United States Court of Appeals
for the Federal Circuit
__________________________
PARALLEL NETWORKS, LLC,
Plaintiff-Appellant,
v.
ABERCROMBIE & FITCH CO.,
Defendant-Appellee,
AND
ASICS AMERICA CORPORATION, AMAZON.COM,
INC., BARNES & NOBLE, INC.,
BARNESANDNOBLE.COM, LLC, BRAIN BUSTERS,
LLC, BRAWN, LLC, CABELA’S, INC., CITIZEN
WATCH COMPANY OF AMERICA, INC., DELTA
AIRLINES, INC., DILLARD’S, INC., FLAIRVIEW
TRAVEL PTY LTD., FLIGHTBOOKERS LTD., IAC
SEARCH & MEDIA, INC., IP HOLDINGS, INC.,
ICONIX BRAND GROUP, INC., JAG FOOTWEAR,
ACCESSORIES & RETAIL CORPORATION (ALSO
KNOWN AS JONES RETAIL CORPORATION),
MACY’S WEST STORES, INC., MACYS.COM, INC.,
NETFLIX, INC., ONESTOP INTERNET, INC.,
ORIENTAL TRADING COMPANY, INC., SUBARU
OF AMERICA, INC., SUNGLASS HUT TRADING,
LLC, TARGET CORPORATION, THE GOODYEAR
TIRE & RUBBER COMPANY, TRIPADVISOR LLC,
US AIRWAYS, INC., AND ZAPPOS RETAIL, INC.,
Defendants-Appellees,
AND
PARALLEL NETWORKS v. ABERCROMBIE 2
ADIDAS AMERICA, INC.,
Defendant-Appellee,
AND
AEROPOSTALE, INC. AND RALPH LAUREN
MEDIA, LLC,
Defendants-Appellees,
AND
H-D MICHIGAN, INC. AND HARLEY-DAVIDSON,
INC.,
Defendants-Appellees,
AND
VOLKSWAGEN OF AMERICA INC. (NOW KNOWN
AS VOLKSWAGEN GROUP OF AMERICA),
BENTLEY MOTORS, INC., AND BENTLEY MOTORS
LTD.,
Defendants-Appellees,
AND
BRIGGS & STRATTON CORP.,
BRIGGS & STRATTON POWER PRODUCTS
GROUP, LLC, MOTOROLA MOBILITY, INC., AND
MAPQUEST, INC.,
Defendants-Appellees,
AND
BROOKS SPORTS, INC. AND RUSSELL BRANDS,
LLC,
Defendants-Appellees,
AND
3 PARALLEL NETWORKS v. ABERCROMBIE
COLDWATER CREEK, INC.,
Defendant-Appellee,
AND
HSN INTERACTIVE LLC AND HSN LP,
Defendants-Appellees,
AND
HAYNEEDLE, INC.,
Defendant-Appellee,
AND
J.C. PENNEY CORPORATION, INC., JUICY
COUTURE, INC., KMART CORPORATION, LIZ
CLAIBORNE, INC., NEW BALANCE ATHLETIC
SHOE, INC., NORDSTROM, INC., OFFICE DEPOT,
INC., PATAGONIA, INC., RECREATIONAL
EQUIPMENT, INC., SEARS BRANDS, LLC,
SEARS HOLDINGS CORPORATION, SEARS,
ROEBUCK AND CO., THE GAP, INC., WILLIAMS-
SONOMA, INC., QVC, INC., AND VICTORIA’S
SECRET DIRECT BRAND MANAGEMENT, LLC,
Defendants-Appellees,
AND
JP MORGAN CHASE & CO.,
Defendant-Appellee,
AND
LG ELECTRONICS USA, INC.,
Defendant-Appellee,
AND
PARALLEL NETWORKS v. ABERCROMBIE 4
LOWE’S HOME CENTERS, INC.,
Defendant-Appellee,
AND
MAGHOUND ENTERPRISES, INC., TIME, INC.,
AND TOYOTA MOTOR SALES USA, INC.,
Defendants-Appellees,
AND
NIKE, INC.,
Defendant-Appellee,
AND
NISSAN NORTH AMERICA, INC.,
Defendant-Appellee,
AND
SOUTHWEST AIRLINES CO.,
Defendant-Appellee,
AND
REDBOX AUTOMATED RETAIL, LLC,
Defendant-Appellee,
AND
STAPLES, INC.,
Defendant-Appellee,
AND
VF OUTDOOR, INC.,
Defendant-Appellee.
5 PARALLEL NETWORKS v. ABERCROMBIE
__________________________
2012-1227
__________________________
Appeal from the United States District Court for the
Eastern District of Texas in case no. 12-CV-0018, Chief
Judge Leonard Davis.
__________________________
Decided: January 16, 2013
___________________________
RANDALL T. GARTEISER, Garteiser Honea Law Corpo-
ration, of San Rafael, California, argued for plaintiff-
appellant. On the brief was DAVID R. BENNETT, of Chica-
go, Illinois. Of counsel was CHRISTOPHER A. HONEA,
Garteiser Honea Law Corporation.
MICHAEL J. MCKEON, Fish & Richardson PC, of Wash-
ington, DC, argued for all defendants-appellees. With
him on the brief for ASICS America Corportion, et al.
were RUFFIN B. CORDELL and INDRANIL MUKERJI; STEPHEN
A. MARSHALL, of Boston, Massachusetts; and NEIL J.
MCNABNAY and DAVID B. CONRAD, of Dallas, Texas.
WILLIAM H. OLDACH, III, Vorys, Sater, Seymour &
Pease, LLP, of Washington, DC, for defendant-appellee,
Abercrombie & Fitch, Co.
C. ERIK HAWES, Morgan, Lewis & Bockius LLP, of
Houston, Texas, for defendants-appellees, Aeropostale,
Inc. and Ralph Lauren Media LLC.
PARALLEL NETWORKS v. ABERCROMBIE 6
JASON C. WHITE, Morgan, Lewis & Bockius LLP, of
Chicago, Illinois, for defendants-appellees, H-D Michigan,
Inc. and Harley-Davidson, Inc.
JOHN F. SWEENEY, STEVEN F. MEYER, SERGEY
KOLMYKOV, and ZACHARY D. SILBERSHER, Locke, Lord,
Bissell & Liddell, LLP, of New York, New York for de-
fendants-appellees Bentley Motor, Ltd., et al.
VIVIAN S. KUO, CORRINE M. SAYLOR, JOSHUA S. WYDE
and FLOYD R. NATION, Winston & Strawn, LLP, of Wash-
ington, DC, for defendants-appellees, Briggs & Stratton
Corp., et al.
NATHAN W. JOHNSON and JOEL M. KUEHNERT, Bradley
Arant Boult Cummings LLP, of Birmingham, Alabama,
for defendants-appellees, Brooks Sports, Inc., et al.
PETER J. BRANN, DAVID A. SWETNAM-BURLAND and
STACY O. STITHAM, Brann & Isaacson, of Lewiston, Maine,
for defendant-appellee, Coldwater Creek, Inc.
JOSEPH R. LANSER and MATTHEW A. WERBER, Seyfarth
Shaw LLP, of Chicago, Illinois, for defendants-appellees,
HSN Interactive LLC, et al.
JOHN P. PASSARELLI and JAMES M. SULENTIC, Kutak
Rock, LLP, of Omaha, Nebraska, for defendant-appellee,
Hayneedle, Inc.
KENNETH J. JUREK and JOHN G. BISBIKIS, McDermott
Will & Emery, of Chicago, Illinois, for defendants-
appellees, J.C.Penney Corporation, Inc., et al.
JAMES ROBERT ARNETT, II, and EDGAR LEON CARTER,
Carter Stafford Arnett Hamada & Mockler, PLLC, of
7 PARALLEL NETWORKS v. ABERCROMBIE
Dallas, Texas, for defendant-appellee, JP Morgan Chase
& Co.
STEVEN M. LIEBERMAN, R. ELIZABETH BRENNER-
LEIFFER and BRIAN A. TOLLEFSON, Rothwell, Figg, Ernst
& Manbeck, of Washington, DC, for defendant-appellee,
LG Electronics UCS, Inc.
MICHAEL A. OAKES, Hunton & Williams LLP, of Wash-
ington, DC, for defendant-appellee Lowe’s Home Centers,
Inc.
JOHN M. CARACAPPA, Steptoe & Johnson, LLP, of
Washington, DC, for defendants-appellees, Maghound
Enterprises, Inc., et al.
CHRISTOPHER J. RENK, MICHAEL J. HARRIS and JANICE
V. MITRIUS, Banner & Witcoff, Ltd., of Chicago, Illinois,
defendant-appellee, Nike, Inc.
JEFFREY S. PATTERSON and JEFFREY J. COX, Hartline,
Dacus, Barger & Dreyer, of Dallas, Texas, for defendant-
appellee, Nissan North America, Inc.
MAX CICCARELLI, Thompson & Knight, LLP, of Dallas,
Texas, for defendant-appellee, Southwest Airlines Co.
RAMSEY M. AL-SALAM and BRANDY R. MCMILLION,
Perkins Coie, LLP, of Chicago, Illinois, for defendant-
appellee, Redbox Automated Retail, LLC.
GERALD C. CONLEY and TONYA M. GRAY, Andrews
Kurth LLP, of Dallas, Texas, for defendant-appellee,
Staples, Inc.
PARALLEL NETWORKS v. ABERCROMBIE 8
DAVID G. MANGUM, MICHAEL R. MCCARTHY and C.
KEVIN SPEIRS, Parsons Behle & Latimer, of Salt Lake
City, Utah, for defendant-appellee, VF Outdoor, Inc.
__________________________
Before PROST, BRYSON *, and WALLACH, Circuit Judges.
BRYSON, Circuit Judge.
I
Plaintiff Parallel Networks, LLC, is the owner of U.S.
Patent No. 6,446,111 (“the ’111 patent”), entitled “Method
and Apparatus for Client-Server Communication Using a
Limited Capability Client Over a Low-Speed Communica-
tions Link.” The application for the patent was filed in
1999. As the title suggests, it was addressed to perceived
problems in using generic software applications on what
the patent referred to as “handheld and credit-card-sized”
computers, which often operated over low-speed or wire-
less networks.
According to the patent, there were two problems with
using generic applications in that environment: (1) they
occupied a considerable amount of storage space on the
host computer (because they had to include capabilities
for adapting to many different settings) and (2) they
required multiple, data-intensive transfers of information
between the server and the computer (because they were
not designed with the limitations of low-speed networks
in mind). See ’111 patent, cols. 1-2.
The patent’s solution to those problems was what it
referred to as a “dynamically generated, transient applet.”
* Judge Bryson assumed senior status on Janu-
ary 7, 2013.
9 PARALLEL NETWORKS v. ABERCROMBIE
’111 patent, col. 1, ll. 9-10. An applet is a small program
that typically performs one specific task. Examples
include standalone programs, such as Microsoft Paint, or
web-based programs that operate within an Internet
browser and change the graphic content of a website in
response to user input. For instance, a single applet could
perform the limited function of responding to a web user’s
request to a website featuring clothing by displaying an
image of a medium-size red shirt. Applets and a related
technology, known as plug-ins, pre-dated the ’111 patent,
and both could be used to provide “dynamic” capabilities
to web pages. Id., cols. 5-6. The ’111 patent claimed a
new type of applet that is better suited to the needs of
“limited capability clients.” See, e.g., id., col. 7, ll. 63-65
(prior art applets, once transferred, “typically must go
back out over the wireless network two or more times”).
Figures 2 and 3 illustrate the function described in
the patent:
PARALLEL NETWORKS v. ABERCROMBIE 10
As those figures show, the patent teaches an applet
that couples particularized data with a data manipulation
system that “enables the applet 26 to handle the various
characteristics associated with the data included in the
applet. . . .” ’111 patent, col. 11, ll. 18-19; see also Fig. 2
(displaying the data manipulation system and the data as
the two parts of the applet). The applet is generated in
response to a request representing the user’s desires (e.g.,
the display of a shirt in medium size and red color). “By
combining the functionality in the data manipulation
system 30 with the data of the data storage system 32 the
design methodology behind the applet 26 can be shifted
from the traditional focus on writing a generic program
one time and using that program with a variety of differ-
ent data types, to writing a program specifically for
11 PARALLEL NETWORKS v. ABERCROMBIE
particular data.” Id., col. 11, ll. 56-61. That individual-
ized feature, according to the patent, reduces the size of
the applet and reduces the number of times the client
computer needs to communicate with the server. E.g., id.,
col. 11, line 64, through col. 12, line 5.
The patent also makes clear that the claimed applet
must work prior to its initial transmission from the server
to the client. See, e.g., ’111 patent, col. 17, ll. 64-65 (ap-
plet must be “operable to be transferred over the commu-
nications link to the client device”); id., col. 2, ll. 45-46
(same, described in the Summary of the Invention). For
that reason, the patent describes an “executable applet”
that is “generated” before it is transmitted to the client.
E.g., id., col. 17, line 54; Fig. 3. Generating the applet, in
turn, requires that both the particularized data and the
data manipulation system reside in the transmitted
applet. E.g., id., col. 3, ll. 13-15 (noting that “the appro-
priate data and associated data handling capabilities” are
transmitted “as a group”); col. 12, ll. 8-10 (“the needed
functionality and the required data are bundled together
in the applet”); col. 17, ll. 54-65 (describing two “constitu-
ent” systems in the “executable” or “operable” applet).
Thus, while some embodiments of the claimed applet may
call for a subset of data to be “updatable” through subse-
quent communications with the server, e.g., id., Fig. 3; col.
15, ll. 47-49, the applet must be operable before it is
transmitted, e.g., col. 16, ll. 20-31 (describing an example
in which the client “executes the applet” before “in-
dicat[ing] that the applet 26 requires new or updated data
which may require updating the updateable elements”).
In March 2010, Parallel filed the first of four cases
against 120 different defendants in the United States
District Court for the Eastern District of Texas. The
defendants span a variety of industries but have in com-
PARALLEL NETWORKS v. ABERCROMBIE 12
mon that their websites provide applets in response to
user requests in a manner that, according to Parallel,
infringes the ’111 patent. Responding to the number of
defendants and to Parallel’s stated strategy of trying to
extract an early settlement from as many defendants as
possible, the district court implemented a creative proce-
dure designed to streamline the case. The court ordered
an initial Markman hearing to construe three terms in
two claims that defendants had contended “affect all
Defendants [and], if construed, would be case dispositive.”
The court ordered accompanying summary judgment
briefing on the same claims. The three chosen terms,
which the parties agree are substantively identical in
independent claims 1 and 17, are underlined in the text of
claim 1, below:
1. A data processing system comprising:
a server coupled to a communications link and op-
erable to receive a request from a client device
and to collect a plurality of data items, wherein
the data items comprise specific information col-
lected as a function of the request;
an executable applet [that is] dynamically generat-
ed by the server in response to the request, a con-
stituent system associated with the applet
comprising a subset of the data items, each data
item in the subset used as at leas[t] one pre-
loaded value in the applet;
a further constituent system associated with the
applet comprising a data interface capability con-
figured to provide a plurality of operations on the
pre-loaded values, the operations comprising op-
13 PARALLEL NETWORKS v. ABERCROMBIE
erations associated with the subset of the data
items; and
the applet operable to be transferred over the
communications link to the client device.
’111 patent, col. 17, ll. 47-65.
The district court retained a technical adviser and,
following a hearing and briefing, construed each of the
three terms. First, it held that “executable applet” means
a “program code that can be used by a client device.” The
court rejected the defendants’ argument that the term
should be construed to mean “a small, substantially self-
sufficient application, containing the requisite functional-
ity and the necessary data to operate, that depends on
substantially no services (e.g., web browser or plug-in) on
a client device.” That construction, the court found, was
“based on an underlying and erroneous premise that
claims 1 and 17 are limited to web browsing.” The court
also modified Parallel’s proposed construction of the term
“executable applet”—i.e., “program code that interacts
locally with a client and can be discarded”—because the
discarding term concerned “a limitation from the pre-
ferred embodiment that is not required by the claims” and
because “the user and the client are not necessarily
synonymous.”
The court adopted the defendants’ construction of the
second term, holding that an applet that is “dynamically
generated by the server in response to the request” is one
“constructed at the server, by combining the requisite
functionality with the necessary data, at the time of and
in response to the client request.” The court described
that construction as consistent with the prosecution
history, in which the patentee distinguished prior art
PARALLEL NETWORKS v. ABERCROMBIE 14
based on the fact that the applet in the patented system
was generated in response to the client’s request. The
court also found support in the specification’s repeated
assertions that “the data and functionality are sent to-
gether to the client to reduce the number of transmis-
sions.” The court rejected Parallel’s contention that the
term means “generated by the server to have particular
services and data for the client based on the request.”
That construction, the court explained, “read[s] out the
limitation ‘in response to the data request’ [because, for]
the applet to be generated in response to the request, the
request must come first and the applet cannot predate
[it].”
Finally, the court adopted Parallel’s definition of “da-
ta interface capability” to mean “program code that allows
the client to access and use the data,” finding that Paral-
lel’s construction was “consistent with the specification as
a whole.” The court found that the defendants’ proposal
was based on the same “erroneous assumption that the
claims are limited to a web-based environment.”
Moving to the merits of Parallel’s infringement claim,
the district court granted summary judgment of non-
infringement for most defendants based on its construc-
tion of the “dynamically generated” term. In each of the
accused instrumentalities, the district court found, “at
least one of the functional code or necessary data is con-
tained . . . as only a link.” Rejecting Parallel’s argument
that “an applet can be constructed with the functionality
and data sent as separate files to be assembled and
executed on the client device,” the court held that the
applet, “as transferred,” “requires [that] both the data and
functional code exist as operative components of the
applet.” Because Parallel claimed only literal infringe-
ment, and because the accused sites all included a link
15 PARALLEL NETWORKS v. ABERCROMBIE
that necessitated a subsequent transmission between the
client and the server in order to assemble the data and
functionality required for the applet to operate, the court
ruled that most of the defendants were entitled to sum-
mary judgment.
The following month, Parallel filed a motion pursuant
to Federal Rule of Civil Procedure 59(e) seeking leave to
amend its infringement contentions in order to allege
infringement against 45 defendants based on the district
court’s claim constructions. Parallel principally argued
that the court had imposed a “single transmission” re-
quirement on the invention and that the court’s construc-
tion was an unexpected and intervening change in the
law to which Parallel deserved a chance to respond. The
court denied the motion, ruling that it never imposed a
“single transmission” requirement in its claim construc-
tion and that, in any event, Parallel had had ample
opportunity to respond, and had in fact responded, to the
court’s construction of the “dynamically generated” term.
For that reason, the court held that there was no basis for
granting Parallel another bite at the apple.
The district court then severed the defendants for
which the summary judgment had disposed of all of
Parallel’s claims. The court dismissed those defendants’
counterclaims without prejudice and entered final judg-
ment in favor of those defendants. Parallel now appeals
the district court’s claim constructions, its non-
infringement rulings, and its denial of the Rule 59(e)
motion, with respect to the severed defendants.
PARALLEL NETWORKS v. ABERCROMBIE 16
II
A
Despite the many issues raised on appeal, this case
reduces, as the district court ruled, to a fairly simple
analysis. First, as to claim construction, we agree with
the district court that the data manipulation service (or
functionality) and the particularized data are both neces-
sary components of the applet as it is initially generated
and before it is transferred to the client. Asserted claim 1
describes an “executable applet” that is both “dynamically
generated by the server in response to the request” and
“operable to be transferred over the communications link
to the client device.” See ’111 patent, col. 17, ll. 54-65.
The claim further describes the applet’s two “constituent”
systems as the data and the functionality. Id. In other
words, the claim teaches that the applet is “generated” in
response to a user request, is “executable” and “operable,”
is “associated with” the two “constituent” systems of
particularized data and functionality, and is thereafter “to
be transferred.”
Such a reading comports with the ordinary meaning
of the patent’s key terms. In order of appearance, the
word “executable” means “capable of being executed,” i.e.,
being “put into effect [and] carr[ied] out fully and com-
pletely.” Webster’s Third New International Dictionary
794 (1968). 1 The word “generate” similarly denotes
completion, i.e., “to cause to be: bring into existence.” Id.
at 945. And the word “constituent” means “serving to
1 Parallel’s contention on appeal that an executable
applet “can be used by a client device” likewise implies
that such an applet is capable of being used without
further modification.
17 PARALLEL NETWORKS v. ABERCROMBIE
form, compose, or make up . . . : component.” Id. at 486.
Taken together, these terms describe a natural progres-
sion in the asserted claims: Upon receipt of a user re-
quest, the server generates (i.e., brings into existence) an
applet with two constituent (i.e., component) parts (par-
ticularized data and functionality); that applet is execut-
able (i.e., capable of being executed and carried out fully
and completely). The applet is then transferred to the
client device, where it will be executed. Figure 3 depicts
this chronology. What Figure 3 does not describe, howev-
er, is a scenario in which, in response to a request, only
part of the applet is generated (with a placeholder for the
rest) and is transmitted to the client, which then tries to
execute it and, finding it non-executable and inoperable,
follows a link back over the network to retrieve the addi-
tional data and/or functionality that is needed for the
applet to run.
The specification substantiates this construction. The
Summary of the Invention reiterates the claim language
describing “constituent” systems of the “executable,”
“operable” applet. ’111 patent, col. 2, ll. 33-49. Then,
even more explicitly, it explains that, in the “present
invention,” “the appropriate data and associated data
handling capabilities” are transmitted “as a group.” Id.,
col. 2, line 55, through col. 3, line 15; see also id., col. 12,
ll. 8-10 (“the needed functionality and the required data
are bundled together in the applet”). The specification
also makes clear that the patent’s executable applet, as
generated, contains data and functionality: “According to
the teachings of the present invention, when the applet 26
is generated, the applet 26 does not merely contain an
executable program as with typical applets. In contrast,
the applet 26 also comprises particular services and data
for the client 12 based on the request.” Id., col. 9, ll. 39-
43. Indeed, combining the data and functionality at the
PARALLEL NETWORKS v. ABERCROMBIE 18
outset and transmitting them “as a group” facilitates the
invention’s key goal of “greatly reduc[ing]” the number of
communications over low-speed networks. Id., col. 3, ll.
13-17.
A finding of non-infringement follows directly from
this analysis. Parallel concedes that, for each of the
accused websites, “[i]t is undisputed that the client device
must receive both the associated functional code and data
to execute the applet.” And Parallel also concedes that
each of the accused instrumentalities is missing at least
one portion of the functional code or data when the applet
is transferred to the client because the applet includes
only a link. Those admissions doom Parallel’s claims
because we construe the asserted claims of the ’111 patent
to require that the applet be executable or operable when
it is generated and before it is first transmitted to the
client, which means it must include both the particular-
ized data and the functionality. Because the accused
websites do not contain every claim limitation, they do
not literally infringe.
B
Parallel’s challenges to the district court’s claim con-
struction ruling and, in particular, to its finding that the
term “dynamically generated” means “constructed at the
server, by combining the requisite functionality with the
necessary data, at the time of and in response to the
client request,” are unpersuasive. Parallel’s central
complaint is that the district court erred in construing
“generated by the server” to mean “constructed at the
server, by combining” because (1) “generate” is broader
than “combine” and (2) the asserted claims require only
that the data and the functionality be “‘associated with’
19 PARALLEL NETWORKS v. ABERCROMBIE
the applet, not ‘combin[ed]’ into a single file with the
applet.”
We disagree. If Parallel’s position were adopted, it
would permit the broad term “associated with” to effec-
tively rewrite the patent. Notwithstanding the potential
breadth of the phrase “associated with,” it is clear that
the patent teaches an applet containing both the data and
the functionality when the applet is generated. In addi-
tion to reciting that data and functionality are “associated
with” the applet, the claims characterize the applets as
consisting of two “constituent systems,” comprising data
and functionality. As explained above, the term “constit-
uent” means “serving to form, compose, or make up.” The
specification similarly refers to the applet as “com-
pris[ing] particular services and data.” ’111 patent, col. 9,
ll. 39-43. Moreover, the specification confirms that the
meaning Parallel urges for the term “associated with” is
overly expansive. Parallel’s position would, for instance,
improperly bring distinguished prior art within the scope
of the claims, because Java applets or plug-ins can easily
be described as “associated with” data and functionality.
See, e.g., ’111 patent, col. 7, line 63, through col. 8, line 8.
And, as the defendants point out, an applet that need not
include the two constituent systems could “be empty and
not even include the embodiments described in the speci-
fication.”
Nor are we persuaded by Parallel’s effort to contrast
the use of “associated with” in asserted claims 1 and 17
with other parts of the patent that refer to the data and
functionality as “portion[s]” of the applet. Parallel focus-
es, for example, on the following passage describing
Figure 2: “[B]ecause of the unique construction of the
applet, the applet 26 comprises both a data manipulation
system 30 and a data storage system 32 which are each
PARALLEL NETWORKS v. ABERCROMBIE 20
constituent systems associated with the applet 26. The
data manipulation system 30 may also comprise a portion
of the applet 26, similarly, the data storage system 32
may also comprise a portion of the applet 26.” ’111 pa-
tent, col. 11, ll. 8-15. We agree with the district court
that, if anything, this characterization of the applet as
“compris[ing] both” data and functionality supports the
defendants, particularly in the context of Figure 2’s
depiction of an applet containing both systems. In short,
the district court’s construction properly accounts for the
meaning of “associated with” in the context of the ’111
patent. 2
Parallel’s remaining arguments all take issue with
narrow aspects of the district court’s construction that do
not bear on the dispositive claim construction provided
above. First, Parallel claims that construing the term
“generated by the server” to mean “generated at the
server” was wrong because the specification states that
the applet “‘may be generated either directly by the web
server application 20 or by an external program utilized
by the web server application.’” Parallel’s basic point is a
fair one—“by” does not necessarily mean “at.” But Paral-
lel does not say where the applet is generated if it is not
at the server and thus points to nothing to indicate why
the difference between the two prepositions matters in
this context. In any event, the critical point for purposes
2 We also reject Parallel’s related argument that
the district court’s use of “combine” rather than “gener-
ate” was error because the specification notes that the
applet can be generated in “a variety of ways,” including
“by combining various predefined units.” Parallel’s ar-
gument is a non-sequitur, as it does not address the fact
that generating the applet requires combining data and
functionality, even if the generation may use predefined
units of data or templates customized based on the data.
21 PARALLEL NETWORKS v. ABERCROMBIE
of this case is that the applet cannot be finalized at the
client, whether by an “external program,” a “web server
application,” or some other mechanism.
Parallel next attacks the district court’s ruling that
“dynamically . . . in response to the request” means “at
the time of and in response to the request.” Parallel notes
that the specification defines “‘dynamic’ information” to be
information that “may be different for different clients
and different users of clients,” with no temporal element.
See ’111 patent, col. 5, ll. 1-3. While that may be true, it
does not change the analysis in any way. Although an
applet could, for example, be generated “in response to” a
request even if it were generated at some later point
rather than at the exact time of the request, that does not
affect the critical requirement that the applet be generat-
ed and executable before it is transferred to the client.
Parallel’s argument on this issue is irrelevant to that
determination. 3
Finally, Parallel argues that the district court was
wrong to construe the term “dynamically generated” to
require that the data and functionality be transferred to
the client in a single transmission. Parallel relies on the
district court’s subsequent statement that its claim con-
struction contained no “single transmission” requirement
and points to numerous examples in which the specifica-
3 Parallel is clearly wrong to maintain that an ap-
plet can predate the client request. As the district court
held, an applet cannot predate the request if it is to be
generated “in response to” that request. Parallel’s at-
tempt to sidestep that problem by arguing that the applet
may be generated using templates or prewritten proce-
dures does not change the fact that the applet itself must
be generated at the time of or after the client request,
even if some of its elements existed before the request was
made. Figure 3 forecloses any argument to the contrary.
PARALLEL NETWORKS v. ABERCROMBIE 22
tion references more than one transmission over the
communications link. As the defendants explain, howev-
er, Parallel “conflate[s] two very different concepts: (1) the
generation of the applet at the server and its transmission
to the client; and (2) the operation of the applet after it
has been fully transferred to the client.” Claims 1 and 17
deal with the former; the specification passages that
Parallel cites to show that the invention anticipates
multiple transfers between client and server deal only
with the latter. That is why, for example, the district
court found that “the data and functionality are sent
together to the client to reduce the number of transmis-
sions” but that “[t]his does not . . . exclude additional
communications between the server and client once the
applet is in place.”
C
Based on its critique of the district court’s claim con-
struction, Parallel argues that the district court’s in-
fringement analysis was necessarily erroneous. Again,
however, Parallel’s argument hinges on an impermissibly
broad interpretation of the phrase “associated with” in
claims 1 and 17. In order to overcome the fact that one or
both of the functionality and data in the accused devices
are represented by a link when the applet is first trans-
ferred from the server to the client device, Parallel asserts
that it is irrelevant whether the data and functional code
are actually listed within the HTML or whether they are
listed by a link to a file. In other words, Parallel argues
that it does not matter “whether the client device needs to
make a separate ‘request’ to receive the associated data or
functionality” because, in both instances, the constituent
system is sufficiently “associated with” the applet.
23 PARALLEL NETWORKS v. ABERCROMBIE
Parallel admits that the executable applet must con-
sist of both data and functionality, and the patent empha-
sizes that feature repeatedly. What purportedly made the
’111 patent unique and inventive was combining and
transmitting the particularized data and functionality “as
a group” in order to transfer an “executable applet” and
reduce the number of transmissions over the communica-
tions link. Parallel cannot now claim that a limitation
that featured so critically in the patent was not, in fact, a
part of the invention.
Indeed, the analysis of Parallel’s expert, Dr. Richard
Cooper, highlights the fundamental problem with Paral-
lel’s position. Dr. Cooper explained that, in each of the
accused systems, the client device is instructed that “the
combined data and the functional code are needed for the
applet to execute and how to obtain that needed infor-
mation.” The fact that the client needs to “obtain” infor-
mation in order to execute, however, confirms that no
“executable” or “operable” applet is generated and then
transferred from the server to the client, as the patent
requires. Dr. Cooper’s ipse dixit statements that, in his
opinion, “it is irrelevant on this ‘combining’ issue whether
the data and functional code are actually listed within the
HTML or whether the data and functional code are listed
by a link in the HTML,” are not sufficient to avoid sum-
mary judgment. See, e.g., Arthur A. Collins, Inc. v. N.
Telecom Ltd., 216 F.3d 1042, 1046-48 (Fed. Cir. 2000).
III
Parallel argues that the district court erred in deny-
ing its Rule 59(e) motion because the court failed to
address all the pertinent factors that bear on whether a
motion to alter a judgment should be granted. In an
effort to portray its argument as a purely legal one,
PARALLEL NETWORKS v. ABERCROMBIE 24
Parallel contends that the district court never addressed
one of three factors that the Fifth Circuit considers under
Rule 59(e)—the need to prevent a “manifest injustice”—
and failed to consider four “good cause” factors for allow-
ing amendments to infringement contentions under Local
Patent Rule 3-6(b).
Parallel’s argument is unpersuasive. We agree with
the district court that Parallel is seeking to amend its
infringement contentions in order to make arguments
that could have been made before the entry of summary
judgment, a tactic that the district court correctly held to
be improper. See, e.g., Templet v. HydroChem Inc., 367
F.3d 473, 478-79 (5th Cir. 2004). As Parallel concedes, it
“reanalyzed” the defendants’ accused instrumentalities
and identified allegedly infringing activities by a subset of
defendants based on the fact that a single file is transmit-
ted in a single transmission. Because the patent makes
clear that the applet must be transferred with data and
functionality initially, and because the parties briefed
that very issue before the district court, Parallel’s newly
claimed infringement allegations do not rely on anything
new that gives rise to a valid Rule 59(e) motion. In par-
ticular, the district court’s claim construction was not an
intervening change in the law. Parallel chose to pursue a
theory that allowed it to accuse a larger number of de-
fendants. Having lost, Parallel may not now initiate what
would amount to a completely new infringement proceed-
ing.
Nor is there any merit to Parallel’s effort to character-
ize the district court’s ruling as a legal error based on the
court’s failure to consider all the relevant factors. The
need to prevent “manifest injustice” is a catch-all factor,
the court’s resolution of which is implicit in its considera-
tion, and rejection, of Parallel’s Rule 59 motion as a
25 PARALLEL NETWORKS v. ABERCROMBIE
whole. The district court made that point clear when it
characterized Parallel’s motion as seeking to “prevent a
manifest injustice” by “amend[ing] its infringement
contentions . . . .” Requiring the formality of an addition-
al sentence to that effect is unnecessary, and Parallel
cites no Rule 59 cases in support of its argument. That is
unsurprising, as courts frequently deny Rule 59(e) mo-
tions without discussion, and such dispositions are not
treated as legally erroneous because they are summary in
nature. See, e.g., Boone v. Citigroup, Inc., 416 F.3d 382,
387 n.6 (5th Cir. 2005) (“The district court also summarily
denied a rule 59(e) motion to reconsider the denial of
remand.”); Hinojosa v. Brown, 129 F. App’x 915, 916 (5th
Cir. 2005) (same).
For the same reasons, we reject Parallel’s contention
that the court erred by failing to consider the proper
factors bearing on whether there was “good cause” to
amend the infringement contentions under Local Patent
Rule 3-6(b). Parallel sought to amend its contentions
pursuant to Local Patent Rule 3-6(a), which the district
court held was “inapplicable,” again because the “claim
construction was hardly unanticipated.” Nor does Local
Patent Rule 3-6(b) provide Parallel any basis for relief.
The factors set forth in that subsection of the rule go to
the party’s explanation for its failure to make the allega-
tions sooner and the potential prejudice resulting from
what is to be excluded. Parallel has no good explanation
for its failure to bring its new infringement contentions
earlier and thus has brought any perceived prejudice on
itself.
AFFIRMED