494 F.Supp.2d 34 (2007)
AKAMAI TECHNOLOGIES, INC., et al.
Civil Action No. 06-11109-RWZ.
LIMELIGHT NETWORKS, INC.
United States District Court, D. Massachusetts.
June 29, 2007.
Alexander F. MacKinnon, David Shukan, Marc H. Cohen, Nick Saros, Robert G. Krupka, Timothy G. Majors, Kirkland & Ellis LLP, Los Angeles, CA, Jeffrey T. Hsu, Heller Ehrman LLP, Washington, DC, Michael P. Wickey, Nishita A. Doshi, Robert T. Haslam, III, Stanley Young, Heller Ehrman LLP, Menlo Park, CA, Robert D. Fram, Heller Ehrman LLP, San Francisco, CA, Daniel K. Hampton, Holland & Knight LLP, Boston, MA, Gael Mahony, Holland & Knight, LLP, Providence, RI, for Limelight Networkst.
ORDER REGARDING CLAIM CONSTRUCTION
ZOBEL, District Judge.
Plaintiffs Akamai Technologies, Inc. and the Massachusetts Institute of Technology (collectively "Akamai") allege that defendant Limelight Networks, Inc. ("Limelight") has infringed (1) United States Patent No. 6,108,703 ("the `703 Patent"), a "Global Hosting System;" (2) United States Patent No. 6,553,413 ("the `413 Patent"), a "Content Delivery Network Using Edge-of-Network Servers for Providing Content Delivery to a Set of Participating Content Providers;" and (3) United States Patent No. 7,103,645 ("the '645 Patent"), a "Method and System for Providing Content Delivery to a Set of Participating Content Providers" (collectively, the "Akamai Patents"). The three patents share a common specification; only the claims differ between them. The common Abstract describes the invention as an "inventive framework" that "allows a Content Provider to replicate and serve its most popular content at an unlimited number of points throughout the world." (Akamai Patents, Abstract.) The parties dispute the construction of a total of seventeen claim terms from the three patents.
II. Legal Standard
The construction of patent claims is a matter of law for this court to decide. Markman v. Westview Instruments, Inc., 517 U.S. 370, 372, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). "[T]he words of a claim are generally given their ordinary and customary meaning," in other words, "the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application." Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed.Cir.2005) (internal citations omitted); see also Markman v. Westview Instruments, Inc., 52 F.3d 967, 985 (Fed.Cir.1995) (en banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (describing the focus in construing disputed terms as applying an objective test of the term's meaning to "one of ordinary skill in the art at the time" and not a consideration of the subjective intent of the parties creating the patent contract). However, the presumption that words are given their ordinary meaning may be overcome if the patent specification or prosecution history "clearly and deliberately set[s] forth" a different meaning. K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1363 (Fed. Cir.1999).
The scope and meaning of a patent's claims must be ascertained in the context of the specification and the prosecution
The Federal Circuit has refused to endorse a bright-line rule limiting the scope of the claims to the embodiment disclosed when only a single embodiment is described in the specification. See Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326 (Fed.Cir.2002). However, "when the preferred embodiment is described in the specification as the invention itself, the claims are not necessarily entitled to a scope broader than that embodiment." Modine Mfg. Co. v. United States Int'l Trade Comm'n, 75 F.3d 1545, 1551 (Fed.Cir.1996), abrogated on other grounds, Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 234 F.3d 558 (Fed.Cir.2000) (en banc); see also Microsoft Corp. v. Multi-Tech Systems, Inc., 357 F.3d 1340, 1348 (Fed.Cir.2004) ("In light of those clear statements in the specification that the invention (the present system') is directed to communications `over a standard telephone line,' we cannot read the claims of [the patents at issue] to encompass data transmission over a packet-switched network. . . ."). In addition, statements in the "Summary of the Invention" portion of the specification "are not limited to describing a preferred embodiment, but more broadly describe the overall inventions of [the] patents." Multi ‚Ä" Tech Systems, 357 F.3d at 1348.
III. Claim Construction and Discussion
Having considered in light of the applicable legal standard the parties' written submissions as well as the argument of counsel at a hearing held on May 17, 2007, the court construes the disputed claim terms as follows:
A. '645 Patent Terms in Dispute[End Page 1. Term 1 ('645 Patent, Claim 1)]
Term Court's Construction
... a given object of a participating ... a particular object of a
content provider participating content provider
is associated with an alphanumeric is associated with an string ... string that
includes the URL used to
identify the object in the
absence of a content delivery
Akamai's suggestion that the term "associated" be given its dictionary meaning ignores the Federal Circuit's warning in Phillips that "[t]he risk of systematic overbreadth is greatly reduced if the court  focuses at the outset on how the patentee used the claim term in the claims, specification, and prosecution history, rather than starting with a broad definition and whittling it down." Phillips, 415 F.3d at 1321. The `645 Patent specification describes as the present invention a single embodiment in which the Uniform Resource Locator ("URL") used to retrieve an embedded object from the content provider's server(s) in the absence of a content delivery network is modified by prepending it with a virtual server host-name:
"According to the present invention, a given Web page (comprising a base HTML document and a set of embedded objects) is served in a distributed manner. . . . To serve the page contents in
('645 Patent, col.6 1.35-col.7 1.40 (emphasis added).)
The specification then continues on to describe "the inventive global framework" in the context of a specific example. (Id. col.7 ll.50-53 (emphasis added).) At step 5 of the example, a copy of the object is retrieved from a content delivery provider ("ghost") server. The specification goes on to explain:
Step 6: If, however, no copy of the data on the ghost exists, a copy is retrieved from the original server or another ghost server. Note that the ghost knows who the original server was because the name was encoded into the URL that was passed to the ghost from the browser.
(Id. col. 12 ll.54-58 (emphasis added).) Here, the specification describes the invention as associating a particular object of a content provider with an alphanumeric string consisting of a virtual server hostname prepended onto the URL for the object. The URL of the object is necessary to the inventive global framework in order to retrieve the object from the content provider's server if no copy exists on a ghost server. The specification discloses no other way that an object is associated with an alphanumeric string, nor is there any suggestion or teaching that an association which did not include the URL for the embedded object could be used in an embodiment of the invention. Therefore, Akamai's proposed construction is overly broad and the court declines to adopt it. Rather, the court adopts a construction that incorporates the association described in the specification as "the . . . invention." (Id. col.7 ll.36-40.)
[End Page 2. Term 1 ('645 Patent, Claim 1)]
Term Court's Construction
... an alternative domain ... a domain name system,
name system (DNS), distinct separate from the Internet
from the Internet domain DNS and the client's name
name system and any server, that is controlled by
client local name server... a content delivery network
service provider and includes
control routines that
are different from regular
name servers ...
The Brief Summary of the Invention describes the "object of the present invention" as "provid[ing] a network architecture that moves content closer to the user." ('645 Patent, col.2 ll.49-50.) This is accomplished by "replicating content over a large network of distributed servers." (Id. col.2 ll.46-47.) The task of determining which of this multiplicity of servers should supply content to a particular user's request is handled by the alternate and distinct DNS system:
The determination of which hosting server to use to serve a given embedded object is effected by other resources in the hosting framework. In particular, the framework includes a second set of servers (or server resources) that are configured to provide top level Domain Name Service (DNS). In addition, the framework also includes a third set of servers (or server resources) that are configured to provide low level DNS functionality.
To locate the appropriate hosting servers to use, the top-level DNS server determines the user's location in the network to identify a given low-level DNS server to respond to the request for the embedded object. The top-level DNS server then redirects the request to the identified low-level DNS server that, in turn, resolves the request into an IP address for the given hosting server that serves the object back to the client.
(Id. col.3 ll.29-36, 42-49 (Summary of the Invention) (emphasis added).) The specification emphasizes the difference between the invention and the operation of "regular DNS servers" which return the Internet Protocol ("IP") addresses of one or more DNS or content servers without any consideration of where the user or the server is located:
[T]he global hosting architecture of the present invention manipulates the DNS system so that the name is resolved to one of the ghosts that is near the client and is likely to have the page already. . . . The top level DNS servers [for the inventive global hosting framework] have a special function that is different from regular DNS servers like those of the .com domain. The top level DNS servers include appropriate control routines that are used to determine where in the network a user is located, and then to direct the user to . . . a low level DNS server that is close-by.
(Id. col.9 ll.40-44, 49-55 (emphasis added).) Akamai confirmed the character of this alternative, distinct DNS at the Markman hearing:
. . . the Domain Name System described in the patent is, one, something that is established by, set up by, run by the content delivery network. And, second, it is different in that it has intelligence that will direct ‚Ä" that will inform the translation of character strings into IP addresses.
[End Page 3. Term 1 ('645 Patent, Claim 1)]
Term Court's Construction
... the given name server ... the particular name
that receives the DNS server that receives the
query being close to the DNS query is selected by
client local name server as the alternative domain
determined by given location name system and is close in
information ... Internet terms to the client
local name server ...
The parties' first disagreement concerns whether "close" refers to geographic distance or Internet distance. While Limelight argues that the specification only intends to specify Internet distance where explicitly stated, the language of the specification supports the concept of Internet distance generally where it refers to distance. For example, the Brief Summary of the Invention describes an object of the invention as "to serve Web content efficiently, effectively, and reliably to end users" by "provid[ing] a network architecture that moves content close to the user" to avoid having to "build a massive infrastructure to handle the associated traffic." (Id. col.2 ll.41-42, 49-53 (emphasis added).) "Close," read in this context, refers to Internet distance. In addition, the description of the preferred embodiment generally references the network or network delays in its measure of distance:
Several factors may determine where the hosting servers are placed in the network. . . . By studying [network] traffic patterns, the ISP may optimize the server locations for the given traffic profiles." (Id. col.6 ll.28-34 (emphasis added).)
"[A]ppropriate control routines [are used to determine where in the network the user is located, and then to direct the user to a . . . server that is close-by." (Id. col.9 ll.51-54 (emphasis added).)
"Thus, a given top-level DNS server directs the user to a region of the Internet. . . ." (Id. col.9 ll.57-59 (emphasis added).)
After determining where in the network the request originated, the top level DNS server redirects the DNS request to a low level DNS server close to the user in the network. (Id. col.10 ll.28-30 (emphasis added).)
While Limelight is correct that none of these descriptions explicitly states that closeness refers to Internet distance, it is implied by the emphasized text. (Cf. id. col. 10 ll.9-11 ("[T]he routines make the assumption that the user is located near (in the Internet sense) this server.").)
The second issue concerns whether there is any limitation on how this closeness is determined. Akamai argues that the words of the claim do not limit the determination of closeness, while Limelight asserts that it must be determined by the alternative domain name system. For the reason discussed supra, Term 1, I believe Limelight has the better argument. The specification describes "the present invention" as "manipulat[ing] the DNS system so the name is resolved to one of the ghosts that is near the client ." (Id. col.9 ll.42-44 (emphasis added); see also id. col.3 ll.42-44 (Brief Summary of the Invention) ("[T]he top-level DNS server determines the user's location in the network. . . . . ").) As discussed supra, Term 2, the purpose of establishing "an alternative domain name system (DNS), distinct from the Internet domain name system" is to run "appropriate control routines" to "determine where in the network a user is located." (Id. Claim 1; id. col.9 ll.52-53.) Read in light of the specification, the invention claims an alternate DNS system that selects a DNS server in response to a user request based on the location of the user.
[End Page 4. Term 1 ('645 Patent, Claim 1)]
Term Court's Construction
... the alphanumeric string ... the alphanumeric string
is resolved without reference is translated into an IP address
to a filename for the without reference to
given object... the name of the object ...
The parties do not appear to disagree n the explicit limitation in this term requiring resolution of the string without regard to the object name. Limelight, however, argues that the term should be further limited to require the name resolution to resolve to the "Internet Protocol address of the optimal content server." (See Docket # 71, 26.) Reading the contested term in light of the rest of the claim demonstrates that the claim itself provides explicit limitations on string resolution. Claim 1 requires that the IP address returned by the contested term be associated with one of the content servers associated with the "close" DNS server selected in the previous step, and also that the content server be selected according to a load-sharing algorithm. ('645 Patent, Claim 1.) The word "optimal" does not appear in the specification (or the claims) of the '645 Patent, and adding it as a limitation, where the claim step itself limits the result of the string resolution, would muddy, rather than clarify, an understanding of the claim step.
[End Page 4. Term 1 ('645 Patent, Claim 1)]
Term Court's Construction
... being selected by a procedure ... being selected according
that distributes requests to a load sharing algorithm
for objects among a enforced across the
group of content servers in subset of the set of content
a content delivery network servers associated with the
associated with the particular given name server ...
name server to avoid
overloading any single content
The specification uses the term "load balancing" to describe a two-step process to allocate requests for objects to various content servers in order to distribute the load; a pre-processing step that allocates objects randomly across potentially available servers, followed by the active instrumentation and adjustment of actual server loads:
According to the present invention, load balancing across the set of hosting servers is achieved in part through a novel technique for distributing the embedded object requests. In particular, each embedded object URL is preferably modified by prepending a virtual server hostname into the URL. . . . This function serves to randomly distribute the embedded objects over a given set of virtual server hostnames . . .
According to the invention, the virtual ghost names may be hashed into real ghost addresses using a table lookup, where the table is continually updated based on network conditions and traffic in such a way to insure load balancing and fault tolerance. . . . The low-level DNS servers monitor the various ghost servers to take into account their loads while translating virtual ghost names into real addresses. This is handled by a software routine that runs on the ghosts and on the low level DNS servers.
('645 Patent, col.4 ll.13-24, col.11 ll.23-27, 53-57 (emphasis added) (describing the preprocessing of embedded object alphanumeric strings to randomly distribute object requests across a set of virtual servers, followed by an active step which translates virtual server hostnames into real server IP addresses to avoid overloading any single server).) The specification describes the goal of load sharing not as evening out transient load peaks, but as distributing object requests among a set of servers so that "no server becomes overloaded." (Id. col. ll 1.67; accord id. col. 11 ll.7-10 ("The local DNS server is responsible for returning the IP address of one of the ghost servers on the network that is close to the user, not overloaded, and most likely to already have the required data.").) Given the lack of clarity in the prior art and the lack of an explicit definition of load sharing in the specification, a limitation requiring that the load sharing algorithm avoid overloading the content servers comports with the understanding of a person of ordinary skill in the art's reading of the patent. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed.Cir.2005) ("[T]he person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.").
B. '645 Patent Terms in Dispute[End Page 1. Term 7 ('413 Patent, Claim 8, 18,]