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Tele-Publishing Inc. v. Facebook, Inc.

United States District Court, D. Massachusetts

September 7, 2016

TELE-PUBLISHING, INC., Plaintiff,
v.
FACEBOOK, INC. and THEFACEBOOK, LLC, Defendants.

          MEMORANDUM AND ORDER

          DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.

         Plaintiff Tele-Publishing, Inc. ("TPI") brought this action against Defendants Facebook, Inc. and TheFacebook, LLC, (collectively, "Facebook") alleging infringement of United States Patent No. 6, 253, 216 (the "'216 Patent"). The '216 Patent describes methods (claims 1 and 10), systems (claims 16 and 32), and computer code (claims 21 and 29) for providing "users with a secure way to display personal information to other computer network users" via a personal page. '216 Patent, col. 111. 14-18. Facebook responded to TPI's claim with a counterclaim seeking a declaratory judgment of non-infringement of the '216 Patent and of invalidity and/or unenforceability of the '216 Patent.

         Following discovery, the parties submitted briefing on the construction of claim terms of the '216 Patent. While claim construction was pending, the United States Patent and Trademark Office ("PTO") Examiner rejected the '216 Patent, and TPI appealed to the Board of Patent Appeals and Interferences ("BPAI"). And while that appeal was pending, I held an initial claim construction hearing. The BPAI subsequently reversed the PTO Examiner and reinstated the '216 Patent, and the parties filed supplemental claim construction briefs concerning intrinsic evidence arising from the BPAI appeal process.

         I. BACKGROUND

         A. The '216 Patent

         The PTO issued the '216 Patent, entitled "Method and Apparatus for Providing a Personal Page, " to TPI on June 26, 2001. The application was filed on June 3, 1997, and the final patent includes Claims 1 through 34, of which Claims 1, 10, 16, 21, 29, and 32 are dependent, and the remaining are independent. '216 Patent col. 12 1. 48-col. 16 1. 49.

         The specification, in the Background of the Invention section, explains that "systems for providing personals advertisements on networked computers" began to appear at the "advent of the Internet's World Wide Web." Id. at col 111. 30-32. Initially, these advertisements merely provided the same information previously available in personals advertisements published in newspapers. Id. at col. 111. 36-38. Such systems did not take full advantage of the capabilities of computer systems and networks, including the use of images and graphics, the ability for people to communicate over computer networks, and the ability to restrict access to particular users. Id. at col. 111. 40-48. The invention aims to supply these services, and is a "system for generating a page for display on a computer system accessible to a plurality of remote users through a computer network, " id. at col. 2 11. 22-25, which includes

means for displaying at a user site at least one template, means for inputting user-data to be included in a predetermined area of the template, means for storing the user-data in a predetermined field of a database and means for retrieving the user-data from
the database and for displaying the template and the user-data on a display of the computer system.

Id. at col. 2 11. 25-31.

         An embodiment of the invention described in the specification uses the system to provide users with a personals page for use on a Personals On-line Network. Id. at col. 2 11. 31-33. This system allows users to create a page by selecting a template and contributing text and graphics to the page and provides the user the ability to authorize other uses to view the personal page. Id. at col. 2 11. 40-44. The system stores data provided by the user and displays the information on request by other users. Id. at col. 2 11. 44-53.

         Since the patent was issued, the landscape of "social networking" sites, broadly speaking, has changed dramatically. Major players have entered the space, expanded, and closed or been bought out by other companies. Some examples include Friendster, which was founded in 2002 and at one point had over 115 million registered users, and MySpace, which was developed in 2003 and had 100 million active users. Most notably, Facebook, which was founded in 2004, has became a publicly traded company in 2012 and supports over 1.65 million monthly active users. In addition, the total number of social networking sites, most of which were developed after TPI filed for the '216 Patent, has exploded. The rapid development in the field over the last decade calls necessitates particular care in construing the terms as they would have been understood by one skilled in the art at the time of filing, and not as they may be understood today.

         B. Procedural Background

         TPI's original complaint in this action was filed on October 7, 2009. On December 22, 2009, Facebook filed a request for ex parte reexamination of the '216 Patent with the PTO. Thereafter, this dispute has traveled along parallel tracks in this Court and at the PTO. To provide a complete history of the dispute to date, I briefly summarize the proceedings before the PTO.

         Facebook's reexamination request raised questions of patentability based on the existence of alleged prior art not cited in the original prosecution of the '216 Patent. On April 16, 2010, the PTO issued an office action rejecting all thirty-four claims of the '216 Patent. TPI responded to the office action on June 16, and the PTO ultimately issued a Final Rejection of all claims in the '216 Patent on August 20, 2010.

         In the initial office action, the PTO rejected all claims in the '216 Patent based in large part on the existence of the alleged prior art, namely United States Patent No. 5, 796, 395 (the "de Hond Patent"). In its final action, the PTO rejected the contention by TPI (shared by Facebook) that critical elements at issue are "means-plus-function" elements governed by 35 U.S.C. § 112, ¶ 6.[1]

         TPI filed a response to the final office action on October 20, 2010. On November 5, 2010, the PTO issued an advisory action which affirmed its rejection of all claims. TPI then appealed the PTO decision to the Board of Patent Appeals and Interferences (“BPAI”).

         On February 23, 2012, the BPAI reversed the PTO's decision. The BPAI found that claims 1, 10, 16, and 21 of the >216 Patent were not anticipated by de Hond because de Hond did not recite the use of a plurality of page templates. It also found that claims 29 and 32 were not anticipated by de Hond because de Hond did not authorize remote users to access the profile information and a personal page differently, as provided by claims 29 and 32. Thus, the BPAI concluded that the PTO Examiner erred in finding that claims 1-26 and 28-34 were anticipated by de Hond under 35 U.S.C. § 102(e). The BPAI's decision did not address whether the patent requires means-plus-function analysis under 35 U.S.C. § 112 ¶ 6.

         II. LEGAL BACKGROUND

         A patent must include “one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112 ¶ 2. It is firmly established “that ‘the claims of a patent define the invention to which the patentee is entitled the right to exclude.'” Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). Construing the terms of a patent, "including terms of art within its claim, is exclusively within the province of the court." Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). See generally, leva Pharmaceuticals USA, . Inc. v. Sandoz, Inc., 135 S.Ct. 831 (2015); Eon Corp. IP Holdings, LLC v. Silver Spring Networks, Inc., 815 F.3d 1314, 1318-21 (Fed. Cir. 2016).

         A. Claim Construction

         When construing the terms in a claim, the words "'are generally given their ordinary and customary meaning, '" Phillips, 415 F.3d at 1312 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996)), that is, the meaning that "a person of ordinary skill in the art in question at the time of the invention" would give to the term, read "in the context of the entire patent, including the specification." Id. at 1313.

         In addition to the claims and the specification, courts consider the prosecution history of the patent, which is the record of the proceedings before the PTO which resulted in the grant of the patent. Id. at 1317. While the prosecution history "often lacks the clarity of the specification and thus is less useful for claim construction purposes, " it "can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution." Id.

         Courts may also consider "extrinsic evidence, " which is that evidence outside of the patent and prosecution history, including testimony, general and technical dictionaries, and treatises. Id. Although "extrinsic evidence can help educate the court regarding the field of the invention and can help the court determine what a person of ordinary skill in the art would understand the claim terms to mean, " id. at 1319, it is "less reliable than the patent and its prosecution history, " id. at 1318, and "unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence." Id. at 1319.

         B. Means-Plus-Function Analysis

         Several of the disputed claim elements are alleged to be "means-plus-function" elements implicating ¶ 6 of 35 U.S.C. § 112, which provides that:

An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

         In other words, a claim that recites a "means for" performing a function does not have to state a specific structure for carrying out that function in the claim, so long as it is described in the specification. See generally, Media Rights Technologies v. Capital One Financial, 800 F.3d 1366, 1371-74 (Fed. Cir. 2015); Williamson v. Citrix Online, Inc., 792 F.3d 1339, 1347-49 (Fed. Cir. 2015). As a result, "[i]n construing a means-plus-function claim, the district court must first determine the claimed function and then identify the corresponding structure in the written description of the patent that performs that function." Baran v. Med. Device Techs, Inc., 616 F.3d 1309, 1316 (Fed. Cir. 2010). The scope of the claim language is of particular concern in identifying the function of a means-plus-function claim. For district courts construing disputed claim terms in a patent, the Federal Circuit has warned against limiting a claimed function beyond the scope of the claim language, or broadening it by ignoring limitations contained in the claim language. lockheed Martin Corp. v. Space Systems/Loral, Inc., 324 F.3d 1308, 1319 (Fed. Cir. 2003).

         When "means-plus-function" analysis involves claim elements implemented by computers and microprocessors, the Federal Circuit has required that a specific algorithm for such implementation be disclosed. WMS Gaming, Inc. v. Int'l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). A patentee must "disclose the algorithm that transforms the general purpose microprocessor [or computer] to a 'special purpose computer programmed'" to undertake the specified function. Aristocrat Techs. Austl. Pty Ltd. v. Int'l Gaming Tech., 521 F.3d 1328, 1338 (Fed. Cir. 2008) (citation omitted).

         The algorithm structure need not be extensive. "[A]lgorithms in the specification need only disclose adequate defining structure to render the bounds of the claim understandable to one of ordinary skill in the art." AllVoice Computing PLC v. Nuance Commc'n, Inc., 504 F.3d 1236, 1245 (Fed. Cir. 2007). Though it need not be extensive, it nevertheless must actually be described in the specification. Relying merely on a showing that "one of ordinary skill in the art could build the device claimed . . . based on the disclosure in the specification . . . conflates the requirement of enablement . . . and the requirement to disclose the structure that performs the claimed function . . . ." Aristocrat, 521 F.3d at 1336 (emphasis added). The specification must "recite the particular structure, " id., and "if a person of ordinary skill in the art would be unable to recognize the structure in the specification and associate it with the corresponding function in the claim, " then the means-plus-function claim is indefinite and thus invalid. AllVoice, 504 F.3d at 1241.

         III. CLAIM CONSTRUCTION

         The parties dispute twenty-six claim terms which appear in various of the claims, including the six independent claims.

         Most of the claim terms are considered separately, but I have consolidated the analysis of several to avoid repetition.

         A."Security Parameters" or "Security Attributes" "Entering" or "Inputting" Means

         Each of the six independent claims includes an element describing means for the page-creating remote-user to enter or input security parameters or attributes granting permission to others to view the personal page. '216 Patent Claims 1(f), 10(e), 16(f), 21(e), 29(e), 32(e). The parties agree these are "means-plus-function" elements subject to 35 U.S.C. § 112 ¶ 6, and they agree that all elements should have identical constructions. These six claim elements are similarly worded, but are not identical.[2] The claims are as follows:

1. A method for providing a personal page . . ., comprising of the steps of . . . (f) providing the page-creating remote user with means to input security parameters for the personal page, the security parameters specifying authorization of at least one other remote user to access the personal page;
10. A method of providing a personal page . . ., comprising of the steps of . . . (e) providing the page-creating remote user with a means for entering security attributes authorizing at least one other remote user to view the personal page;
16. An apparatus for providing a personal page . . . comprising . . . (f) means for the page-creating remote user to enter security attributes authorizing at least one other remote user to view the personal page;
21. A computer program . . . having computer readable code to: . . . (e) provide the page-creating remote user with means to input security parameters for the personal page, the security parameters specifying authorization of at least one other remote user to view the personal page;
29. [A] computer program . . . having computer readable program code to: . . . (e) provide the page-creating remote user with means to input security parameters for the personal page, the security parameters specifying authorization of at least one other selected remote user to view the personal page;
32. [A] system for providing a personal page comprising . . . (e) means for allowing the page-creating remote user to input security parameters specifying authorization of at least one other selected remote user to view the personal page.

'216 Patent cols. 12-16.

         1. Function

         The first step in construing a "means-plus-function" claim element is to identify the function described. Although the parties generally agree that the function is described by the language following "means for, "[3] they dispute the role of the remote user.

         Facebook construes the claims as all sharing the function, essentially, of "allowing the page-creating remote user to enter or input the 'security attributes' or 'security parameters' for the personal page." Facebook argues that this function involves the remote user entering or inputting information (i.e., name or User ID) about both (a) the page-creating remote user and (b) the remote user to whom permission is being given. This argument is based on the construction of "security attributes" and "security parameters, " which requires information about both users.[4]

         TPI contends that the claimed function is the server providing the means for the user to set in motion activity which results in the inputting of a security parameter, and does not require a specific action on the part of the remote user, i.e., the inputting of information about both remote users.

         Read in the context of the claims and the specification, Facebook's construction of the function, requiring the remote user to manually input both elements of the security parameters/attributes, improperly narrows the claimed function beyond the scope of the claim language, and must be rejected. Lockheed, 324 F.3d at 1319. Facebook has read an additional limitation into the claim whereby the page-creating remote user may only "enter" or "input" the security attributes by literally entering or inputting two distinct remote user names or user IDs. Facebook conflates the function and structure by arguing that the function must involve the page-creating remote user entering both aspects of the security attribute individually.

         I am satisfied that TPI's construction properly identifies the function.

         2. Structure

         The second step in a means-plus-function analysis is to identify the structure in the specification that corresponds to the function. Facebook relies on its interpretation of the function to argue that the '216 Patent discloses no structure for performing the claimed function. Facebook argues that because the specification only describes processes where the page-creating remote user enters one name, (and not two, as Facebook claims is required by the function) there is no corresponding structure. Because, as stated above, I reject Facebook's identification of the function, I also reject its claim that there is no structure disclosed and thus that the claim elements are indefinite.[5] Facebook argues in the alternative that if the claims are definite, then TPI must be held to the structure it described in its June 16, 2010 arguments to the PTO.[6] See Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003) ("[W]here the patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer attaches and narrows the ordinary meaning of the claim congruent with the scope of the surrender.").

         The parties propose two versions of the structure corresponding to the two embodiments described in the specification. In the first embodiment, the remote user is "prompted for the name of the user" to whom permission is to be given. '216 Patent col. 10 11. 19-20. In the second embodiment, the "remote user is prompted to send an electronic mail message to the user to whom the remote user wishes to give permission." Id. at col. 10 11. 39-41.

         Facebook proposes the following structures:

a Web page programmed to prompt the page-creating remote user for the name of the remote user to whom the page-creating remote user wishes to give permission to view the page-creating remote user's personal page and to create a security attribute consisting of the name of the page-creating remote user wishing to give permission and the remote user to whom permission is given
or
a Web page that prompts a page creating remote user to send an electronic mail message to the user to whom the remote user wishes to give permission, giving the page-creating remote user an option to give permission to view the personal page, and creating a security attribute consisting of the name of the page-creating remote user wishing to give permission and the remote user to whom permission is given.

         TPI's proposed constructions are as follows:

a Web page that prompts a page-creating remote user for the name or user ID of another remote user to whom the remote user wishes to give access to the personal page for viewing, and executes a program that passes that name or user ID to a database for storage along with the name or user ID of the page-creating remote user
or
a Web page for sending an electronic message from the page-creating remote user to another remote user, the page having an option for giving permission to the other remote user to access the personal page for viewing, with selection of the option executing a program that passes that name or user ID of the other remote user to a database for storage along with the name or user ID of the page-creating remote user

         One point specifically disputed by the parties is whether "user ID" should be included in the structure. In its description of the process for granting permission, the specification states that "the remote user may be prompted for the name of the user to whom the remote user wishes to give permission." '216 Patent col. 10 11. 19-21. As discussed in Section III.B infra, "user ID" is an equivalent or alternative to the "name" of the remote user, and as a result, it should be included in the construction of the structure here.

         With respect to the other differences between the parties' proposed structures, Facebook's construction more accurately reflects the structure of the function. It closely tracks the language in the specification at col. 10 and includes certain clarifying language provided by TPI in the reexamination process, see supra n.6, and its proposed structure more accurately reflects the corresponding function. The explanation of "security attribute" in Facebook's proposed construction is, however, unnecessarily repetitive.

         Accordingly, I construe the structure of the six claim elements to include:

a Web page[7] programmed to prompt the page-creating remote user for the name or User ID of the remote user to whom the page-creating remote user wishes to give permission to view the page-creating remote user's personal page, and to create a security attribute/parameter
or
a Web page that prompts the page-creating remote user to send an electronic mail message to the user to whom the remote user wishes to give permission, giving the remote user an option to give permission to view the personal page, and creating a security attribute/parameter

         B. "Security Parameters" and "Security Attributes"

         The terms "security parameters" and "security attributes" are used in claim elements 1(f), 1(g), 10(e), 16(f), 21(e), 21(f), 29(e), 29(f), 32(e), and 32(f). The claims appear to use the terms interchangeably, and the parties agree that they are synonymous.

         Facebook construes these terms as "information consisting of the name of the page-creating remote user wishing to give permission and the name of the remote user to whom permission is given." TPI argues that these terms do not need to be construed, because they can be understood from their plain meaning and context and are defined in the claims in which they appear. TPI further alleges that Facebook construes the term too narrowly because it includes only user names and excludes user IDs.

         The claims only explain that the entering of security attributes/parameters authorizes remote users to view a personal page, but do not reveal what the security attributes/parameters are. Because the meaning of "security parameters" and "security attributes" in the '216 Patent is not clear from the plain and ordinary meaning of the terms, I find that they do require construction. Two types of claim elements contain one of the two terms. The first type appears in every independent claim, and recites, for example, "providing the page-creating remote user with a means for entering security attributes authorizing at least one other remote user to view the personal page." '216 Patent col. 13 11. 55-57. The second type of claim element uses only the term "security parameters" (not attributes) and appears in independent claims 1, 21, 29, and 32. It contains almost identical language in each iteration and recites "storing the security parameters in one or more databases." Id. at col. 1311. 5-6.

         The specification provides that:

[T]he remote user may grant permission to other users to view the remote user's personal page. To accomplish this, the remote user may be prompted for the name of the user to whom the remote user wishes to give permission. Referring now to the Security Attribute Table 200 of FIG. 5, a permission attribute, consisting of the name of the remote user (User ID 202) wishing to give permission and the name of the user to whom permission is given (Viewer ID 204), may then be stored in a database 96 on a local computer network ....

'216 Patent col. 10 11. 17-26.[8]

         Facebook argues that the quoted language defines security attributes/parameters as consisting only of remote user names, and that the terms "User ID" and "Viewer ID" are merely labels applied to the remote users' names. However, this proposed treatment of "User ID" conflicts with other portions of the specification and must therefore be rejected. The paragraph immediately preceding the quoted language, id. at col. 10 11. 6- 14, references a User Information Table 126, depicted in Figure 3. The description of this table states that it "may include a User ID field 128 containing a unique user identification name or 'handle' for each user of the system." Id. at col. 7 11. 35-37. The specification also describes a Personal Page Values Table 152 "which includes a User ID field 154 for identifying the user." Id. at col. 8 1. 19. Thus, the specification defines "user ID" and applies it in the context of two other tables before describing the Security Attribute Table. In addition, the User Information Table 126 and Personal Values Table 152 at Figure 3 and the Security Attribute Table 200 (Figure 5) use the same identifiers for entries in the User ID field (userl, user2, user3, etc.) further indicating "user ID" has the same meaning in all three contexts and consists of "a unique user identification name or 'handle.'" Figure 3 is reproduced below:

         (Image Omitted)

         Viewed in the context of the entire specification, the parenthetical "(User ID 202)" in the description of "permission attributes" is best understood as a shorthand referencing and incorporating "user ID" as previously described. TPI's statements at the reexamination proceedings stating that the security attribute consists of a "name" do not contradict this finding. The specification's definition of user ID includes a "unique user identification name or 'handle.'"

         With respect to the parenthetical "(Viewer ID 204), " the context of the term in the narrative and the Security Attribute Table 200 both indicate that it refers to the user ID of the remote user to whom permission is being given. The fields under Viewer ID at Figure 5, use the same type of identifier utilized as the User ID field, i.e., "user2" and "user4, " and (Viewer ID 204) modifies the name of certain remote users, just as (User ID 202) modifies the name of the remote user wishing to give permission. Id. at col. 10 11. 24-25. Figure 5 is reproduced below:

         (Image Omitted)

         I also find that a "security attribute" or "security parameter" consists of information about two remote users because the specification describes "a permission attribute" as "consisting of the name of the remote user . . . and the user to whom permission is given." '216 Patent col. 10 11. 23-25 (emphasis added).[9] I include in my construction of these terms the definition of User Id. and Viewer ID because their meaning is not clear from the claims themselves.

         For these reasons I construe "security parameters" and "security attributes" as "information consisting of both (1) the name or User ID of the page-creating remote user, and (2) the name or Viewer ID of the user to whom permission is given, where the User ID and Viewer ID are a unique user identification name or 'handle.'"

         C. Means for Storing the Security Parameters in One or More Databases

         Claim 32 recites "a system for providing a personal page comprising: . . . (f) means for storing the security parameters in one or more databases." The parties agree that the claimed function of element 32(f) is "storing the security parameters in one or more databases, " but disagree as to its structure.

         In identifying the structure, Facebook relies on the specification's description of the Security Attribute Table, which states that "a permission attribute . . . may then be stored in a database 96 on the local computer network 82 by a CGI program executing on a CGI processor 92."x216 Patent col.10 11. 23-28. Facebook argues that the structure for the storing function is "database 96 and CGI processor 92 (Fig. 2) programmed to perform the algorithm at col. 10 11. 22-28."

         TPI objects to Facebook's reference to "CGI." According to TPI, CGI (which stands for the "Common Gateway Interface") is an "interface standard used to provide programming which can interface with Web pages, " and "a tool that enables the claimed steps" which is not a part of the algorithm. TPI describes the structure as:

a Web server that executes a program to pass the name or user ID of the page creating remote user together with the name or user ID of other remote users to whom the page-creating remote user has given permission to access the page-creating remote user's personal page in one or more databases

         The parties dispute the reference to a CGI processor and/or program in several of the claim constructions, and so I discuss the issue here as it relates to all claims terms.[10] According to the specification, CGI is "a standard for interfacing external software applications with information servers such as HTTP servers, " or Web servers. Id. at col. 6 11. 48-50. In other words, CGI is a standard way for a Web server to pass a user's request on to an application program running on the server, and to receive data (e.g., from a database) to forward to the user.[11]

         As a preliminary matter, the parties refer to both "CGI Programs" and a "CGI Processor." The specification is internally inconsistent with respect to the use of these two terms. In particular, Figure 2 indicates that item 92 is a "CGI Processor, " while the narrative description refers to it as "CGI Programs." Id. at col. 6 11. 56-65. Item 92 (which is either the Program or Processor) is described as "resident" on the Web server 86. Id. at col. 6 11. 55-56. There is no indication in the specification or the parties' briefing that the "CGI processor" is any different from other processors, apart from the fact that a CGI program runs on it. As a result, I treat the processor as a generalized processor resident on the Web server which runs "CGI Programs."

         TPI argues that the CGI program is not a part of the algorithm and should be excluded from the structure, relying on Harris Corp. v. Ericsson Inc., 417 F.3d 1241 (Fed. Cir. 2005), to support the proposition that something that enables the performance of an algorithm is not part of the structure. Although Harris provides that "[a] computer-implemented means-plus-function term is limited to the corresponding structure disclosed . . . and the corresponding structure is the algorithm, " id. at 1253, this statement must be considered in context. The Federal Circuit was not speaking to the hardware associated with performing the structure in Harris; it was responding to an argument that the structure is limited to the ion made this explicit by identifying the "structure for the" claimed means as "a microprocessor programmed to carry out a two-step algorithm . . . ." Id. at 1254.

         Here, we are not dealing with hardware, but rather a type of program for passing information between the remote user and the Web server, and so TPI's argument is even more strained. TPI points out that Facebook may be including CGI in its proposed claim term because it utilizes an alternate standard. TPI's argument that the CGI program provides the same structure as other interfaces is appropriately reserved for questions of infringement. At that stage, a plaintiff must show, as proof of infringement of a means-plus-function claim, "that the accused device performs the recited function through structure that is the same as or equivalent to the corresponding structure set forth in the specification." Baran, 616 F.3d at 1316-1317. It may be the case that a CGI program is equivalent to other types of programs, but that question is not before me as part of, nor necessary to, the claim construction.

         Because the CGI program is specifically called out in the specification, I find no basis for de-linking it from the algorithm. The structure for the 32(f) claim element, as reflected in the specification at col. 10 11. 23-27 and the description of the CGI program at col. 6 1. 46-col. 7 1.8, is: "a CGI program that accesses a database on the local computer network for storing permission attributes."[12]

         D. Selecting Means

         Six means-plus-function claims or claim elements describe means for the page-creating remote user to access profile information of other remote users, for the purpose of selecting which of those remote users will be permitted access to the page-creating remote user's personal page. The claims are:

10(d) providing the page-creating remote user with a means for accessing the profile information of other remote users for selecting other remote users to whom the page-creating remote user may wish to allow access to the personal page;
16(e) means for the page-creating remote user to access the profile information of other remote users for selecting other remote users to whom the page-creating remote user may ...

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