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KEKER & VAN NEST, LLP 
JOHN W. KEKER - #49092 
MICHAEL H. PAGE - #154913 
710 Sansome Street 
San Francisco, CA 941 1 1-1 704 
Telephone: (415)391-5400 
Facsimile: (415)397-7188 

DERWIN & SffiGEL, LLP 
DOUGLAS K. DERWIN - #1 1 1407 
3280 Alpine Road 
Portola Valley, CA 94028 
Telephone: (408) 855-8700 
Facsimile: (408) 529-8799 

INTERTRUST TECHNOLOGIES CORPORATION 

JEFFERY J. McDOW - #184727 

4800 Patrick Henry Drive 

Santa Clara, CA 95054 

Telephone: (408) 855-0100 

Facsimile: (408) 855-0144 

Attorneys for Plaintiff and Counter-Defendant 
INTERTRUST TECHNOLOGIES CORPORATION 


UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 


CORPORATION, a Delaware corporation, 


INTERTRUST TECHNOLOGIES 


Case No. C 01-1640 SBA (MEJ) 


Consolidated with C 02-0647 SBA 


Plaintiff, 


MICROSOFT CORPORATION, a 
Washington corporation, 


v. 


PLAINTIFF INTERTRUST 
TECHNOLOGIES CORPORATION'S 
REPLY MEMORANDUM ON CLAIM 
CONSTRUCTION 


Defendant. 


Date: 
Time: 


May 12, 29, & 30, 2003 
9:00 a.m. 


AND COUNTER ACTION. 


PLAINTIFF INTERTRUST TECHNOLOGIES CORPORATION'S REPLY MEMORANDUM 
CASE NO. C 01-1640 SBA (MEJ), CONSOLIDATED WITH C 02-0647 SBA . 


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TABLE OF CONTENTS 

Page 


I. INTRODUCTION 1 

H. ARGUMENT 2 

A. Microsoft's Requirement of Absolute, "true" Security Contradicts the 
Specification 2 

1 . Microsoft's VDE construction requires that the claims be 

interpreted to require an extremely high degree of security '. 2 

2. The specification discloses embodiments that do not require the 

highest degree of security '. 3 

3. The patent claims do not specify a high degree of security 4 

4. Microsoft's massive definition of "secure" invites the Court to 

usurp the jury's role in conducting the infringement analysis ...4 

B. Microsoft's VDE-Based Interpretation Requires Excluding Disclosed 
Embodiments 5 

1 . Tamper-Resistant Barrier 5 

2. Protected processing environment 6 

C. Microsoft's Legal Arguments Are Misleading 7 

D. Microsoft's Argument that the Claims Require VDE is Wrong 7 

1 . ' 1 93 patent claims 7 

2. '683, claim 2. i 11 

3. '721, Claims 1 and 34 ...1 1 

4. Other claims ..12 

E. Microsoft's Bases for Reading the Specification Into the Claims Are 

Either Mischaracterized or Do Not Apply 12 

F. Microsoft's Argument about the InterTrust Divisionals Misses the 

Point 15 

G. Individual Claim Elements. 16 

1 . Microsoft ignores ten claim elements 16 

2. Use 17 

3. Copy 17 


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TABLE OF CONTENTS 
(cont'd) 

Page 


4. Secure/Securely ; 17 

5. Secure Container 1 8 

6. Tamper Resistant Barrier . 1 9 

7. Protected Processing Environment 20 

8. Component Assembly ..20 

9. Control (noun)...: : 21 

10. A budget specifying the number of copies which can be made 

of said digital file (193.1) •■. 22 

11. Container....... 22 

12. Containing 22 

13. Control (verb) / Controlling 22 

14. "Controlling the copies made of said digital file" (193 .1) 22 

15. "Derives information from one or more aspects of said host 
processing environment" (900.155) 23 

16. Host Processing Environment , ..23 

17. Identifier : '. 23 

1 8. Tamper Resistance 24 

19. Budget 24 

20. Clearinghouse 24 

H. Testimony Cited by Microsoft 25 

III. CONCLUSION 25 


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TABLE OF AUTHORITIES 

Paee(s) 


Federal Cases 

Altiris. Inc. v. Symantec Corp., 
318 F.3d 1363 (Fed. Cir. 2003) , 12 

Ballard Med. Prod, v. Allegiance Healthcare Corp.. 

268 F.3d 1352 (Fed. Cir. 2001) '. 16 

CCS Fitness, Inc. v. Brunswick Corp., 

288 F.3d 1359 (Fed. Cir. 2002) 14 

Ethicon Endo-Surgerv v. United States Surgical Corp., 

93 F.3d 1572 (Fed. Cir. 1996) . : , 13 

Gerber Garment Tech.. Inc. v. Lectra Svs. Inc., 
916 F.2d 683 (Fed. Cir. 1990) 15, 16 

Innbvad. Inc. v. Microsoft. 

260F.3d 1326 (Fed. Cir. 2001) . : 14 

Inverness Med. Switz. GmbH v. Princeton Biomeditech Corp., 

309 F.3d 1365 (Fed. Cir. 2002) 17 

Johns Hopkins Univ. v. CellPro, Inc., 

152 F.3d 1342 (Fed. Cir. 1998) 5 

Markman v. Westview Instruments, Inc., 

52 F.3d 967, affd. 517 U.S. 370 (1996)... 8, 19, 22, 25 

Modine Mfg. Co. v. United States Int'l Trade Comm., 

75 F.3d 1545, 37 U.S.P.Q.2D (BNA) 1609 (Fed. Cir. 1996) 5 

NeoMagic Corp. v. Trident Microsystems. Inc. . 

287 F.3d 1062 (Fed. Cir. 2002) 13 

North Am. Vaccine v. American Cvanamid Co.. 

7 F.3d 1571 (Fed. Cir. 1993) 13 

PPG Indus.. Inc. v. Guardian Indus. Corp., 

156 F.3d 1351 (Fed. Cir. 1998) : 5, 20 

Rheox. Inc. v. Entact. Inc.. 

276 F.3d 1319 (Fed. Cir. 2002) , 14 

SciMed Life Sys. v. Advanced Cardiovascular Sys.. 

242 F.3d 1337 (Fed. Cir. 2001) 13, 14 

Spectrum Int'l v. Sterilite Corp. . 

164 F.3d 1372 (Fed. Cir. 1998) 14 

Toro Co. v. White Consol. Indus.. 

199 F.3d 1295 (Fed. Cir. 1999) 14 

Watts v. XL Svs.. Inc. . 

232 F.3d 877 (Fed. Cir. 2000) 13 

Statutes 

35 U.S.C. § 112(6) 16 


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TABLE OF AUTHORITIES 
(cont'd) 

Paee(s) 

Other Authorities 

American Heritage Dictionary 23 


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I. INTRODUCTION 

Microsoft's claim construction positions derive from a single underlying premise: the 
details of the "VDE" embodiment described in the specifications must be read into every claim, 
and every claim element must be interpreted so as to include all of the VDE limitations. 
According to Microsoft, this is so because the patents "promise" an extremely high degree of 
security ("truly secure") that Microsoft alleges can only be supplied by the VDE embodiment. 

Microsoft acknowledges, however, that the patents describe varying levels of security, 
ranging from the extremely high degree of security provided by the "truly secure" embodiment 
to much lower levels of security. The patents refer to all of these levels of security as "secure," 
and each of them represents a degree of security appropriate to particular circumstances. 
Microsoft's constructions exclude all levels of security other than the extremely high "truly 
secure," not because the claims specify this high level of security (they are silent regarding the 
particular level of security required and do not mention "true" security), not because the 
specification requires such an interpretation (it describes varying degrees of security) and not 
because the ordinary meaning of the claim terms requires such an interpretation (Microsoft 
acknowledges its definition of "secure" is not standard). 

Instead, Microsoft excludes all levels of security other than the highest possible level 
because, according to Microsoft, only the highest possible level is consistent with the "VDE 
invention." Microsoft contends that lower security embodiments should be ignored during claim 
construction, because in some places the specification uses the word "invention" in combination 
with VDE, thereby allegedly requiring that 115 pages, including "literally hundreds" of 
limitations, be read into every claim. 

Microsoft's requirement that the "VDE invention" be imported into every claim leads 
Microsoft to claim constructions that directly contradict the definition given to the same terms in 
the specification. For example, the specification describes two embodiments of "tamper resistant 
barrier," a higher-security hardware embodiment and a lower-security software embodiment. 
Both of these embodiments are identified in the specification as a "tamper resistant barrier." 
Microsoft, however, demands that the claim term "tamper resistant barrier" be defined to exclude 

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the software embodiment, since the software embodiment is inconsistent with Microsoft's 

requirement that VDE "true security" be read into every claim. Similarly, the specification 

describes two embodiments of "protected processing environment," a higher-security hardware 

embodiment and a lower-security software embodiment, both identified in the specification as a 

"protected processing environment." Microsoft's construction of "protected processing 

environment" excludes the software embodiment, again because this is inconsistent with 

Microsoft's requirement that VDE 4t true security" be read into every claim element. 

The Federal Circuit has held that claim constructions that exclude disclosed embodiments 

are "rarely, if ever" correct. Microsoft's "VDE invention" construction of the claims ignores 

specification embodiments describing levels of security different than extremely secure "true" 

security, and contradicts the specification's use of the claim terms. Microsoft's construction 

must therefore be rejected as being inconsistent with the patent specifications. 

II. ARGUMENT 

A, Microsoft's Requirement of Absolute, "True" Security Contradicts the 
Specification. 

1. Microsoft's VDE construction requires that the claims be interpreted to 
require an extremely high degree of security. 

Microsoft's proposed constructions require that "each type of property identified in the 

patents is 'truly secure' against all types and levels of threats identified in the patents." MS Br., 

28:1-2. According to Microsoft, this requires that "all users" are "guaranteed that all 

information, processes, and devices" will have five separate properties "maintained against all of 

the identified threats thereto." MS Br., 28:2-5. Microsoft justifies this extreme position by 

arguing that none of the patents excludes what Microsoft characterizes as "true security." MS 

Br., 28:7-17! Thus, Microsoft's brief includes statements such as the following: 

[T]he Big Book promises "true" security. It promises the ability to "prevent" 
unauthorized uses, etc., and "ensure" that rights will be enforced, and "guarantee" 
trustworthiness, even when faced with strong, sophisticated attacks against high- 
value content. Nothing in the claims indicates an inability to live up to these 
promises and protect such high-value content against such strong attacks. 

MS Br., 32:16-20 (emphasis added). See also Id., 3:4-1 1, 17:4-6. 

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Microsoft asks that claims be interpreted narrowly so as to exclude all levels of security 

other than this "true" security, security so high as to amount to an absolute "guarantee" of 

protection against all threats, "no matter what effort may be made" to break the protection. 

2. The specification discloses embodiments that do not require the highest 
degree of security. 

As Microsoft acknowledges, the patents describe a variety of levels of security. Thus, 
Microsoft states that the patents use "secure" "to mean different things in different places," (MS 
Br., 25:18-19), and "the term 'secure' is used in the specification to refer to different things in 
different contexts." MS Br., 27:10-11. 

The passage Microsoft relies upon for its requirement of "true" security makes exactly 
this point: 

The SPU 502 may be used to perform all truly secure processing, whereas one or 
more HPEs 655 may be used to provide additional secure (albeit possibly less 
secure than the SPE) processing . . . Any service may be provided by such a 
secure HPE 

'193 patent, 80:30-36 (JCCS Ex. C, 22(B) (emphasis added). 

Other passages similarly indicate that different degrees of protection may be desirable in 

different contexts: 

Because security may be better/more effectively enforced with the assistance of 
hardware security features such as those provided by SPU 500 (and because of 
other factors such, as increased performance provided by special purpose circuitry 
within SPU 500), at least one SPE 503 is preferred for many or most higher 
security applications. However, in applications where lesser security can be 
tolerated and/or the cost of an SPU 500 cannot be tolerated, the SPE 503 may be 
omitted and all secure processing may instead be performed by one or more 
secure HPEs 655 executing on general-purpose CPUs 654. 

'193 patent at 80:65-81:8 (JCCS Ex. C, 19(N)) (emphasis added). Additional examples 
of specification passages describing security levels below the highest level are found at JCCS 
Ex. C, 19(B), (C), (J), and (M). 

Thus, the parties agree that the patent specification describes different degrees of 
security, including "truly" secure and "less" secure. The word "secure" is used to refer to both 
of these levels. 


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3. The patent claims do not specify a high degree of security. 

The claims do not require "true" security. Both disclosed embodiments (truly secure and 
less secure) are within the scope of the word "secure" as used in the specification. 

That "secure" is used to refer to different levels and degrees of security supports 
InterTrust's definition, since that definition allows such different degrees. Microsoft, however, 
argues that the breadth given to the term in the specification actually supports reading the most 
extreme disclosed embodiment into the claims, on the theory that the claims do not "exclude" 
this embodiment. MS Br., 28: 12-1 3. 1 Microsoft further alleges that the context of the claims 
requires 'true security" against "high- value, strong attack situations." MS Br., 28:9-17. 

Microsoft fails, however, to adequately explain how the "context" of any particular claim 
requires the highest degree of security described in the patent specification. Claim 193.1, for 
example, involves downloading and playing music. This hardly seems the type of "high value, 
strong-attack" situation Microsoft describes. Microsoft gives no reason for assuming that the 
value and potential threats applicable to downloading songs is the same as the value and threats 
relevant, for example, to corporate trade secrets, nuclear weapons codes, money wire transfers, 
etc. 

4. Microsoft's massive definition of "secure" invites the Court to usurp the 
jury's role in conducting the infringement analysis. 

"Secure" is a general term, and the degree of protection necessary for a system to be 
"secure" depends on the context. The parties are in agreement on this, as is the specification. 

When a claim term is drafted in general terms that may cover a range of circumstances, 

the Federal Circuit mandates that the Court construe the term generally and leave the question of 

determining whether an accused product meets that general construction to the finder of fact: 

Claims are often drafted using terminology that is not as precise or specific as it 
might be. . . . That does not mean, however, that a court, under the rubric of 
claim construction, may give a claim whatever additional precision or specificity 
is necessary to facilitate a comparison between the claim and the accused product. 
Rather, after the court has defined the claim with whatever specificity and 
precision is warranted by the language of the claim and the evidence bearing on 
the proper construction, the task of determining whether the construed claim reads 

1 InterTrust agrees that the claims do not exclude the "true security" embodiment. That claims 
do not exclude an embodiment obviously does not mean the claims require that embodiment. 

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on the accused product is for the finder of fact. 

The proper allocation of the tasks of construing a claim and determining 
infringement in a case in which a claim contains an imprecise limitation is 
demonstrated by our decision in Mddine Mfg. Co. v. United States Int'l Trade 
Comm. , 75 F.3d 1545, 37 U.S.P.Q.2D (BNA) 1609 (Fed. Cir. 1996). In Modine, 
the patentee had claimed a condenser for an automotive air conditioning system 
. with "relatively small" hydraulic diameters. Id. at 1549. From the specification 
and prosecution history of the patent, this court concluded that the term "relatively 
small" should be interpreted as referring to a range of diameters of "about 0.015- 
0.040" inches. Id. at 1554. Instead of attempting to define that range more 
precisely, we remanded the case for a factual determination of whether the claim 
limitation was literally infringed by accused products having diameters ranging 
from 0.0424 to 0.0682 inch. Id. at 1554-55. 

[T]he f 886 patent contains some inherent imprecision resulting from the use of the 
term "consisting essentially of." As PPG points out, it is possible that under such 
circumstances different finders of fact could reach different conclusions regarding 
whether the effect of a particular unlisted ingredient in an accused product is 
material, and thus whether that product infringes. That possibility, however, is . a 
necessary consequence of treating infringement as a question of fact subject to 
deferential review. It does not mean that the claim was improperly construed as an 
initial matter. 

PPG Indus., Inc. v. Guardian Indus. Corp. , 156 F.3d 1351, 1355 (Fed. Cir. 1998) (citation 


PPG Industries is controlling here. "Secure" is a general term, the applicability of which 
depends on the context. The parties agree on this, and the patents describe different levels of 
security. The Court should, therefore, construe the term generally, and allow the jury to 
determine whether, under the particular circumstances, an accused product is or is not "secure." 
B. Microsoft's VDE-Based Interpretation Requires Excluding Disclosed Embodiments. 

The Federal Circuit is clear on constructions that exclude disclosed embodiments: 

A claim construction that does not encompass a disclosed embodiment is thus 
" rarely, if even correct and would require highly persuasive evidentiary support." 
Vitronics, 90 F.3d at 1583, 39 U.S.P.Q.2D (BNA) at 1578. 

Johns Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1355 (Fed. Cir. 1998) (emphasis added). 

Microsoft's VDE-based constructions lead to exactly this result. 

1 . Tamper-Resistant Barrier. 

Microsoft argues that "tamper resistant barrier" must be interpreted as a hardware device. 
MS Br., 30:22-23. As Microsoft acknowledges, however, "the Big Book also refers to a 'tamper 


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resistant barrier* which is not a physical hardware device." MS Br., 32:13-14. 2 In fact, the 
patent discusses this software embodiment at length, using the phrase "tamper resistant barrier" 
to refer to it. JCCS Ex. C, 22(B). Microsoft would thus have the Court construe "tamper 
resistant barrier" to exclude an embodiment identified in the specification as a "tamper resistant 
barrier." Why? Because defining "tamper resistant barrier" to include the software embodiment 
is inconsistent with VDE requirements Microsoft seeks to read into all of the claims (e.g., "true 
security," hardware Secure Processing Unit"). MS Br., 32:13-34:4. 3 

Microsoft's VDE construction is inconsistent with interpreting '*tamper resistant barrier" 
to include the software "tamper resistant barrier." The Court therefore has a choice: accept 
Microsoft's VDE argument and construe this term in a manner contradicting the specification, or 
reject Microsoft's VDE construction and construe the term as it is used in the specification. As 
the Federal Circuit has held, the former of these approaches is "rarely, if ever" correct. 

Moreover, InterTrust is aware of no Federal Circuit case that has ever held that a claim 
term can be interpreted to exclude, not merely a disclosed embodiment, but a disclosed 
embodiment that is identified in the specification using exactly the same words as the claim 
("tamper resistant barrier"). Yet this is the result mandated by Microsoft's VDE construction. 4 

2. Protected processing environment. 

Microsoft acknowledges that the specification discloses two embodiments of a protected 
processing environment, a hardware-based SPE and a software-based HPE, both of which are 


2 Microsoft also alleges that the "ordinary meaning" of tamper resistant barrier connotes a 
physical device (MS Br., 30:24-28), but neither of its experts testifies to this effect, and 
Microsoft's only support is a misleading citation to Dr. Reiter, testimony that Dr. Reiter 
explicitly characterized as "an example." Reiter 1, 137:22. (Keefe DecL, Ex. E.) 

3 Microsoft also alleges in a conclusory manner that a software tamper resistant barrier would be 
too vague since "there would be no objective measure for distinguishing between a barrier which 
is tamper resistant and one which is not tamper resistant" (MS Br., 32:7-9), but fails to discuss 
the lengthy specification disclosure discussing the software tamper resistant barrier (JCCS Ex. C, 
22(B)), nor does Microsoft address why a tamper resistant barrier provided by software requires 
an "objective measure" whereas no such objective measure is required for a hardware barrier. 

4 Moreover, the claim itself is inconsistent with Microsoft's interpretation. 721.1 recites not one 
but two tamper resistant barriers, and further recites that they have different security levels. The 
claim therefore clearly contemplates the possibility that one tamper resistant barrier will be more 
secure than another. For example, in one obvious embodiment, the first tamper resistant barrier 
would be hardware (higher security) and the second would be software (lower security). 

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explicitly identified as "protected processing environments." MS Br., 34:3-14. As Microsoft 
further acknowledges, Microsoft's definition of "protected processing environment" excludes the 
software-based HPE embodiment. MS Br., 35:3-14. 

According to Microsoft, this is mandated for the same reason as exclusion of the software 
"tamper resistant barrier" from the construction of that term. MS Br., 35:12-14. Again, 
Microsoft's VDE-based construction requires excluding a disclosed embodiment from the 
definition of a claim term, even though that embodiment is explicitly identified in the 
specification using the exact same term, and even though the specification explicitly states that 
"any service" may be provided by a secure HPE. '193 Patent, 80:35-36 (JCCS Ex. C, 22(B)). 

Interpretation of claim terms so as to exclude embodiments distinctly described in the 
specification is clear legal error, yet this is precisely the result of Microsoft's VDE-centric 
position. 

C. Microsoft's Legal Arguments Are Misleading. 

Microsoft's General Claim Construction Legal Analysis cites sources for the proposition 
that claims must recite the invention described in the specification. MS Br., 9:14-26. Microsoft 
emphasizes the word "invention" in these quotations, apparently hoping the Court will conclude 
that these cases and statutes stand for the proposition that, when the specification uses the word 
"invention," every element described thereafter must be read into every claim. 

In fact, none of the cited authority supports this proposition. That claims must recite the 
invention described in the specification does not mean that when a patent specification uses the 
word "invention," the specification is automatically imported into the claims. InterTrust cited 
numerous Federal Circuit cases in its opening brief holding that elements described as the 
"invention" should not be read into the claims. InterTrust's Opening Br., 9:1-10:24. Microsoft 
does not even attempt to distinguish this authority. 

D. Microsoft's Argument that the Claims Require VDE is Wrong. 
1. '193 patent claims. 

The '193 patent's claims do not refer to "VDE," nor to any other coined terms, such as 
"protected processing environment" or "host processing environment." In its attempt to 

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shoehorn VDE into these claims, despite the absence of any VDE language, Microsoft relies on a 

variety of arguments that it repeats with respect to the other claims. First, Microsoft argues that 

the claims require elements that are not present in the claims themselves: 

All four '193 Patent mini-Markman claims concern the distribution 
and protection of digital content, and contemplate multiple nodes 
and participants. Information is received (possibly from multiple 
upstream content providers), then stored on a device having 
unspecified authorized and unauthorized users, and then 
conditionally transferred to another device having unspecified 
users. 

MS Br., 16:22-26 (emphasis added). 

Why are the multiple content providers and multiple users "possible" and "unspecified?" 
Because the claims do not require them . The claims do not refer to multiple upstream content 
providers. The claims do not refer to multiple users of the first device, much less authorized and 
unauthorized users. The claims do not refer to multiple users of the second device. 

The InterTrust claims are silent on these questions. The claims are consistent with 
multiple upstream content providers, but do not require them. The claims are consistent with 
multiple users of the first device, but do not require them. The claims are consistent with 
multiple users of the second device, but do not re quire them. 

That claims are consistent with a particular embodiment is hardly grounds for reading 
every limitation from that embodiment into the claims. 

Prof. Maier' s Declaration includes testimony that is apparently intended to buttress 

Microsoft's argument. That testimony is worth quoting in full: 

Additional compelling evidence of the presence of the Virtual Distribution 
Environment can be found in the process described in the claims themselves. For 
example, '193 Patent claim 1 purports to describes a distribution process 
involving at least three nodes. Thus, "receiving a digital file" implies, although 
does not explicitly state, that the digital file must come from some source device 
or system regardless of the transmission mechanism. Logically, this would be a 
system other than the "first device" and the "second device" which are described 
in other steps of the claim. Otherwise, the claim would have questionable utility. 

Maier Decl., 23:17-25 {emphasis added). 

This is typical of Microsoft's Markman positions in general. Prof. Maier establishes that 

a "received" digital file must come from somewhere (a point not disputed by InterTrust), but 


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fails to explain why this is "compelling evidence" that the claims require VDE. Calling 
something "compelling evidence" does not make it so. 
Microsoft's argument proceeds as follows: 

This claim language (e.g., "if . . . allows," "determining whether") is not 
qualified. It implies that if the copying and storing are not allowed, then they are 
prevented (see Reiter Depo. at 1 74: 1 -1 78: 1 1), no matter what effort may be made 
to take the unauthorized action. In other words, these claims imply that their 
"controls" are effective in the face of the attacks identified in the Big Book. 

These claimed protections against misuse cannot be achieved by encrypting the 
content. Encryption would not prevent the content from being accessed, copied, 
distributed, or stored. For these types of protection, "access control" is necessary. 
More particularly, the Big Book describes only the complete "invention" as 
providing such protection against the threats identified in the Big Book. In other 
words, by promising the type of effective access control protection said to be 
provided only by the complete VDE, these claims invoke that "invention." 

MS Br., 17:4-14. 

This passage is typical of Microsoft's reasoning. First, it is almost entirely devoid of 
evidentiary citations. The only citation that Microsoft makes is to four pages of Dr. Reiter's 
deposition testimony, testimony that Microsoft has not even put into evidence (it is excluded 
from the Keefe Decl.). Microsoft's failure to provide this testimony to the Court is 
understandable, since Microsoft has grossly mischaracterized the passage, in which Dr. Reiter 
explicitly disclaimed any requirement of absolute protection. Reiter II, 177:18-178:11. 
Declaration of Jeff McDow in Support of InterTrust's Claim Construction ("McDow Decl."), U 2 
and Ex. A. 

Moreover, this passage is typical of Microsoft's arguments, since it piles inference on 
inference, hone of them supported in any manner. Microsoft's chain of reasoning is as follows: 

(1) The claims use the words "allows" and "determining," and do not qualify them. 

(2) The absence of qualification means that the protections must be effective "no 
matter what effort may be made to take the unauthorized action." Microsoft makes this 
allegation, but does not even allege that one of ordinary skill in the art would have understood 
the apparently innocuous terms "allows" and "determining" to require absolute protection. 

(3) The requirement of absolute protection means that the controls must be "effective 
in the face of the attacks identified in the Big Book." Microsoft makes no allegation that every 

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attack described in the patent specification is relevant to these particular claims (e.g., music 
downloading), nor does it explain why every possible attack must be protected against. 

(4) The requirement of absolute protection against all types of attacks "cannot be 
achieved by encrypting the content. Encryption would not prevent the content from being 
accessed, copied, distributed or stored." Again, Microsoft presents no evidence for this 
proposition. Why, for example, would encryption not prevent content from being "accessed?" 
Microsoft doesn't say. Moreover, the claims themselves don't say anything about either the 
presence or the absence of encryption, and InterTrust has never alleged that the claims require 
encryption (nor that they exclude encryption for that matter). 

(5) Since encryption is not sufficient, "fflor these types of protection, 'access control' 
is necessary ." The claims do not mention "access control." No Microsoft witness testifies that 
one of ordinary skill in the art would have understood these claims as requiring "access control." 
Instead, Microsoft imports "access control" into the claims because "access control" is allegedly 
better than encryption (also not mentioned in the claims) at ensuring the absolute degree of 
protection (also not mentioned in the claims) allegedly required by "allows" and "determining." 

(6) Since access control is required, the claims invoke VDE : 

Microsoft's argument reaches its conclusion in the following passage: 

More particularly,, the Big Book describes only the complete "invention" as 
providing such protection against the threats identified in the Big Book. In other 
words, by promising the type of effective access control protection said to be 
provided only by the complete VDE, these claims invoke that "invention." 

MS Br., 17:11- 14. 

This is a masterpiece of conclusory reasoning. "Such protection" is not mentioned in the 
claims, but is implied by Microsoft. The "threats identified in the Big Book" are not mentioned 
in the claims, but are implied by Microsoft. The claims do not make any type of "promise." 
This is implied by Microsoft. The claims do not mention "access control," either "effective" or 
non-effective. This is implied by Microsoft. 

All of this, it should be recalled, rests on a rather thin reed: the presence of the words 
"allows" and "determining," in the claims, yet Microsoft provides no basis for concluding that 


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one of ordinary skill would have interpreted these terms as implying hundreds of VDE 
limitations. 

2. '683, claim 2. 

Microsoft's justification for concluding that 683.2 should be interpreted as requiring the 

"hundreds" of VDE limitations is the following 

This claim [683.2] also concerns a multi-node distribution system. Here, "secure 
containers" and "secure container rules" are distributed amongst various nodes. 
The claim appears to promise the ability to prevent access to or use of protected 
information, using the secure containers, secure container rules, and a "protected 
processing environment." (See Second Mitchell Decl. at 6-7). These protections 
are not qualified as to the nature or severity of the threat being faced; they 
impliedly are effective against all threats identified in the patent or Big Book. 
The only system described in the Big Book or '683 Patent said to accomplish such 
protections, is the complete VDE. This claim further invokes VDE by using VDE 
and vague terminology, such as "secure container" and "protected processing 
environment." 

MS Br. 17:27-18:1. 

The only support cited by Microsoft for this characterization of 683.2 is the Second 
Mitchell Decl. at 6-7. Those Declaration pages do not discuss this claim. 

Microsoft's key argument is the following: 'These protections are not qualified as to the 
nature or severity of the threat being faced; they impliedly are effective against all threats 
identified in the patent . . . ." Microsoft does not explain why an absence of qualification means 
the claims require the highest degree of security (as opposed to the lowest, or to the security 
relevant under the circumstances). Nor does Microsoft explain how this implication can be 
squared with specification statements that security may be limited, may be broken, or may 
consist of fewer than all protection mechanisms. JCCS Ex. C, 19(A)-(N), 19(Q)-(T). 

3. '721, Claims 1 and 34. 

Again, Microsoft's argument consists entirely of conclusory allegations. Microsoft 
argues that 'The 4 721 Patent purports to improve the Big Book VDE by preventing the use of 
executable code (specifically "load modules" in Claim 1) except as authorized." MS Br., 18:8-9. 
No citation is given for this assertion, and Microsoft makes no attempt to tie it to the claims, 
other than noting that 721.1 recites load modules. 


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Microsoft continues by alleging that "Such prevention requires an access control 
capability." MS Br., 18:9-10. Again, no citation is provided, and neither claim mentions any 
such capability. 

Microsoft then argues that the claims "promise such protections without any 
qualification." MS Br., 18:10-11. The claims contain no such promises, and Microsoft fails to 
explain why an absence of qualification requires the highest possible degree of protection. 

Microsoft ends by arguing that the claims "invoke the 'invention'" by including the terms 
"protected processing environment," "tamper resistant barrier" and "security." As is discussed 
above, the first two of these are described using higher-security and lower-security embodiments, 
so these terms hardly support a requirement that the claims be interpreted using the highest 
possible security level. As to the word "security," this is a common word, and Microsoft 
provides no basis for reading a requirement of "VDE" into this term, other than the implication 
that VDE is the "context," an argument that is inconsistent with the multiple embodiments 
disclosed in the patents. 

4. Other claims. 

Microsoft's arguments regarding the other claims suffer from the same infirmities and 
should be rejected for the same reasons as discussed above. 

E. Microsoft's Bases for Reading the Specification Into the Claims Are Either 
Mischaracterized or Do Not Apply. 

Microsoft identifies various situations in which Microsoft believes that limitations can be 
read from the specification into the claims. MS Br. at 1 1 :27-14:15. These situations are either 
mischaracterized by Microsoft or have no relevance to this case. 

(1) To provide clarity . Microsoft cites cases for the proposition that, if a particular 
claim term deprives the claim of clarity, the court may look to the specification for guidance in 
interpreting the claim. MS Br., 1 1 :27-12:13. Each of the cases cited by Microsoft concerned a 
particular interpretation issue raised by a particular claim element (e.g., does "automation code" 
mean particular code in an operating system? (Altiris. Inc. v. Symantec Com., 318 F.3d 1363, 
1374-75 (Fed. Cir. 2003)); does "coupling" require different voltages? (NeoMagic Corp. v. 


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Trident Microsystems. Inc. . 287 F.3d 1062, 1071-72 (Fed. Cir. 2002)); does "sealingly 
connected" require misaligned taper angles? (Watts v. XL Svs., Inc.. 232 F.3d 877, 882-83 (Fed. 
Cir. 2000)); does "without significant cross-linking" include a particular type of cross-linking? 
(North Am. Vaccine v. American Cvanamid Co.. 7 F.3d 1571, 1575-76 (Fed. Cir. 1993)). 5 
None of these cases involved an attempt by a patent defendant to read hundreds of 
limitations into every claim, nor to interpret numbers of claim terms using significant limitations 
that are not tied to any use of the terms themselves in the specification, 

(2) Express or implied definition in the patent . Most of the cases cited by Microsoft 
involve an explicit definition in the patent or file history. Notably, where such definitions have 
been provided in the present case, Microsoft has chosen to ignore them (e.g., Device Class, 
Contained). 

As Microsoft points out, the cases involving an "implied" definition concerned use of a 
claim term "throughout the entire patent specification in a manner consistent with only a single 
meaning." MS Br., 12:19-20. In this case, however, Microsoft makes no attempt to establish 
that any particular claim terms are used consistently with only one meaning. Indeed, Microsoft 
regularly notes that the specification uses claim terms in multiple manners, or in a manner 
inconsistent with Microsoft's proposed interpretation (e.g., 'tamper resistant barrier," "protected 
processing environment"). 

(3) Important to the Invention . This issue is addressed in InterTrust's opening brief. 
That specification characterizations of "the invention" do not constitute a magic formula 
automatically pulling the specification into the claims, however, is made clear by the cases cited 
in InterTrust's opening brief, each involving specification statements about "the invention," each 
holding that those statements did not limit the claims. Microsoft does not even attempt to 
distinguish these cases. 

Microsoft's characterization of SciMed Life Svs. v. Advanced Cardiovascular Svs. . 242 
F.3d 1337 (Fed. Cir. 2001) is at best disingenuous: "limiting claim term 'lumen' to 'coaxial 

5 One of the cases cited by Microsoft (Ethicon Endo-Surgerv v. United States Surgical Corp.. 93 
F.3d 1572 (Fed. Cir. 1996)) is miscited, since the Federal Circuit used the prosecution history, 

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PLAINTIFF INTERTRUST TECHNOLOGIES CORPORATION'S REPLY MEMORANDUM 
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lumen* in part because the specification characterized the coaxial configuration as part of the 
'present invention/" MS Br., 13:7-9. In fact, as InterTrust pointed out in its opening brief, the 
Scimed patent went well beyond characterizing this element as "part of* the invention: the 
specification stated that the element was present in "all embodiments" of the invention, a 
statement the Federal Circuit characterized as "the most compelling portion of the specification," 
a statement that significantly exceeds anything present in the current case. 242 F.3d at 1343. 

In addition, the cases cited by Microsoft involved specific issues relating to specific terms 
(Scimed : does "lumen" mean "coaxial lumen?"; Toro Co. v. White Consol. Indus. , 199 F.3d 
1295, 1300-01 (Fed. Cir. 1999): does "including" mean "attached?"). Neither case held that 
statements about the "invention" required that an entire embodiment with hundreds of limitations 
be incorporated wholesale into every claim. 

(4) Distinguishing prior art . Microsoft argues that statements distinguishing prior art 
may support reading embodiments into the claims. MS Br., 13:10-20. Cases cited by Microsoft 
generally concern file wrapper estoppel, Spectrum frit'l v. Sterilite Corp. , 164 F.3d 1372, 1378 
(Fed. Cir. 1998); Rheox, Inc. v. Entact Inc.. 276 F.3d 1319, 1325-26 (Fed. Cir. 2002). 6 

The one case cited by Microsoft that does relate to a specification statement illustrates 
why this doctrine does not apply in the present case. In Innovad, Inc. v. Microsoft, 260 F.3d 
1326 (Fed. Cir. 2001), the court construed the claim term "dialer" in light of a specification 
statement that prior art dialers of a particular type were <4 useless" for a particular purpose. On 
that basis, the court concluded that the claim term "dialer" should exclude that particular type. 

Here, in contrast, Microsoft points to no specification statement discussing a specific 
claim term in light of the prior art. For example, there are no specification statements to the 
effect that prior art software tamper resistant barriers were inadequate for some particular 
purpose. Nor does Microsoft cite any case standing for the proposition that a general statement 
about the inadequacies of the prior art and the advantages of an overall embodiment described in 

rather than the specification, to interpret the claim element. 93 F.3d at 1579-80. 

6 CCS Fitness, Inc. v. Brunswick Corp. , 288 F.3d 1359, 1366-67 (Fed. Cir. 2002) includes this 
factor in a list of possible factors but does not apply it, though it does cite the Spectrum file 
wrapper language. 

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the patent requires that every detail of that embodiment be read into every claim. Nor does Prof. 
Mitchell's testimony about various references fill this gap, since he does not tie his discussion of 
these references to any particular specification statement that distinguishes them. Mitchell 2nd 
Decl., 10:17-18:4. 

(5) Express disclaimer . Microsoft does not argue that any express disclaimer exists. 
F. Microsoft's Argument about the InterTrust Divisionals Misses the Point 

In its opening brief, InterTrust pointed out that the Patent Office's restriction requirement 
demonstrated that the foundational InterTrust application involved multiple inventions, 
inventions that the Patent Office expressly held related to separate classes, each shown to be 
"separately usable." InterTrust Opening Br., 1 1:5-12:20. This determination rebuts any 
argument that the original InterTrust specification disclosed only a single VDE "invention." 

Microsoft makes arguments in response, but none to the point. Microsoft argues that the 
Patent Office's restriction requirement is irrelevant because "InterTrust's patent claims are free 
to recite additional features, which additional limitations may (or may not) make them separate 
'inventions' under Patent Office restriction practice. But, that is not the issue here." MS Br., 
15:3-7. 

Microsoft does not explain why "that is not the issue here," and it certainly seems to be 
the issue: Microsoft argues that the patents disclose a single, unitary VDE invention, and 
hundreds of limitations must be read into every claim. Microsoft relies heavily on statements 
referring to "the invention," and argues that "the invention" must be incorporated into every 
claim. The restriction requirement, however, makes it clear that references in the application to 
"the invention" cannot be read as meaning that the application recited a single invention. 

Microsoft also points out that divisional patents may end up with claims directed to the 
same invention, and that in such a case the resulting patents are invalid. Microsoft further argues 
that, because the claims of the divisional applications were changed, the presumption they were 
directed to different inventions should not apply, citing Gerber Garment Tech., Inc. v. Lectra 
Svs. Inc. . 916 F.2d 683 (Fed. Cir. 1990). 


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Gerber includes no such holding, nor could it, since the presumption of patent validity is 
statutory, and cannot disappear merely because a divisional application's claims have been 
changed. The Court must presume that the Patent Office acted properly in the original restriction 
requirement, and in issuing the subsequent patents, including the amended claims. Thus, the 
Court must presume that the divisional applications were originally drawn to different 
inventions, and that the subsequent patents issuing from those applications were also drawn to 
different inventions, since otherwise the divisional patents would be invalid, and those patents 
carry a statutory presumption of validity. 

Microsoft characterizes Ballard Med. Prod, v. Allegiance Healthcare Corp.. 268 F.3d 
1352 (Fed. Cir. 2001), as follows: "limiting claims of both a patent issued from the parent 
application and a patent issued from a divisional of such parent to exclude a particular type of 
valve based on statements made in common specification text and prosecution history of the 
parent application." MS Br., 15:26-16:2. This is wrong. In Ballard, the Federal Circuit held that 
statements in a parent prosecution history can serve to limit later patents. 268 F.3d at 1361-62. 
No issue of statements made in the specification was raised in the case. In particular, the Federal 
Circuit did not address specification statements about "the invention." 7 
G. Individual Claim Elements. 

1. Microsoft ignores ten claim elements. 

Microsoft filed a forty page brief, plus two expert Declarations, but neither Microsoft rior 
its experts have anything to say about ten of the thirty terms at issue in this hearing: (1) Aspect, 
(2) Authentication, (3) Compares, (4) Derive, (5) Designating, (6) Device Class, (7) Digital 
Signature/Digitally Signing, (8) Executable Programming/Executable; (9) 721.1: "digitally 
signing a second load module...." (10) 912.8: "identifying at least one aspect of an execution 
space required for use and/or execution of the load module." 


7 Moreover, Ballard involved claims interpreted under 35 U.S.C. § 1 12(6), which are supposed to 
be limited to the embodiments disclosed in the specification, so this case would be 
distinguishable even if Microsoft had correctly characterized it. 283 F.3d at 1359-60. 

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PLAINTIFF INTERTRUST TECHNOLOGIES CORPORATION'S REPLY MEMORANDUM 
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2, Use, 

InterTrust's definition is taken from a standard dictionary (JCCS, Ex. C, 23(A)). The 
Federal Circuit approves using dictionary definitions. Inverness Med. Switz. GmbH v. Princeton 
Biomeditech Corp., 309 F.3d 1365, 1369-70 (Fed. Cir. 2002). 

Microsoft's argument on "use" is mysterious, as Microsoft concentrates on "encryption," 
and on a series of alleged InterTrust contentions. MS Br,, 20:6, 21:20-25. Encryption appears 
irrelevant to the proposed definitions, and InterTrust never made the contentions. 

3, Copy. 

Microsoft responds at length to arguments never made by InterTrust, and ignores 
InterTrust's central point: Microsoft's definition would result in a nonsensical interpretation of 
193.1, in which a budget for making copies would be used up by "phantom," internal 
reproductions that the user would never know existed, much less be able to use. Microsoft does 
not attempt to explain how its interpretation would make sense in the context of the claim. 8 

4, Secure/Securely. 

Microsoft acknowledges that its proposed definition is neither "standard" nor an express 
definition from the patent, MS Br. at 28:6-7. What Microsoft fails to acknowledge is that its 
definition actually contradicts the specification. According to Microsoft, a system is secure only 
if it protects five separate properties against attack, and only if this protection is 100% effective. 
As described above (§ II A 2), however, the specification explicitly describes various levels of 
security, and characterizes them all as "secure." 

Microsoft attacks InterTrust's definition, arguing that InterTrust ignores the effectiveness 
of the efforts taken. MS Br., 26:10-1 1. In fact, InterTrust's proposed definition requires that the 
mechanisms employed "prevent," "detect" or "discourage" misuse or interference. A 
mechanism that fails to perform these functions (e.g., a completely ineffective mechanism) 
would not be "secure" under InterTrust's definition. 

8 Prof. Mitchell's commentary on "copy" is similar: a great deal of discussion of this phrase in 
the abstract, but no attempt to explain how Microsoft's proposed definition would make sense in 
the context of the claim, nor any attempt to respond to InterTrust's discussion of this in its 
opening Brief. Mitchell 2nd Decl., 6:23-8:2. 

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Microsoft also argues that VDE "promises the ability to prevent" various types of misuse, 
and that detecting or discouraging misuse is not security. MS Br. at 26: 14-20. Microsoft cites 
no support for this proposition, and it is clearly incorrect. In some circumstances, mechanisms 
that allow the detection of misuse are fully sufficient for security. For example, technology that 
made it possible to detect an alteration of a driver's license would render the driver's license 
"secure," since, although the driver's license could be altered (e.g., to change the birthdate of an 
underage would-be drinker), the fact that the change could be detected would make it impossible 
for an attacker to gain any benefit from the misuse. 

Thus, one disclosed embodiment of the tamper-resistant barrier "detects tampering and/or 
destroys sensitive information." JCCS Ex. C, 22(A). It is impossible to read this passage of the 
specification as requiring any protection mechanism other than "detection." 

Microsoft also mischaracterizes Dr. Reiter's testimony, alleging he testified that none of 
the five listed forms of protection is required. MS Br., 27: 1 -3. As with so many of Microsoft's 
citations, however, this one is false. In the cited passage from Dr. Reiter's deposition, a 
Microsoft attorney asked a series of questions, each question relating to a single mechanism. 
Since security requires one or more of these mechanisms, but does not require all of them, Dr. 
Reiter correctly answered "no" when asked whether the claims required each mechanism in 
isolation. Dr. Reiter was never asked whether at least one mechanism from the entire group was 
required, and he never testified that security could exist without any mechanism at all. Reiter 
202:5-204:14 (McDow Decl., Ex. A.) 9 

5. Secure Container. 

Microsoft alleges that only a single embodiment is disclosed, and that it requires the 
ACCESS method. MS Br., 29:10-13. This is false. The ACCESS method excerpts quoted by 
Microsoft are part of a longer passage that is expressly described as being an "an example" ('193 
patent, 192:2), and the same passage describes the ACCESS method Microsoft cites as a 

9 Similarly, suppose a movie theater offered half-price tickets to customers ages ten to twelve, 
and a particularly obtuse customer posed the following series of questions: "Do I have to be 1 0 
to receive the discount?" "Do I have to be 1 1 to receive the discount?" "Do I have to be 12 to 
receive the discount?" The answer to all three questions would be "no," but this obviously 

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PLAINTIFF INTERTRUST TECHNOLOGIES CORPORATION'S REPLY MEMORANDUM 
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"complicated procedure" and notes that "in many cases" a "relatively trivial" procedure may be 
used instead. Id. at 192:6-11. 

In addition, Microsoft argues that the "access control ability of VDE secure containers" is 
"critical to VDE's promise to content owners." MS Br., 28:3-7. The phrase "VDE secure 
container" does not appear in the '193 patent. McDow Decl., U 3. When the inventors wanted to 
refer to a container in terms of VDE capabilities, they explicitly identified it as a "VDE 
container" (e.g., JCCS Ex. C, 20(E)). The patent claims do not refer to "VDE containers," but 
instead refer to "secure containers." 10 Microsoft seeks to confuse this issue by using the phrase 
"VDE secure containers," in an apparent attempt to mislead the Court into believing that "secure 
containers" and "VDE containers" are identical. 1 1 

6. Tamper Resistant Barrier. 

As discussed above, Microsoft's construction of "tamper resistant barrier" admittedly 
excludes an embodiment that is referred to in the specification as a "tamper resistant barrier." 
Microsoft's argument also suffers from other defects. Microsoft alleges that the specification 
requires a hardware barrier wherever content is "assigned usage control information, or used." 
MS Br. at 33:10-14. Microsoft quotes several excerpts at length, none of which even mentions 
tamper resistant barriers, much less excludes software tamper resistant barriers. 

Moreover, the term "tamper resistant barrier" is recited only in 721.34. Microsoft rather 
casually alleges that "all of the mini-Markman claims contemplate one or both of these two 
conditions" (i.e., assigning usage control information to content or using content). MS Br., 
33:10-12. Claim 721.34 has no reference to assigning usage control information or any use of 
content, nor does it have any language from which such elements can be inferred. 

wouldn't establish that the discount is an illusion. 

10 InterTrust agrees that "VDE containers" are one embodiment of "secure container," but this 
obviously does not mean that all "secure containers" are "VDE containers." 

1 1 Prof Maier states that "I believe it is apparent that [secure container] is intended to refer to the 
VDE container." Maier Decl., 22:17-18. He gives no basis for this belief, nor does he explain 
how "secure container" is used in the specification, other than noting it only occurs twice in the 

' 193 patent. This statement is itself misleading, since it ignores the extensive use of the term in 
the '683 and *861 patents, both of which include mini-Markman claims using "secure container.'* 
McDow Decl., H 5. 

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In addition, Microsoft's argument that a hardware barrier is required ignores alternative 
embodiments described in the specification. For example, Microsoft ignores the excerpt cited by 
InterTrust at JCCS Ex. C, 22(B), which describes a "secure HPE" with a software tamper 
resistant barrier, and states that "Any service may be provided by such a secure HPE 

Prof. Maier alleges that the "tamper resistant barrier" recited in the claims is referred to 
as a "tamper resistant security barrier," or a "tamper-resistant hardware security barrier." Maier 
Decl. 34:21-23. The claim uses the term "tamper resistant barrier," rather than these other 
phrases. That the specification uses these other phrases to refer to hardware barriers is evidence 
that the unqualified phrase "tamper resistant barrier" should apply to both embodiments. 

Prof. Maier acknowledges that the patent "alludes to" a software tamper resistant barrier, 
but he states that "the specification gives no indication how to determine what the boundaries of 
such a 'barrier' might be or how to implement such techniques successfully." Maier Decl., 35:7- 
10. The quotation (JCGS Ex. C, 22(B)) contains more than an "allusion" to a software tamper 
resistant barrier, it explicitly describes numerous techniques that may be used to provide one. 

7. Protected Processing Environment. 

Microsoft's main argument regarding this term is discussed above in § II B 2, and its 
other arguments amount to quibbles that InterTrust's definition is not specific enough. No claim 
construction can address every possible infringement issue. As the Federal Circuit has held, if a 
claim term is reasonably defined in general terms, it is the Court's obligation to adopt that 
construction, leaving the question of application of the general definition to the jury. PPG 
Industries. 156 F.3d at 1354-55. 

8. Component Assembly. 

Microsoft asserts that "In the Big Book the term 'component assembly' (also called 
'component') uniformly is used to refer to executable components, which are an assembly of 
independent, executable load modules and data." MS Br. at 35:12-14. Microsoft provides no 
support for the assertion that a "component assembly" is also called a "component," an assertion 
that seems odd, since a "component assembly" is self-evidently an assembly of components. 


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Microsoft's main argument is that InterTrust's definition would allow the possibility of a 
component assembly that does not include any executable code. InterTrust did not intend to 
leave open the possibility that a component assembly might include no programming. InterTrust 
is willing to amend the third sentence of its proposed construction to read as follows: 
"Component Assemblies must include code, and are utilized to perform operating system and/or 
applications tasks." 

Microsoft makes no attempt to otherwise defend its complicated definition. 

Prof. Maier's discussion of "component assembly" notes that the specification describes 
multiple embodiments (Maier Decl., 17:1-3), but appears to consider this to be an improper 
practice. At a later point in his Declaration, Prof. Maier states that InterTrust's citations relating 
to "component assembly" all relate to VDE, though he only quotes language from two of these 
citations. Maier Decl., 27:2-10. Prof. Maier appears not to have appreciated the point of a 
number of these quotations: that the VDE-related description of "component assembly" is 
expressly and repeatedly referred to as a "preferred embodiment." 

9. Control (noun). 

Microsoft's argument includes an analogy relating to librarians, but without any support 
from the experts or the patents that this analogy is reasonable or correct. Thus, Microsoft argues 
that "rules" and "controls" should not be equated, on the basis that "rules" are non-executable, 
whereas controls are "executable." Microsoft presents no evidence for its assertion that "rules" 
are non-executable, other than the argument that "rules" constitute the "guard" in Microsoft's 
analogy. 

Moreover, the quotations cited by Microsoft in its brief and in JCCS Ex. D do not state 
that a "control" must be executable, but instead are merely consistent with "controls" being 
executable programming, as is InterTrust's proposed definition. 

Prof. Maier argues that "control" should be interpreted in light of VDE because 75% of 
the passages cited by InterTrust allegedly relate to VDE. Maier Decl., 28:2-3. Prof. Maier does 
not explain the significance of this statistic, and it does not seem to have occurred to Prof. Maier 
that the non-VDE uses constitute evidence that the term should not be limited to VDE. 

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10- A budget specifying the number of copies which can be made of said digital 
file (193.1). 

Microsoft argues that InterTrust's construction does not specify "since when " "by 
whom" or "by what." The claim does not require this information, and Microsoft does not 
explain why a budget must include it. 

11. Container. 

Although Microsoft discusses this word separately (MS Br., 39:3-7), "container" is not a 
disputed term, but instead occurs as part of "secure container." InterTrust's definition of "secure 
container" rests on a definition of "container" from the Microsoft Computer Dictionary and is 
consistent with use of the term in the mini-Markman patents, and a contemporaneous Microsoft 
patent. JCCS Ex. C, 20(1), (J). 

Microsoft argues that, in the patents, "container" is not used in the manner asserted by 
InterTrust, citing Alexander Decl. 20(A)-(D). Microsoft provides no explanation for why these 
passages are inconsistent with InterTrust' s construction. 

12. Containing. 

The patent explicitly defines "containing" as including referencing. JCCS Ex. C, 7(B). 
Microsoft's argument about the "ordinary meaning" of the term is both unsupported and 
irrelevant in light of this explicit definition, and in light of the Microsoft Computer Dictionary 
definition for "container" ("a file containing linked or embedded objects"). JCCS Ex. C, 20(1). 

13. Control (verb) / Controlling. 

InterTrust's definition comes directly from a standard dictionary. Microsoft's only 
response is that this is inconsistent with VDE. Microsoft fails, however, to cite any text from the 
patents defining "controlling" in any particular manner, and the only quotation it includes does 
not even use "control" as a verb. As InterTrust pointed out in its opening brief, the patents use 
"control" as a verb in many non-VDE contexts. InterTrust Opening Br., 21 :23-28. 

14. "Controlling the copies made of said digital file" (193.1). 

Microsoft does not attempt to support its proposed definition, which is long and complex. 
Instead, Microsoft quibbles about implications arising from InterTrust's construction. 


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The InterTrust construction is based on the manner in which this phrase is used in the 
claim, in which it explains the "copy control." See JCCS Ex. A, Row 7. The nature of the copy 
control is further described later in the claim. JCCS Ex. A, Rows 8 and 9. InterTrust's definition 
is based on the phrase itself and on its context in the claim, a context Microsoft entirely ignores. 

15. "Derives information from one or more aspects of said host processing 
environment" (900,155). 

Microsoft's argument consists of unsupported allegations, including the assertion that a 

"unique" signature is required, that "the derived information may serve no security purpose at 

all," and that this "is contrary to the patent." Microsoft's Ex. D evidence for* this term consists of 

122 separate citations amounting to twenty pages. Since Microsoft's allegations are not tied to 

any particular text, InterTrust cannot respond, other than stating that any text Microsoft may 

subsequently identify will simply be an embodiment, since this term occurs frequently in the 

passages quoted in Microsoft's JCCS Ex. D. 12 

16. Host Processing Environment 

In its opening brief, InterTrust acknowledged that its definition of Host Processing 
Environment does not include the "insecure" variant, and proposed an alternate definition. 
InterTrust Br., 36:13-19. Microsoft ignores this, criticizing InterTrust for failing to cover 
insecure host processing environments. MS Br., 40:10-13. Microsoft otherwise fails to respond 
to any of InterTrust's points on Host Processing Environment. InterTrust Br., 36:20-37:10. 

17. Identifier. 13 

Microsoft claims that InterTrust's definition of "identify" is "contrary to the ordinary 
meaning." InterTrust's definition is from the American Heritage Dictionary . JCCS Ex. C, 17(F). 

12 If Microsoft subsequently identifies particular relevant passages, InterTrust will move to strike 
those identifications as being inconsistent with this Court's Patent Local Rules. It is one thing to 
make assertions that are supported by one or two pages of quoted text. It's quite another to make 
general arguments that are not supported by any individual citations but are instead allegedly 
supported by twenty pages of block quotes. The Patent Local Rules require the parties to 
identify relevant evidence. Twenty pages of unexplained quotes do not comply with this 
requirement. 

13 Microsoft's brief discusses "identifying (identify)," neither of which are terms to be construed 
in this proceeding. MS Br., 40: 14. Since Microsoft also cites the JCCS Ex. A reference 
covering "identifier," InterTrust will assume that Microsoft is intending to discuss this term, and 
will respond accordingly. 

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1 8. Tamper Resistance. 

Microsoft's argument consists of an unsupported assertion ("plainly is not what VDE 
means by 'tamper resistance'") and a quibble ("more than difficult [sic] than what?"), MS Br., 
40:21-25. As to the former, assertions do not constitute evidence supporting Microsoft's 
construction. As to the latter, more difficult than if the tamper resistance were not present. 

Prof. Maier, on the other hand, spends considerable time discussing this concept, 
including two pages of symbolic logic, apparently intended to prove that tamper resistance 
cannot include detection of tampering. Maier Decl., 32-34. However, whatever the details of 
Prof. Maier's analysis, he simply fails to address JCCS Ex. C 21(B), a quotation that explicitly 
states that a tamper resistant barrier "detects tampering and/or destroys sensitive information." 
This quotation clearly equates tamper resistance with detecting tampering, and does not require 
that tampering actually be blocked. 

19. Budget 

Although Microsoft's brief does not refer to "budget," Prof. Maier's Declaration 
discusses this term, though without any citation to the claims or specification. Maier Decl., 17:6- 
13. Prof. Maier acknowledges that the specification sometimes uses "budget" to refer to data 
and in other places uses "budget" to refer to executables, but treats this as an "inconsistency" that 
leads to "confusion" (Maier Decl., 17:1 1) rather than as multiple embodiments that establish the 
term can refer to either data or an executable. 

20. Clearinghouse. 

Prof. Maier alleges that "clearinghouse" has "a specific meaning in the banking and 
commerce fields." Maier Decl., 24:1-2. Unfortunately, he fails to explain what this alleged 
meaning might be, or how it would support reading VDE features into the claims. Instead, he 
cites some quotations from InterTrust, but does not respond to a primary point made in 
InterTrust's opening brief: Visa and AT&T are identified in the specification as 
"clearinghouses," yet no one could believe that either Visa or AT&T have the various VDE 
features required by Microsoft's proposed definition. 


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H. Testimony Cited by Microsoft. 

Exhibit A to the Keefe Declaration contains numerous quotations that Microsoft does not 
refer to in its brief. Most of these quotations are from inventors or third party deponents. The 


used a particular term is of little or no probative weight in determining the scope of a claim 
(except as documented in the prosecution history)." Markman v. Westview Instruments. Inc. . 52 
F.3d 967, 985-86, affd , 517 U.S. 370 (1996). The third party testimony suffers from the same 
defects as the testimony InterTrust moved to strike in connection with Microsoft's summary 
judgment motion, and is incompetent for those same reasons. 


Microsoft's VDE-centric claim interpretation would require the Court to ignore 
embodiments disclosed in the specification, and to interpret particular claim terms in a manner 
that excludes disclosed embodiments, a practice the Federal Circuit has held is "rarely, if ever," 
correct. Microsoft supports this extreme position with conclusory reasoning and egregious 
miscitations of the record. 

Microsoft's claim constructions are longer and more complicated than any constructions 
ever adopted by any court. Those constructions would read literally hundreds of limitations into 
every single claim. InterTrust respectfully requests that the Court reject Microsoft's VDE- 
centric interpretation position and adopt the claim constructions proposed by InterTrust. 
Dated: April 21, 2003 Respectfully submitted, 


inventor testimony is not tied to the patents, and "The subjective intent of the inventor when he 


III. 


CONCLUSION. 


DERWIN & SDSGEL, LLP 



Attorneys for Plaintiff 
INTERTRUST TECHNOLOGIES 
CORPORATION 


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