\n the claim language and the language used in the proposed construction. Without further claim\n\n construction, that disagreement would likely manifest itself at trial, when the problem would be\n\n more difficult to resolve. Moreover, in response to the Court\u2019s request for supplemental briefing\n\n in this case, the parties made it clear that they no longer agree on the proper claim construction\n\n of the \u201ca new one of said key values\u201d limitation. Rather, both parties have submitted different\n\n proposed constructions for the phrase \u201care transmitted.\u201d For that reason, the Court felt\n\n compelled to conduct further construction of the claim language both to resolve what is now an\n\n open dispute between the parties as to the proper claim construction and to avoid problems that\n\n could arise at trial, when amending the claim construction would be more problematical.\n\n D. Stare Decisis and Unfairness\n\n Next, the defendants contend that the Court has departed from principles of stare decisis\n\n by adopting a claim construction that is at variance with the construction adopted in other cases\n\n involving the same patent. They add that it is unfair for the Court to change the claim\n\n construction in a way that allows TQP to avoid the consequences of its previously agreed-upon\n\n claim construction.\n\n As a technical matter, stare decisis does not apply here, as \u201c[t]he doctrine of stare decisis\n\n does not compel one district court judge to follow the decision of another.\u201d Threadgill v.\n\n Armstrong World Indus., Inc., 928 F.2d 1366, 1371 & n.7 (3d Cir. 1991). \u201cWhere a second\n\n judge believes that a different result may obtain, independent analysis is appropriate.\u201d Id. at\n\n\n 12\n A0227\n\f Case: 15-142 Document: 2-2 Page: 156 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 13 of 24 PageID #: 5417\n\n\n\n\n 1371; see also ATSI Commc\u2019ns, Inc. v. Shaar Fund, Ltd., 547 F.3d 109, 112 n.4 (2d Cir. 2008)\n\n (same); Midlock v. Apple Vacations W., Inc., 406 F.3d 453, 457-58 (7th Cir. 2005) (\u201c[A] district\n\n court decision does not have stare decisis effect . . . .\u201d); Starbuck v. City & County of San\n\n Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977). Nonetheless, previous claim constructions in\n\n cases involving the same patent are entitled to substantial weight, and the Court has determined\n\n that it will not depart from those constructions absent a strong reason for doing so. For reasons\n\n explained in this order and in the previous one, however, the Court has concluded that it is\n\n necessary to conduct further claim construction in this case.\n\n In addition to the disagreement between the parties as to the meaning of the agreed-upon\n\n claim construction, the defendants in their supplemental claim construction brief (Dkt. No. 149)\n\n requested a claim construction different from any that has been adopted by a court in any of the\n\n previous cases involving the \u2019730 patent. Moreover, as this Court noted in its earlier order, the\n\n construction given to the claim language in question has varied in the other cases involving the\n\n \u2019730 patent. There is therefore no construction of the claim language that would not be at odds\n\n with at least one of the prior claim-construction orders associated with the \u2019730 patent. Finally,\n\n as the Court explained at the hearing on the summary judgment motion in this case, the previous\n\n claim construction orders provide an important starting point, but the prior orders in related cases\n\n do not bar the Court from conducting additional construction in order to refine earlier claim\n\n constructions.\n\n As to the complaint of unfairness, the Court does not regard the revision of the claim\n\n construction in this case as unfair to the defendants. The Federal Circuit has made clear that a\n\n district court may adopt an \u201cevolving\u201d or \u201crolling\u201d claim construction, in which the court\u2019s\n\n\n 13\n A0228\n\f Case: 15-142 Document: 2-2 Page: 157 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 14 of 24 PageID #: 5418\n\n\n\n\n construction of claims evolves as the court better understands the technology and the patents at\n\n issue. See Pressure Prods. Med. Supplies, Inc. v. Greatbatch Ltd., 599 F.3d 1308, 1316 (Fed.\n\n Cir. 2010) (quoting Pfizer, Inc. v. Teva Pharm., USA, Inc., 429 F.3d 1364, 1377 (Fed. Cir.\n\n 2005)) (\u201c[D]istrict courts may engage in a rolling claim construction, in which the court revisits\n\n and alters its interpretation of the claim terms as its understanding of the technology evolves.\u201d);\n\n Utah Med. Prods., Inc. v. Graphic Controls Corp., 350 F.3d 1376, 1381-82 (Fed. Cir. 2003)\n\n (same); Jack Guttman, Inc. v. Kopykake Enters., Inc., 302 F.3d 1352, 1361 (Fed. Cir. 2002)\n\n (same); see also In re Acacia Media Techs. Corp., 2010 WL 2179875, at *4 (N.D. Cal. May 25,\n\n 2010) (\u201cThe Court finds that it would hinder litigation and the claim construction process to find\n\n a change in claim construction position to be vexatious or improper, since the Court's role is to\n\n determine the proper construction, which may entail an evolving understanding of the claim\n\n terms.\u201d).\n\n Nor does the Court regard TQP\u2019s conduct with respect to the claim construction issue to\n\n have resulted in any unfairness to the defendants. As noted, although the parties agreed on the\n\n language of the construction of the phrase \u201care transmitted,\u201d there was clearly a dispute between\n\n the parties regarding the meaning of that language as construed. Oral argument on the\n\n defendants\u2019 motion for summary judgment and the supplemental briefing requested by the Court\n\n made it evident that the parties had materially different views of the meaning of the agreed-upon\n\n construction of that phrase. The Court explained at the time of the oral argument on the\n\n summary judgment motions that it would reconsider the issue of claim construction in light of\n\n the parties\u2019 disagreement as to the meaning of the putatively agreed-upon construction, and the\n\n Court has done so. The Court does not regard any of the changes in the parties\u2019\u2014and the\n\n\n 14\n A0229\n\f Case: 15-142 Document: 2-2 Page: 158 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 15 of 24 PageID #: 5419\n\n\n\n\n Court\u2019s\u2014interpretation of the claim language as having resulted in unfair prejudice to the\n\n defendants.\n\n E. The \u201cSource Code\u201d Embodiment\n\n Finally, the defendants argue that the microfiche appendix to the patent, which contains\n\n source code, is an embodiment of the patent and is not within the scope of the Court\u2019s\n\n construction of the \u201ca new one of said key values\u201d limitation. If that is so, construing the claim\n\n language to encompass the source code embodiment would result in broadening the Court\u2019s\n\n construction of the claim, not in narrowing it. It is not at all clear how an argument that results in\n\n broadening the claim construction benefits the defendants in their pursuit of summary judgment\n\n of noninfringement. Nonetheless, the Court will consider the argument.\n\n The defendants\u2019 argument is this: The source code provides that the key values in the\n\n transmitter are not changed until the transmitter receives an acknowledgment from the receiver\n\n that the correct number of transmitted data blocks have been received. Because of the\n\n acknowledgement feature, the defendants argue, the source code provides that new key values at\n\n the transmitter are not produced until the predetermined number of blocks have been transmitted\n\n over the communication link.\n\n Referring to its expert\u2019s declaration, TQP responds that the acknowledgement step is\n\n merely an optional feature that would not be necessary for the production of a new pseudo-\n\n random key value in the transmitter in other embodiments. Therefore, TQP contends, the source\n\n code is not inconsistent with the Court\u2019s construction of the claim language in dispute.\n\n TQP\u2019s argument misses the point. It does not matter whether the acknowledgment step is\n\n essential to the production of a new pseudo-random key value or is merely optional, as TQP\n\n\n 15\n A0230\n\f Case: 15-142 Document: 2-2 Page: 159 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 16 of 24 PageID #: 5420\n\n\n\n\n contends. What matters is how the source code actually goes about causing the production of\n\n such a key value. The parties have agreed that the source code is a preferred embodiment of the\n\n invention. Therefore, in order for claim 1 to read on the source code, claim 1 must be construed\n\n to provide for the production of such a key value in the manner in which the source code\n\n performs that task. For that reason, the Court agrees with the defendants that the source code\n\n points out a flaw in the Court\u2019s earlier construction of the \u201ca new one of said key values\u201d\n\n limitation. However, the Court does not agree with the defendants\u2019 proposed solution to the\n\n problem.\n\n The defendants would have the Court construe the \u201ca new one of said key values\u201d\n\n limitation to require that the phrase \u201care transmitted\u201d means \u201chave been sent.\u201d That construction\n\n has the virtue that it includes the source code embodiment within claim 1. But it has the flaw\n\n that it excludes the embodiment depicted in Figure 1 and discussed in the specification.\n\n Fortunately, the problem can be solved by a refinement to the claim construction that will cover\n\n both embodiments\u2014Figure 1 and the source code. The refinement is simply to define the term\n\n \u201care transmitted\u201d to mean \u201cis being transmitted or has been transmitted\u201d for both the transmitter\n\n and receiver. In addition to covering both embodiments, that change has the advantage of not\n\n according the same phrase a different definition depending on whether it is used to describe\n\n processing on the transmitter or processing on the receiver. Accordingly, the Court concludes\n\n that the claim construction should be refined so that the phrase \u201care transmitted\u201d is accorded a\n\n single meaning with respect to both the transmitter and the receiver. The Court will therefore\n\n modify its construction of the \u201ca new one of said key values\u201d limitation to read as follows:\n\n\n\n\n 16\n A0231\n\f Case: 15-142 Document: 2-2 Page: 160 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 17 of 24 PageID #: 5421\n\n\n\n\n \u201cFor both the first and second sequences, at the transmitter and at the receiver\n\n respectively, a new key value is produced each time a predetermined number of blocks are\n\n transmitted over the link. The term \u2018produced\u2019 as used in that sentence, means \u2018generated\u2019\n\n or \u2018supplied.\u2019 The phrase \u2018are transmitted\u2019 means \u2018are being transmitted\u2019 or \u2018have been\n\n transmitted.\u2019\u201d\n\n II. Infringement\n\n The Court now turns to the defendants\u2019 argument that, even under the Court\u2019s claim\n\n construction, summary judgment of noninfringement should be granted.\n\n The essence of the defendants\u2019 argument is that TQP has not offered evidence showing\n\n that the production of new key values is linked to the transmission of a predetermined number of\n\n blocks of data, regardless of how the phrase \u201care transmitted\u201d is defined. The defendants note\n\n that TQP\u2019s infringement contentions tie the production of new key values at the transmitter to\n\n encryption, not transmission. They also point to evidence offered by TQP\u2019s expert, Dr. Trent\n\n Jaeger, that the accused systems encrypt one block of data and then produce a new key value to\n\n encrypt the next block of data, without regard to when any particular block of data is transmitted\n\n over the communication link. For that reason, the defendants claim that the new key values are\n\n not \u201cproduced at a time dependent upon a predetermined characteristic of the data being\n\n transmitted,\u201d and are not \u201cproduced each time a predetermined number of said blocks are\n\n transmitted\u201d over the communication link. \u2019730 patent, col. 12, ll. 34-36, 47-49.\n\n TQP agrees that in the accused systems multiple data blocks are shipped to the receiver at\n\n the same time. Thus, after one block is encrypted, it is joined with other blocks for ultimate\n\n shipment to the receiver. According to TQP, each data block that has been encrypted and is\n\n\n 17\n A0232\n\f Case: 15-142 Document: 2-2 Page: 161 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 18 of 24 PageID #: 5422\n\n\n\n\n awaiting shipment is in the process of being transmitted. In order for a block to be \u201cbeing\n\n transmitted,\u201d TQP contends, it is not necessary for the block to have left the transmitter and to be\n\n in the communication channel between the transmitter and the receiver.\n\n With respect to the \u201cat a time dependent\u201d limitation, the evidence in the summary\n\n judgment record indicates that a new key value is produced in the accused systems \u201cat a time\n\n dependent upon a predetermined characteristic of the data being transmitted,\u201d \u2019730 patent, col.\n\n 12, ll. 35-36. That is because it is predetermined that a new key value will be produced\n\n immediately after the encryption of each data block\u2014i.e., the predetermined characteristic is the\n\n amount of data in a single block\u2014and because those blocks are all \u201cbeing transmitted\u201d in that\n\n they are inside the transmitter being prepared to be placed onto the communication link.\n\n Summary judgment of noninfringement therefore cannot be granted on the \u201cat a time dependent\u201d\n\n limitation.\n\n With respect to the \u201ca new one of said key values\u201d limitation, however, the situation is\n\n different. That limitation requires that a new key value be produced at the transmitter \u201ceach time\n\n a predetermined number of blocks are transmitted over said link.\u201d In support of their motion, the\n\n defendants cite testimony and a demonstrative exhibit from the trial in TQP Development, LLC\n\n v. Newegg, Inc., No. 2:11-cv-248, which involved the same patent. In that trial, Dr. Jaeger\n\n testified that in the accused system, a new key value is produced \u201cbased on a predetermined\n\n characteristic in the transmitter.\u201d 3 He explained that \u201c[t]his key value encrypts a block of\n\n ciphertext,\u201d and then \u201c[t]he next key value will be used to\u2014to encrypt the next block of\n\n ciphertext.\u201d Those blocks then \u201care transmitted.\u201d That testimony is consistent with the\n\n 3\n The parties agree that the accused systems in this case, which employ the SSL/TLS\n protocols with the RC4 cipher, are identical to the system at issue in Newegg.\n\n 18\n A0233\n\f Case: 15-142 Document: 2-2 Page: 162 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 19 of 24 PageID #: 5423\n\n\n\n\n demonstrative exhibit used during Dr. Jaeger\u2019s testimony, which shows that in the accused\n\n systems, multiple blocks of data are encrypted, with different key values used to encrypt each\n\n one, but then the blocks of data are retained at the transmitting station until they are ready to be\n\n placed on the communication link to the receiver. Based on that evidence, and the similar\n\n evidence offered by TQP on summary judgment in this case, the defendants assert that TQP has\n\n effectively conceded that a new key value is not produced each time a predetermined number of\n\n data blocks are transmitted over the communication link, as required by claim 1 of the \u2019730\n\n patent.\n\n Put simply, the defendants\u2019 argument is that, even under this Court\u2019s construction of the\n\n phrase \u201care transmitted,\u201d the accused systems do not infringe, because the production of a new\n\n key value is triggered by the encryption of a predetermined number of data blocks, not by their\n\n transmission. That is, a new key value is produced each time a new data block is encrypted, not\n\n each time one is transmitted. The production of new key values thus does not depend on, or even\n\n correspond to, the transmission of a predetermined number of data blocks, regardless of whether\n\n those blocks \u201care being transmitted\u201d or \u201chave been transmitted.\u201d\n\n In response, TQP does not point to any relationship or correspondence in the accused\n\n systems between the production of a new key value and the time when data blocks are\n\n transmitted. To the contrary, Dr. Jaeger states in a declaration that \u201cSSL ships multiple blocks to\n\n the transmitter [sic: receiver] at the same time, when certain conditions are satisfied.\u201d Dr. Jaeger\n\n does not assert that the \u201ccertain conditions\u201d that must be satisfied before placing blocks onto the\n\n communication link are the same as, or related to, the conditions necessary for production of new\n\n key values. Nor is there any evidence that the conditions that determine how many blocks are\n\n\n 19\n A0234\n\f Case: 15-142 Document: 2-2 Page: 163 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 20 of 24 PageID #: 5424\n\n\n\n\n stored before being sent, or the conditions that trigger when a particular group of blocks will be\n\n sent, have any relationship to the generation of a new key value. 4\n\n Instead, the evidence shows that the production of a new key value in the accused\n\n systems occurs after each data block is received by the transmitter from the data source. The\n\n evidence proffered by TQP does not establish that the production of new key values corresponds\n\n to times when a predetermined number of blocks \u201chave been transmitted\u201d or times when a\n\n predetermined number of blocks \u201care being transmitted,\u201d i.e., when there is a predetermined\n\n number of blocks in the transmitter. Nothing in the evidence shows that a new key value is\n\n produced at the transmitter \u201ceach time\u201d a predetermined number of blocks have been transmitted\n\n over the link or are in the transmitter awaiting transmission. TQP has thus failed to show that\n\n there is any causal relationship, or even any correspondence, between the production of new key\n\n values and the times when a predetermined number of data blocks are transmitted. TQP\u2019s\n\n evidence shows only that key value changes occur during the same general period during which\n\n data blocks are being transmitted.\n\n TQP\u2019s theory of infringement relies on the fact that that a new key value is generated to\n\n encrypt each block of data, i.e., the predetermined number of data blocks is one. Modifying the\n\n language of claim 1 to fit that theory, while incorporating the claim construction provided by this\n\n\n 4\n TQP argues in passing that the defendants\u2019 summary judgment motion is inappropriate\n at this time because the parties have not yet exchanged expert reports. TQP, however, did not\n make that argument when the defendants first filed their summary judgment motions or when the\n parties argued the motions before the Court. Moreover, and more importantly, the parties on two\n occasions jointly sought and obtained a stay of proceedings, including the preparation and\n exchange of expert reports, until the briefing and decision of the summary judgment motions was\n complete. TQP cannot now argue that the stay of proceedings pending the Court\u2019s rulings on the\n summary judgment motions, to which TQP agreed, has had the effect of disabling the Court from\n ruling on the motions, the very thing that was the purpose of the stay motions in the first place.\n\n 20\n A0235\n\f Case: 15-142 Document: 2-2 Page: 164 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 21 of 24 PageID #: 5425\n\n\n\n\n Court, illustrates why TQP has failed to show infringement. First, TQP has not shown \u201ca new\n\n one of said key values . . . being produced each time [one] of said blocks [has been transmitted]\n\n over said link.\u201d A block that has entered the transmitter has not \u201cbeen transmitted\u201d until the\n\n transmitter has completed its processing of the block and placed it on the communication\n\n channel. TQP has shown only that key values in the accused systems change for each new block\n\n that enters the transmitter, not each time a single block is placed on the communication link by\n\n the transmitter. TQP\u2019s evidence therefore cannot establish infringement under the \u201chave been\n\n transmitted\u201d portion of the Court\u2019s claim construction.\n\n Second, TQP has not shown \u201ca new one of said key values . . . being produced each time\n\n [one] of said blocks [is being transmitted] over said link.\u201d TQP\u2019s evidence does not show that\n\n key-value changes are tied to the number of blocks that are being transmitted at any particular\n\n moment, i.e., that the key value is changed each time the number of blocks in the transmitter\n\n reaches the predetermined number one. Instead, TQP has shown only that each time an\n\n additional block enters the transmitter, the key value is changed, no matter how many blocks are\n\n in the transmitter at that time. In the words of the patent, the accused systems do not \u201cadvance[]\n\n each pseudo-random key generator each time the count [of units of data being transmitted]\n\n reaches an agreed-upon interval number.\u201d \u2019730 patent, col. 1, ll. 56-58. Indeed, the evidence\n\n from Dr. Jaeger suggests that most blocks that enter the transmitter serve only to increase the\n\n number of blocks in the transmitter by one because nothing is output onto the communication\n\n channel until some relatively large number of blocks have been encrypted. TQP\u2019s evidence is\n\n therefore insufficient to establish that the key value in the accused systems will change each time\n\n there is a single block in the transmitter \u201cbeing transmitted.\u201d\n\n\n 21\n A0236\n\f Case: 15-142 Document: 2-2 Page: 165 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 22 of 24 PageID #: 5426\n\n\n\n\n In his declaration, Dr. Jaeger asserts that the accused systems produce \u201ca new key value\n\n each time a predetermined number of blocks are transmitted over the link, where \u2018are\n\n transmitted\u2019 means \u2018are being transmitted.\u2019\u201d Jaeger declaration \u00b6 19. But that statement is not\n\n supported by any analysis explaining how the production of key values is triggered by or\n\n corresponds to the transmission of a predetermined number of blocks. It therefore amounts to a\n\n conclusory assertion of infringement, and such conclusory assertions, even from experts, are not\n\n sufficient to avoid summary judgment. Regents of Univ. of Minn. v. AGA Med. Corp., 717 F.3d\n\n 929, 941 (Fed. Cir. 2013), quoting Sitrick v. Dreamworks, LLC, 516 F.3d 993, 1001 (Fed. Cir.\n\n 2008) (\u201cConclusory expert assertions cannot raise triable issues of material fact on summary\n\n judgment.\u201d); Davis v. Brouse McDowell, L.P.A., 596 F.3d 1355, 1364 (Fed. Cir. 2010) (\u201cAn\n\n unsupported opinion . . . cannot and does not create a genuine issue of material fact . . . .\u201d); On-\n\n Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133, 1144 (Fed. Cir. 2004)\n\n (\u201c[C]onclusory assertions by expert witnesses are not sufficient to avoid summary judgment.\u201d);\n\n Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1046-48 (Fed. Cir. 2000) (same).\n\n The defendants have therefore pointed out a flaw in TQP\u2019s theory of infringement, even\n\n under the Court\u2019s claim construction: In the patented method, a new key value is produced each\n\n time a predetermined number of data blocks are transmitted, whereas in the accused systems a\n\n new key value is produced each time the transmitter receives a predetermined number of data\n\n blocks (one, in the case of the defendants\u2019 systems) from the data source.\n\n When a party moves for summary judgment on an issue as to which the nonmoving party\n\n bears the burden of proof, the moving party may discharge its initial burden \u201cby \u2018showing\u2019\u2014that\n\n is, by pointing out to the district court\u2014that there is an absence of evidence supporting the\n\n\n 22\n A0237\n\f Case: 15-142 Document: 2-2 Page: 166 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 23 of 24 PageID #: 5427\n\n\n\n\n nonmoving party\u2019s case.\u201d Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Brilliant\n\n Instruments, Inc. v. GuideTech., LLC, 707 F.3d 1342, 1350 (Fed. Cir. 2013). That burden is not\n\n a heavy one. The Federal Circuit has explained that in light of Celotex, \u201cnothing more is\n\n required than the filing of a summary judgment motion stating that the patentee had no evidence\n\n of infringement and pointing to the specific ways in which accused systems did not meet the\n\n claim limitations.\u201d Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1308-09 (Fed.\n\n Cir. 2006).\n\n After the movant points out the absence of evidence to support the nonmovant\u2019s case, the\n\n burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine\n\n dispute for trial. See Simanski v. Sec\u2019y of Health & Human Servs., 671 F.3d 1368, 1379 (Fed.\n\n Cir. 2012) (\u201cA party moving for summary judgment under Rule 56 . . . is not necessarily\n\n required to submit evidence in support of its motion. Instead, when the non-moving party bears\n\n the burden of proof on an issue, the moving party can simply point out the absence of evidence\n\n creating a disputed issue of material fact. The burden then falls on the non-moving party to\n\n produce evidence showing that there is such a disputed factual issue in the case.\u201d); Arthur A.\n\n Collins, Inc., 216 F.3d at 1046 (after the moving party points out that the evidence would be\n\n insufficient to avoid a directed verdict, the nonmoving party is \u201crequired to designate specific\n\n facts showing that there [is] a genuine issue for trial\u201d). Where the nonmoving party fails to make\n\n a showing sufficient to establish an element essential to that party's case, and on which that party\n\n will bear the burden of proof at trial, \u201csummary judgment is required under the plain language of\n\n Rule 56.\u201d Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349 (Fed. Cir. 2012); see also Dairyland\n\n Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (\u201cA nonmoving party's\n\n\n 23\n A0238\n\f Case: 15-142 Document: 2-2 Page: 167 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 192 Filed 06/20/14 Page 24 of 24 PageID #: 5428\n\n\n\n\n failure of proof concerning the existence of an element essential to its case on which the\n\n nonmoving party will bear the burden of proof at trial necessarily renders all other facts\n\n immaterial and entitles the moving party to summary judgment as a matter of law.\u201d).\n\n The defendants pointed out the absence of evidence that a new key value in the\n\n transmitter is produced \u201ceach time a predetermined number of said blocks are transmitted over\n\n said link,\u201d i.e., the absence of evidence that there is a relationship between when a fixed number\n\n of blocks are transmitted and the production of a new key value. In response, TQP failed to offer\n\n evidence of such a relationship. 5 Because TQP\u2019s evidence on that limitation consists only of the\n\n conclusory assertion of its expert, it has not met its burden under Celotex, and the Court is\n\n therefore required to grant summary judgment of noninfringement.\n\n It is so ORDERED.\n\n SIGNED this 20th day of June, 2014.\n\n\n\n\n __________________________________________\n WILLIAM C. BRYSON\n UNITED STATES CIRCUIT JUDGE\n\n\n\n\n 5\n Although TQP complains that summary judgment should not be granted on the \u201climited\n factual record\u201d in this case, the summary judgment procedure dictated by Celotex requires the\n nonmoving party to make a showing, once the moving party has pointed out the absence of\n evidence to support the non-movant\u2019s case, that there is a disputed issue of material fact in the\n case. TQP has had two opportunities to do so, and it has filed evidence and made arguments on\n the merits of the summary judgment issue on both occasions. TQP has not made the requisite\n showing to this point, and the Court sees no reason to postpone entry of judgment of\n noninfringement based on TQP\u2019s claim that such a step is premature.\n\n 24\n A0239\n\f Case: 15-142 Document: 2-2 Page: 168 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 1 of 11 PageID #: 5661\n\n\n\n\n IN THE UNITED STATES DISTRICT COURT\n FOR THE EASTERN DISTRICT OF TEXAS\n MARSHALL DIVISION\n\n\n TQP DEVELOPMENT, LLC, \u00a7\n \u00a7\n Plaintiff, \u00a7\n \u00a7\n v. \u00a7 CASE NO. 2:12-CV-180-WCB\n \u00a7\n \u00a7\n INTUIT INC., \u00a7\n \u00a7\n Defendant. \u00a7\n\n\n\n MEMORANDUM OPINION AND ORDER\n\n On June 20, 2014, the Court granted summary judgment of noninfringment in favor of\n\n the defendants in this case (Dkt. No. 192). Plaintiff TQP Development, LLC (\u201cTQP\u201d) has now\n\n moved for reconsideration of that order (Dkt. No. 196). The Court DENIES TQP\u2019s motion for\n\n reconsideration.\n\n The background relevant to the present motion is set forth in this Court\u2019s Memorandum\n\n and Order of June 20, 2014 (Dkt. No. 192), and will not be repeated here. TQP makes three\n\n principal arguments why the Court should reconsider its entry of summary judgment of\n\n noninfringement. None of those arguments is convincing.\n\n I\n The Court Did Not Apply an Incorrect Claim Construction or\n Impose a Claim Limitation of Which TQP Was Unaware\n\n TQP first argues that the Court applied an incorrect construction of the key claim\n\n limitation in this case: \u201ca new one of said key values in said first and said second sequences\n\n\n 1\n A0240\n\f Case: 15-142 Document: 2-2 Page: 169 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 2 of 11 PageID #: 5662\n\n\n\n\n being produced each time a predetermined number of said blocks are transmitted over said link.\u201d\n\n U.S. Patent No. 5,412,730 (\u201cthe \u2019730 patent\u201d), col. 12, ll. 46-49. According to TQP, the Court\u2019s\n\n summary judgment order incorrectly requires a connection between the transmission of data\n\n blocks and the use of a new encryption key value in the transmitter. TQP asserts that neither the\n\n claim language nor the Court\u2019s construction of the \u201ca new one of said key values\u201d limitation\n\n supports the requirement of a connection\u2014temporal or otherwise\u2014between transmission of data\n\n blocks and changing the encryption key value in the transmitter.\n\n Contrary to TQP\u2019s contention, the language of the disputed limitation clearly requires a\n\n connection between the transmission of data blocks and the change in key values. The limitation\n\n reads: \u201ca new one of said key values . . . being produced each time a predetermined number of\n\n said blocks are transmitted . . . .\u201d \u2019730 patent, col. 12, ll. 46-49 (emphases added). The entire\n\n point of that phrase is to describe a temporal relationship between the transmission of data blocks\n\n and the production of new key values. Although the precise meaning of the phrase \u201care\n\n transmitted\u201d in the context of the \u2019730 patent has been the subject of considerable dispute in this\n\n case, there has never been any serious question raised as to whether the \u201ca new one of said key\n\n values\u201d limitation requires a connection between the production of a new key value and some act\n\n of transmission\u2014however that act of transmission is defined.\n\n This Court\u2019s claim construction, along with that of each of the other judges who have\n\n construed the claim, 1 has consistently required a temporal connection between the production of\n\n\n\n 1\n See TQP Dev., LLC v. Wells Fargo & Co., No. 2:12-cv-61, Dkt. No. 187, at 20 (E.D.\n Tex. Dec. 2, 2013); TQP Dev., LLC v. 1-800-Flowers.com, Inc., No. 2:11-cv-248, Dkt. No. 226,\n at 22 (E.D. Tex. May 20, 2013); TQP Dev., LLC v. Barclays PLC, No. 2:09-cv-88, Dkt. No. 165,\n at 18 (E.D. Tex. Mar. 28, 2011).\n\n 2\n A0241\n\f Case: 15-142 Document: 2-2 Page: 170 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 3 of 11 PageID #: 5663\n\n\n\n\n new key values and the transmission of data blocks. The Court initially construed the \u201ca new\n\n one of said key values\u201d limitation as follows:\n\n For both the first and second sequences, at the transmitter and at the\n receiver respectively, a new key value is produced each time a\n predetermined number of blocks are transmitted over the link. The term\n \u201cproduced,\u201d as used in that sentence, means \u201cgenerated\u201d or \u201csupplied.\u201d\n The phrase \u201care transmitted\u201d means \u201care being transmitted\u201d with respect\n to the transmitter and \u201chave been transmitted\u201d with respect to the receiver.\n\n Dkt. No. 152, at 15-16. Like the language of the claims, that construction clearly requires a\n\n particular temporal connection between the production of new key values and the transmission of\n\n data blocks.\n\n Subsequently, the Court modified its construction based on additional evidence submitted\n\n by the defendants of a preferred source-code embodiment, which is part of a microfiche\n\n appendix to the \u2019730 patent. Even though broadening the construction could only serve to help\n\n TQP, the Court accepted the defendants\u2019 argument about the source-code embodiment and\n\n broadened the construction of the term \u201care transmitted\u201d to mean either \u201care being transmitted\u201d\n\n or \u201chave been transmitted.\u201d Dkt. No. 192, at 17. That construction maintained the requirement\n\n of a temporal connection between the production of new key values and the transmission of data\n\n blocks. Indeed, TQP\u2019s own proposed construction of the \u201ca new one of said key values\u201d\n\n limitation in this case was: \u201ca new key value in the first and second sequence is used each time a\n\n predetermined number of blocks have been sent from the transmitter over the communication\n\n link.\u201d Dkt. No. 135-1, at 5 (joint claim construction chart) (emphases added). That proposed\n\n construction also clearly calls for a temporal connection between the transmission of data blocks\n\n and the production of new key values. To characterize the claim language, the Court\u2019s\n\n\n 3\n A0242\n\f Case: 15-142 Document: 2-2 Page: 171 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 4 of 11 PageID #: 5664\n\n\n\n\n constructions, or TQP\u2019s proposed construction as not requiring such a connection is simply\n\n inaccurate.\n\n The \u201ca new one of said key values limitation\u201d originated in original dependent claim 9,\n\n which was incorporated into original independent claim 8 to form what is now claim 1 of the\n\n \u2019730 patent. In its initial opinion construing the \u201ca new one of said key values\u201d limitation, the\n\n Court stated that \u201c[t]he only apparent role\u201d of original claim 9 \u201cwas to specify that the\n\n \u2018predetermined characteristic\u2019 of the data in the independent claim could be limited to \u2018a\n\n predetermined number of said blocks.\u2019\u201d Dkt. No. 152, at 12. According to TQP, that statement\n\n shows that the Court previously interpreted the \u201ca new one of said key values\u201d limitation as not\n\n imposing a temporal connection between the production of new key values and the transmission\n\n of data blocks.\n\n The Court meant no such thing. Nor is it reasonable to read the Court\u2019s statement, in\n\n context, in the manner TQP suggests. Original claim 9 read as follow: \u201cThe method set forth in\n\n claim 8 wherein said data transmitted over said link comprises a sequence of blocks and wherein\n\n a new one of said key values in said first and said second sequences is produced each time a\n\n predetermined number of said blocks are transmitted over said link.\u201d Accord Dkt. No. 152, at 6\n\n (emphasis added). When the Court characterized the impact of original claim 9 in its original\n\n claim construction order, it used the phrase \u201ca predetermined number of said blocks\u201d as\n\n shorthand for \u201ca predetermined number of said blocks [that] are transmitted over said link,\u201d since\n\n that is what original dependent claim 9 referred to.\n\n Additionally, the Court\u2019s discussion was directed to rejecting the defendants\u2019 proposed\n\n construction that would have limited the production of new key values to the time after the\n\n\n 4\n A0243\n\f Case: 15-142 Document: 2-2 Page: 172 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 5 of 11 PageID #: 5665\n\n\n\n\n predetermined number of data blocks had been transmitted. Id. at 12. The Court found instead\n\n that the \u2019730 patent disclosed a system whereby key values could be produced based on a count\n\n of the number of data blocks being transmitted, even if the transmission of those blocks was not\n\n yet completed. In other words, the Court was resolving a dispute about whether the phrase \u201care\n\n transmitted\u201d referred to blocks that had already been transmitted or blocks that were in the\n\n process of being transmitted. See id. at 11-16. The Court never implied that some tie to an act\n\n of transmission\u2014however defined\u2014was not required. Any doubt on that point should have been\n\n resolved by the actual claim construction issued at the end of the Court\u2019s opinion. That\n\n construction clearly required a relationship between the production of new key values and the\n\n times when a predetermined number of blocks \u201care being transmitted.\u201d Id. at 15-16.\n\n TQP next argues the embodiment depicted in Figure 1 of the \u2019730 patent shows that there\n\n is no required temporal relationship between the production of new key values and the\n\n transmission of data blocks. In support of that argument, TQP offers the opinion of its expert\n\n that Figure 1 \u201cdoes not expressly disclose a temporal link between use of a new key value and\n\n the process of transmission.\u201d Dkt. No. 196-1 \u00b6 15. That argument fails for several reasons.\n\n First, contrary to TQP\u2019s expert, the description of Figure 1 in the \u2019730 specification discloses a\n\n temporal link between the use of a new key value and the process of transmission, in the course\n\n of generating encrypted data in the transmitter. See \u2019730 patent, col. 3, ll. 36-40 (\u201c[T]he\n\n combination of counter 21 and generator 23 operate to change the encryption key each time [the]\n\n total number of bytes transmitted is an exact multiple of the predetermined interval number.\u201d).\n\n The block counter and generator in the receiver mirror the operation of the block counter and\n\n generator in the transmitter. See id., col. 3, line 64-col. 4, line 1 (\u201cBlock counter 29 performs the\n\n\n 5\n A0244\n\f Case: 15-142 Document: 2-2 Page: 173 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 6 of 11 PageID #: 5666\n\n\n\n\n identical function as that performed by the counter 21 at the transmitting station 11 and hence\n\n supplies advance signals to the generator 27 at precisely the same times (relative to the data\n\n stream) that counter 21 advances generator 23.\u201d). That parallelism in the functioning of the\n\n transmitter and receiver indicate that the same temporal link that applies to the transmitter\n\n applies to the receiver as well.\n\n Further evidence of a required temporal connection between the generation of a new key\n\n value and the transmission of data blocks is found in the portion of the specification that\n\n describes the invention as a whole. Consistently with description of Figure 1, but more\n\n explicitly, the specification there provides: \u201cIn order that the two generators switch from one\n\n output key value to the next in synchronism, means are employed at both the transmitting and\n\n receiving stations to monitor the flow of transmitted data and to advance the random number\n\n generator each time the transmitted data satisfies a predetermined condition.\u201d \u2019730 patent, col. 1,\n\n ll. 48-53 (emphasis added).\n\n Finally, and dispositively, the \u201ca new one of said key values\u201d limitation expressly\n\n provides for a temporal relationship between the production of new key values and the\n\n transmission of data blocks both in the receiver and in the transmitter. The limitation requires \u201ca\n\n new one of said key values in [both the transmitter and receiver] being produced each time a\n\n predetermined number of said blocks are transmitted over said link.\u201d \u2019730 patent, col. 12, ll. 46-\n\n 49. Even if we were persuaded that Figure 1, as described in the specification, did not require a\n\n connection between the production of new key values and the transmission of data blocks, the\n\n claim language is clear in that regard and governs the scope of the patent. See Cybor Corp. v.\n\n FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc); Zenith Labs., Inc. v. Bristol-\n\n\n 6\n A0245\n\f Case: 15-142 Document: 2-2 Page: 174 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 7 of 11 PageID #: 5667\n\n\n\n\n Myers Squibb Co., 19 F.3d 1418, 1423 (Fed. Cir. 1994) (in an infringement analysis \u201cthe only\n\n proper comparison is with the claims of the patent\u201d).\n\n II\n The Court Did Not Substitute Its Judgment for that of a Jury\n\n TQP\u2019s second argument is that the issue on which the Court granted summary judgment\n\n presented a jury question. In TQP\u2019s view, its evidence created a genuine issue of material fact\n\n that should not have been decided by the Court. According to TQP, \u201cthe Court granted summary\n\n judgment because it found that TQP was required to present evidence showing that the encrypted\n\n blocks were also transmitted.\u201d TQP thereby implies that summary judgment would not have\n\n been granted if there were evidence that the encrypted blocks were transmitted. That is not an\n\n accurate description of the ground for the Court\u2019s ruling, however. The Court has never doubted,\n\n nor have the defendants contested, that the accused systems transmit every block that is\n\n encrypted. What the Court found lacking was proof that new key values are produced in the\n\n accused systems \u201ceach time a predetermined number of said blocks are transmitted over [the\n\n communication] link.\u201d\n\n TQP argues that having demonstrated facts that it contends show that the \u201ca new one of\n\n said key values\u201d limitation was met, \u201cthe question of whether (1) use of a new key value when a\n\n block is encrypted by the transmitter for transmission is the same as (2) using a new key value\n\n when a block is transmitted is now a question of fact for the jury to decide.\u201d But as the Court\n\n found in its summary judgment opinion, TQP never introduced evidence sufficient to show that\n\n the \u201ca new one of said key values\u201d limitation is practiced by the accused systems. See Dkt. No.\n\n 192, at 24. Furthermore, encryption and transmission are distinct actions. The fact that every\n\n\n\n 7\n A0246\n\f Case: 15-142 Document: 2-2 Page: 175 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 8 of 11 PageID #: 5668\n\n\n\n\n block that is encrypted will also be transmitted does not mean that encryption and transmission\n\n are the same or that the steps of encryption and transmission would correspond to key changes in\n\n the same way.\n\n At best, TQP\u2019s attempt to equate encryption and transmission amounts to an argument for\n\n infringement under the doctrine of equivalents\u2014i.e., that changing key values each time a\n\n predetermined number of blocks are encrypted is equivalent to changing key values each time a\n\n predetermined number of blocks are transmitted. TQP, however, has conceded that it is barred\n\n by prosecution history estoppel from asserting infringement under the doctrine of equivalents for\n\n the \u201ca new one of said key values\u201d limitation. Dkt. No. 132, at 2 n.2 (\u201cTQP does not contest\n\n Defendants\u2019 arguments concerning the doctrine of equivalents.\u201d). TQP therefore cannot now\n\n argue that counting the number of blocks encrypted since the previous key change is equivalent\n\n to counting the number of blocks that \u201care being transmitted\u201d or \u201chave been transmitted.\u201d\n\n III\n TQP\u2019s New Evidence is Not Material to Infringement\n\n TQP asserts that had it been aware that the Court would construe the \u2019730 patent as\n\n requiring a connection between the production of new key values and transmission of data\n\n blocks, it would have presented evidence in the form of a declaration from its expert\u2014Dr. Trent\n\n Jaeger\u2014that the accused systems have such a connection. According to TQP, Dr. Jaeger\u2019s new\n\n declaration creates a dispute of fact as to whether the \u201ca new one of said key values limitation\u201d is\n\n met by the accused systems when that limitation \u201cincludes the temporal relationship between the\n\n process of transmission and use of a new key value . . . i.e., that the use of a new key value must\n\n be based on when a block is in the process of transmission or is being transmitted.\u201d\n\n\n 8\n A0247\n\f Case: 15-142 Document: 2-2 Page: 176 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 9 of 11 PageID #: 5669\n\n\n\n\n TQP\u2019s argument is implausible on its face. Essentially, TQP\u2019s argument is that it did not\n\n proffer Dr. Jaeger\u2019s new declaration at an earlier point because it was not previously aware that\n\n the Court would require \u201cthat the use of a new key value must be based on when a block is in the\n\n process of transmission or is being transmitted.\u201d But that requirement was plainly set forth in the\n\n Court\u2019s initial claim construction order, which construed the disputed limitation to include the\n\n requirement that \u201ca new key value is produced each time a predetermined number of blocks are\n\n transmitted over the link. . . . The phrase \u2018are transmitted\u2019 means \u2018are being transmitted\u2019 with\n\n respect to the transmitter . . . .\u201d Dkt. No. 152, at 16. And, as already described, the requirement\n\n of a connection between the transmission of data blocks and the production of new key values is\n\n clear on the face of the disputed limitation; indeed, it was present in TQP\u2019s own proposed\n\n construction, even if the exact nature of that connection was disputed.\n\n Furthermore, Dr. Jaeger\u2019s declaration does not add any information that the Court\n\n considers \u201cnew\u201d or that would impact the Court\u2019s judgment. TQP relies on Dr. Jaeger\u2019s\n\n declaration for the proposition that \u201cthere is no distinction between encryption and transmission\n\n with regard to production and use of a new key value.\u201d Dkt. No. 196-1 \u00b6 14 (Jaeger\n\n Declaration). Dr. Jaeger reaches that conclusion because every data block produced in the\n\n accused systems \u201cwill be both encrypted and transmitted using the same key value.\u201d Id. \u00b6 9.\n\n Therefore, according to Dr. Jaeger, \u201cthere is already a temporal link between use of a new key\n\n value and transmission.\u201d Id. The Court, however, already knew that every encrypted block at\n\n the transmitter was eventually transmitted, and the Court assumed as much in its summary\n\n judgment analysis. The fact that every encrypted block will eventually be transmitted simply\n\n does not support Dr. Jaeger\u2019s statement that \u201cthere is no distinction between encryption and\n\n\n 9\n A0248\n\f Case: 15-142 Document: 2-2 Page: 177 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 10 of 11 PageID #: 5670\n\n\n\n\n transmission with regard to production and use of a new key value.\u201d As already described,\n\n encryption and transmission are distinct events that can each maintain a separate relationship\n\n with respect to the production of new key values.\n\n Beyond that, Dr. Jaeger\u2019s conclusion that \u201cthere is already a temporal link between the\n\n production and use of a new key value and transmission\u201d misses the point. The \u201ca new one of\n\n said key values\u201d limitation is not satisfied by just any temporal connection; it is satisfied only by\n\n the particular temporal connection described in the claim: that a new key value is produced \u201ceach\n\n time a predetermined number of . . . blocks are transmitted over said link.\u201d \u2019730 patent, col. 12,\n\n ll. 48-49 (emphases added). Dr. Jaeger\u2019s declaration does not address the particular temporal\n\n connection required by the claims and therefore does not address the underlying reason why\n\n summary judgment was granted in this case.\n\n Similarly, Dr. Jaeger\u2019s statement that the accused systems \u201cproduce[] a new key value for\n\n every block that is being transmitted\u201d does not address the temporal connection required by the\n\n claims. What matters is that a new key value is produced \u201ceach time\u201d a single block is being\n\n transmitted or a single block has been transmitted, not simply that each block gets a new key\n\n value.\n\n The Court thus concludes that TQP has offered no valid excuse for failing to present its\n\n alleged new evidence at an earlier time. Moreover, that evidence does nothing to further TQP\u2019s\n\n infringement case and would not have changed the outcome with respect to the Court\u2019s grant of\n\n summary judgment in the defendants\u2019 favor, even if it had been timely presented to the Court.\n\n For the foregoing reasons, TQP\u2019s Motion for Reconsideration is denied.\n\n\n\n\n 10\n A0249\n\f Case: 15-142 Document: 2-2 Page: 178 Filed: 07/06/2015\n\nCase 2:12-cv-00180-WCB Document 203 Filed 07/23/14 Page 11 of 11 PageID #: 5671\n\n\n\n\n It is so ORDERED.\n\n SIGNED this 23rd day of July, 2014.\n\n\n\n\n ______________________________\n WILLIAM C. BRYSON\n UNITED STATES CIRCUIT JUDGE\n\n\n\n\n 11\n A0250\n\f Case: 15-142 Document: 2-2 Page: 179 Filed: 07/06/2015\nCase 2:11-cv-00248-JRG Document 379 Filed 11/08/13 Page 12 of 12 PageID #: 6097\n\n\n\n As discussed above, the Court heard argument from the Parties on this issue, and the\n\n Parties were given the opportunity to state their evidence and contentions on this issue. The\n\n Court, having reviewed the Parties briefing and their arguments at the hearing, finds that the\n\n evidence does not support a finding that one of the exceptions to rebut the presumptive\n\n application of prosecution history estoppel exists.\n\n TQP is therefore barred, by the doctrine of prosecution history estoppel, from arguing the\n\n doctrine of equivalents in regards to the relevant limitation of Claim 1 of the \u2019730 Patent.\n\n CONCLUSION\n\n For the foregoing reasons, TQP\u2019s Motion in Limine to Exclude Evidence and Argument\n\n. Relating to Prosecution History Estoppel to the Jury is GRANTED, to the extent that the issue\n\n will not be presented to the jury. However, the Court holds that TQP is barred, by the doctrine of\n\n prosecution history estoppel, from arguing the doctrine of equivalents in regards to the following\n\n limitation of Claim 1 of the \u2019730 Patent:\n\n generating a second sequence of pseudo-random key values based\n on said seed value at said receiver, each new key value in said\n sequence being produced at a time dependent upon said\n predetermined characteristic of said data transmitted over said link\n such that said first and second sequences are identical to one\n another, a new one of said key values in said first and said second\n sequences being produced each time a predetermined number of\n said blocks are transmitted over said link, and\n SIGNED this 3rd day of January, 2012.\n SIGNED this 8th day of November, 2013.\n\n\n\n\n ____________________________________\n ROY S. PAYNE\n UNITED STATES MAGISTRATE JUDGE\n\n\n\n\n - 12 -\n A0262\n\f Case: 15-142 Document: 2-2 Page: 180 Filed: 07/06/2015\n\n 119\n\n\n\n 1 as part of that process.\n\n 2 Q Which claims of the '730 patent did you\n\n 3 analyze for your infringement analysis?\n\n 4 A We'll discuss today 1, 6, 8, and 9.\n\n 5 Q Okay.\n\n 6 A And I -- I looked at others as well over the\n\n 7 course of my analysis.\n\n 8 Q Okay.\n\n 9 MR. GIZA: Okay. Let's go to the next\n\n10 slide.\n\n11 Q (By Mr. Giza) This is Claim 1. Can you walk\n\n12 us through the language of Claim 1 at a high level?\n\n13 A Sure. So we're going to go into this in --\n\n14 in a lot of detail, so I'm just going to touch on -- on\n\n15 the claim language here.\n\n16 So Claim Element 1(a) describes a method for\n\n17 transmitting data. So this data is going to be sent\n\n18 from a transmitter to a receiver, and this data is going\n\n19 to consist of encrypted blocks of data. So the data\n\n20 will be cut up into blocks and encrypted, and there will\n\n21 be a sequence of these blocks.\n\n22 Claim Element 1(b) describes providing a\n\n23 seed value to the transmitter and the receiver. They\n\n24 say a seed value, so this is the same seed value to both\n\n25 the transmitter and the receiver.\n\n A0381\n\f Case: 15-142 Document: 2-2 Page: 181 Filed: 07/06/2015\n\n 120\n\n\n\n 1 Claim Element 1(c) is a little longer,\n\n 2 but it talks about -- speaks about generating first\n\n 3 sequence of the pseudo-random key values you heard about\n\n 4 a little while back, based on the seed value -- and this\n\n 5 is at the transmitter.\n\n 6 Claim Element 1(d) uses the sequence to\n\n 7 encrypt the data.\n\n 8 Claim Element 1(e) is even longer. It\n\n 9 talks about generating a second of pseudo-random key\n\n10 values based on seed value at the receiver.\n\n11 And then it places some constraints on\n\n12 the relationship between the first sequence and the\n\n13 second sequence so that this works out because you need\n\n14 to be able to decrypt the data at the receiver in\n\n15 accordance with the second sequence, and you need to get\n\n16 the data you originally sent in the first place.\n\n17 Q And then what's the last one?\n\n18 A Decrypting the data on the receiver.\n\n19 Q Thank you.\n\n20 Can you explain, using a figure from the\n\n21 patent, how Claim 1 works?\n\n22 A So this is the -- the main figure, Figure 1,\n\n23 from the '730 patent. It represents a functional\n\n24 diagram. I'm going to try the laser pointer here for\n\n25 the moment.\n\n A0382\n\f Case: 15-142 Document: 2-2 Page: 182 Filed: 07/06/2015\n\n 121\n\n\n\n 1 So on the top, we have the transmitter, or\n\n 2 transmitting station, you'll see it called, okay? And\n\n 3 on the bottom, we have the receiver or the receiving\n\n 4 station.\n\n 5 Both of these have functional elements for\n\n 6 pseudo-random number generation. And the transmitter is\n\n 7 going to be doing encryption, and the receiver is going\n\n 8 to be doing decryption.\n\n 9 So this -- what I want to do is show you\n\n10 how -- how things happen. So rather than -- than using\n\n11 this functional diagram, we've created a -- whoops --\n\n12 we've created an animation.\n\n13 So I'm going to show you how this -- how\n\n14 these claim elements work in terms of an animation. The\n\n15 animation here, we've converted all the functional\n\n16 elements to -- to icons and included all of the -- the\n\n17 flows disclosed in the patent.\n\n18 And -- but for the block counter, we don't\n\n19 need that because it's not a requirement of the claims\n\n20 that we'll be looking at. So we'll use this somewhat\n\n21 simpler figure.\n\n22 Q Professor Jaeger, were you in the room, in\n\n23 the courthouse (sic) here when Mr. Jones gave his\n\n24 testimony?\n\n25 A Yes, I was.\n\n A0383\n\f Case: 15-142 Document: 2-2 Page: 183 Filed: 07/06/2015\n\n 122\n\n\n\n 1 Q Is this essentially the same animation?\n\n 2 A Yes, it is.\n\n 3 Q Okay. Can you show us how the steps of\n\n 4 Claim 1 look on your animation as we go through the\n\n 5 claims?\n\n 6 Now, when Mr. Jones gave his testimony, he\n\n 7 didn't talk about the claims of the patent, so I need\n\n 8 you to do that.\n\n 9 A Yes, I can.\n\n10 So -- so, basically, we're trying to get\n\n11 data from the data source to this data utilization\n\n12 circuit. So you're sending something, maybe your credit\n\n13 card information, and you want to ensure that this is\n\n14 protected in -- in -- in its transmission.\n\n15 So the first claim element, 1(a), describes\n\n16 a system for transmitting data comprising a sequence of\n\n17 blocks in encrypted form over a communication link -- so\n\n18 between two computers.\n\n19 One is called the transmitter. That's --\n\n20 the sender of the data is called the transmitter to a\n\n21 receiver, okay? And so, again, the transmitter is on\n\n22 the top. The receiver is on the bottom.\n\n23 Now, what you're going to do is send\n\n24 these -- a sequence of blocks in encrypted form, so\n\n25 it's -- the output of the encryptor is going to be\n\n A0384\n\f Case: 15-142 Document: 2-2 Page: 184 Filed: 07/06/2015\n\n 123\n\n\n\n 1 transmitted to the -- from the transmitter to the\n\n 2 receiver over the communication link as shown here.\n\n 3 Q Okay. And what's the next step?\n\n 4 A The next step describes providing a seed\n\n 5 value. And here you can see we have this seed value.\n\n 6 And they look the same because they -- they have to be\n\n 7 the same. It's a seed value to both the transmitter and\n\n 8 receiver.\n\n 9 Q Okay. What happens next?\n\n10 A Next a seed value is used on the transmitter\n\n11 by this functional element, the pseudo-random number\n\n12 generator. The pseudo-random number generator, as\n\n13 described earlier, will generate a sequence of\n\n14 pseudo-random numbers.\n\n15 This is called the first sequence on the\n\n16 transmitter. We call them keys here because we're going\n\n17 to use them for encryption. So this is a first sequence\n\n18 of pseudo-random key values based on said seed value at\n\n19 said transmitter, says the first half of Claim 1(c).\n\n20 Q Okay.\n\n21 A Okay. And then the second half starting\n\n22 with each key value or each new key value in the second\n\n23 line is: Each new key value in said sequence being\n\n24 produced at a time dependent upon a predetermined\n\n25 characteristic of the data being transmitted over said\n\n A0385\n\f Case: 15-142 Document: 2-2 Page: 185 Filed: 07/06/2015\n\n 124\n\n\n\n 1 link.\n\n 2 So here we have the item of this\n\n 3 predetermined characteristic and -- so that the data may\n\n 4 have some -- some property, we're going to talk -- we're\n\n 5 showing you what we'll call a block of data, which is\n\n 6 some size of data being -- it's the data being\n\n 7 transmitted.\n\n 8 And when this predetermined characteristic\n\n 9 is met, then a new key value is produced for that data.\n\n10 Q Okay. And then what happens next?\n\n11 A Next, now that we have the key value and the\n\n12 data, we have the information necessary to do the\n\n13 encryption. So we're going to encrypt the data, and we\n\n14 have our first block of encrypted data, or you may hear\n\n15 the term cipher text from time to time.\n\n16 Now, the last part says: In accordance with\n\n17 said first sequence. So there may be, of course, many\n\n18 blocks that you want to send. You may want to send a\n\n19 big message. So then a second block may arrive. The\n\n20 predetermined characteristic is satisfied again. A\n\n21 second key value from this first sequence is used to\n\n22 encrypt the data and so on.\n\n23 Q Okay. Now that you have some encrypted\n\n24 blocks of data, what can you do?\n\n25 A Well, we can transmit them, as required in\n\n A0386\n\f Case: 15-142 Document: 2-2 Page: 186 Filed: 07/06/2015\n\n 125\n\n\n\n 1 Claim Element 1(a), which is a method for transmitting\n\n 2 data comprising a sequence of blocks.\n\n 3 So we have our sequence of blocks. They're\n\n 4 in encrypted form over a communication link from the\n\n 5 transmitter to the receiver.\n\n 6 Q Okay. So now we're at the receiver. Then\n\n 7 what happens?\n\n 8 A Yeah. So the receiver -- this is a very\n\n 9 long Claim Element 1(c), but the first part of it has a\n\n10 lot of similarity.\n\n11 So seed is going to be used by the\n\n12 pseudo-random number generator on the receiver to\n\n13 produce a second sequence of pseudo-random -- I'll call\n\n14 them key values; they're numbers still -- based on the\n\n15 seed at the receiver.\n\n16 Again -- excuse me, again. These key values\n\n17 will be -- from the sequence will be produced at a time\n\n18 dependent on the predetermined characteristic of the\n\n19 data transmitted. So when the receiver receives a block\n\n20 of data, produce a new key value.\n\n21 Now, there's some additional constraints\n\n22 on -- in Claim 1(e) about the -- the relationship; for\n\n23 example, between the sequences. So here the bolded part\n\n24 says the first and second sequences are identical.\n\n25 So if there are differences in the first and\n\n A0387\n\f Case: 15-142 Document: 2-2 Page: 187 Filed: 07/06/2015\n\n 126\n\n\n\n 1 second sequence, then we won't be able to decrypt the\n\n 2 data properly and get our proper plain text back.\n\n 3 And as was mentioned earlier this morning\n\n 4 using this pseudo-random number generator, if you have\n\n 5 the same seed value, you'll produce the same sequence of\n\n 6 numbers.\n\n 7 So this requires explicitly that the first\n\n 8 and second sequences are identical to one another. And\n\n 9 additionally, there's a more specific limitation on the\n\n10 predetermined characteristic where it's said to be a\n\n11 predetermined number of said blocks.\n\n12 Q Okay. And in your example here, what's the\n\n13 predetermined number?\n\n14 A My example is showing the predetermined\n\n15 number of said blocks. Be one block.\n\n16 Q So one key for one block?\n\n17 A One key for one block, yes.\n\n18 Q Okay. And then what happens?\n\n19 A Well, then we can do the decryption. So we\n\n20 can do this first decryption, and we have the key in\n\n21 the -- on the cipher text. We now will produce the\n\n22 original plain text.\n\n23 And, again, we will continue to do the\n\n24 decryption in accordance with the second sequence so we\n\n25 get the -- all the data that we wanted to send.\n\n A0388\n\f Case: 15-142 Document: 2-2 Page: 188 Filed: 07/06/2015\n\n 12\n\n\n\n 1 Q Okay. And do you have any -- any evidence\n\n 2 that further supports what you just said?\n\n 3 A Yes. So to be a little more specific, RC4\n\n 4 combines one block of data with one key value -- the key\n\n 5 value happens to be the same size as the -- the data in\n\n 6 RC4 -- and one block of ciphertext.\n\n 7 Q And, again, you know the operation of RC4\n\n 8 based upon your experience with the algorithm itself?\n\n 9 A That's correct. And there are also\n\n10 descriptions of RC4 available, such as this one from the\n\n11 book Applied Cryptography by Bruce Schneier, where he\n\n12 states that a byte K -- so K is the key value -- is\n\n13 what's called XOR'd or exclusive OR'ed -- that's the\n\n14 operation for combining plaintext with a key to perform\n\n15 the encryption.\n\n16 It's used sometimes to do encryption to --\n\n17 so it combines this byte of key with -- byte of\n\n18 plaintext because they need to be the same size to\n\n19 produce a byte of ciphertext.\n\n20 Q And Mr. Schneier and this book, Applied\n\n21 Cryptography, is this the book that Mr. Jones referred\n\n22 to in his testimony?\n\n23 A I believe so, yes.\n\n24 Q What is the predetermined characteristic in\n\n25 the combination of SSL and RC4?\n\n A0454\n\f Case: 15-142 Document: 2-2 Page: 189 Filed: 07/06/2015\n\n 13\n\n\n\n 1 A The predetermined characteristic is one\n\n 2 block of data. In Mr. Schneier's description, it's\n\n 3 1 byte. And in some implementations, it may be a little\n\n 4 different than that, but that's how we normally think of\n\n 5 it as -- as 1 byte. A block is a byte, 8 bits.\n\n 6 Q Is the one block characteristic of SSL and\n\n 7 RC4 predetermined?\n\n 8 A Yes, it is. It's built into the RC4 code.\n\n 9 It's not any kind of input parameter. It's the way that\n\n10 the implementation will work. And the code is there,\n\n11 obviously, before you're doing any encryption.\n\n12 Q Do you have any further evidence that\n\n13 supports your understanding of this element?\n\n14 A So Dr. Rivest, he states that RC4 uses a\n\n15 byte of pseudo-random sequence for each byte of data\n\n16 stating -- so the encryption algorithm will generate a\n\n17 byte of pseudo-random sequence for each byte of\n\n18 plaintext, yes.\n\n19 Q Okay. Can you show us how Newegg's use of\n\n20 SSL and RC4 meets this part of 1(c)?\n\n21 A So this shaded area here refers to the --\n\n22 the domain of the RC4 algorithm. It's received the seed\n\n23 value from -- from SSL handshake. RC4 implements the\n\n24 pseudo-random number generator, produces this first\n\n25 sequence of seed values.\n\n A0455\n\f Case: 15-142 Document: 2-2 Page: 190 Filed: 07/06/2015\n\n 23\n\n\n\n 1 A Yes, it is.\n\n 2 Q What is the predetermined number of blocks\n\n 3 in SSL and RC4?\n\n 4 A RC4 defines a predetermined number of blocks\n\n 5 in one -- as one, and it's the -- it is that way within\n\n 6 SSL or TLS as well.\n\n 7 Q And how do you know this?\n\n 8 A As we discussed, RC4 combines one block of\n\n 9 ciphertext with one block of key value, same size, to\n\n10 what is one block -- block.\n\n11 Q And you know this based upon your experience\n\n12 with RC4?\n\n13 A Yes.\n\n14 Q Do you have any additional evidence that\n\n15 supports your understanding?\n\n16 A Yes. So the -- the book we've looked at a\n\n17 couple of times also describes decryption, stating that\n\n18 a byte K -- we -- we use the same operation for -- for\n\n19 decryption as encryption.\n\n20 Turns out XOR is reversible. So you can\n\n21 combine 1 byte of cipher text to produce 1 byte of\n\n22 plaintext using the -- the key value of the size 1 block\n\n23 or 1 byte.\n\n24 Q And is the number of blocks in RC4\n\n25 predetermined?\n\n A0465\n\f Case: 15-142 Document: 2-2 Page: 191 Filed: 07/06/2015\n\n 54\n\n\n\n 1 A All right.\n\n 2 Q And how many bytes would that be?\n\n 3 200 bytes, correct?\n\n 4 A Be 160 bytes.\n\n 5 Q 160 bytes. How many blocks is that?\n\n 6 A Would be -- if a block is 1 byte, as in\n\n 7 Schneier's description, it would be 20 blocks.\n\n 8 Q In the Newegg system, is a new key used to\n\n 9 encrypt each one of those bytes?\n\n10 A In the Newegg system, a new key is produced\n\n11 to encrypt each of those blocks.\n\n12 Q And how many of those blocks is that again?\n\n13 A 20.\n\n14 Q Now, after those encrypt -- those -- that\n\n15 data is encrypted, is that entire 200-byte web page sent\n\n16 at once from the Newegg transmitter, or is it sent byte\n\n17 by byte in 200 different transmissions?\n\n18 A Well, it's 160 bytes.\n\n19 Q I'm sorry.\n\n20 A And it's transmitted however the lower\n\n21 layers want to transmit it.\n\n22 Q For 2 -- I'm sorry -- for 160 bytes, do you\n\n23 know whether that's -- in the Newegg system, whether\n\n24 that's transmitted all at once or whether it's\n\n25 transmitted in 160 different pieces being sent one at a\n\n A0496\n\f Case: 15-142 Document: 2-2 Page: 192 Filed: 07/06/2015\n\n 55\n\n\n\n 1 time over the Internet?\n\n 2 A Well, so SSL and TLS don't determine that.\n\n 3 But my -- my experience is that that's smaller than the\n\n 4 maximum packet size, so -- so likely it would be\n\n 5 transmitted in one.\n\n 6 Q All at one time?\n\n 7 A Yeah.\n\n 8 Q So in that instance in the Newegg system, an\n\n 9 encryption key -- a new encryption key is used to\n\n10 encrypt Byte No. 2 before encrypted Byte No. 1 is sent\n\n11 over the Internet, correct?\n\n12 A That's true, but that -- that isn't -- that\n\n13 isn't related to the claim language, as I understand --\n\n14 or the claim construction, as I understand it.\n\n15 Q Let's take a look at your slide --\n\n16 MR. BALDAUF: Mr. Patterson, could you\n\n17 bring up their Slide 67 and 68?\n\n18 Q (By Mr. Baldauf) Now, do you recall\n\n19 explaining this during your direct testimony?\n\n20 A Yes, I do.\n\n21 Q Now, the green box, what is that?\n\n22 A The green box is a block of encrypted data.\n\n23 Q And what is the blue box that's still inside\n\n24 the -- the pink square?\n\n25 A The encryptor. That's a block that\n\n A0497\n\f Case: 15-142 Document: 2-2 Page: 193 Filed: 07/06/2015\n\n 123\n\n\n\n 1 whether there was anything in the claims that required\n\n 2 when a sequence of blocks could be sent.\n\n 3 Did you say that there was nothing in the\n\n 4 claims that limited that?\n\n 5 A When the blocks are -- nothing that limits\n\n 6 when blocks can be sent?\n\n 7 Q With respect to when a key value is used, do\n\n 8 you agree with me that the claim requires that a new key\n\n 9 value can be used only when the previously encrypted\n\n10 block has been transmitted over the communication link?\n\n11 A I see. Yeah.\n\n12 So what I was referring to was the\n\n13 transmitter -- that there wasn't a limit on when --\n\n14 constraint on when the transmitter could send the block.\n\n15 But there is a limitation, as you point out\n\n16 here, that the new key value, which is the same value,\n\n17 and needs to be the same value in the\n\n18 transmitter/receiver for things to work.\n\n19 So the new key value in the first and second\n\n20 sequence is used -- at this time the block has been sent\n\n21 because this is part of 1(e), which is describing what's\n\n22 going on in the receiver. It's saying the receiver has\n\n23 to use the same key value as the transmitter.\n\n24 Q But this construction requires -- has been\n\n25 sent from the transmitter over the communication link,\n\n A0565\n\f Case: 15-142 Document: 2-2 Page: 194 Filed: 07/06/2015\n\n 124\n\n\n\n 1 correct?\n\n 2 A Yes.\n\n 3 Q So we're talking about when blocks are being\n\n 4 sent from the transmitter to the receiver, correct?\n\n 5 A No. What we're talking about -- the fact\n\n 6 that they have been sent.\n\n 7 Q Correct, have been sent.\n\n 8 A Yes.\n\n 9 Q Okay. Thank you.\n\n10 MR. BALDAUF: Nothing further, Your\n\n11 Honor.\n\n12 THE COURT: Redirect, Plaintiff?\n\n13 MR. GIZA: Thank you, Your Honor.\n\n14 Mr. Wietholter, could I please get\n\n15 Slide 64?\n\n16 REDIRECT EXAMINATION\n\n17 BY MR. GIZA:\n\n18 Q Professor Jaeger, do you still have the\n\n19 remote control?\n\n20 A No, I don't.\n\n21 MR. GIZA: Can we provide Professor\n\n22 Jaeger with the remote?\n\n23 THE TECHNICIAN: May I approach the\n\n24 witness, Your Honor?\n\n25 THE COURT: You may.\n\n A0566\n\f Case: 15-142 Document: 2-2 Page: 195 Filed: 07/06/2015\n\n 130\n\n\n\n 1 Q What is the first sequence?\n\n 2 A The first sequence is the sequence of\n\n 3 pseudo-random key values on the transmitter.\n\n 4 Q So this claim construction is a new key\n\n 5 value, and the first and the second sequence is used\n\n 6 each time a pre -- predetermined number of blocks have\n\n 7 been sent from the transmitter over the communication\n\n 8 link.\n\n 9 Did I read that correctly?\n\n10 A Read the words correctly, yes.\n\n11 Q And what you have in this animation -- you\n\n12 show that we've got one block, the green block, and two\n\n13 blocks -- the second block, the blue block -- block,\n\n14 they've been encrypted already, correct?\n\n15 A As is shown here, yes.\n\n16 Q And they've each been encrypted using a\n\n17 different key value, correct?\n\n18 A Block 1 was encrypted with a different key\n\n19 value than Block 2, yes.\n\n20 Q So Block 2, the blue block, is being\n\n21 encrypted using a new key value before Block 1 has been\n\n22 transmitted across the communication link, correct?\n\n23 A That's correct.\n\n24 Q Thank you.\n\n25 MR. BALDAUF: I have nothing further.\n\n A0572\n\f Case: 15-142 Document: 2-2 Page: 196 Filed: 07/06/2015\n\n 32\n\n\n\n 1 So the steps -- the requirements of Claim 1 have got to\n\n 2 be satisfied for any of the dependent ones to be.\n\n 3 Q And how many limitations of a claim must be\n\n 4 satisfied for there to be infringement?\n\n 5 A All of them.\n\n 6 Q I'd like you to take -- talk to you now\n\n 7 about the limitation that's designated on this board as\n\n 8 1(d), generating a second sequence.\n\n 9 MR. BALDAUF: Mr. Patterson, can we pull\n\n10 up Dr. Jaeger's Slide 68 from yesterday?\n\n11 Q (By Mr. Baldauf) Dr. Stubblebine, looking at\n\n12 Dr. Jaeger's own slide, what does this tell us about\n\n13 whether or not this limitation can be satisfied?\n\n14 A This tells us that it's not satisfied\n\n15 because the Court's construction that's at the bottom\n\n16 wasn't satisfied.\n\n17 Q And can you please explain that.\n\n18 A Yes. The Court's construction says that new\n\n19 key value in the first and second sequence is used each\n\n20 time a predetermined number of blocks have been sent\n\n21 from the transmitter over the communication link.\n\n22 And what Dr. Jaeger was accusing as that\n\n23 predetermined number is one block. And so one block has\n\n24 got to be sent before you use the next key to encrypt\n\n25 the next block, and that's not what's going on.\n\n A0625\n\f Case: 15-142 Document: 2-2 Page: 197 Filed: 07/06/2015\n\n Civil Justice Reform Act of 1990\n Report of Motions Pending More Than Six Months,\n Bench Trials Submitted More Than Six Months,\n Bankruptcy Appeals Pending More Than Six Months,\n Social Security Appeal Cases Pending More Than Six Months, and\n Civil Cases Pending More Than Three Years on\n September 30, 2014\n\nIntroduction\n\t The Civil Justice Reform Act of 1990 (CJRA) requires the Director of the\nAdministrative Office of the United States Courts (AO), under 28 U.S.C. \u00a7 476, to\nprepare a semiannual report showing, by U.S. district judge and U.S. magistrate\njudge, all motions pending more than six months, all bench trials that have remained\nundecided more than six months, and all civil cases pending more than three years.\nIn accordance with the policy of the Judicial Conference of the United States, this\nreport also presents data on bankruptcy appeals pending more than six months (Rpt. of\nProc. of JCUS, Mar. 10, 1998, at 11) and Social Security appeals pending more than\nsix months (Rpt. of Proc. of JCUS, Sept. 15, 1998, at 63). The reporting requirements\nunder the CJRA are designed to help reduce both costs and delays in civil litigation\nin the district courts. The information also may be used to evaluate demands on the\ndistrict courts\u2019 resources.\n\t The CJRA report is prepared through the use of the Case Management/Electronic\nCase Files (CM/ECF) system. As a result, pending motions, bench trials, three-\nyear-old cases, bankruptcy appeals, and Social Security appeals are reported in a\nstandardized and consistent fashion.\n\t Appendix A provides data for each district judge and magistrate judge on\nmotions pending, bench trials submitted, cases pending more than three years,\nbankruptcy appeals pending, and Social Security appeals pending. The CJRA requires\nthe AO Director to establish uniform standards for determining when a motion, bench\ntrial, case, or bankruptcy appeal is \u201cpending\u201d; Appendix B lists these definitions.\n\t Along with the semiannual consolidated national report, the AO prepares a\nsupplemental report, A Report on Motions Pending for More Than Six Months,\nBench Trials Submitted for More Than Six Months, Bankruptcy Appeals Pending for\nMore Than Six Months, Social Security Appeals Pending for More Than Six Months,\nand Civil Cases Pending Three Years or More, that provides detailed information\nregarding the individual cases, motions, bench trials, and appeals pending in the\ndistrict courts. This document is available to the public through the district courts,\nthe executive offices of the U.S. courts of appeals, the AO, and the Federal Judiciary\nwebsite www.uscourts.gov.\n\n\nReport Findings\n\t The information in this report presents what may best be described as a \u201csnapshot\u201d\nof motions pending more than six months, bench trials submitted more than six\nmonths, civil cases pending more than three years, bankruptcy appeals pending\nmore than six months, and Social Security appeals pending more than six months on\n 1\n A0777\n\f Case: 15-142 Document: 2-2 Page: 198 Filed: 07/06/2015\n\n Fifth Circuit (Continued)\n\t\t Civil\t\n\t District Judges and\t Cases\t Motions\t Bench Trials\t Bankruptcy\t Social Security\n\t Magistrate Judges\t Pending\t Pending\t Submitted\t Appeals\t Appeals\n\n\n Texas Eastern\t 21\t 20\t 0\t 3\t 0\t\n \t\t\t\t\t\t\n District Judges\t 18\t 14\t 0\t 3\t 0\t\n \t\t\t\t\t\t\n SCHELL, RICHARD A.\t 7\t 1\t 0\t 0\t 0\t\n HEARTFIELD, THAD\t 1\t 1\t 0\t 0\t 0\t\n DAVIS, LEONARD E. (CJ)\t 5\t 0\t 0\t 0\t 0\t\n CLARK, RON\t 2\t 12\t 0\t 3\t 0\t\n CRONE, MARCIA A.\t 2\t 0\t 0\t 0\t 0\t\n SCHNEIDER, MICHAEL H.\t 0\t 0\t 0\t 0\t 0\t\n GILSTRAP, JAMES R.\t 1\t 0\t 0\t 0\t 0\t\n \t\t\t\t\t\t\n Magistrate Judges\t 3\t 6\t 0\t 0\t 0\t\n \t\t\t\t\t\t\n CRAVEN, CAROLINE M.\t 1\t 0\t 0\t 0\t 0\t\n BUSH, DONALD D.\t 0\t 0\t 0\t 0\t 0\t\n GIBLIN, KEITH F.\t 0\t 0\t 0\t 0\t 0\t\n LOVE, JOHN D.\t 0\t 0\t 0\t 0\t 0\t\n MAZZANT, AMOS\t 1\t 1\t 0\t 0\t 0\t\n HAWTHORNE, ZACK\t 0\t 0\t 0\t 0\t 0\t\n PAYNE, ROY S.\t 1\t 5\t 0\t 0\t 0\t\n MITCHELL, K. NICOLE\t 0\t 0\t 0\t 0\t 0\t\n \t\t\t\t\t\t\n Texas Southern\t 258\t 132\t 3\t 15\t 0\t\n \t\t\t\t\t\t\n District Judges\t 238\t 116\t 3\t 15\t 0\t\n \t\t\t\t\t\t\n KAZEN, GEORGE P.\t 1\t 5\t 0\t 0\t 0\t\n HEAD, HAYDEN W., JR.\t 0\t 0\t 0\t 0\t 0\t\n HINOJOSA, RICARDO H. (CJ)\t 7\t 2\t 0\t 0\t 0\t\n HUGHES, LYNN N.\t 11\t 66\t 1\t 3\t 0\t\n HITTNER, DAVID\t 2\t 0\t 1\t 0\t 0\t\n HOYT, KENNETH M.\t 21\t 3\t 0\t 0\t 0\t\n LAKE, SIMEON TIMOTHY, III\t 6\t 0\t 0\t 3\t 0\t\n HARMON, MELINDA\t 12 1\t12\t 0\t 2\t 0\t\n RAINEY, JOHN D.\t 0\t 0\t 0\t 0\t 0\t\n WERLEIN, EWING, JR.\t 2\t 0\t 0\t 0\t 0\t\n ROSENTHAL, LEE H.\t 5\t 5\t 0\t 1\t 0\t\n JACK, JANIS GRAHAM\t 1\t 0\t 0\t 0\t 0\t\n GILMORE, VANESSA D.\t 3\t 1\t 0\t 0\t 0\t\n ATLAS, NANCY F.\t 0\t 0\t 0\t 0\t 0\t\n TAGLE, HILDA G.\t 1\t 2\t 0\t 0\t 0\t\n ELLISON, KEITH P.\t 13 2\t3\t 0\t 1\t 0\t\n CRANE, RANDY\t 2\t 2\t 0\t 0\t 0\t\n HANEN, ANDREW S.\t 136 3\t2\t 0\t 1\t 0\t\n\n\n\n 1\n Three-year-old caseload consists mostly of cases related to multidistrict litigation.\n 2\n Three-year-old caseload consists mostly of cases related to BP Securities multidistrict litigation.\n 3\n Three-year-old caseload consists mostly of cases related to border fence condemnation.\n\n (CJ) = Chief Judge\t\n (VJ) = Visiting Judge\n 29\n\n A0805\n\f Case: 15-142 Document: 2-2 Page: 199 Filed: 07/06/2015\n\n Appendix B.\n Definitions\n\t All active and senior district court judges, as well as all full-time and part-time magistrate\njudges, must report pending matters. Several issues relevant to the reporting of cases pending for\nmore than three years include the following.\n\n\t \u2022\t With respect to cases pending for more than three years that have been assigned to dis-\ntrict judges and magistrate judges from outside the districts where the cases originated, such\ncases are included in the totals for the districts where they were filed originally. Sometimes a\nblock of cases or a class of cases that are similar in nature is assigned to a single judge. Such cases\noften require lengthy litigation when they involve complex issues and large numbers of parties.\n\n\t \u2022\t This report includes some asbestos cases. The Judicial Panel on Multidistrict Litigation\n(MDL) authorized the transfer of most of the pending asbestos personal injury/product liability\ncases to the Eastern District of Pennsylvania under Order Number 875. Asbestos cases that have\nremained in the districts where they were filed originally or that were transferred back to the\noriginal districts are included in this report. However, those cases transferred according to MDL\nOrder Number 875 are excluded. All other MDL cases are included in this report.\n\t\n\t Cases Pending More Than Three Years. The CJRA requires a report, by district judge and\nmagistrate judge, of cases pending more than three years in the district courts. A case becomes\npending as of the date the case originally was filed in the district court or the date the case was\nreopened, whichever is later. If a case has not been disposed of within three years after its filing\ndate or reopening date, the case shall be reported as pending more than three years.\n\t Motions Pending More Than Six Months. The CJRA mandates a report enumerating all\nmotions that have been pending six months or longer. A motion is a request made to a district\njudge or magistrate judge for an order, ruling, or similar determination. The opposing party has\n30 days from the date of a motion\u2019s filing to respond to it. A motion becomes pending 30 days\nafter the date it was filed or was referred to a magistrate judge, whichever is later. If no decision\non a motion has been filed within six months after the date the motion became pending, and\nthe motion has not been referred to a magistrate judge, the motion shall be reported as pending\nmore than six months before the presiding judge. If a motion is referred to a magistrate judge,\nthe magistrate judge must file a report and make a recommendation for, or dispose of, the mo-\ntion within six months after the date the motion became pending, or the motion shall be report-\ned as pending for both the district judge and the magistrate judge.\n\t Bench Trials Submitted More than Six Months. The CJRA requires the AO to prepare a\nreport of bench trials submitted more than six months. In a bench trial, the judge (rather than\na jury) decides the facts of the case. A bench trial is considered to be submitted on the date the\ncourtroom proceedings are concluded. If a judge fails to file an opinion within six months after a\nbench trial was submitted, the bench trial shall be reported as submitted more than six months.\n\t Bankruptcy Appeals Pending More Than Six Months. In accordance with an action of\nthe March 1998 Judicial Conference, the CJRA now requires a report, by district judge and\nmagistrate judge, of bankruptcy appeals pending more than six months in the district courts. A\nbankruptcy appeal becomes pending as of the date the appeal originally was filed in the district\n\n 66\n A0842\n\f Case: 15-142 Document: 2-2 Page: 200 Filed: 07/06/2015\n\ncourt or the date the case was reopened, whichever is later. If an appeal has not been disposed of\nwithin six months plus 60 days after its filing date or reopening date, the appeal shall be reported\nas pending more than six months.\n\t Social Security Appeals Pending More Than Six Months. In accordance with an action of\nthe September 1998 Judicial Conference, the CJRA now requires a report, by district judge and\nmagistrate judge, of Social Security appeal cases pending more than six months in the district\ncourts. A Social Security appeal case becomes pending as of the date of the filing of the latest\ntranscript in such case. If a case has not been disposed of within six months plus 120 days after\nits filing date, the case shall be reported as pending more than six months.\n\n\n\n\n 67\n A0843\n\f Case: 15-142 Document: 2-2 Page: 201 Filed: 07/06/2015\nCJRA\u00a0Table\u00a07W\u2013\u2013Report\u00a0Of\u00a0Civil\u00a0Cases\u00a0Pending\u00a0Over\u00a0Three\u00a0Years\u00a0\nFor\u00a0Period\u00a0Ending\u00a0September\u00a030,\u00a02014\n056\n5TH\u00a0Circuit\n\nU.S.\u00a0District\u00a0Court\u00a0for\u00a0TEXAS\u00a0EASTERN\nDistrict\u00a0\u00a0\nA2040\nDistrict\u00a0Judge\u00a0GILSTRAP,\u00a0JAMES\u00a0R.\n\n CJRA\n Nature\u00a0of\u00a0Suit\u00a0 Case\u00a0Title Deadline \u00a0Status \u00a0Status\u00a0Description\n\nInsurance Yule\u00a0v.\u00a0Blue\u00a0Cross\u00a0Blue\u00a0Shield\u00a0of\u00a0Texas,\u00a0a\u00a0Division\u00a0of 09/14/2014 O Judicial\u00a0Officer\u00a0Action\u00a0Delayed\u00a0by\u00a0Illness 1\n 1\n \u00ad\n c\nInsurance Yule\u00a0v.\u00a0Blue\u00a0Cross\u00a0Blue\u00a0Shield\u00a0of\u00a0Texas,\u00a0a\u00a0Division\u00a0of 09/14/2014 V Change\u00a0of\u00a0Counsel 1\n v\n 1\n \u00ad\n \u00ad0\n c\n 0\nInsurance Yule\u00a0v.\u00a0Blue\u00a0Cross\u00a0Blue\u00a0Shield\u00a0of\u00a0Texas,\u00a0a\u00a0Division\u00a0of 09/14/2014 X Trial\u00a0Scheduled 1\n v\n 4\n 1\n \u00ad1\n \u00ad0\n 0\n c\n 0\n v\n 4\n Total\u00a0All\u00a0Cases\u00a0for\u00a0District\u00a0Judge\u00a0:\u00a0GILSTRAP,\u00a0JAMES\u00a0R. 1 \u00ad1\n 0\n 0\n 0\n 4\n 1\n 0\n\n\n\n\n \u00a0Run\u00a0:\u00a0\u00a005/05/2015 1,284\u00a0of\u00a03,463\n\n\n A0850\n\f Case: 15-142 Document: 2-2 Page: 202 Filed: 07/06/2015\n\nCJRA\u00a0Table\u00a08W\u2013\u2013Report\u00a0Of\u00a0Motions\u00a0Pending\u00a0Over\u00a0Six\u00a0Months\n\u00a0For\u00a0Period\u00a0Ending\u00a0September\u00a030,\u00a02014\n056\n5TH\u00a0Circuit\n\nU.S.\u00a0District\u00a0Court\u00a0for\u00a0TEXAS\u00a0EASTERN\nDistrict\u00a0\u00a0\nA2040\nDistrict\u00a0Judge\u00a0\u00a0GILSTRAP,\u00a0JAMES\u00a0R.\n\n Nature\u00a0of\u00a0Suit Case\u00a0Title Motion\u00a0Text \u00a0Status \u00a0Status\u00a0Description\n \u00a0 There\u00a0are\u00a0no\u00a0events\u00a0of\u00a0this\u00a0type\u00a0to \u00a0\n report\n\n\n\nTotal\u00a0Cases\u00a0for\u00a0District\u00a0Judge\u00a0:\u00a0GILSTRAP,\u00a0JAMES\u00a0R. 0\n\n\n*\u00a0Filed\u00a0at\u00a0same\u00a0time\u00a0as\u00a0first\u00a0item\u00a0listed\u00a0in\u00a0this\u00a0box\u00a0in\u00a0a\u00a0multi\u00adpart\u00a0motion.\u00a0\u00a0Each\u00a0multi\u00adpart\u00a0motion\u00a0is\u00a0counted\u00a0as\u00a0a\u00a0single\u00a0motion\u00a0regardless\u00a0of\u00a0the\u00a0number\u00a0of\u00a0parts.\n\nMagistrate\n\n\n\n\n 830\u00a0of\u00a02,167\n \u00a0Run\u00a0:\u00a0\u00a005/05/2015\n\n A0851\n\f Case: 15-142 Document: 2-2 Page: 203 Filed: 07/06/2015\n\nCJRA\u00a0Table\u00a09W\u2013\u2013Report\u00a0Of\u00a0Bench\u00a0Trials\u00a0Submitted\u00a0Over\u00a0Six\u00a0Months\nFor\u00a0Period\u00a0Ending\u00a0September\u00a030,\u00a02014\n056\n\n5TH\u00a0Circuit\nU.S.\u00a0District\u00a0Court\u00a0for\u00a0TEXAS\u00a0EASTERN\nDistrict\u00a0\u00a0\nA2040\nDistrict\u00a0Judge\u00a0GILSTRAP,\u00a0JAMES\u00a0R.\n\n\n Nature\u00a0of\u00a0Suit\u00a0 Case\u00a0Title \u00a0Status \u00a0Status\u00a0Description Docket\u00a0Number\n\n\n\n\u00a0\u00a0 There\u00a0are\u00a0no\u00a0events\u00a0of\u00a0this\u00a0type\u00a0to\u00a0report \u00a0\u00a0 \u00a0\u00a0\u00ad\u00a0\u00a0\u00ad\n\n\nTotal\u00a0Cases\u00a0for\u00a0District\u00a0Judge\u00a0:\u00a0GILSTRAP,\u00a0JAMES\u00a0R. 0\nMagistrate\nABG40\n\n\n\n\n 628\u00a0of\u00a01,718\n \u00a0Run\u00a0:\u00a0\u00a005/05/2015\n\n A0852\n\f Case: 15-142 Document: 2-2 Page: 204 Filed: 07/06/2015\nCJRA\u00a0Table\u00a010W\u2013\u2013Report\u00a0of\u00a0Bankruptcy\u00a0Appeals\u00a0Pending\u00a0For\u00a0More\u00a0Than\u00a0Six\u00a0Months\nFor\u00a0Period\u00a0Ending\u00a0September\u00a030,\u00a02014\n056\n5TH\u00a0Circuit\nU.S.\u00a0District\u00a0Court\u00a0for\u00a0TEXAS\u00a0EASTERN\nDistrict\u00a0\u00a0\nA2040\nDistrict\u00a0Judge\u00a0GILSTRAP,\u00a0JAMES\u00a0R.\n\n\n\n Nature\u00a0of\u00a0Suit\u00a0 Case\u00a0Title \u00a0Status \u00a0Status\u00a0Description Docket\u00a0Number\n There\u00a0are\u00a0no\u00a0events\u00a0of\u00a0this\u00a0type\u00a0to\u00a0report \u00a0 \u00a0\n \u00ad\n \u00ad\n\n\nTotal\u00a0Cases\u00a0for\u00a0District\u00a0Judge\u00a0:\u00a0GILSTRAP,\u00a0JAMES\u00a0R. 0\nMagistrate\nABG40\n\n\n\n\n\u00a0Run\u00a0:\u00a0\u00a005/05/2015 Page\u00a0630\u00a0of\u00a01,721\n\n\n A0853\n\f Case: 15-142 Document: 2-2 Page: 205 Filed: 07/06/2015\nCJRA\u00a0Table\u00a011W\u2013\u2013Report\u00a0of\u00a0Social\u00a0Security\u00a0Appeal\u00a0Cases\u00a0Pending\u00a0for\u00a0More\u00a0Than\u00a0Six\u00a0Months\nFor\u00a0Period\u00a0Ending\u00a0September\u00a030,\u00a02014\n056\n5TH\u00a0Circuit\n\nU.S.\u00a0District\u00a0Court\u00a0for\u00a0TEXAS\u00a0EASTERN\nDistrict\u00a0\u00a0\nA2040\nDistrict\u00a0Judge\u00a0GILSTRAP,\u00a0JAMES\u00a0R.\n\n\n\n Nature\u00a0of\u00a0Suit\u00a0 Case\u00a0Title \u00a0Status \u00a0Status\u00a0Description Docket\u00a0Number\n \u00a0\u00a0 \u00a0\n \u00ad \u00ad\n There\u00a0are\u00a0no\u00a0events\u00a0of\u00a0this\u00a0type\u00a0to\u00a0report \u00a0 \u00ad ~\u00ad\n\n\nTotal\u00a0Cases\u00a0for\u00a0District\u00a0Judge\u00a0:\u00a0GILSTRAP,\u00a0JAMES\u00a0R. 0\n\nMagistrate\n\n\n\n\n \u00a0Run\u00a0:\u00a0\u00a005/05/2015 Page\u00a0642\u00a0of\u00a01,748\n\n\n A0854\n\f Case: 15-142 Document: 2-2 Page: 206 Filed: 07/06/2015\n\n\n\n\n CERTIFICATE OF SERVICE\n\n This is to certify that on July 6, 2015, the foregoing APPENDIX IN\nSUPPORT OF PETITION FOR WRIT OF MANDAMUS was electronically\nfiled with the Court. A copy has been served on counsel for Respondent TQP\nDevelopment, LLC via Federal Express upon the following:\n Marc Aaron Fenster\n Adam S. Hoffman\n RUSS AUGUST & KABAT\n 12424 Wilshire Boulevard\n Suite 1200\n Los Angeles, CA 90025\n Tel: (310) 826-7474\n Fax: (310) 826-6691\n mafenster@raklaw.com\n ahoffman@raklaw.com\n\nA copy has also been served on the date above via Federal Express on:\n\n The Honorable Rodney Gilstrap\n U.S. District Court\n Sam B. Hall, Jr. Federal Building\n and United States Courthouse\n 100 East Houston Street\n Marshall, Texas 75670\n Tel: (903) 935-3868\n Fax: (903) 935-2295\n\nAn original and four hard copies and a PDF copy on disk of this Appendix have\nbeen hand-delivered to the U.S. Court of Appeals for the Federal Circuit on the\ndate indicated above.\n\n /s/ Daniel H. Brean\n Daniel H. Brean\n Counsel for Newegg Inc.\n\f","ocr_status":2,"date_upload":"2015-08-20T04:50:15-07:00","document_number":"2","attachment_number":2,"pacer_doc_id":"0130611816","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Appendix","acms_document_guid":""},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/1437274/","id":1437274,"tags":[],"absolute_url":"/docket/4162344/2/3/in-re-newegg-inc/","date_created":"2016-08-19T17:52:52.214830-07:00","date_modified":"2018-12-09T17:34:42.825730-08:00","sha1":"effff7eff432cfdcadd84d96b8329c1c33b19255","page_count":1,"file_size":38613,"filepath_local":"recap/gov.uscourts.cafc.15-142.2.3.pdf","filepath_ia":"https://www.archive.org/download/gov.uscourts.cafc.15-142/gov.uscourts.cafc.15-142.2.3.pdf","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"CaSe: 15-142 Document: 2-3 Page: 1 Filed: 07/06/2015\n\n \n\nTransaction submitted by Daniel H. Brean 011 07/06/2015 at 09:40 AM\n\nDescription: Petition for Writ of Mandamus (fee)\nPayment Method: CreditC ard\n\nFee Receipt Number: 13-20879-707\n\nFee Amount: $500.00\n\n","ocr_status":1,"date_upload":"2015-08-18T05:52:49-07:00","document_number":"2","attachment_number":3,"pacer_doc_id":"0130611817","is_available":true,"is_free_on_pacer":null,"is_sealed":null,"document_type":2,"description":"Filing fee receipt","acms_document_guid":""}],"date_created":"2016-08-19T17:52:52.183783-07:00","date_modified":"2018-12-09T17:34:42.801733-08:00","date_filed":"2015-07-06","time_filed":null,"entry_number":2,"recap_sequence_number":"2015-07-06.005","pacer_sequence_number":null,"description":"PETITION of Newegg Inc. - Petition for Writ of Mandamus pursuant to Fed. R. App. P. 21. Service: 07/06/2015 by US mail. [253701]","tags":[]},{"resource_uri":"https://www.courtlistener.com/api/rest/v4/docket-entries/1935905/","id":1935905,"docket":"https://www.courtlistener.com/api/rest/v4/dockets/4162344/","recap_documents":[{"resource_uri":"https://www.courtlistener.com/api/rest/v4/recap-documents/1437270/","id":1437270,"tags":[],"absolute_url":"/docket/4162344/1/in-re-newegg-inc/","date_created":"2016-08-19T17:52:52.175744-07:00","date_modified":"2018-12-09T17:34:42.604701-08:00","sha1":"","page_count":null,"file_size":null,"filepath_local":null,"filepath_ia":"","ia_upload_failure_count":null,"thumbnail":null,"thumbnail_status":0,"plain_text":"","ocr_status":null,"date_upload":null,"document_number":"1","attachment_number":null,"pacer_doc_id":"0130611796","is_available":false,"is_free_on_pacer":null,"is_sealed":null,"document_type":1,"description":"","acms_document_guid":""}],"date_created":"2016-08-19T17:52:52.168350-07:00","date_modified":"2018-12-09T17:34:42.592542-08:00","date_filed":"2015-07-06","time_filed":null,"entry_number":1,"recap_sequence_number":"2015-07-06.001","pacer_sequence_number":null,"description":"Miscellaneous case docketed. Received: 07/06/2015. [253691]Entry of Appearance due 07/20/2015. Certificate of Interest is due on 07/20/2015.","tags":[]}],"entries_total":"https://www.courtlistener.com/api/rest/v4/docket-entries/?count=on&docket=4162344&page_size=40"}