Case 2:16-cv-00695-RWS-RSP Document 65 Filed 10/15/23 Page 1 of 6 PageID #: 1340
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:16-cv-00695-RWS-RSP
`(MEMBER CASE)
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`ALACRITECH, INC.,
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`v.
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`DELL INC.,
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`and
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`Plaintiff,
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`Defendant,
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`INTEL CORPORATION, et al.,
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`Intervenor.
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`ORDER
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`Before the Court is Plaintiff’s Objections to the Memorandum Order Regarding
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`Alacritech’s Daubert Motion to Exclude Opinions and Testimony of Dr. Chris Heegard and
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`Alacritech’s Daubert Motion to Exclude Opinions And Testimony of Dr. Mark Jones. Docket 894.1
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`For the reasons set forth below, Plaintiff’s objections (Docket No. 894) are OVERRULED.
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`Federal Rule of Civil Procedure 72(a) governs review of objections to non-dispositive
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`motions. Rule 72(a) provides, in pertinent part, that “[t]he district judge . . . must . . . modify or set
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`aside any part of the [magistrate judge’s] order that is clearly erroneous or is contrary to law.” FED.
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`R. CIV. P. 72(a).
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`Plaintiff first objects to the order’s finding that Dr. Heegard properly applied the “on the
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`response” language in claim 1 of U.S. Patent No. 7,124,205 (“the ’205 patent”). Docket No. 894
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`at 2–3. Plaintiff argues that Dr. Heegard’s interpretation of the “fast-path processing” was
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`1 This Order’s citations refer to the docket entries in Case No. 2:16-cv-00693 unless stated
`otherwise. The parties are reminded that these cases have been deconsolidated and filings should
`be filed on the docket for Case No. 2:16-cv-00695. See Docket No. 890.
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`Case 2:16-cv-00695-RWS-RSP Document 65 Filed 10/15/23 Page 2 of 6 PageID #: 1341
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`“divorced from the context of the claim language.” Id. Plaintiff argues that “fast-path processing”
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`is performed “on the response,” and Dr. Heegard’s opinion is inconsistent with the plain language,
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`“effectively eviscerates the ‘on the response’ limitation,” and would read out preferred
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`embodiments. Upon review, the Court finds the order is not clearly erroneous. For example, the
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`order correctly finds Dr. Heegard addresses the “on response” language of the claim limitation,
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`consistent with the Court’s construction. Docket No. 875 at 9–10; see also Docket No. 699-2,
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`¶ 1066 (“Further, claim 1 requires that the protocol stack of the host computer perform no
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`(‘without… performing any’) network layer processing or transport layer processing on the
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`response. . . .” (emphasis added)). Similarly, the order’s other findings on this issue are correct.
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`Accordingly, Plaintiff’s objections on this issue are overruled.
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`Second, Plaintiff objects to the order’s findings that Dr. Jones’s non-infringement opinions
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`are timely and properly applied the Court’s construction. Docket No. 894 at 2. But Plaintiff’s
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`objections fail to persuade the Court that the order contains clear error as to the timeliness. Plaintiff
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`does not even address the order’s finding that these non-infringement arguments were disclosed in
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`Dell’s contentions. Compare Docket No. 894 at 3–4 with Docket No. 875 at 12–14. Similarly,
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`Plaintiff’s objections do not address the order’s finding that Plaintiff conceded it was able to
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`depose Mr. Jones on the allegedly “new non-infringement theories.” Compare Docket No. 894 at
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`3–4 with Docket No. 875 at 14. Plaintiff also argues the order erred by concluding Dr. Jones’s
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`interpretation of the “performing fast-path processing on the response” was proper. Docket No. 894
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`at 4.2 Upon a review, the Court finds the order did not commit clear error by finding Alacritech’s
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`2 The parties also dispute whether this portion of the motion was moot because Dr. Jones’ non-
`infringement theory for claim 1 of the ’205 patent was for the Dell Mellanox -Based Accused
`Products. See Docket No. 875 at 14. Plaintiff does not address whether the joint stipulations and
`motions to dismiss Mellanox products affects its objections. See, e.g., Docket No. 891 at n.1.
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`Case 2:16-cv-00695-RWS-RSP Document 65 Filed 10/15/23 Page 3 of 6 PageID #: 1342
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`criticism of Jones’s opinion is an infringement dispute, not a claim construction issue. See Docket
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`No. 875 at 14–15. Plaintiff’s objections on this issue are overruled.
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`Finally, Plaintiff objects to the order’s finding that Plaintiff’s position contradicts the plain
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`and ordinary meaning of terms in claim 41 of U.S. Patent No. 8,131,880 (“the ’880 patent”) and
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`claim 17 of U.S. Patent No. 8,805,948 (“the ’948 patent”).3 Docket No. 894 at 2. But constructions
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`proffered by Plaintiff for these terms now were not identified during claim construction. See
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`generally Docket Nos. 362, 843. Accordingly, these terms are understood to have their plain and
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`ordinary meaning. See Phillips v. AWH Corp., 415 F.3d 1303, 1312– 13 (Fed. Cir. 2005) (en banc);
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`Aventis Pharm. Inc. v. Amino Chems. Ltd., 715 F.3d 1363, 1373 (Fed. Cir. 2013).
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`Plaintiff first argues that the order improperly imports a limitation into claim 41 by finding
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`the plain and ordinary meaning of “limitation 41[c] temporally requires that ‘a packet batching
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`module’ be ‘configured to determine whether another packet’ currently in said packet memory
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`‘belongs to said communication flow.’ ” Docket No. 894 at 4 (citing Docket No. 875 at 18). Claim
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`41 of the ’880 patent recites:
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`41. An apparatus for transferring a packet to a host computer system, comprising:
`41[a]: a traffic classifier, disposed in a network interface for the host
`computer system, configured to classify a first packet received from a
`network by a communication flow that includes said first packet;
`41[b]: a packet memory, disposed in the network interface, configured to
`store said first packet;
`41[c]: a packet batching module, disposed in the network interface,
`configured to determine whether another packet in said packet memory
`belongs to said communication flow;
`41[d]: a flow re-assembler, disposed in the network interface, configured to
`reassemble a data portion of said first packet with a data portion of a second
`packet in said communication flow; and
`41[e]: a processor, disposed in the network interface, that maintains a TCP
`connection for the communication flow, the TCP connection stored as a
`control block on the network interface.
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`3 Dell also argued that the portion of the motion related to this issue is moot. See Docket No. 875
`at 15.
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`Page 3 of 6
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`Case 2:16-cv-00695-RWS-RSP Document 65 Filed 10/15/23 Page 4 of 6 PageID #: 1343
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`Docket No. 1-7 (’880 Patent) at Claim 41 (emphasis added).
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`Reading the term in the context of the claim and patents, the Court finds the order’s
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`characterization of the plain and ordinary meaning of this term is correct. Specifically, the Court
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`finds that Plaintiff’s proposed interpretation would result in a broadening of this term such that
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`“packet batching module” would make a determination based on “whether another packet is or
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`was in said packet memory.” See Docket No. 875 at 16–18. This plainly goes beyond the ordinary
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`meaning of this claim. Plaintiff’s objections on this issue are overruled.
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`Finally, Plaintiff argues the order erred in determining that claim 17 of the ’948 patent
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`“makes clear that the claimed logic of the network interface directs all received packets depending
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`on whether the received packets (1) have exception conditions or (2) do not have exception
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`conditions” and that Dr. Jones’s opinions are consistent with the plain and ordinary meaning of
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`this limitation. Docket No. 894 at 5. Plaintiff argues that because the ’948 patent is an apparatus
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`claim it does not need to treat all received packets in the claimed manner but it “merely requires
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`the capability or ‘logic’” to direct the packets in the claimed manner. Docket No. 894 at 5 (citing
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`INVT SPE LLC v. Int’l Trade Comm’n, 46 F.4th 1361, 1372-74 (Fed. Cir. 2022)).4 Even assuming,
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`arguendo, that claim 17 of the ’948 Patent is directed to capability, Plaintiff fails to show clear
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`error.
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`Claim 17 of the ’948 Patent recites:
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`17. An apparatus for network communication, the apparatus comprising:
`17[a]: a host computer running a protocol stack including an Internet
`Protocol (IP) layer and a Transmission Control Protocol (TCP) layer, the
`protocol stack adapted to establish a TCP connection for an application
`layer running above the TCP layer, the TCP connection being defined by
`source and destination IP addresses and source and destination TCP ports;
`17[b]: a network interface that is connected to the host computer by an
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`4 The issue of whether claim 17 of the ’948 patent requires actual performance or just a
`functional capability was not discussed during claim construction. See e.g., Docket Nos. 362.
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`Case 2:16-cv-00695-RWS-RSP Document 65 Filed 10/15/23 Page 5 of 6 PageID #: 1344
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`input/output bus, the network interface adapted to parse the headers of
`received packets to determine whether the headers have the IP addresses
`and TCP ports that define the TCP connection and to check whether the
`packets have certain exception conditions, including whether the packets
`are IP fragmented, have a FIN flag set, or are out of order, the network
`interface having logic that directs any of the received packets that have the
`exception conditions to the protocol stack for processing, and directs the
`received packets that do not have any of the exception conditions to have
`their headers removed and their payload data stored together in a buffer of
`the host computer, such that the payload data is stored in the buffer in order
`and without any TCP header stored between the payload data that came
`from different packets of the received packets.
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`Docket No. 1-8 (’948 Patent) at Claim 17 (emphasis added). Based on the plain and ordinary
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`language, the order correctly found that the claimed network interface is capable of using logic
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`that “directs all received packets depending on whether the received packets (1) have exception
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`conditions or (2) do not have exception conditions.” Docket No. 875 at 20. Even assuming the
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`claim only requires the invention to be capable of using this logic, Plaintiff will need to proffer
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`evidence that the logic of the network interface can “direct[] all received packets depending on
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`whether the received packets (1) have exception conditions or (2) do not have exception
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`conditions” when the apparatus turns this logic on. See INVT SPE, 46 F.4th at 1377 (“Because we
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`require claim limitations to have some teeth and meaning, proof of reasonable capability of
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`performing claimed functions requires, at least as a general matter, proof that an accused product—
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`when put in operation—in fact executes all of the claimed functions at least some of the time or at
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`least once in the claim-required environment.” (emphasis added)). Accordingly, Dr. Jones’s
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`opinions that the accused products include received packets that do not fall into either one of these
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`two categories are relevant and consistent with the order’s findings, even though the parties may
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`dispute whether Dr. Jones’s opinions apply to received packets when the claimed functionality is
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`“on.” Plaintiff’s objections as to this issue are thus overruled.
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`For these reasons, it is
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`Case 2:16-cv-00695-RWS-RSP Document 65 Filed 10/15/23 Page 6 of 6 PageID #: 1345
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`ORDERED that all of Plaintiff’s objections to the Memorandum Order Regarding
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`Alacritech’s Daubert Motion to Exclude Opinions and Testimony of Dr. Chris Heegard and
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`Alacritech’s Daubert Motion to Exclude Opinions and Testimony of Dr. Mark Jones (Docket No.
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`894) are OVERRULED.
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`Page 6 of 6
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`.
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`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 15th day of October, 2023.
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