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Websidestory, Inc. v. Netratings

July 10, 2007

WEBSIDESTORY, INC., PLAINTIFF / COUNTERDEFENDANT,
v.
NETRATINGS, INC., DEFENDANT / COUNTERCLAIMANT.



The opinion of the court was delivered by: Hayes, Judge

CLAIMS CONSTRUCTION ORDER

The parties have asked the Court to determine the acquired meaning of certain disputed terms in United States Patent No. 6,393,479 (the '479 Patent).

PROCEDURAL BACKGROUND

On February 22, 2006, Plaintiff Websidestory, Inc. filed the Complaint in this matter, alleging infringement of the '479 Patent by Defendant Netratings, Inc. (Doc. # 1). On March 27, 2006, Netratings moved for a more definite statement pursuant to FED. R. CIV. P. 12(c) (Doc. # 7). On April 3, 2006, Websidestory filed a First Amended Complaint. (Doc. # 13). On April 13, 2006, Netratings answered the First Amended Complaint and asserted counterclaims for declaratory relief. (Doc. # 17). On May 5, 2006, Websidestory answered the counterclaims and asserted affirmative defenses. (Doc. # 20).

On October 12, 2006, the parties filed a joint claims construction chart, a joint claims construction worksheet, and a joint hearing statement. (Doc. # 35). In November and December 2006, the parties filed opening claims construction briefs (Docs. # 40, 41) and rebuttal claims construction briefs. (Docs. # 48, 49). On January 24, 2007, the Court held a Markman hearing.

BACKGROUND

The '479 Patent, filed with the United States Patent and Trademark Office (PTO) on June 4, 1999, embodies an invention which follows and records the flow of traffic through a website. First Amended Complaint, Ex. 1 (Patent) at col. 4, ll. 35-40. The '479 Patent sought to improve upon deficiencies and weaknesses inherent in the previous methods of monitoring the flow of traffic by, among other things, allowing a website operator an accurate, real-time record of the path followed by a website visitor. Patent at col. 3-4. As the internet is increasingly used for commercial purposes, information regarding website visitors and the path those visitors take through a website is increasingly more valuable. Patent at col. 1.

The '479 Patent follows and records the path of website visitors by producing, updating, and transferring a website cookie between the website visitor's web browser and a traffic analysis server. Patent at col. 4, ll. 35-60. The cookie is either attached to a web page requested by a visitor during an initial visit, or it is detected as existing in a web page request made by a visitor's browser. By examining information on a website cookie, a website owner utilizing the '479 Patent can (1) monitor website traffic patterns in real time, and (2) identify the webpages requested by a visitor and the order the webpages were requested.

LEGAL STANDARDS GOVERNING CLAIMS CONSTRUCTION

The interpretation of a patent's claims is a question of law to be decided by the Court. Markman v. Westview Instruments, Inc., 517 U.S. 370, 391 (1996). By interpreting a patent's claims, a court and the parties can better understand the scope of the claims. Gart v. Logitech, Inc., 254 F.3d 1334, 1339 (Fed. Cir. 2001). The goal of claims construction is to determine the meaning and scope of a patent's claims. Anton / Bauer, Inc. v. PAG, LTD., 329 F.3d 1343, 1349 (Fed. Cir. 2003); Middleton, Inc. v. Minnesota Mining & Mfg. Co., 311 F.3d 1384, 1387 (Fed. Cir. 2002). Only disputed claim language need be construed by a court, since "claim construction is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the claims . . . . It is not an obligatory exercise in redundancy." U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). The court's interpretation of a disputed claim term is referred to as the "acquired meaning" of the term. Markman, 517 U.S. at 388; HERBERT F. SCHWARTZ, PATENT LAW AND PRACTICE § 5.I. (5th ed. 2006).

In construing the terms of a patent, the court begins with the words of the claims themselves, and those words "are generally given their ordinary and customary meaning." Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations omitted); see also Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 620 (Fed. Cir. 1995). The ordinary and customary meaning of a claim term "is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Id. at 1313. Where the ordinary meaning of a claim term "as understood by a person of skill in the art" is readily apparent "even to lay judges," that meaning becomes the acquired meaning. Phillips at 1314; HERBERT F. SCHWARTZ, PATENT LAW AND PRACTICE § 5.I.A.2. (5th ed. 2006). A patent applicant can create and define words in a patent, as well as modify a word's ordinary and customary meaning. Sextant Avionique, S.A. v. Analog Devices, Inc., 172 F.3d 817, 825 (Fed. Cir. 1999). When a patent applicant defines a patent term and or modifies the ordinary and customary meaning of words in a patent, the patent applicant acts as a "lexicographer," and the special meaning assigned becomes the acquired meaning. Phillips, 415 F.3d at 1316.

Where the ordinary and customary meaning of a term is not readily apparent, a court may look to intrinsic evidence to determine the acquired meaning of the term, including "the words of the claims themselves," the specification, and the patent's prosecution history. Id. at 1314. The specification*fn1 is always "highly relevant" and usually "dispositive" in determining the acquired meaning of a claim term . . . . " Phillips, 415 F.3d at 1315-16 (citations omitted) ("[The specification] is the single best guide to the meaning of a disputed term."). The context of both the particular claim and the entire patent can be helpful in determining the acquired meaning of a claim term. Id. at 1314. The preamble*fn2 is relevant to determining the scope of a claim and the acquired meaning of a claim term if the preamble is a limitation on the claimed invention or is necessary to give life or meaning to the claim. NTP, Inc. v. Research in Motion, 418 F.3d 1282, 1305-06 (Fed. Cir. 2005); HERBERT F. SCHWARTZ, PATENT LAW AND PRACTICE § 5.III.A. (5th ed. 2006).

If after reviewing the intrinsic evidence the court is unable to determine the acquired meaning of a term, the court may examine extrinsic evidence. ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1090 (Fed. Cir. 2003). Within the class of extrinsic evidence, courts rely upon dictionaries (technical dictionaries preferably), treatises, and expert testimony. Phillips, 415 F.3d at 1318. Though extrinsic evidence can be useful to a court, "it is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence." Id. at 1319.

'479 PATENT, CLAIM 1 1. A method of processing a computer file request to retrieve a network data file comprising a website page, the method comprising: receiving a request from a network browser for a page at a website, the page having at least one graphical element having an image source attribute that specifies a website traffic path analysis data location; detecting if the website page request includes a website cookie having website traffic path analysis data from the network browser for the current website; producing a website cookie in response to detecting the absence of a website cookie, wherein the website cookie contains an initial set of traffic path analysis data for the current website; determining if the cookie for the current website has expired, if a website cookie for the current website was detected; setting the traffic path analysis data of the website cookie to initial values if the website cookie has expired, and otherwise updating traffic path analysis data for a current website visit by the network browser by adding the current requested website page to the traffic path analysis data and thereby showing the complete path of website pages requested during the current website visit, and providing the network browser with image source data for the graphical element of the requested page and also with the website cookie containing the website traffic path analysis data.

Patent, claim 1 at col. 12, l. 50 - col. 13, l. 10.

THE DISPUTED CLAIM TERMS & ACQUIRED MEANINGS

1. A Method of Processing a Computer File Request (Patent at Claim 1, Col. 12, l. 48)

The preamble to claim 1 of the '479 Patent states: "A method of processing a computer file request to retrieve a network data file comprising a website page, the method comprising . . . ." See Patent at col. 12, ll. 47-48; see also Joint Claims Construction Chart at 1. Websidestory argues that the preamble is not limiting, and that the phrase does not need to be construed by the Court. Netratings conceded at oral argument that the phrase is not technically in dispute, however it highlighted the phrase in support of its argument that the '479 Patent does not claim an invention which uses separate servers for website content and traffic analysis. Transcript of Oral Argument (Tr.), January 24, 2007 at 83, 97. Netratings noted at oral argument that a discussion regarding the number of servers claimed by the '479 Patent was more appropriate at later stages of the infringement litigation, since the issue is not specifically related to construction of disputed terms. Tr. at 87, 93.

"Claim construction is a matter of resolution of disputed meanings and technical scope," and only disputed claim language needs to be construed by the Court. U.S. Surgical Corp., 103 F.3d at 1568 (Emphasis added.); Research in Motion, 418 F.3d at 1311. Websidestory argues that the phrase "a method of processing a computer file request" does not need to be construed by the Court, and Netratings conceded that the plain language of the phrase was not in dispute. The Court concludes that no construction is necessary.

2. Website Tpath Analysis (As Used in Claims 1-31) (First Appearing in Claim 1 at col. 12, ll. 55-56)

Though Websidestory urges a construction of the term "website traffic path analysis," Netratings does not dispute this term except in the context of the term "website traffic path analysis data." See Joint Claims Construction Chart at 2; Tr. at 48. The Court concludes that the term "website traffic path analysis" is not in dispute and that no construction is necessary. See U.S. Surgical Corp., 103 F.3d at 1568.

3. Website Traffic Path Analysis Data (First Appearing in Claim 1 at Col. 12, ll. 55-56, and as Used Thereafter in Claims 1-31)

The parties dispute the meaning of the phrase "website traffic path analysis data," which first appears in the '479 Patent at claim 1, col. 12, l. 54. See Joint Claims Construction Chart at 2. Websidestory contends that the phrase means "data used for website traffic path analysis." Netratings contends that the phrase has a more specific and detailed meaning, and proposes "data consisting of the actual sequence of every page at a website visited by a browser during a current visit, the clock time of each page visit obtained from the browser, and cumulative values and statistics."

Netratings contends that the specification and the claims of the '479 Patent detail and define the contents of "website traffic path analysis data," and require the phrase to include a sequence of every page visited, the visitor browser's clock time, and other cumulative values and statistics. Netratings contends that Websidestory's definition renders the word "analysis" meaningless.

Websidestory contends that Netratings' proposed construction improperly imports limitations from the specification, impermissibly limiting the scope of the '479 Patent. Websidestory contends that the claims of the '479 Patent support its proposed, and more general, construction of "website traffic path analysis data," and further contends that it is unnecessary to utilize the specification given the clarity and plain meaning of this disputed phrase. Websidestory disputes Netratings' assertion that the '479 Patent's claims and specification disavow or disclaim the contents of "website traffic path analysis data."

After reviewing the '479 Patent and the parties' arguments, the Court concludes that the phrase "website traffic path analysis data," has an ordinary and customary meaning consistent with Websidestory's proposed construction of "data used for website traffic path analysis." Joint Claims Construction Chart at 2. This construction is consistent with the use of "website traffic path analysis data" in the claims, and supported by those portions of the specification which provide specific examples of "website traffic path analysis data." See Patent at col. 4, ll. 37-40; Patent at col. 5, ll. 2-4. This construction is also consistent with the presence of dependent claims, e.g. claims 2-10, which claim embodiments of the invention where "website traffic path analysis data" must include specific types of data. Patent at col 13, ll. 10-42.

The doctrine of claim differentiation instructs that, ordinarily, (a) each claim in a patent has a different scope, (b) a dependent claim has a narrower scope than an independent claim, and (c) an independent claim has a broader scope than a claim that depends on it. HERBERT F. SCHWARTZ, PATENT LAW AND PRACTICE § 5.I.A.3.d. (5th ed. 2006); see also Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 910 (Fed. Cir. 2004). "[T]he presence of a dependent claim that adds a particular limitation raises a presumption that the limitation in question is not found in the independent claim." Liebel-Flarsheim Co., 358 F.3d at 910; Phillips, 415 F.3d at 1315. Though that presumption can be overcome where evidence favoring a different construction is "strong, . . . where the limitation that is sought to be read into an independent claim already appears in a dependent claim, the doctrine of claim differentiation is at its strongest." Liebel-Flarshiem Co., 358 F.3d at 910; see also Sunrace Roots Enter. Co. v. SRAM Corp., 336 F.3d 1298, 1302-03 (Fed. Cir. 2003).

The independent claims of the '479 Patent do not require "website traffic path analysis data" to include the actual sequence of every page visited by a browser, clock times, cumulative values, or statistics as proposed by Netratings. Instead, those limitations appear in dependent claims, such as claims 2, 5, and 6 of the '479 Patent. See Patent at col. 13. Accordingly, the Court concludes that there is a presumption against including those limitations in the acquired meaning of "website traffic path analysis data." Liebel-Flarsheim Co., 358 F.3d at 910. Netratings attempts to rebut the presumption with intrinsic evidence from the specification. Netratings contends that "website traffic path analysis data" must be defined to include the actual sequence of requested pages, clock times, cumulative values, and statistics, and cites the following sections of the specification in support of its argument:

In addition, conventional Internet-based traffic analysis tools do not indicate the actual sequence, or path, followed by a website visitor from page to page of a website. The website path taken by visitors can be very important . . . .

Patent at Background of the Invention, col. 4, ll. 19-24.

For every website page requested by a website visitor, the state of the visitor's browser is recorded. The state includes the clock time and an indication of every page at the website visited by the browser during the current visit.

Patent at Summary of the Invention, col. 4, ll. 37-40.

Next the path analysis data is initialized. For example, cumulative data such as elapsed visit time is set to zero . . . .

Patent at Description of the Preferred Embodiment, col. 8, ll. 39-43.

FIG. 8 is an exemplary cookie format such as will be passed back and forth between browser and server to track website traffic, in accordance with the invention. . . . The next cookie field is a site visit count. . . . FIG. 9 is an example of path analysis data stored in a cookie. . . .The next field is for the calculated average time between site visits, a statistic that is maintained by the traffic analysis computer. The time spent is calculated in accordance with the cookie expiration time limit . . . .

Patent at Description of the Preferred Embodiment, col. 9, ll. 10-60. Netratings asserts that the inclusion of the actual sequence, cumulative values, statistics, and clock times references in the above descriptions of website traffic path analysis data require reading ...


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