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GoDaddy.com LLC v. RPost Communications Ltd.

United States District Court, D. Arizona

January 19, 2016

GoDaddy.com, LLC, Plaintiff,
v.
RPost Communications Limited, et al., Defendants.

ORDER

James A. Teilborg Senior United States District Judge

Before the Court is Defendants’[1] Opening Claim Construction Brief (Doc. 114), Plaintiff GoDaddy.com, LLC (“GoDaddy”)’s Responsive Claim Construction Brief (Doc. 117), and Defendants’ Reply Claim Construction Brief (Doc. 119). On October 22, 2015, the Court conducted a Markman Hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996). Consistent with Markman, the Court now construes the claims in the patents-at-issue: (1) U.S. Patent No. 8, 161, 104 (filed April 17, 2012) (the “’104 Patent”); (2) U.S. Patent No. 8, 209, 389 (filed June 26, 2012) (the “’389 Patent”); (3) U.S. Patent No. 8, 224, 913 (filed July 17, 2012) (the “’913 Patent”); (4) U.S. Patent No. 8, 468, 198 (filed June 18, 2013) (the “’198 Patent”); (5) U.S. Patent No. 8, 468, 199 (filed June 18, 2013) (the “’199 Patent”); and (6) U.S. Patent No. 6, 182, 219 (filed January 30, 2001) (the “’219 Patent”).[2]

Table of Contents

I. Background .............................................................................................................. 4

II. Legal Standard ......................................................................................................... 5

III. Table of Construed Terms for the Tomkow Patents ............................................ 8

IV. Table of Construed Terms for the Feldbau Patent .............................................. 19

V. Table of Construed Terms on Which the Parties Agree ...................................... 26

VI. Construction of Disputed Claim Terms in the Tomkow Patents ........................ 27

A. “message” ............................................................................................................... 27

B. “server” ................................................................................................................... 30

C. “a link” ................................................................................................................... 35

D. “an indication that the message has been opened by (delivered to) a recipient” ............... 36

E. “an indication of receipt of the message by the recipient (recipient processor)” ......... 45

F. “an indication of the failure to deliver the message to the recipient” .................... 47

G. “executing the link when the message is opened at the recipient to control the server to provide an indication that the message has been opened at the recipient” .................... 48

H. “the link being configured to execute automatically when the message is opened at the recipient processor to control the server to provide an indication at the server that the message has been opened at the recipient processor” ............... 53

I. “the link configured to execute when the link is activated at the recipient to provide an indication that the message has been opened by (delivered to) a recipient” ............................... 54

J. “executing the link when the link is activated at the recipient to control the server to provide an indication that the message has been delivered to the recipient” ....................................... 56

K. “wherein the link is executed when the link is activated at the recipient to control the server to provide an indication that the message has been opened at (delivered to) the recipient” ............................... 57

L. “authenticatible information” ................................................ 58

M. “mail transport protocol dialog” .................................................... 62

N. “at least a portion of a mail transport protocol dialog (data transport dialog) generated (by the electronic mail system) during transmission of the message from the server to the recipient (processor)” .............................................................. 65

O. “SMTP and ESMTP protocol dialog” .................................................................... 67

P. “data transport dialog” ............................................................................................ 68

Q. “before the message is authenticated (any authentication of the message) by the server” ............................... 69

R. “Mail Transport Agent” ......................................................................................... 72

S. “sender” and “recipient” ......................................................................................... 74

T. “originating processor” and “recipient processor” ................................................. 77

U. “providing proof of receipt of the message by the recipient processor” ............... 80

V. “the link configured to execute when the message is opened at the recipient” ..... 84

W. “the server (being) displaced from the recipient (recipient processor)” ............... 84

X. “the server constructs authenticatible information related to the message” .......... 85

VII. Construction of Disputed Claim Terms in the Feldbau Patent ......................... 87

A. “authenticating the dispatch and (the) contents of the dispatch” ........................... 87

B. “authentication data” .............................................................................................. 92

C. “dispatch record data” ............................................................................................ 96

D. “an indicia of time of successful transmission of the dispatch to the recipient” ........................ 99

E. “sender” and “recipient” ........................................................................................ 101

F. “processor for associating” .................................................................................... 103

G. “means for providing an indicia of a time of successful transmission of the dispatch to the destination receiving system, said time related indicia being recorded by the authenticator and provided in a manner resistant to or indicative of tampering by either of the sender and the recipient” ............................ 122

H. “means for securing at least part of the authentication data against tampering by the sender and the recipient; wherein the processor is combined with the means for securing” ..................................................................................... 127

I. “source transmitting system” and “destination transmitting system” .................... 136

VIII. Conclusion ............................................................................................................ 139

I. Background

The Tomkow Patents and Feldbau Patent claim, in broad terms, various systems and methods for tracking, authenticating, and verifying the transmission, delivery or nondelivery, opening, forwarding, content, and time events associated with an electronic message.

The Tomkow Patents are all rooted in the same parent application, which issued as U.S. Patent No. 7, 966, 372 (“’372 Patent”). Because the Tomkow Patents stem from the ‘372 Patent, they all share a similar specification and file history. The Field of Invention for each Tomkow Patent is directed to “a system and method for verifying delivery and content of an electronic message and, more particularly, to a system and method of later providing proof regarding the delivery and content of an e-mail message.” ‘199 Patent col. 1 ll. 22-26.

As a general overview of the individual Tomkow Patents, the ‘104 Patent describes a system and method of verifying the opening of an electronic message sent from a sender to a recipient through a server. The ‘389 Patent furnishes a system and method to verify the receipt of an electronic message sent from a sender to a recipient through a server. The ‘913 Patent sets forth a system and method of verifying the delivery or non-delivery of an electronic message from a sender to a recipient through a server. The ‘198 Patent-a continuation of the ‘104 Patent-claims a system and method of verifying the opening and delivery of an electronic message sent from a sender to a recipient through a server. Finally, the ‘199 Patent-a continuation of the ‘389 Patent- provides a system and method of verifying the failure to deliver an electronic message sent from a sender to a recipient through a server.

In a similar manner, the Feldbau Patent is disclosed as “a method and apparatus for authenticating the dispatch and the contents of dispatched information in general.” ‘219 Patent col. 1 ll. 6-8. In other words, the Feldbau Patent provides an apparatus and method of proving that the sender of a dispatch sent it to a particular recipient at a particular time and that it had a particular content.

II. Legal Standard

A patent includes two basic components: (1) a written description of the invention, which is referred to as the “specification” of the patent, and (2) the patent claims. The claims of a patent define the scope of the invention to which the patentee is entitled. See Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc). “The purpose of claim construction is to ‘determin[e] the meaning and scope of the patent claims asserted to be infringed.’” See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (citation omitted). Claim construction is a question of law exclusively within the province of the Court. See Markman, 517 U.S. at 372. The Court need only construe claims, however, when the parties raise a dispute about the proper scope of a claim. O2 Micro, 521 F.3d at 1362. Moreover, if a disputed claim term has a plain and ordinary meaning such that it needs no clarification or explanation, the Court need not adopt a construction beyond that plain meaning. See U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997).

When construing claims, the Court “look[s] to the words of the claims themselves, ” giving them “their ordinary and customary meaning” unless clearly stated otherwise. Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). Claims should be considered as a whole, and terms used in multiple claims should be construed consistently. See Inverness Med. Switz. GmbH v. Princeton Biomeditech Corp., 309 F.3d 1365, 1371 (Fed. Cir. 2002). “[T]he 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.” Phillips, 415 F.3d at 1313; see also Tex. Dig. Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202 (Fed. Cir. 2002) (“The terms used in the claims bear a ‘heavy presumption’ that they mean what they say and have the ordinary meaning that would be attributed to those words by persons skilled in the relevant art.”).

“[T]here is no magic formula or catechism for conducting claim construction.” Phillips, 415 F.3d at 1324. Rather, the Court “looks to those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1116 (Fed. Cir. 2004). “Those sources include the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. The Court is not “required to analyze [these] sources in any specific sequence, ” but may not use extrinsic evidence to contradict “claim meaning that is unambiguous in light of the intrinsic evidence.” Phillips, 415 F.3d at 1324 (refining the holding of Vitronics).

The specification “is the single best guide to the meaning of a disputed term.” Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348, 1361 (Fed. Cir. 2013) (quoting Vitronics, 90 F.3d at 1582). The patentee may “act as its own lexicographer, ” Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012), by defining a claim term in the specification as having “a different meaning than [it] would otherwise have to a person of ordinary skill in the art, ” Innova/Pure Water, 381 F.3d at 1116. See also Vitronics, 90 F.3d at 1582 (a specification “acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication”). However, the Court will find the patentee to have acted as its own lexicographer only if the patentee “clearly express[es] an intent to redefine the term.” Thorner, 669 F.3d at 1365 (citation and internal quotation marks omitted).

Similarly, the specification may narrow the scope of a disputed claim term if the patentee has “demonstrate[d] intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.” Thorner, 669 F.3d at 1365 (quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1325 (Fed. Cir. 2002)). In ascertaining whether the patentee has disavowed the full scope of a claim, the Court must not read limitations from the specification into the claims. See Teleflex, 299 F.3d at 1326 (citing Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed. Cir. 1998)). In other words, the claims are not necessarily limited to the embodiments disclosed in the specification and courts must not read limitations from the specification into the claims. See SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 n.14 (Fed. Cir. 1985) (en banc). To avoid importing limitations, the court must consider the purposes of the specification, which are to teach and enable those of skill in the art to make and use the invention and to provide the best way for doing so. See Phillips, 415 F.3d at 1317-18.

In addition to the specification, the Court considers “the patent’s prosecution history, if it is in evidence.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996). “The purpose . . . is to ‘exclude any interpretation that was disclaimed during prosecution.’” Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed. Cir. 2005) (citation omitted). The prosecution history may reveal that the patentee “has unequivocally disavowed a certain meaning to obtain [its] patent.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003). Thus, the Court examines both the specification and prosecution history to ascertain whether the patentee has disavowed the full scope of a claim term.

The Court may also consider extrinsic evidence to aid in its construction of disputed claim terms. See Phillips, 415 F.3d at 1317-18. For example, “[d]ictionaries are always available to the court to aid in the task of determining meanings that would have been attributed by those of skill in the relevant art to any disputed terms used by the inventor in the claims.” Tex. Dig. Sys., 308 F.3d at 1202 (citing Vitronics, 90 F.3d at 1584 n.6). Technical dictionaries are worthy of special note and constitute evidence of understanding of persons of skill in the relevant art. See Linear Tech. Corp. v. Impala Linear Corp., 379 F.3d 1311, 1320 (Fed. Cir. 2004). Dictionaries are particularly helpful in claim construction because they “endeavor to collect the accepted meanings of terms, ” Phillips, 415 F.3d at 1318, but the Court should not elevate dictionaries to prominence over the specification and claim language, see Id. at 1319-24. If a term has more than one plausible ordinary meaning, the court must consult the intrinsic record to identify which of the possible meanings is most consistent with the use of the words by the inventor.

Stephen Key Design LLC, v. Lego Sys., Inc., 261 F.Supp.2d 1196, 1199 (N.D. Cal. 2003). Other extrinsic evidence, such as expert testimony, is less helpful because it may suffer from bias, and the Court should "discount any expert testimony 'that is clearly at odds with the claim constmction mandated by the claims themselves, the written description, and the prosecution history, in other words, with the written record of the patent.'" Phillips, 415 F.3d at 1318 (quoting Key Pharm. v. Hereon Labs. Corp., 161 F.3d 709, 716 (Fed. Cir. 1998)).

Finally, dependent claims must be constnied to "incorporate by reference all the limitations of the claim[s] to which [they] refer[]." 35 U.S.C. § 112(d).

III. Table of Construed Terms for the Tomkow Patents

The following chart summarizes the disputed claim[3] terms for the Tomkow Patents, each party's proposed constmction, and the Court's construction.

Term

No.

Disputed Claim Term

Tornkow Patent Claims3

Rpost's Proposed Construction

GoDaddy's Proposed Construction

The Court's Construction

1

"message"

All asserted claims in all Tomkow Patents

"an electronic message"

"an electronic message that can be transmitted as a whole through an electronic network"

"an electronic message"

2

“server”

All asserted claims in all Tomkow Patents

Ordinary meaning.

Alternatively, “a computer(s), computer program(s), or computing device(s) that provide resources to other devices across a network”

“the outgoing server, separate from the sender, that creates an attachment, transmits the attachment and the message, and stores the portion of the mail transport dialog generated during transmission of the message”

“a server that is separate from the sender”

3

“A link”

‘104 Patent Claims 1 and 27 and their dependent claims;

all asserted claims for ‘198 Patent

“a set of instructions that directs one computing resource to another”

Ordinary meaning.

The Court does not construe this term.

4

“an indication that the message has been opened by (delivered to) a recipient”

‘104 Patent Claims 1 and its dependent claims;

‘198 Patent Claims 1, 6, 18, and 32 and their dependent claims

“information that indicates that the message has been opened by (delivered to) the recipient”

“confirmation (at the server) that the message content was viewed by the recipient”

“verifiable information that indicates that the message has been opened by (opened at; delivered to) the recipient”

5

“an indication of receipt of the message by the recipient (recipient processor)”

All asserted claims for ‘389 Patent

“information that indicates that the message has been received by the recipient (recipient processor)”

“confirmation that the message content was received by the recipient”

“verifiable information that indicates that the message was received by the recipient (recipient processor)”

6

“an indication of the failure to deliver the message to the recipient”

‘199 Patent Claim 1 and its dependent claims

“information that indicates that the message has failed to be delivered to the recipient”

“confirmation that the message content was not received by the recipient”

“verifiable information that indicates the failure to deliver the message to the recipient”

7

“executing the link when the message is opened at the recipient to control the server to provide an indication that the message has been opened at the recipient”

‘104 Patent Claim 1 and its dependent claims

“executing the link when the message is opened at the recipient to cause the server to provide an indication that the message has been opened at the recipient”

“action by the recipient when the message is opened at the recipient to control the server to provide proof that the message has been opened at the recipient, the proof providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“the link executing on its own when the message is opened at the recipient to control the server to provide verifiable information that indicates that the message has been opened at the recipient”

8

“the link being configured to execute automatically when the message is opened at the recipient processor to control the server to provide an indication at the server that the message has been opened at the recipient processor”

‘104 Patent Claim 27 and its dependent claims

“the link programmed to execute automatically when the message is opened at the recipient to cause the server to provide an indication at the server that the message has been opened at the recipient”

“[link configured to execute through] action by the recipient when the message is opened at the recipient to control the server to provide proof that the message has been opened at the recipient, the proof providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“the link being configured to execute automatically when the message is opened at the recipient to control the server to provide verifiable information that indicates at the server that the message has been opened at the recipient processor”

9

“the link configured to execute when the link is activated at the recipient to provide an indication that the message has been opened by (delivered to) the recipient”

‘198 Patent Claims 1, 18, and 32 and their

dependent claims

“the link programmed to execute when the link is activated at the recipient to provide an indication that the message has been opened by (delivered to) the recipient”

“[link configured to execute through] action by the recipient when the message is opened at the recipient to control the server to provide proof that the message has been opened at the recipient, the proof providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“the link configured to execute when the link is activated at the recipient to provide verifiable information that indicates that the message has been opened by (delivered to) the recipient”

10

“executing the link when the link is activated at the recipient to control the server to provide an indication that the message has been delivered to the recipient”

‘198 Patent Claim 1 and its dependent claims

“executing the link when the link is called at the recipient to cause the server to provide an indication that the message has been delivered to the recipient”

“[executing the link through] action by the recipient when the message is opened at the recipient to control the server to provide proof that the message has been opened at the recipient, the proof providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“the link executing on its own when the link is activated at the recipient to control the server to provide verifiable information that indicates that the message has been delivered to the recipient”

11

“wherein the link is executed when the link is activated at the recipient to control the server to provide an indication that the message has been opened at (delivered to) the recipient”

‘198 Patent Claims 18 and 32 and their

dependent claims

“wherein the link is executed when the link is called at the recipient to cause the server to provide an indication that the message has been opened at (delivered to) the recipient”

“[link is executed through] action by the recipient when the message is opened at the recipient to control the server to provide proof that the message has been opened at the recipient, the proof providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“wherein the link is executed when the link is activated at the recipient to control the server to provide verifiable information that indicates that the message has been opened at (delivered to) the recipient”

12

“authenticatible information”

‘104 Patent Claim 1 and its dependent claims;

all asserted claims for ‘198 Patent

“information regarding the content or delivery of a message that can be verified”

“information unique to the message, the digital signature of the message, and the portion of the mail transport dialog generated during

transmission of the message”

“information unique to the content or delivery of a message that can be verified”

13

“mail transport

protocol

dialog”

All asserted claims for ‘389 Patent

“mail transport data including a sequence of at least one command and at least one response”

“a list of commands and responses exchanged between servers during

transmission of the message that is sufficient to prove delivery of the message to the recipient, providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“data including a sequence of at least one mail transport protocol command and at least one mail transport protocol response exchanged between devices during

transmission of the message”

14

“at least a portion of a mail transport protocol dialog (data transport dialog) generated (by the electronic mail system) during

transmission of the message from the server to the recipient (processor)”

All asserted claims for ‘389 Patent;

‘199 Patent Claim 1 and its dependent claims

No further

construction

necessary

“a list of commands and responses exchanged between servers during

transmission of the message that is sufficient to prove delivery of the message to the recipient, providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“data including at least one mail transport protocol command or at least one mail transport protocol response exchanged between devices during

transmission of the message”

15

“SMTP and ESMTP protocol dialog”

All asserted claims for ‘913 Patent

“SMTP or ESMTP data including a list of at least one command and at least one response generated by the electronic mail system during transmission of the message from the server to the recipient”

“a list of commands and responses exchanged between servers during

transmission of the message that is sufficient to prove delivery of the message to the recipient, providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“SMTP or ESMTP data including a list of at least one protocol command and at least one protocol response exchanged between devices during

transmission of the message”

16

“data transport dialog”

‘199 Patent Claim 1 and its dependent claims

“transport data including a sequence of at least one command and at least one response”

“a list of commands and responses exchanged between servers during

transmission of the message that is sufficient to prove delivery of the message to the recipient, providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“transport data including a list of at least one command and at least one response exchanged between devices during

transmission of the message”

17

“before the message is authenticated (any

authentication of the message) by the server”

‘389 Patent claims 1, 12, 14, and 15 and their dependent claims;

‘199 Patent Claim 1 and its dependent claims

“before the content and delivery of the message is proved (proving the content and delivery of the message) by the server”

The plain language of this phrase does not require that any authentication of the message be performed by the server.

“before proving the content and delivery of the message by comparing and matching authenticable information so as to provide a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“before the content and delivery of the message is proved (proving the content and delivery of the message) by the server”

18

“Mail Transport Agent”

All asserted claims for ‘913 Patent

“software that transfers electronic messages from one computer to another”

“software that resides on the server and that is dedicated to transferring and receiving electronic messages from one computer to or from another”

“software that resides on a server and that transfers and receives electronic messages from one computer to or from another”

19

“sender”

All asserted claims in all Tomkow Patents

Ordinary meaning.

Alternatively: “originator of a message”

“the computer that originates the message”

“a combination of (1) the user that caused the computerized device to originate the message and (2) the

computerized device itself”

20

“recipient”

All asserted claims in all Tomkow Patents

Ordinary meaning.

Alternatively: “who the sender intends to receive the message”

“the computer that receives the message at its intended destination”

“a combination of (1) the user that the sender intends to receive the message and (2) the

computerized device that receives the message”

21

“originating processor”

‘104 Patent Claim 27 and its dependent claims;

‘389 Patent Claim 7 and its dependent claims

Ordinary meaning.

Alternatively: “a computing device where the message originates”

“the computer that originates the message”

“the

computerized device where the message originates”

22

“recipient processor”

‘104 Patent Claim 27 and its dependent claims;

‘389 Patent Claim 7 and its dependent claims

Ordinary meaning.

Alternatively: “a computing device where the recipient receives the message”

“the computer that receives the message at its intended destination”

“the

computerized device that receives the message”

23

“providing proof of receipt of the message by the recipient processor”

‘389 Patent Claim 7

This phrase appears in the preamble and is not limiting.

“providing evidence that confirms receipt of the message by the recipient, the evidence providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

“proving that the message was received by the recipient processor”

24

“the link configured to execute when the message is opened at the recipient”

‘104 Patent Claims 1 and 27 and their dependent claims

“the link programmed to execute when the message is opened at the recipient”

“[link configured to execute through] action by the recipient when the message is opened at the recipient to control the server to provide proof that the message has been opened at the recipient, the proof providing a legal or other

evidentiary status on par with, if not superior to, that of registered United States mail”

The Court does not construe this term.

25

“the server (being)

displaced from the recipient (recipient processor)”

‘104 Patent Claims 1 and 23 and their dependent claims;

‘389 Patent Claims 1, 7, 14, and 15 and their dependent claims;

all asserted claims for ‘199 Patent;

‘198 Patent Claim 1 and its dependent claims

“the server (being) logically displaced from the recipient (recipient processor)”

Ordinary meaning

The Court does not construe this term.

26

"the server

constructs

authenticatible

information

related to the

message"

'104 Patent Claim 27 and its dependent claims

"the server

assembles

authenticatible

information

related to the

message"

"authenticatible information related to the message" should be construed as "information unique to the message, the digital signature of the message, and the portion of the mail transport dialog generated during

transmission of the message"

The Court construes "authenticatible information" as set forth above and does not construe the remainder of the term.

IV. Table of Construed Terms for the Feldbau Patent

The following chart summarizes the disputed claim[4] terms for the Feldbau Patent, each party's proposed construction, and the Court's constriction.

Term

No.

Disputed Claim Term

Feldbau Patent Claims4

RPost's Proposed Construction

GoDaddy's Proposed Construction

The Court's Construction

1

"authenticating the dispatch and contents of the dispatch"

All

asserted claims

"provide evidence capable of being used to prove the contents of the dispatch"

"proving the contents and the receipt of a dispatch by using reliable evidence on par with that used to notarize documents or to admit as evidence in a court of law"

"providing evidence that is capable of being used to prove both the dispatch and the contents of the dispatch"

2

“authentication data”

All

asserted

claims

“information that is associated with the contents of the dispatch by generating a representation of at least content data, an indicia of a time of successful transmission of the dispatch to the recipient, and an indicia relating to the destination of the dispatch, the representation comprising one or more elements”

“information that is associated with the contents of the dispatch by generating a representation of at least the elements a1, a2 and a3, the representation comprising one or more elements”

“information that is associated with the contents of the dispatch by generating a representation of at least (1) content data; (2) an indicia of a time of successful transmission of the dispatch to the recipient, said indicia being recorded by an authenticator and provided in a manner that is resistant to or indicative of tampering by either sender or recipient; and (3) an indicia relating to the destination of the dispatch; where the representation is comprised of one or more elements”

3

“dispatch record data”

All

asserted

claims

“information relating to the dispatch”

“data recorded by the authenticator during the transmission of the dispatch, which includes at least the time related indicia and the indicia relating to the destination of the dispatch, and which does not include the content data representative of the contents of the dispatch”

“information relating to the dispatch but not relating to content data representative of the contents of the dispatch”

4

“an indicia of time of successful transmission of the dispatch to the recipient”

Claim 60 and its dependent claims

“data that represents the time at which the dispatcher forwarded the dispatch for delivery such that the recipient may later be able to receive the dispatch and where the data is obtained without any cooperation from the recipient”

“data that represents the actual time at which the dispatcher completed transmission of the dispatch for delivery, such that the recipient may later be able to receive the dispatch and where the data is obtained without any cooperation from the recipient”

“data that represents the time at which the dispatcher forwarded the dispatch for delivery such that the recipient may later be able to receive the dispatch and where the data is obtained without any cooperation from the recipient”

5

“sender”

All

asserted

claims

Ordinary meaning

“the computer that originates the dispatch”

“a combination of (1) the user that caused the computerized device to originate the dispatch and (2) the computerized device itself”

6

“recipient”

All

asserted

claims

Ordinary meaning

“the computer that receives the dispatch at its intended destination”

“a combination of (1) the user that the sender intends to receive the message and (2) the computerized device that receives the message”

7

“processor for associating”

Claim 82 and its dependent claims

Ordinary meaning; claim term is not indefinite and is not subject to 35 U.S.C. §112(6)

Indefinite.

Function:

associating the content data with dispatch record data and generating the authentication data

Structure: None.

Claim term is subject to 35 U.S.C. §112(6).

Function:

Associating the content data with dispatch record data and generating the authentication data.

Structure: A function executor 102, which may be a Microchip Technology Inc.’s PIC16C5x series EPROM-based micro-controller, that associates a set of information elements (“A”) by applying an association function (“F”) to generate another set of information elements (“B”), i.e., B=F(A); and its equivalents.

8

“means for providing an indicia of a time of successful transmission of the dispatch to the destination receiving system, said time related indicia being recorded by the

authenticator and provided in a manner resistant to or indicative of tampering by either of the sender and the recipient”

Claim 82 and its dependent claims

Function: Providing an indicia of a time of successful transmission of the dispatch to the

destination receiving system, said time related indicia being recorded by the

authenticator and provided in a manner resistant to or indicative of tampering by either of the sender and the recipient

Structure: (1) Internal clock 50 (2) Communications network server

(3) Secure time generator 104

(4) Digital Notary System (DNS); and their equivalents

Function:

Agreed to by the parties.

Structure: A secure clock internal to the authenticator or a time stamping service such as the Digital Notary System (DNS) external to the

authenticator that is secured from being set or modified by an interested party such as the sender.

Function: Providing an indicia of a time of successful transmission of the dispatch to the destination receiving system, said time related indicia being recorded by the authenticator and provided in a manner resistant to or indicative of tampering by either of the sender and the recipient.

Structure: Either a (1) securable clock 50 and equivalents thereof; (2) time generator 104 and equivalents thereof; (3) communications network server and equivalents thereof; or (4) Time Stamping Service, such as the Digital Notary System, and equivalents thereof; where structures (1) and

(2) are internal to the authenticator, structures

(3) and (4) are external to the authenticator, and structures (2), (3) and

(4) are secured from being set or modified by an interested party such as the sender.

9

“means for securing at least part of the

authentication data against tampering by the sender and the recipient; wherein the processor is combined with the means for securing”

Claim 82 and its dependent claims

Function: Securing at least part of the authentication data against tampering by either the sender or the recipient

Structure: Storage unit 54 or storage device 106, and their equivalents

Function:

Agreed to by the parties.

Structure: Using a compression, private or public key encryption or scrambling technique, a password, or a combination thereof, such as those employed by the widely used RSA encryption method, and by the PKZIIP(tm) program from PKWARE Inc., Glendale, Wis., U.S.A., and where the “securing” procedure, key or password are unknown to any interested party.

Function: Securing at least part of the authentication data against tampering by either the sender or the recipient.

Structure: Storing the data either (1) on a write-once read-many (“WORM”) device such as an optical disk or a Programmable Read-Only Memory (“PROM”) device; or (2) using a compression, private or public key encryption or scrambling technique, a password, or a combination thereof, such as those employed by the widely used RSA encryption method, and by the PKZIIP(tm) program from PKWARE Inc., Glendale, Wis., U.S.A., and where the “securing” procedure, key or password are unknown to any interested party.

10

"source

transmitting

system"

Claim 82 and its dependent claims

"system for transmitting a dispatch for a sender"

"the computer that originates the dispatch"

"computerized system for transmitting a dispatch for a sender"

11

"destination

receiving

system"

Claim 82 and its dependent claims

"system for receiving a dispatch for a recipient"

"the computer that receives the dispatch at its intended destination"

"computerized system for receiving a dispatch for a recipient"

V. Table of Construed Terms on Which the Parties Agree

The Court adopts the parties' stipulated constructions of the four Feldbau Patent claim terms as set forth in the box below.

Term No.

Claim Term

Feldbau Patent Claims

Stipulated Construction

1

"dispatch"

All asserted claims

"the transmission sent from a sender toward a recipient via a dispatcher"

2

"authenticator"

All asserted claims

"a sub-system that operates to authenticate a dispatch"

3

"non-interested third party"

All asserted claims

"a party who carries out the authentication fiction without bias and without the participation of the sender or the recipient"

4

"contents of the dispatch / content data"

All asserted claims

"the entire content the sender originates for sending to the recipient"

VI. Construction of Disputed Claim Terms in the Tomkow Patents

A. “message” (Term No. 1)

1. The Parties’ Positions

RPost argues that the claim term “message” should be construed as “an electronic message.” (Doc. 191-1 at 1). RPost explains that Judge Rodney Gilstrap of the Eastern District of Texas (“EDTX”) construed “message” as “an electronic message” and urges the Court to adopt the same construction. (Doc. 114 at 7-8).[5]

In response, GoDaddy agrees that “message” should be construed as “electronic” but disputes the adequacy of that description. (Doc. 117 at 6-7). Specifically, GoDaddy maintains that “message” should also be limited by how the message is transmitted (“through an electronic network”) and by its singularity (“as a whole”). (Id.) To support these added limitations, GoDaddy observes that the shared specification discloses that the invention “may apply to any electronic message that can be transmitted through an electronic message network.” (Id. at 7 (quoting ‘199 Patent col. 27 ll. 26-32)). GoDaddy further contends that a “message” must be sent “as a whole” because the term “message” is always preceded in the claims by the articles “a” or “the.” (Id.) GoDaddy therefore proposes a construction of: “an electronic message that can be transmitted as a whole through an electronic network.” (Doc. 191-1 at 1).

RPost replies that GoDaddy’s “as a whole” limitation is unsupported by the intrinsic record and will confuse the jury. (Doc. 119 at 3). RPost also contends that GoDaddy’s “cherry-picked” limitation of “through an electronic network” does not describe a feature of the message and also neglects to include a second transmission method disclosed in the same sentence of the specification. (Id. at 4).

2. Analysis

The term “message” is used in all asserted claims of the Tomkow Patents. For example, the ‘199 Patent claims:

1. A method of transmitting a message from a sender to a recipient through a server displaced from the recipient, the steps at the server comprising:
receiving the message at the server from the sender; transmitting the message to the recipient
receiving at the server from the recipient an indication of the failure to deliver the message to the recipient . . . .

‘199 Patent col. 27 ll. 58-65 (emphasis added). Another example is found in the ‘198 Patent which claims:

1. A method of transmitting a message from a sender to a recipient and providing an indication that the message was opened by the recipient, comprising:
receiving the message at a server from the sender, the server being displaced from the recipient, associating a link with the message by the server . . . transmitting the message . . . from the server to the recipient . . . .

‘198 Patent col. 28 ll. 6-16 (emphasis added).

Because the parties do not dispute that “message” should be construed as “electronic, ” the Court will, at a minimum, adopt RPost’s proposed construction of “an electronic message.” The remaining question is whether “an electronic message” should be cloaked with the limitations proposed by GoDaddy.

Regarding GoDaddy’s first proposed limitation “as a whole, ” the Court is not persuaded by GoDaddy’s argument that because certain articles precede “message” in the claim language, there is somehow a requirement that the message must be sent “as a whole.” Beyond referencing the claims’ use of “a” and “the, ” GoDaddy does not cite any other portion of the intrinsic record to show that “a message” cannot be transmitted in multiple components. Accordingly, the Court rejects this portion of GoDaddy’s proposal because it would ambiguously construe a readily understandable term.

As to GoDaddy’s second proposed limitation “through an electronic network, ” the Court finds that such a limitation is not supported by the intrinsic record. The asserted claims of the Tomkow Patents do not require that messages be transmitted only through electronic networks. In fact, the portion of the shared specification relied upon by GoDaddy actually sets forth two means of transmitting a message. See ‘199 Patent col. 27 ll. 26-32 (“Although the above generally describes a system and method of verifying that an e-mail was sent and/or received, the present invention may apply to any electronic message that can be transmitted through an electronic message network or through an electronic gate.” (emphasis added)). GoDaddy, without explanation, severed the “electronic gate” transmission method in its proposal. In any event, the Court finds that appending this method of transmission limitation to “message” is needlessly redundant considering the parties agree that “message” must be “electronic.” Thus, the Court rejects this portion of GoDaddy’s proposed construction.

For these reasons, the Court adopts RPost’s proposal and construes “message” as “an electronic message.”

B. “server” (Term No. 2)

1. The Parties’ Positions

RPost recommends that the Court should shadow Judge Gilstrap and abstain from construing the term “server.” (Doc. 114 at 8-9). Judge Gilstrap concluded that defining “server” was unnecessary because the term had been used by the asserted claim according to its plain and ordinary meaning. See RMail, 2013 WL 968246, at *60. RPost also advances an alternative construction: “a computer(s), computer program(s), or computing device(s) that provides resources to other devices across a network.” (Doc. 191-1 at 1). This alternative construction closely tracks RMail’s proposal that Judge Gilstrap rejected as “not derived from intrinsic evidence.” RMail, 2013 WL 968246, at *60.

GoDaddy responds that “server” must be interpreted because there is “no plain meaning that resolves the parties’ dispute.” (Doc. 117 at 7-8). According to GoDaddy, “server” must: 1) be “outgoing”; 2) be “separate from the sender”; 3) “create an attachment”; 4) “transmit the attachment and message”; and 5) “store the portion of the mail transport dialog generated during transmission of the message.” (Id.)

RPost replies that GoDaddy’s limitations are improper because they “cannot apply to all of the claims.” (Doc. 119 at 4). RPost also contends that GoDaddy’s limitations are ambiguous and unsupported by the intrinsic record. (Doc. 114 at 8-9).

2. Analysis

The term “server” is used by all asserted claims of the Towkow Patents but is not defined or explained within the intrinsic record. A few examples include:

1. A method of transmitting a message from a sender to a recipient through a server displaced from the recipient, the steps at the server comprising:
receiving the message at the server from the sender
receiving at the server at least a portion of a mail transport protocol dialog generated during transmission of the message from the server to the recipient; and
receiving at the server from the recipient an indication of the receipt of the message by the recipient;
forming at the server a first information from the at least a portion of the mail transport protocol dialog and the indication of the receipt of the message by the recipient; and
transmitting, before any authentication of the message, a copy of the message and the first information to the sender from the server.

‘389 Patent col. 27 ll. 58-col 28 ll. 7 (emphasis added).

7. A system for transmitting a message through an electronic mail system from an originating processor to a recipient processor and providing proof of receipt of the message by the recipient process, comprising:
a server displaced from the originating processor, the server capable of being configured by software commands . .

Id. col. 28 ll. 33-39 (emphasis added).

32. A system transmitting a message from a sender to a recipient and providing an indication that the message was opened by the recipient, comprising:
a server in electronic communication with the sender and receiver, the server programmed to receive a message from the sender, to associate a link with the message,
the link configured to execute when the link is activated at the recipient to provide an indication that the message has been delivered to a recipient, to transmit the message and the link from the server to the recipient,
wherein the link is executed when the link is activated at the recipient to control the server to provide an indication that the message has been delivered to the recipient; and wherein the server is programmed to form an authenticatible information related to the message, and to transmit the indication of the delivery of the message to the recipient and the authenticatible information from the server to the sender.

‘198 Patent col. 30 ll. 7-25 (emphasis added).

1. A method of transmitting a message from a sender to a recipient through a server acting as a Mail Transport Agent, including the steps at the server of:

Recording at the server some portion of the selected one of the SMTP and ESMTP protocol dialog between the server and the recipient through the server including those portions of the selected one of the SMTP and ESMTP protocol dialog between the server and the recipient in which the receiving Mail Transport Agent accepts or declines delivery of the transmitted message.

‘913 Patent col. 27 ll. 41-54 (emphasis added).

Initially, despite GoDaddy’s argument that no “plain meaning” of “server” resolves the parties’ dispute, GoDaddy does not raise an actual dispute concerning the plain meaning of the term. Particularly, GoDaddy’s proposed construction includes the word “server” and shrouds it with five limitations. For example, GoDaddy’s proposal states that “server” must be an “outgoing server.” While this construction limits “server” as “outgoing, ” it does not raise an actual dispute as to the “plain meaning” of the word “server.” Likewise, the balance of GoDaddy’s proposal affixes several limitations to “server” without challenging the plain meaning of the term. Accordingly, the question presented by GoDaddy is not whether the plain meaning of “server” is disputed, but whether the proposed limitations should be levied upon the term.

The Court will review each of GoDaddy’s proposed limitations in turn.

a. “outgoing server”

GoDaddy proposes that “server” must be construed as “outgoing server” but does not cite to the intrinsic record for support. See (Doc. 117 at 3-4). The Tomkow Patents, however, consistently specify that the server can both receive and transmit messages. See, e.g., ‘389 Patent col. 27 ll. 59-61 (claiming “steps at the server comprising: receiving the message at the server from the sender . . . .”). If GoDaddy intended to limit “server” to only servers that send messages and not ones that receive messages, such a construction violates the intrinsic record. In absence of more compelling evidence, the Court rejects GoDaddy’s proposed limitation of “outgoing.”

b. “separate from the sender”

GoDaddy also proposes that “server” should be limited as “separate from the sender.” (Doc. 117 at 7-8). RPost’s sole dispute with this limitation is that it is redundant because “server” and “sender” are “distinct claim elements.” (Doc. 114 at 9). RPost observes that several courts have spurned-on “redundancy” grounds-constructions that incorporate language from the claim itself. (Doc. 119 at 4 (citing Interdigital Commuc’ns., Inc. v. ZTE Corp., 2014 WL 3908771, at *1 (D. Del. Aug. 8, 2014); Asetek Holdings, Inc. v. Coolit Sys., 2013 WL 6327691, at *4 (N.D. Cal. Dec. 3, 2013); Ferring B.V. v. Watson Labs., Inc., 2013 WL 499158, at *7 (D. Nev. Feb. 6, 2013)). The Federal Circuit, however, rejected the robotic application of such a stringent rule. See 01 Communique Lab., Inc. v. LogMeIn, Inc., 687 F.3d 1292, 1296 (Fed. Cir. 2012) (“[Plaintiff] argues that because those functions are set forth expressly in the claim, it would be ‘redundant and unnecessary’ to incorporate them into the construction of ‘location facility.’ However, [Plaintiff] has not cited, and we have not discovered, any authority for the proposition that construction of a particular claim term may not incorporate claim language circumscribing the meaning of the term. The claim language makes clear that the location facility in fact does perform the functions in question. The district court correctly incorporated those functions into its claim construction.”). Thus, RPost’s “redundancy” argument, while persuasive, is not binding on the Court.

RPost never disputes that the claimed “server” is, in fact, “separate from the sender, ” and on balance, the Court concludes that construing “server” with the limitation “separate from the sender” would be more helpful to the jury than a plain meaning construction. The Court therefore adopts this portion of GoDaddy’s construction.

c. “creates an attachment, transmits the attachment and the message”

As a third limitation, GoDaddy argues that the server “creates an attachment [and] transmits the attachment and the message.” (Doc. 117 at 8). GoDaddy, however, does not point to claim language that requires the server to “create” or “transmit” an “attachment.” The only claim language cited by GoDaddy concerns the role of the processor to “associate a link with the message” or “add[] a link to the message, ” but these claims are all dependent claims. (Id. (citing ‘198 Patent col. 28 ll. 6-25, col. 29 ll. 13-19; ‘104 Patent col. 27 ll. 66-col. 28 ll. 4, col. 31 ll. 24-37)). GoDaddy does not explain why the Court should interpret “link” as “attachment” or how “associate” or “add” is analogous to “creates.” Without a more compelling reason for construing “server” with a limitation found only in dependent claims, the Court rejects this portion of GoDaddy’s proposal. See 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.” (citing Wenger Mfg., Inc. v. Coating Mach. Sys., Inc., 239 F.3d 1225, 1233 (Fed. Cir. 2001))).

Regarding the balance of this third limitation, the claim language is clear that the server “transmits” the message. See, e.g., ‘198 Patent col. 28 ll. 15-16, col. 29 ll. 13-19. Accordingly, the Court rejects this part of GoDaddy’s proposal as needlessly redundant.

d. “stores the portion of the mail transport dialog generated during transmission of the dispatch”

As a fourth limitation, GoDaddy insists that the construction must include that the server “stores the portion of the mail transport dialog generated during transmission of the dispatch.” (Doc. 117 at 8). During the Markman Hearing, GoDaddy explained that the server must store this information to later verify the message.

Only two asserted claims recite that the server stores any portion of the mail transport dialog, and both are dependent claims found in only one Tomkow Patent. See ‘389 Patent, Claims 12 and 14.[6] Had the inventor wanted to limit any of the asserted independent claims in this manner, he certainly could have done so. As quoted above, the Federal Circuit has held, “the 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, 358 F.3d at 910 (citing Wenger Mfg., 239 F.3d at 1233). Further, “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.” Id.; see SunRace Roots Enter. Co., Ltd. v. SRAM Corp., 336 F.3d 1298, 1302- 03 (Fed. Cir. 2003) (the presumption that an independent claim does not have a limitation that is introduced for the first time in a dependent claim “is especially strong when the limitation in dispute is the only meaningful difference between an independent and dependent claim, and one party is urging that the limitation in the dependent claim should be read into the independent claim”); Wenger Mfg., 239 F.3d at 1233 (“Claim differentiation . . . is clearly applicable when there is a dispute over whether a limitation found in a dependent claim should be read into an independent claim, and that limitation is the only meaningful difference between the two claims.”).

A claim term should be construed in a manner that can be applied to all claims. See Inverness Med. Switz. GmbH, 309 F.3d at 1371. Here, for all but two dependent claims, “server” is not limited to “storing” mail transport dialog. Moreover, none of the asserted claims from the ‘104 and ‘198 Patents even use the term “mail transport protocol dialog.” Accordingly, the Court rejects this portion of GoDaddy’s proposal.

3. Conclusion

For these reasons, the Court construes “server” as “a server that is separate from the sender.”

C. “a link” (Term No. 3)

1. The Parties’ Positions

RPost argues that “a link” should be construed as “a set of instructions that directs one computing resource to another.” (Doc. 114 at 9-10). RPost claims that such an interpretation is “fully supported by the intrinsic record.” (Id.)

GoDaddy responds that no construction is necessary because “a link” is a readily understandable term to a skilled artisan. (Doc. 117 at 8). GoDaddy further contends that RPost’s construction broadens the scope of “a link” contrary to the intrinsic record. (Id.)

RPost replies that GoDaddy “completely ignores that the Tomkow patents describe links as akin to instructions.” (Doc. 119 at 5). RPost also states that a “person of ordinary skill in the art would understand that links, such as URLs, may contain commands, or instructions, that direct one computing resource to another.” (Id.)

2. Analysis

The Court finds that a person of ordinary skill in the art would understand the functions “a link” performs without additional construction. As RPost concedes: “[a] person of ordinary skill in the art would understand that links, such as URLSs, may contain commands, or instructions, that direct one computing resource to another.” (Doc. 119 at 5). The internal record also makes clear that “a link” is “added to the message by the server, ” is “configured to execute when the message is opened” in order to “provide an indication that the message has been opened.” ‘104 Patent col. 28 ll. 1-4, col. 31 ll. 25-31; ‘198 Patent col. 28 ll. 11-14, col. 29 ll. 14-19. If a disputed claim term has a plain and ordinary meaning such that it needs no clarification or explanation, the Court need not adopt a construction beyond that plain meaning. See U.S. Surgical, 103 F.3d at 1568. RPost failed to cite any portion of the intrinsic record to show that “a link” was used in a way other than its plain meaning.

For these reasons, the Court does not construe this term.

D. “an indication that the message has been opened by (delivered to) a recipient” (Term No. 4)

1. The Parties’ Positions

RPost argues that “indication” should be broadly interpreted as “information that indicates” and supports its position by citing the Meriam Webster Dictionary. (Doc. 114 at 10). RPost thus proposes a construction of “information that indicates that the message has been opened by (delivered to) a recipient.” (Doc. 191-1 at 1).

GoDaddy responds that RPost’s “circular” definition should be rejected. (Doc. 117 at 9). Instead, GoDaddy proposes a construction of “confirmation (at the server) that the message content was viewed by the recipient.” (Doc. 191-1 at 1). To buttress its definition of “indication” as “confirmation, ” GoDaddy heavily relies on Figure 8 of the ‘199 Patent and its corresponding description. (Doc. 117 at 9). Figure 8-a preferred embodiment of the ‘199 Patent-depicts the invention as sending a “confirmation message” to the sender, which provides “verifiable confirmation” that the message was received at a certain time, by a certain network route, and with specific content. ‘199 Patent Fig. 8, col. 25 ll. 49-col. 26 ll. 5. GoDaddy insists that the claimed “indication” must have “certainty of content and provenance.” (Doc. 117 at 9). GoDaddy also defines “opened” as “viewed” because, according to the specification, “the message is opened for reading, ” and GoDaddy argues that a message cannot be read without at some point being viewed. (Id. at 10).

RPost argues that GoDaddy’s proposal is a shrewd and misguided attempt to narrow the plain meaning of the claimed “indication.” See (Docs. 114 at 10; 119 at 5-6). According to RPost, the patentee intentionally claimed “indication” in a broad manner and “[a]bsent a clear disavowal in the specification or the prosecution history, the patentee is entitled to the full scope of its claim language.” (Doc. 119 at 6 (citing Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004))). RPost contends that the patentee did not make a “clear disavowal” of the full meaning behind “indication, ” and thus, GoDaddy’s proposal improperly imports a limitation from the specification into the claim. (Doc. 114 at 10). RPost further observes that Figure 8’s corresponding description “undermines” GoDaddy’s argument because “confirmation message 72” is an “optional message” that “may or may not include verifiable information” and can merely be a “simple text message indicating that a message was received.” (Doc. 119 at 5). Finally, RPost complains that GoDaddy’s construction of “opened” as “viewed” is improper because it narrows the meaning of the term without adequate intrinsic record support. (Doc. 114 at 10).

2. Legal Standard

A fundamental principle for discerning a term’s usage is the ordinary and accustomed meaning of the words amongst artisans of ordinary skill in the relevant art at the time of invention. See Rexnord Corp. v. Laitram Corp., 274 F.3d 1336, 1342 (Fed. Cir. 2001). Normal rules of usage suggest a “heavy presumption” that claim terms carry their accustomed meaning in the relevant community at the relevant time. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (citing Johnson Worldwide Assocs. Inc. v. Zebco Corp., 175 F.3d 985, 989 (Fed. Cir.1999)). Of course, the Federal Circuit acknowledges that a patent applicant may overcome this presumption by clearly using the words in the specification, prosecution history, or both “in a manner inconsistent with its ordinary meaning.” Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1347 (Fed. Cir. 2003) (citing Teleflex, 299 F.3d at 1325-26). In other words, an inventor may consistently and clearly use a term in a manner either more or less expansive than its general usage in the relevant community, and thus expand or limit the scope of the term in the context of the patent claims. See Ballard Med. Prods. v. Allegiance Healthcare Corp., 268 F.3d 1352, 1361 (Fed. Cir. 2001) (noting that an applicant may disclaim claim scope during prosecution); Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1177 (Fed. Cir. 2008) (“In order to constitute binding surrenders of claim scope, the statements in question must be such that a competitor would reasonably believe that the applicant had surrendered the relevant subject matter.” (quotation omitted)).

3. Analysis

This phrase is used in the ‘104 and ‘198 Patents as follows:

1. A method of transmitting a message from a sender to a recipient and providing an indication that the message was opened by the recipient, comprising:
adding a link to the message by the server, the link configured to execute when the message is opened at the recipient to provide an indication that the message has been opened by the recipient,
executing the link when the message is opened at the recipient to control the server to provide an indication that the message has been opened at the recipient,
providing an authenticatible information related to the message, including the indication of the opening of the message at the recipient, at the server,
transmitting the indication of the opening of the message at the recipient, and the authenticatible information from the server to the sender,

‘104 Patent col. 27 ll. 63-col. 28 ll. 16 (emphasis added).

1. A method of transmitting a message from a sender to a recipient and providing an indication that the message was opened by the recipient, comprising:
associating a link to the message by the server, the link configured to execute when the message is opened at the recipient to provide an indication that the message has been opened by the recipient,
executing the link when the message is activated at the recipient to control the server to provide an indication that the message has been delivered to the recipient,
providing an authenticatible information related to the message, including the indication of the delivery of the message at the recipient, at the server,
transmitting the indication of the delivery of the message at the recipient, and the authenticatible information form the server to the sender,

‘198 Patent col. 28 ll. 6-25 (emphasis added). The term “indication” is similarly used in independent Claims 18 and 32 and dependent Claim 6 of the ‘198 Patent. See ‘198 Patent col. 28 ll. 39-41, col. 29 ll. 11-28, col. 30 ll. 7-25.

The parties dispute the interpretation of three terms: “indication, ” “opened, ” and “message.” The Court will analyze each in turn.

a. “indication”

GoDaddy maintains that to differentiate the invention from prior art, “indication” must be construed as “confirmation” because the specification states that the invention provides “proof” of the delivery and content of the message. (Doc. 117 at 10). According to GoDaddy, “RPost cites no authority for its bare proposition that the patentee ‘chose to claim the invention’ as covering something more than ‘proof’ of a message’s delivery and content.” (Id.) GoDaddy collaterally asserts that RPost’s construction of “indication” defines the term by the term itself, thereby making the construction “circular” and altogether unhelpful to the jury. (Id.)[7]

Contrary to GoDaddy’s argument, RPost cites the most significant authority of all: the claim language. The “appropriate starting point” for “proper claim construction” is “always the language of the asserted claim itself.” Comark Commc’ns, 156 F.3d at 1186 (citations omitted). In the asserted claims here, the patentee claimed the invention to provide an “indication” not a “confirmation”-undisputedly a term with a narrower scope. Generally, an “indication” is a generic piece of information that tends to show (i.e., indicates) something else. See Random House Webster’s College Dictionary 669 (1999) (defining “indication” as “something serving to indicate; sign; token” and “indicate” as “to be a sign of; betoken”). On the other hand, “confirmation” is verifying or establishing the “truth, accuracy, validity, or genuineness of” something. See Id. 279 (defining “confirmation” as “the act of confirming” and “confirm” as “to establish the truth, accuracy, validity, or genuineness of; corroborate; verify”). The dispute here is whether the specification limits the claimed “indication” to the tapered boundaries of “confirmation.”

To resolve this dispute, understanding the Tomkow Patents’ two-step “verification” or “proof” process is essential. As an example, the ‘104 Patent claims a system and method for verifying, i.e., proving, the opening of a message and the message’s content. The first step commences when the sender originates the message and transmits it to the recipient. Before the message reaches the recipient, however, it cyphers through an RPost server whereupon certain information is recorded, such as a hashed version of its contents. See ‘104 Patent col. 28 ll. 25-29. The RPost server also adds a “link” to the message that executes when the message is opened by the recipient, id. col. 28 ll. 1-4, and creates and stores “authenticatible information” about the message, which essentially identifies a particular message as unique, id. col. 28 ll. 10-12, col. 31 ll. 33- 34. The RPost server then forwards the message to the recipient. See Id. col. 28 ll. 5-6. When the recipient opens the message, the link executes and provides an “indication that the message has been opened by the recipient.” See Id. col. 28 ll. 7-9. To conclude the first step, the RPost server sends a receipt to the sender which includes the “indication” that the message was opened and other “authenticatible information.” See Id. col. 28 ll. 13-15.

The second step involves the actual verification of the opening of the message and its contents. This step is disclosed in the specification as follows:

Verification
In the event that the originator of a message requires evidence at a later date that an e-mail was sent, delivered, and/or read, the originator presents the receipt(s) for the message to the operators of the system.
For example, in order to prove that a particular message was sent from sender 10 to recipient 18, sender 10 sends to RPost a copy of receipt 20 with a request to verify the information contained within the receipt. This could be done by sending the receipt to a predefined mailbox at RPost, e.g., verify@RPost.com. RPost then determines whether or not the receipt is a valid receipt. A receipt is a valid receipt if the digital signature matches the reminder of the receipt, and the message digests match the corresponding respective portions of the original message. Specifically, RPost performs the hash function on the various portions of the message including the message body, the attachments, and the overall message including the SMTP dialog and DSN reports, to produce one or more message digest corresponding to the purposed message copy. RPost compares the message digests in the purported copy, including the overall message digest, with the message digests which RPost has computed from the purported message copy. The overall message digest can be compared by either decrypting the overall message digest received as the digital signature in the purported receipt, or by encrypting the overall message digest which was calculated from the purported message copy. If the message digests including the digital signature match, then the receipt is an authentic RPost-generated receipt. Assuming that a good hash function was used and that the keys used in the cryptographic hash function and the digital signature encryption algorithm have not been divulged to others, it is virtually impossible that the receipt has been ‘forged’ by the person presenting the receipt. That is, the receipt must have been a receipt that was generated by RPost, and therefore the message contained in the receipt, the to/from information, the date and time of delivery, the fact of successful delivery, the route by which the message traveled, and any DSN information contained within the receipt, must be a true copy of that information and is accurate. RPost can then provide authentication, verification, and confirmation of the information contained within the receipt. This confirmation can take the form of an e-mail confirmation, affidavit testimony from RPost employees familiar with the methods used by RPost, live sworn testimony in depositions and in court, and other forms of testimony. . . .
In sum, the system provides reliable evidence based on the testimony of a disinterested third party that a particular message having a particular content was sent, when it was sent, who sent it, who received it, when it was opened for reading, and when it was deleted. . . .

‘104 Patent col. 16 ll. 63-col. 17 ll. 55.

As readily seen, the invention “verifies” the opening of a message and its contents during the second step of the process-not the first step. The first step merely provides an “indication” to the sender that the message was opened by the recipient. This two-step process was claimed by the inventor and explained through the specification. Because the intrinsic record is clear that the invention “confirms” nothing during the first step, GoDaddy’s proposed construction of “confirmation” is internally inconsistent.

Furthermore, GoDaddy’s adoption of Figure 8’s terminology is misplaced. Figure 8 is merely “another embodiment of the invention.” ‘104 Patent col. 25 ll. 14-15. If the Court were to adopt GoDaddy’s proposal, it would be reading a limitation from the specification into the claim-a “cardinal sin” according to the Federal Circuit. Teleflex, 299 F.3d at 1326 (citing Comark Commc’ns, 156 F.3d at 1186); see Tex. Instruments, Inc. v. United States Int’l Trade Comm’n, 805 F.2d 1558, 1563 (Fed. Cir. 1986) (“This court has cautioned against limiting the claimed invention to preferred embodiments or specific examples in the specification.”). “To avoid importing limitations from the specification into the claims, it is important to keep in mind that the purposes of the specification are to teach and enable those of skill in the art to make and use the invention and to provide a best mode for doing so.” Phillips, 415 F.3d at 1323.

One of the best ways to teach a person of ordinary skill in the art how to make and use the invention is to provide an example of how to practice the invention in a particular case. Much of the time, upon reading the specification in that context, it will become clear whether the patentee is setting out specific examples of the invention to accomplish those goals, or whether the patentee instead intends for the claims and the embodiments in the specification to be strictly coextensive. The manner in which the patentee uses a term within the specification and claims usually will make the distinction apparent.

Id. (internal citations omitted). Although “there is sometimes a fine line between reading a claim in light of the specification, and reading a limitation into the claim from the specification, ” Comark Commc’ns, 156 F.3d at 1187, the Court believes that GoDaddy is pursuing the latter rather than the former. Figure 8 does not establish the patentee’s “clear disavowal” of “indication” to the narrower meaning of “confirmation.” See Thorner, 669 F.3d at 1365 (quoting Teleflex, 299 F.3d at 1325).

In short, notwithstanding the internal flaws within GoDaddy’s proposal, the Court finds that if it were to construe “indication” as “confirmation, ” a limitation from the specification would be read into the claim. By focusing solely on the specification, GoDaddy improperly seeks to construe the claims as limited to a single embodiment, which goes against bedrock claim construction principles. See Comark Commc’ns, 156 F.3d at 1187.

Nonetheless, the patentee did not merely claim “indication” as a nebulous indication without concern of later verification. The intrinsic record conveys that the primary purpose of the invention is to provide information regarding the delivery, opening, and content of an electronic message that can be “verified.” For example, Claim 1 of the ‘104 Patent states that the “indication of the opening of the message at the recipient” is “includ[ed]” in the “authenticatible information” which is sent to the sender. ‘104 Patent col. 28 ll. 10-13; see also ‘198 Patent col. 28 ll. 20-22 (“providing an authenticatible information related to the message, including the indication of the delivery of the message at the recipient, at the server . . . .”). As construed below, “authenticatible information” is certain information that “can be verified.” Accordingly, because the “indication of the opening of the message” is an element of “authenticatible information, ” the indication itself must be verifiable.

For these reasons, the Court construes “indication” as “verifiable information that indicates.”

b. “opened”

The parties also dispute the meaning of the term “opened” as used by the asserted claims. RPost argues that “opened” does not need to be construed because the words “opened, ” “viewed, ” and “read” all embody different meanings and the inventor claimed “opened.” (Doc. 119 at 6). In response, GoDaddy defines “opened” as “viewed” because, according to the specification, “the message is opened for reading, ” and it would be impossible to read a message without at some point viewing it. (Doc. 117 at 10).

The Court finds that “opened” does not require further construction. In construing claim terms, the Court need not clarify a term if it has a plain meaning that requires no clarification. See U.S. Surgical, 103 F.3d at 1568. Here, “opened” is a generic term that is readily understood within the context of the claims to connote that a message was “opened” by the recipient. A jury will have no trouble understanding this concept and GoDaddy has not raised an actual dispute as to the scope of the term. It would be illogical for the Court to force the jury to consider convoluted semantics of whether the message was “opened, ” “viewed, ” or “read” when the patentee already claimed the generic term “opened.” Thus, this portion of GoDaddy’s proposal is rejected.

c. “message”

The parties’ final dispute is whether “message” should be interpreted as “message” or “message content.” GoDaddy proposes “message content” but does not explain why such a construction is necessary. See (Doc. 117 at 9-10). In the absence of compelling evidence to the contrary, the Court elects not to construe this portion of the phrase. “Message” is a readily understandable term and GoDaddy has not brought to the Court’s attention a valid dispute concerning the term’s scope. Moreover, because the Court declined to define “opened” as “viewed, ” construing this phrase as “opened the message content” makes little sense. The Court therefore rejects this portion of GoDaddy’s proposal.

4. Conclusion

For these reasons, the Court construes “an indication that the message has been opened by (delivered to) a recipient” as “verifiable information that indicates that the message has been opened by (opened at; delivered to) the recipient.”[8]

E. “an indication of receipt of the message by the recipient (recipient processor)” (Term No. 5)

1. The Parties’ Positions

As with Term No. 4, the parties’ dispute centers on the term “indication.” RPost proposes a construction of “information that indicates that the message has been received by the recipient (recipient processor).” (Doc. 191-1 at 1-2). GoDaddy responds by proposing: “confirmation that the message content was received by the recipient.” (Id.)

2. Analysis

This phrase is used in the asserted claims of the ‘389 Patent as follows:

1. A method of transmitting a message from a sender to a recipient through a server displaced from the recipient, the steps at the server comprising:
receiving at the server from the recipient an indication of the receipt of the message by the recipient;
forming at the server a first information from the at least a portion of the mail transport protocol dialog and the indication of the receipt of the message by the recipient . . . .

‘389 Patent col. 27 ll. 58-col 28 ll. 3 (emphasis added).

7. A system for transmitting a message through an electronic mail system from an originating processor to a recipient processor and providing proof of receipt of the message by the recipient process, comprising:
a server displaced from the originating processor, the server capable of being configured by software commands to:
receive an indication of receipt of the message from the recipient processor and a mail transport protocol dialog generated by the electronic mail system during transmission of the message from the server to the recipient processor;
generate a first information including the indication of receipt of the message from the recipient processor and at least a portion of the mail transport protocol dialog generated by the electronic mail system during transmission of the message from the server to the recipient processor.

Id. col. 28 ll. 33-52 (emphasis added).

14. A method of transmitting a message from a sender to a recipient through a server displaced from the recipient, the steps at the server comprising:

receiving at the server from the recipient a first information including an indication of the receipt of the message by the recipient and at least a portion of a mail transport protocol dialog generated during transmission of the first information from the server to the recipient . . . .

Id. col. 29 ll. 17-col. 30 ll. 5.

The Court adopts its analysis for the terms “indication” and “message” as set forth for Term No. 4 and therefore construes this phrase as “verifiable information that indicates that the message was received by the recipient (recipient processor).”

F. “an indication of the failure to deliver the message to the recipient” (Term No. 6)

1. The Parties’ Positions

RPost proposes a construction of “information that indicates that the message has failed to be delivered to the recipient.” (Doc. 191-1 at 2). GoDaddy responds that the phrase should be defined as “confirmation that the message content was not received by the recipient.” (Id.)

2. Analysis

This phrase is found in the asserted claims of the ‘199 Patent as follows:

1. A method of transmitting a message from a sender to a recipient through a server displaced from the recipient, the steps at the server comprising:
receiving at the server from the recipient an indication of the failure to deliver the message to the recipient;
forming at the server a first information from the at least a portion of the data transport protocol dialog and the indication of the failure to deliver the message by the recipient . . . .

‘199 Patent col. 27 ll. 58-65 (emphasis added).

The parties again dispute the claim terms “indication” and “message.” The Court adopts its analysis as set forth in Term No. 4 and construes “indication” as “verifiable information that indicates” and does not construe “message.”

The parties also proffer different constructions for the balance of the phrase. GoDaddy suggests a construction that interprets “failure to deliver” as “not receiv[ing]” the message. (Doc. 191-1 at 2). However, the ‘199 Patent does not speak in terms of “receipt” of the message but claims whether the message failed to be “delivered.” The Court finds that this portion of the claim uses plain language the jury will readily be able to understand without further construction.

The Court therefore construes Term No. 6 as “verifiable information that indicates the failure to deliver the message to the recipient.”

G. “executing the link when the message is opened at the recipient to control the server to provide an indication that the message has been opened at the recipient” (Term No. 7)

1. The Parties’ Positions

RPost proposes a construction that closely tracks the claim language: “executing the link when the message is opened at the recipient to cause the server to provide an indication that the message has been opened at the recipient.” (Doc. 191-1 at 2).

GoDaddy responds by construing the phrase as: “action by the recipient when the message is opened at the recipient to control the server to provide proof that the message has been opened at the recipient, the proof providing a legal or other evidentiary status on par with, if not superior to, that of registered United States mail.” (Id.) GoDaddy argues that the “structure” of the asserted claims “makes clear that-once the message is opened at the recipient-it is the recipient (including the link at the recipient) that controls the server to provide the attendant proof that the message has been opened at the recipient.” (Doc. 117 at 11). GoDaddy also maintains that the “core purpose of the claimed inventions is to provide not merely an ‘indication, ’ but ‘proof regarding the delivery and contents of an e-mail message.’” (Id. at 11-12). GoDaddy finally argues that RPost’s proposed change from “control” to “cause” is flawed because the two words are not synonymous. (Id. at 12).

RPost criticizes GoDaddy’s construction for three reasons. First, RPost argues that GoDaddy’s proposal improperly limits the claim to actions performed by the recipient. (Doc. 114 at 10). RPost explains that the link is executed “at the recipient, ” not “by the recipient” as GoDaddy contends. (Doc. 119 at 6). Second, RPost asserts that GoDaddy’s construction impermissibly narrows the claim’s plain meaning by construing “indication” as “proof.” (Doc. 114 at 10). Third, RPost insists that GoDaddy’s proposed limitation regarding “legal or other evidentiary status” is not supported by the claim language and violates the intrinsic record. (Id. at 10-11).

2. Analysis

This phrase is used in Claim 1 of the ‘104 Patent as follows:

1. A method of transmitting a message from a sender to a recipient and providing an indication that the message was opened by the recipient, comprising:
adding a link to the message by the server, the link configured to execute when the message is opened at the recipient to provide an indication that the message has been opened by the recipient,
executing the link when the message is opened at the recipient to control the server to provide an indication that the message has been opened at the recipient . . . .

‘104 Patent col. 27 ll. 63-col. 28 ll. 9 (emphasis added). The Court will analyze the parties’ proposals in turn.

a. “control”

The Court first reviews RPost’s suggestion that “control” should be interpreted as “cause.” GoDaddy complains that such a construction is improper because the two words have different meanings. (Doc. 117 at 12). To support its argument, GoDaddy cites to the American Heritage Dictionary which defines “control” as “[t]o exercise authoritative or dominating influence over; direct” and “cause” as “1a. The producer of an effect, result, or consequence. b. The one, such as a person, event, or condition, that is responsible for an action or result.” (Id.)

It is apparent from the dictionary definitions that the two terms have entirely different meanings. While “cause” simply refers to one that is responsible for an action or result, “control” requires that one exercise some sort of dominion or authority over another. In other words, “cause” is broader than “control.” This distinction is exemplified by the ‘198 Patent’s usage of the two words in an unrelated claim. See ‘198 Patent col. 29 ll. 1-4 (“16. The method of claim 15, wherein activating the link also causes information to be displayed to the recipient and to control the server to make a record of the information displayed.” (emphasis added)). RPost does not point to evidence within the intrinsic record to show that the inventor intended to claim “control” with a broader meaning. Accordingly, this portion of RPost’s proposed construction is rejected.

b. “executing the link”

The Court next reviews GoDaddy’s proposal that “executing the link” should be construed as “action by the recipient.” GoDaddy explains that the “structure” of the asserted claims “makes clear that-once the message is opened at the recipient-it is the recipient (including the link at the recipient) that controls the server to provide the attendant proof that the message has been opened at the recipient.” (Doc. 117 at 11). GoDaddy further notes that “it is . . . the recipient (i.e., the link in the message) that performs the claimed function.” (Id.) RPost replies that even though the recipient performs the opening of the message, that fact is irrelevant because “the disputed claim function is executing, which the link does on its own.” (Doc. 119 at 6).

The Court finds that “executing the link” does not require the recipient to affirmatively act beyond opening the message. Rather, the function of the claim, “executing, ” occurs by the link itself “when the message is opened.” Furthermore, GoDaddy’s likening of the “recipient” to the “link” itself is baseless, as the two terms are clearly distinct. Consequently, this portion of GoDaddy’s proposal is rejected.

The Court adopts a slightly amended version of this portion of RPost’s proposal: “the link executing on its own when the message is opened at the recipient.” This construction clarifies for the jury that the link executes on its own when the message is opened.

c. “an indication”

Finally, the Court examines GoDaddy’s argument that “an indication” should be interpreted as “proof that the message has been opened at the recipient, the proof providing a legal or other evidentiary status on par with, if not superior to, that of registered United States mail.” (Doc. 191-1 at 2).[9] While it is undisputed that the claim language does not include this purported “evidentiary” limitation, GoDaddy argues that the limitation emerges from the specification and is essential to differentiate the Tomkow Patents from prior art. See (Doc. 117 at 11-12).

The portion of the shared specification from which GoDaddy plucks this limitation is found in the Summary of the Present Invention which reads as follows:

A general object of the present invention is to provide a system and method for reliably verifying via secure and tamper-proof documentation the content and delivery of an electronic message such as an e-mail. Ideally, the invention will give e-mail and other electronic messages a legal status on par with, if not superior to, that of registered United States mail. However, it is not necessary to the invention that any particular legal status is accorded to messages sent according to the methods taught herein, as the invention provides useful information and verification regardless.

‘199 Patent col. 3 ll. 8-17; ‘389 Patent col. 3 ll. 6-15 (same); ‘104 Patent col. 3 ll. 6-15 (same); ‘198 Patent col. 3 ll. 9-18 (same); ‘913 Patent col. 3 ll. 8-17 (same). Based on this language and references to prior art in the specification, GoDaddy maintains that the “indication” provided by the invention must have some level of evidentiary status-legal or otherwise-that is equal or superior to registered United States mail. (Doc. 117 at 11).

To begin, as the Court has already recounted, construing this term must be done in light of the Federal Circuit’s frequent admonition against reading limitations from the specification into the claim. See Comark Commc’ns, 156 F.3d at 1187. In ascertaining whether the patentee disavowed the full scope of a claim, the Court must refrain from committing the “cardinal sin” of reading limitations from the specification into the claims. Teleflex, 299 F.3d at 1326 (citing Comark Commc’ns, 156 F.3d at 1186). The only way a specification may narrow the scope of a disputed claim term is if the patentee “demonstrate[d] intent to deviate from the ordinary and accustomed meaning of a claim term by including in the specification expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.” Thorner, 669 F.3d at 1365 (quoting Teleflex, 299 F.3d at 1325). Here, because the proposed evidentiary limitation purportedly springs from the specification, GoDaddy must show that the inventor clearly disavowed the claim scope.

In this regard, the Court is not persuaded that GoDaddy’s proposed evidentiary limitation exists. The specification flatly expresses that “it is not necessary to the invention that any particular legal status is accorded to messages sent according to the methods taught herein, as the invention provides useful information and verification regardless.” GoDaddy nonetheless attempts to circumvent this language by arguing that its proposal affords two methods of attaining the evidentiary status of registered United States mail: (1) “legal” or (2) “other evidentiary status.” As the inventor clearly disclosed that no “legal” status was required for the invention, the question becomes whether an “indication” must have an “evidentiary status on par with, if not superior to, that of registered United States mail.”

In response to this question, the Court finds that GoDaddy’s proposal misses the mark. As discussed at length for Term No. 4, the “indication” provided by the invention is not the “proof” that is discussed in the specification. The second step of the process- the “verification” of a message-is when the invention arguably provides “proof” of certain aspects of the message. Consequently, even if the Court were to sidestep the “cardinal sin” of reading limitations from the specification into a claim and disregard the invention’s express disclaimer that no legal status is vital to the invention, the Court would still reject this portion of GoDaddy’s argument because the purported evidentiary limitation does not even concern the invention’s initial step of providing an “indication.”

Accordingly, the Court adopts its construction of “indication” as explained in Term No. 4.

3. Conclusion

For these reasons, the Court construes this phrase as: “the link executing on its own when the message is opened at the recipient to control the server to provide verifiable information that indicates ...


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