United States District Court, N.D. California, San Jose Division
RADWARE, LTD.; RADWARE, INC., Plaintiffs, Counterclaim-Defendants,
A10 NETWORKS, INC., Defendant, Counterclaim-Plaintiff. RADWARE, LTD.; RADWARE, INC., Plaintiffs, Counterclaim-Defendants,
F5 NETWORKS, INC., Defendant, Counterclaim-Plaintiff.
ORDER GRANTING-IN-PART AND DENYING-IN-PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
RONALD M. WHYTE, District Judge.
Defendants A10 Networks, Inc. ("A10") and F5 Networks, Inc. ("F5") (collectively "defendants") bring motions for Summary Judgment of Invalidity, Dkt. No. 139, and Summary Judgment of Noninfringement, Dkt. No. 137 (A10), Case No. 13-2024, Dkt. No. 91 (F5), against plaintiffs Radware, Inc. and Radware Ltd. (collectively "Radware"). For the reasons explained below, the court DENIES the Motion for Summary Judgment of Invalidity, GRANTS-IN-PART and DENIES-IN-PART A10's Motion for Summary Judgment of Noninfringement, and GRANTS-IN-PART and DENIES-IN-PART F5's Motion for Summary Judgment of Noninfringement.
Radware brings this patent infringement action against its competitors A10 and F5, alleging infringement of claims 1, 2, 6-9, 13 and 14 of U.S. Patent No. 6, 665, 702 ('702 Patent); claims 1-7, 9-19, and 21-32 of U.S. Patent No. 8, 266, 319 ('319 Patent); and claims 1-4, 6-12, 14, and 15 of U.S. Patent No. 8, 484, 374 ('374 Patent) (collectively asserted patents). All three patents are entitled "Load Balancing" and relate to the "management of networks that have multiple connections to the Internet through multiple Internet Service Providers (ISPs)." '702 col.15 ll.53-56. The '319 Patent is a division of the '702 Patent and the '374 Patent is a continuation of the '319 Patent. The '702 and '319 Patents have the same specification (other than some formatting variances) and the '374 Patent shares that same specification other than the "Summary" section.
The technology at issue relates to link load balancing in a multi-homed environment. A "multi-homed" network is a network with multiple connections to the Internet. '702 col.15 ll.53-56. "Link load balancing" is a process for allocating network communications across these connections.
The asserted patents relate to techniques and systems for selecting a specific route from the multi-homed network to the Internet and from the Internet into the multi-homed network. The claimed inventions describe both "outbound" and "inbound" link load balancing. The claims of the '702 Patent and claims 24-28 of the '319 Patent are directed to outbound link load balancing. Claims 1-23 and 29-32 of the '319 Patent and all claims of the '374 Patent are generally directed to inbound link load balancing. The court explains outbound link load balancing in detail; inbound link load balancing is essentially the reverse.
The patents claim link load balancing as both a method and system. Representative Claim 1 of the '702 patent describes a method for outbound link load balancing:
1. A method for managing a computer network connected to the Internet through a plurality of routes, comprising the steps of:
receiving a request from a client within a client computer network directed to a remote server computer within a second computer network;
looking up a table entry within a proximity table indexed by an address related to the remote server computer, the tables entries of the proximity table containing ratings for a plurality of routes between the client computer network and the second computer network; and
selecting one of the plurality of routes through which to route the client request, based on the ratings within the table entry looked up in the proximity tables,
wherein the plurality of routes assign respective IP addresses to the computer network, and wherein the method further comprises the step of setting the source IP address of the client request corresponding to the selected route on the client side.
In outbound link load balancing, an example of which is depicted in Figure 3B of the asserted patents, client 105 is situated within a multi-homed environment and is connected to the Internet 110 through three ISPs 115, 120, and 125. '702 col.15 ll.61-64. In this example, each ISP provides a single route 1, 2, or 3, to the Internet through routers 130, 135, and 140, respectively. Id. col.15 l.64-col.16 l.1. Each router has its own IP address range, 20.x.x.x, 30.x.x.x, and 40.x.x.x, respectively. Id. col.16 ll.4-6.
Client 105 has an IP address of 10.1.1.1 and seeks to connect to remote server 150, with an IP address of 188.8.131.52. When the client 105 connects to remote server 150 over the Internet, content router 145 sends three "polling requests" to server 150 through each of the three routers and ISPs. Id. col.16 ll.10-14. "When sending the polling requests, content router 145 assigns respective network addresses 184.108.40.206, 220.127.116.11 and 18.104.22.168 to client 105. Thus three polling requests are sent: one from each of the sources 22.214.171.124, 126.96.36.199 and 188.8.131.52 to destination 184.108.40.206." Id. col.16 ll.10-14.
The server 150 replies to each of the three polling requests, which are returned through the ISPs. The polling results are then translated by content router 145 into a rating for each route. Id. col.16 ll.26-28. In this example, the polling replies are "measured for latency and number of hops, " but the patents also disclose other measureable parameters. Id. col.16 ll.18-20.
The number of hops refers to the number of networking elements between the source and the destination along a particular connection. Dkt. No. 156-2 (Peles Depo.) at 95:23-96:4. Latency is a measure of the time it takes for a communication over the network to travel from one point to another. Id. at 65:9-12. Another measurement used is "time to live" or "TTL, " which is the number of hops a packet is allowed to travel before expiring.
Based on the polling results, the content router selects one of the three routes for connecting the client 105 with the server 150. '702 col.16 ll.18-20.The polling results are stored in a "proximity table" 155, shown in Figure 3D. The polling results are saved so that "when a new client 160 with IP address 10.2.2.2 on the private network attempts to connect to a server 165 with IP address 220.127.116.11, through a content router 145, content router 145 determines from proximity table 155 that the best router to use is router 135." Id. col.16 ll.28-34.
Another aspect of the invention ensures that when the content router sends the client request out to the remote server, it also sets the client IP address to correspond to the specific route chosen. For example, if the best route, as determined by the polling requests and selected by the content router is "2", the content router will send the request from the client through router 135 and ISP 120, and sets the client IP address to 18.104.22.168, so that when the remote server replies to the client the information returns through the same route. Id. col.16 ll.40-46.
The court held a Markman hearing on April 8, 2014 and issued its Claim Construction Order on April 18, 2014. Dkt. No. 185. Having held a hearing on May 2, 2014, the court addresses the defendants' various Motions for Summary Judgment.
II. LEGAL STANDARD
Summary judgment is proper where the pleadings, discovery, and affidavits demonstrate that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). At the summary judgment stage, the Court "does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial." House v. Bell, 547 U.S. 518, 559-60 (2006). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.
A10 and F5 make several invalidity arguments based on 35 U.S.C. § 112. See Dkt. No. 139. Following the Claim Construction Order, Dkt. No. 185, A10 and F5 withdrew invalidity arguments related to at (1) the terms "ISP links, " "one or more criteria, " "one load balancing criterion, " and "weighed function of at least one of, " and (2) the term "the IP address for the client within the private network." Dkt. No. 187. The court addresses the remaining arguments.
A. Improper Mixing of Statutory Classes
1. Legal Framework
A single claim that covers both an apparatus and a method of use is invalid under 35 U.S.C. § 112; IPXL Holdings, LLC v. Amazon.com, Inc., 430 F.3d 1377 (Fed. Cir. 2005). "[S]uch a claim is not sufficiently precise to provide competitors with an accurate determination of the metes and bounds' of protection involved and is ambiguous and properly rejected under section 112, paragraph 2." Id. at 1384 (citation and quotation omitted).
The claim invalidated in IPXL read:
25. The system of claim 2 [including an input means] wherein the predicted transaction information comprises both a transaction type and transaction parameters associated with that transaction type, and the user uses the input means to either change the predicted transaction information or accept the displayed transaction type and transaction parameters.
Id. (emphasis and brackets in opinion). The Federal Circuit found the claim invalid because "it is unclear whether infringement of claim 25 occurs when one creates a system that allows the user to change the predicted transaction information or accept the displayed transaction, or whether infringement occurs when the user actually uses the input means to change transaction information or uses the input means to accept a displayed transaction." Id.
2. Claims 8-14 of the '702 Patent; claims 1-12, 24-25, and 29-32 of the '319 Patent; claim 8 of the '374 Patent
Defendants argue that claims 8-14 of the '702 patent; claims 1-12, 24-25, and 29-32 of the '319 patent; and claim 8 of the '374 patent are invalid because they claim both an apparatus and the method steps of using the apparatus. Each of the claims is identified as a system claim in the preamble, but the body of each claim includes language like "receiving", "selecting", "looking up", "assign", and "sets". For example, claim 8 of the '702 patent reads:
8. A network management system for managing a computer network connected to the Internet through a plurality of routes, comprising:
a network controller receiving a client request from within a client computer network directed to a remote server computer, within a second computer network and selecting one of a plurality of routes through which to route the client request; and
a data manager looking up a table entry within a proximity table indexed by an address related to the remote server computer, the tables entries of the proximity table containing ratings for a plurality of routes, between the client computer network and the second computer network and wherein said network controller selects one of the plurality of routes based on the ratings within the table entry looked up in the proximity tables,
wherein the plurality of routes assign respective IP addresses to the computer network, and wherein said network controller sets the source IP address of the client request corresponding to the selected route on the client side.
'702, claim 8 (emphasis added).
The use of functional language-generally the gerund form of a verb-does not automatically convert the claims into method claims. See, e.g., Apple, Inc. v. Samsung Elecs. Co., Ltd., 876 F.Supp.2d 1141, 1150-1151 (N.D. Cal. 2012). The claims at issue here do not call out affirmative steps that must be taken to infringe, as in IPXL. IPXL, 430 F.3d at 1384 (system claim included limitation that "the user uses the input means"). Infringement of claim 8 (and the other system claims at issue) occurs when "one creates a system that allows the user [to perform the claimed functions]." Id.
Defendants point to Rembrandt Data Technologies, LP v. AOL, LLC, 641 F.3d 1331 (Fed. Cir. 2011) in arguing that a gerund can be interpreted as an affirmative ...