Wednesday, January 18, 2012

An Update on VirnetX's Markman

   While most of the updates on this case can be found in the comments section, I decided to place this update as a whole new post due to the multiple court documents that I can easily attach as links in these posts compared to just copying and pasting their URL's in the comments section, that said be sure you actually check these documents out to get a full understand of what's going on.

     The last post I wrote described the current debacle over the term Virtual Private Network vs Secure Communication Link. While VHC replaced the term Virtual Private Network with the term Secure Communication Link in their 504 and 211 patents, the defendants are arguing that VirnetX has used the terms interchangeably while VHC is saying that they have purposely changed the wording to broaden their claims and get rid of the limitations that the term virtual private networks (VPNs) have. To recap, a VPN is a form of a secure communication link however it is not the only form so this is an important distinction for VHC to make as if it is ruled that they have in fact used the terms interchangeably it will drastically limit the range of products their patents affect.
     That said, I have found recent court docs that give me confidence VHC has this argument won.  While it took some mental grinding to read these documents to really understand what is going on, I now have a solid understand of the evidence submitted. So I will go over in chronological order (with a bit of recap from my last post so you don't have to look back and forth to follow along) what exactly is going on in the court room. Since you already know the argument at hand I will go ahead and start listing the evidence.

    The defendants are drawing ammo from a separate case that Apple has with VirnetX (VirnetX has two suits against Apple, 1 is with Apple and the rest of the defendants and the other is SOLEY against Apple) where they claim VirnetX uses the term VPN and Secure Communication Link interchangeably in their 181 patent (which is a continuation of their 180, 135 patents). You can find a link to the USPTO's website that describes that patent here. Looking at the abstract which provides an overview of the patent, you'll see it states the process of how the patent method establishes a secure communication link between computer of a Virtual Private Network. The third line reads "Then, a secure communication link is established between the first computer and a second computer over a computer network based on the enabled secure communication mode of communication" and the fourth line reads "The secure communication link is a virtual private network communication link over the computer network in which one or more data values that vary according to a pseudo-random sequence are inserted into each data packet". I have highlighted in blue what I think aids VHC and in red what aids the defense. To me, this says that a secure communication link is established between two computers over a network and it will be BASED on the enabled secure communication mode of communication, whatever that mode may be. It then states that the secure communication link is a VPN communication link over the computer network, but it does not say that it can only be a VPN communication link. As i stated in an earlier post a VPN is the preferred embodiment of a secure communication link but is no means the ONLY embodiment. And I have recently found court docs submitted by VHC that support what I have said. Here is VirnetX's UNOPPOSED MOTION to provide further evidence that a secure communication link is not limited to a VPN and you'll see they reference a re-examination of their 135 patent which as I stated earlier is related to their 180, 181 patents. In fact these are expert declarations offered by Apple, VHC is using the defendants own words against them (gotta love their legal team).  Both documents that VHC uses to support their argument that a secure communication link is not the same as a VPN can be found here and here and the information relevant to the argument will be found highlighted. I recommend reading these highlighted excerpts as they provide undisputed evidence that a VPN is not the same as a secure communication link. Instead they say (this is not verbatim but just to give you an idea of what was said) that a VPN is established when one computer communicates with another computer on a private network using encrypted communication over an insecure path.

  To me, this clearly looks like VHC has not used the terms interchangeably and has proved that they are different. Their motion to submit this evidence was recently granted today (can be found here) which means VHC can now use this to their advantage. The court case continues however I believe that this battle over the use of the terms VPN and secure communication link is one that is won by VirnetX. Keep checking back for more updates.