United States Court of Appeals 

for the Federal Circuit ______________________ 

SUFFOLK TECHNOLOGIES, LLC,

Plaintiff-Appellant,

v.

AOL INC.,

Defendant,

AND

GOOGLE INC.,

Defendant-Appellee.

______________________ 

2013-1392

______________________ 

Appeal from the United States District Court for the 

Eastern District of Virginia in No. 12-CV-0625, Judge T. 

S. Ellis, III.

______________________ 

Decided: May 27, 2014

______________________ 

JOEL L. THOLLANDER, McKool Smith, P.C., of Austin, 

Texas, argued for plaintiff-appellant. With him on the 

brief were DOUGLAS A. CAWLEY and DANIEL L. GEYSER, of 

Dallas, Texas; and RODERICK G. DORMAN, of Los Angeles, 

California. 
2 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

STEVEN A. HIRSCH, Keker & Van Nest LLP, of San 

Francisco, California, argued for defendant-appellee. 

With him on the brief were ROBERT A. VAN NEST, CHRISTA 

M. ANDERSON, and MATTHIAS A. KAMBER. 

______________________ 

Before RADER, Chief Judge, PROST and CHEN, Circuit 

Judges.

PROST, Circuit Judge. 

Suffolk Technologies, LLC (“Suffolk”) appeals from 

the summary judgment of the United States District 

Court for the Eastern District of Virginia holding certain 

claims of Suffolk’s U.S. Patent No. 6,081,835 (“’835 patent”) invalid. Specifically, the district court held that 

claims 1, 7, and 9 were anticipated by a Usenet newsgroup post. Suffolk then stipulated that, in light of the 

district court’s prior art, claim construction, and expert 

testimony rulings, claim 6 was also anticipated. Upon 

entry of final judgment, Suffolk appealed.

We conclude that the district court correctly construed 

the claims and properly granted summary judgment of 

invalidity. Accordingly, we affirm.

BACKGROUND

Suffolk owns the ’835 patent, which is directed to

methods and systems for controlling a server that supplies files to computers rendering web pages. ’835 patent 

col. 2 l. 58–col. 4 l. 10. The patent discloses using the 

address of the referring web page to determine whether to 

serve a file, and if so, which file. Id. The claims at issue 

are independent claim 1 and dependent claims 6, 7, and 9. 

Those claims read as follows:

1. A method of operating a file server, said 

method comprising the steps of: 

receiving a request for a file;
SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 3

determining if the request includes a received 

identification signal identifying an originating 

file from which said request originated;

comparing any said received identification signal

with the one or more predetermined identification signals; and 

deciding which file, if any, is to be supplied in 

dependence upon said determining and comparing steps, and if in the deciding step it is decided that a file is to be supplied, supplying said 

file.

Id. col. 7 ll. 30–42 (emphases added). 

6. A method as in claim 1 wherein said deciding 

step further comprises generating said supplied 

file. 

7. A method as in claim 1 wherein said request 

conforms to a hypertext transfer protocol.

Id. col. 8 ll. 1–4 (emphasis added). 

9. A method as in claim 1 in which said file server is connected to the internet and wherein said 

request is received via the internet.

Id. col. 8 ll. 8–10.

In June 2012, Suffolk sued Google Inc. (“Google”) for 

infringing the ’835 patent.1 Google responded by arguing, 

among other things, that the asserted claims were anticipated by a newsgroup post. Specifically, on June 29, 

1995—nine months before the priority date claimed for 

the ’835 patent—Marshall C. Yount posted to the 

comp.infosystems.www.authoring.cgi newsgroup a mes1 Suffolk also sued AOL Inc., but those parties settled in January 2013. 

 
4 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

sage entitled “How to tell which page called the script?” 

He wrote:

I am a newbie at this CGI [common gateway interface] stuff, so this question might seem ridiculous (I did look in the FAQ and on some web pagpages). I have this script that will be called from 

one of 18 pages. Depending on which page it was 

called from, the output will be different. Is there 

any environment variable that will tell me this, or 

do I have to externally pass information to the 

script. 

J.A. 4805.

A college student named Shishir Gundavaram replied 

with the following post (the “Post”):

Look at the CGI environment variable 

HTTP_REFERER. In Perl, you can do something 

like this:

#!/usr/local/bin/perl

$referer = $ENV{‘HTTP_REFERER’};

print “Content-type: text/plain”, “\n\n”;

if ($referer =~ /abc\.html/) {

print “A link in abc.html called this document.”, “\n”; 

} elsif ($referer =~ /efg\.html/) {

print “A link in efg.html called this document.”, “\n”; } 

else {

print “A link in ”, $referer, “ called this document.”, “\n”;

} 
SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 5

exit(0);

Id.

After construing the claims and excluding testimony 

from Suffolk’s validity expert, the district court granted 

Google’s motion for summary judgment, holding that 

claims 1, 7, and 9 were anticipated by the Post. Suffolk 

Techs. LLC v. AOL Inc., 942 F. Supp. 2d 600, 602 (E.D. 

Va. 2013) (order construing claims); J.A. 29 (order granting summary judgment). Suffolk then stipulated to 

summary judgment of anticipation of claim 6 in light of 

the district court’s prior art and claim construction rulings. J.A. 2 (Final Judgment). 

Suffolk timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1). 

ANALYSIS

I. Claim Construction

Suffolk appeals the district court’s construction of the 

claim term “generating said supplied file.” According to 

Suffolk, the district court’s construction, in combination 

with the court’s prior art and summary judgment rulings 

“effectively ensured that [claim 6] would be invalidated as 

well.” Appellant’s Br. 4.

Claim construction is a question of law that we review 

without deference. Lighting Ballast Control LLC v. 

Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1276–77 (Fed. 

Cir. 2014) (en banc); Cybor Corp. v. FAS Techs., Inc., 138 

F.3d 1448, 1456 (Fed. Cir. 1998) (en banc). In construing 

claims, this court relies primarily on the claim language, 

the specification, and the prosecution history. Phillips v. 

AWH Corp., 415 F.3d 1303, 1314–17 (Fed. Cir. 2005) (en 

banc). After considering this intrinsic evidence, a court 

may also seek guidance from extrinsic evidence such as 

expert testimony, dictionaries, and treatises. Id. at 1317–

18. 
6 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

Suffolk argues that the district court erred in construing the claim term “generating said supplied file” as 

“creating or tailoring a file, as distinct from selecting an 

existing file, in dependence upon the received identification signal.” Suffolk Techs., 942 F. Supp. 2d at 602 (emphasis added). Suffolk’s position is that the generated file 

could depend on the content of the requesting web page 

and not just the received identification signal. According 

to Suffolk, the district court committed three fundamental 

errors in coming to a different conclusion. 

First, Suffolk argues that the language of the claims 

themselves does not support the district court’s construction. But a review of the claim language reveals the 

weakness of this position. 

Claim 1’s deciding step depends upon the preceding 

determining and comparing steps, both of which in turn 

depend upon a “received identification signal.” Thus, 

claim 1’s determining, comparing, and deciding steps all 

reference, directly or indirectly, a “received identification 

signal.” 

All claim 6 does is add a “generating said supplied 

file” limitation to claim 1’s deciding step. Neither claim 1 

nor claim 6 references any variables or mechanisms for 

conveying information about the requesting page other 

than the “received identification signal.” And, the undisputed construction of “identification signal”—“digital 

information that identifies the source, origin, or location 

of a file”—says nothing about the content of the requesting page. 

Thus, the only variable actually listed in the claims 

that the generated file could depend on is the received 

identification signal and not the content of the requesting 

web page. Counter to Suffolk’s assertion, the language of 

the claims does support the district court’s construction. 
SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 7

Second, Suffolk argues that the specification implicitly defines “generating said supplied file” and that the 

district court erred in ignoring that implicit definition. 

Suffolk lists several excerpts from the specification that it

argues supports its position that the generated file could 

depend on the content of the requesting page. But when 

viewed in context, those excerpts actually support the 

district court’s construction. For example, Suffolk points 

to the statement that information can be “tailored in 

dependence upon the current web page being displayed by 

the browser.” ’835 patent col. 4 ll. 5–6. That excerpt is 

reproduced with context below. Suffolk’s excerpt is italicized and the most important context is bolded.

In addition to the possibility of controlling access 

to image or sound, or other high bandwidth files, 

the referrer details transmitted with the file request may inform the server of the web page from 

which a file request is being made. Thus, if a 

HTML file is requested from a web page, the 

server is able to identify from which web 

page the HTML file request is made and customize the HTML file accordingly. For instance, if the browser requests a HTML file and 

generates a web page which includes details of a 

company, the details which are to be displayed can 

be tailored in dependence upon the current web 

page being displayed by the browser which could 

for instance be financial information. 

’835 patent col. 3 l. 62–col. 4 l. 7 (emphases added).

Another of Suffolk’s excerpts with context follows. 

[T]he HTML file sent to the browser can be customised in dependence upon the web page from 

which the request for a new web page was made. 

In this embodiment the server runs an application 

which takes in the referrer address and generates a new HTML file. 
8 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

Id. col. 6 ll. 37–41 (emphases added).

These passages, when taken in full, describe two basic 

steps: (1) identifying from which web page the request is 

made; and (2) customizing an HTML file accordingly. 

Importantly, the first step is not identifying the content of 

the requesting page. Arguably, it is possible that the 

server could separately match the received identification 

signal with content known to be on that requesting page, 

but such matching is not described or claimed. And in 

that case, the generated file would still be most accurately 

described as depending on the received identification 

signal and not the requesting page’s content. 

Thus, the specification, when viewed in context, supports the district court’s construction that “generating 

said supplied file” depends on the received identification 

signal and not the content of the requesting web page. 

Third, Suffolk argues that the district court’s construction effectively excludes the preferred embodiment 

that this claim language was intended to cover. But this 

argument fails when the entire description of the preferred embodiment is considered. When considered in 

full, it is clear that the embodiment uses the referrer 

address to generate the correct file. See ’835 patent col. 3 

l. 67–col. 4 l. 2 (“[T]he server is able to identify from which 

web page the HTML file request is made and customise

the HTML file accordingly.”) (emphases added); see also 

id. col. 3 l. 36–40. The district court’s construction does 

not exclude the preferred embodiment.

We have considered Suffolk’s remaining arguments 

regarding the district court’s claim construction and find 

them unpersuasive. Accordingly, we affirm that construction. 

II. Summary Judgment

Suffolk also appeals the district court’s grant of summary judgment of invalidity of claims 1, 7, and 9, and 
SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 9

several underlying rulings. 

The district court’s grant of summary judgment is reviewed de novo. Grober v. Mako Prods., Inc., 686 F.3d 

1335, 1344 (Fed. Cir. 2012); Bruckelmyer v. Ground 

Heaters, Inc., 445 F.3d 1374, 1377 (Fed. Cir. 2006). 

Summary judgment is appropriate if, viewing the evidence in the light most favorable to the non-moving party, 

the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment 

as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986).

According to Suffolk, the district court erred by (1) 

holding that the Post is a printed publication and thus 

prior art, (2) holding that there were no triable issues 

concerning the Post’s accuracy and reliability, (3) excluding testimony of Suffolk’s validity expert, and (4) granting 

summary judgment, even in light of those rulings. We 

address each purported error in turn. 

A. Printed Publication

As stated, Suffolk argues that the district court erred 

in holding that the Post is a printed publication under 

§ 102.2 

“Whether an anticipatory document qualifies as a 

‘printed publication’ under § 102 is a legal conclusion 

based on underlying factual determinations.” SRI Int’l, 

Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1192 (Fed. 

Cir. 2008) (citation omitted); see In re Klopfenstein, 380 

2 Google contends that Suffolk waived the argument that the Post is not a printed publication under 

§ 102. Because the district court clearly recognized, 

considered, and ruled on the issue, we disagree. See 

Holmer v. Harari, 681 F.3d 1351, 1356 n.3 (Fed. Cir. 

2012).

 
10 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

F.3d 1345, 1347 (Fed. Cir. 2004) (“Where no facts are in 

dispute, the question of whether a reference represents a 

‘printed publication’ is a question of law.”) “Because there 

are many ways in which a reference may be disseminated 

to the interested public, ‘public accessibility’ has been 

called the touchstone in determining whether a reference 

constitutes a ‘printed publication’ bar under 35 U.S.C. 

§ 102(b).” SRI Int’l, Inc., 511 F.3d at 1194 (quoting In re 

Hall, 781 F.2d 897, 898–99 (Fed. Cir. 1986)). “A given 

reference is ‘publicly accessible’ upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested 

and ordinarily skilled in the subject matter or art exercising reasonable diligence, can locate it.” Id. (quoting

Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378 

(Fed. Cir. 2006)); see In re Cronyn, 890 F.2d 1158, 1160 

(Fed. Cir. 1989) (“[D]issemination and public accessibility 

are the keys to the legal determination whether a prior 

art reference was ‘published.’” (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1568 (Fed. Cir.

1988), cert. denied, 488 U.S. 892 (1988))).

Suffolk argues that the Post should not be considered 

a printed publication for essentially two reasons. According to Suffolk, the Post’s audience was not those of ordinary skill in the art and locating the Post would be too 

difficult.

As to the first argument, Suffolk contends that the 

Usenet newsgroup was populated mostly by “beginners,” 

not those of ordinary skill in the art. Suffolk bases this 

claim on Yount’s comment that he was a “newbie” and 

that “this question might seem ridiculous.” J.A. 4805. 

And Gundavaram did state that, at the time of the post, 

“Most of these people who are using these newsgroups 

were beginners.” J.A. 5132. But Suffolk’s argument is 

unpersuasive for two reasons. First, Suffolk seems to 

misunderstand the level of ordinary skill in the art at that 

time. According to Gundavaram, there were no courses or 
SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 11

books concerning CGI at the time of the Post in 1995, and 

he learned about CGI through self-study. Second, the 

record indicates that those of ordinary skill in the art 

actually were using such newsgroups. At the time, only 

people with access to a university or corporate computer

could use newsgroups, a subset of people more likely to be 

skilled in the art. Suffolk’s own validity expert, Dr. 

Rhyne, used newsgroups. Gundavaram clearly used the 

newsgroup here, and he ultimately wrote a book on CGI. 

Further, Yount’s question would only seem “ridiculous” if 

the other subscribers had more skill in the art than he. 

Accordingly, Suffolk’s first ground for attacking the 

printed publication is unpersuasive. 

As to the second ground, Suffolk argues that the Post 

was not sufficiently publically accessible to be considered 

a printed publication. Suffolk points out that the Post 

was non-indexed and non-searchable. And although the 

newsgroup posts did have titles, they could only be sorted 

by date. 

But this argument is also unpersuasive for two reasons. First, Suffolk overstates the difficulty in locating 

the Post after publication. Usenet newsgroups were 

organized in a hierarchical manner, as evidenced by the 

name of the newsgroup at issue—

comp.infosystems.www.authoring.cgi. Thus, someone 

interested in CGI could easily locate a list of posts in this 

newsgroup. 

Second, and the ultimate reason Suffolk’s argument 

fails, a printed publication need not be easily searchable 

after publication if it was sufficiently disseminated at the 

time of its publication. See, e.g., In re Klopfenstein, 380 

F.3d at 1350–51. Thus, the question becomes whether the 

Post was sufficiently disseminated. We hold it was, the 

facts here being similar to cases holding sufficient dissemination occurred. For example, in Klopfenstein we held a 

poster board presentation displayed for several days at an 
12 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

industry association meeting to be sufficiently disseminated to be “publically accessible,” and thus a printed 

publication. Id. Similarly, in Massachusetts Institutes of 

Technology v. AB Fortia, 774 F.2d 1104, 1109 (Fed. Cir. 

1985), we held a paper delivered orally at a conference, 

where at least six copies of the paper were distributed, to 

be a printed publication. The present case is not, as 

Suffolk contends, more similar to SRI International where 

we held factual issues precluded summary judgment of 

invalidity. 511 F.3d at 1194. There, we did “not find 

enough evidence in the record to show that [a file posted 

on an FTP server] was publicly accessible and thus a 

printed publication under 35 U.S.C § 102(b).” Id. at 1195. 

The FTP server was technically open to the public but the 

file “was not publicized or placed in front of the interested 

public.” Id. at 1197. We analogized those facts to “placing 

posters at an unpublicized conference with no attendees.” 

Id. Such analogy is inapplicable here, where dialogue

with the intended audience was the entire purpose of the 

newsgroup postings. And, indeed, the Post elicited at 

least six responses over the week following its publication 

discussing the efficacy of Gundavaram’s proposal. Many 

more people may have viewed the posts without posting 

anything themselves. 

Thus, we conclude the Post was sufficiently disseminated to those of ordinary skill in the art to be considered 

publically accessible, and Suffolk’s second ground for 

attacking the printed publication fails. 

We therefore affirm the district court’s holding that 

the Post is a printed publication for purposes of § 102. 

B. The Post’s Accuracy and Reliability

Suffolk next argues that summary judgment was inappropriate because “serious questions undermining the 

reliability and accuracy of the Gundavaram post should 

have been submitted to the jury.” Appellant’s Br. 33. 

According to Suffolk, a juror may decide to not credit “a 
SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 13

second-hand reproduction of an old Usenet post” that was 

admittedly altered. Id. Suffolk points out that each post 

was altered to bear a timestamp of 12:00 a.m. and that 

the email addresses were altered to protect users from 

spambots. Suffolk then argues that these small alterations “could suggest to a jury that other parts of the post 

may also have been inaccurate or altered.” Id. at 35. 

This argument, however, is unpersuasive. Suffolk

presents no affirmative evidence challenging the Post’s 

material facts. And Gundavaram himself authenticated 

the Post, testifying that he recognized “the style of my 

writing,” “certain stylistic things in the code,” and “certainly the e-mail address that I wrote from.” J.A. 6192–

93.

In sum, the asserted evidentiary weaknesses in the 

Post are insufficient, without more, to create a genuine 

issue of material fact. We therefore affirm the district 

court’s holding that there were no genuine issues of 

material fact concerning the Post. 

C. Suffolk’s Validity Expert Testimony

Suffolk next argues that the district court improperly 

excluded testimony from its validity expert, Dr. Rhyne. 

In his initial report and deposition, Dr. Rhyne offered no 

opinion on whether the Post anticipated claims 1, 7, or 9 

of the ’835 patent. Dr. Rhyne did, however, opine that the 

Post did not anticipate claim 6. After the district court 

issued its claim construction, Dr. Rhyne filed a supplemental report in which he stated for the first time that 

the Post did not anticipate claim 1. The district court 

excluded that portion of the supplemental report, and 

Suffolk appeals that exclusion. We review the district 

court’s decision to exclude Dr. Rhyne’s testimony for 

abuse of discretion. See Nader v. Blair, 549 F.3d 953, 963 

(4th Cir. 2008); S. States Rack & Fixture, Inc. v. SherwinWilliams Co., 318 F.3d 592, 595 (4th Cir. 2003).
14 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

Suffolk argues that Dr. Rhyne’s new opinion concerning the anticipation of claim 1 should be permitted because the district court “chang[ed] the landscape” when it 

construed the term “identification signal” as “digital 

information that identifies the source, origin, or location 

of a file.” Appellant’s Br. 41. For context, Suffolk’s proposed construction of “received identification signal” was 

“a signal identifying an originating file from which said 

request originated.” J.A. 12074.

The crux of the district court’s decision to exclude the 

testimony is that, concerning the anticipation of claim 1, 

Dr. Rhyne went from having no opinion before claim 

construction to having an opinion after claim construction. The intervening claim construction, according to the 

district court, did not warrant such a change. J.A. 2552 

(hearing on motion to strike Dr. Rhyne’s testimony) (“I 

was surprised, to the extent that they are not tethered 

and depend upon Markman constructions. . . . [Dr. 

Rhyne] testified that he had no opinion one way or the 

other, it didn’t matter. That doesn’t depend on claim 

construction. He had no opinion at all. So I am going to 

strike it.”). 

We do not conclude that every time a validity expert 

goes from having no opinion concerning a claim to having 

an opinion that such supplemental testimony should be 

excluded. We do, however, conclude that the district court 

did not abuse its discretion in doing so here, where Dr. 

Rhyne did opine on the validity of dependent claim 6 in 

his initial report and the district court’s construction did 

not vary greatly from the parties’ proposals. We therefore 

affirm the district court’s exclusion of portions of Dr. 

Rhyne’s testimony.

D. Appropriateness of Summary Judgment

Suffolk next argues that, even if the Post is properly 

considered and Dr. Rhyne’s testimony is properly excluded, summary judgment of invalidity should not have been 
SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 15

granted. According to Suffolk, there are genuine factual

issues concerning whether the Post disclosed every limitation in the contested claims. Specifically, it argues that 

“the exemplary files disclosed[—abc.html—]were not in 

the context of a URL and did not provide additional 

information (beyond “abc.html”) communicating source, 

origin or location.” Appellant’s Br. 42. Without expert 

testimony, however, Suffolk’s position is mere attorney 

argument. And here, those attorney arguments are 

insufficient to undermine the credible testimony from 

Google’s expert that “abc.html” is an identification signal. 

Further, Suffolk argues broadly that summary judgment is inappropriate because Suffolk “can still attack 

Google’s affirmative case (on cross-examination or otherwise).” Appellant’s Br. 43. But these broad statements, 

without evidentiary support, are insufficient to make 

summary judgment inappropriate. To hold otherwise 

would improperly empower cross-examination with the 

ability to defeat nearly all motions for summary judgment. We refuse to endorse such a broad position.

We have considered Suffolk’s remaining arguments 

regarding the district court’s grant of summary judgment

and find them unpersuasive.

Google bears the burden to show that there are no 

genuine issues of material fact. It has met that burden. 

And Suffolk’s attorney arguments, with no affirmative 

evidence, are insufficient to undermine Google’s showing. 

Thus, we affirm the district court’s summary judgment of 

invalidity.3 

3 Suffolk also appeals the district court’s exclusion 

of Suffolk’s damages expert. Having affirmed the summary judgment of invalidity, we need not and do not 

reach this issue. 

 
16 SUFFOLK TECHNOLOGIES, LLC v. AOL INC. 

CONCLUSION

We conclude that the district court did not err in its 

claim construction or its grant of summary judgment of 

invalidity. We thus affirm the district court. 

AFFIRMED