NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

PARALLEL NETWORKS LICENSING, LLC,

Plaintiff-Appellant

v.

MICROSOFT CORPORATION,

Defendant-Appellee

______________________

2018-1120

______________________

Appeal from the United States District Court for the 

District of Delaware in No. 1:13-cv-02073-KAJ-SRF, Judge 

Kent A. Jordan (sitting by designation).

______________________

Decided: June 28, 2019

______________________

JOEL LANCE THOLLANDER, McKool Smith, PC, Austin, 

TX, argued for plaintiff-appellant. Also represented by 

JOHN BRUCE CAMPBELL, LEAH BURATTI; DOUGLAS AARON

CAWLEY, CHRISTOPHER THOR BOVENKAMP, ERIC SORENSEN

HANSEN, Dallas, TX.

JUANITA ROSE BROOKS, Fish & Richardson, PC, San Diego, CA, argued for defendant-appellee. Also represented 

by JASON W. WOLFF, CRAIG E. COUNTRYMAN; MARTINA 
2 PARALLEL NETWORKS v. MICROSOFT

TYREUS HUFNAL, NITIKA GUPTA FIORELLA, Wilmington, 

DE.

______________________

Before HUGHES, SCHALL, and STOLL, Circuit Judges.

HUGHES, Circuit Judge.

This is a patent case involving web pages. Parallel Networks Licensing, LLC sued Microsoft Corporation in the 

United States District Court for the District of Delaware, 

asserting direct and indirect infringement of claims of U.S. 

Patent Nos. 5,894,554 and 6,415,335. The district court 

granted Microsoft’s motion for summary judgment of no indirect infringement; at trial the jury found no direct infringement by Microsoft. Parallel appeals, contending that

the district court erred in (1) granting Microsoft’s motion 

to exclude Parallel’s customer-use survey under Rule 702 

of the Federal Rules of Evidence; (2) granting Microsoft’s 

motion for summary judgment of no indirect infringement; 

and (3) denying Parallel’s post-verdict motion for judgment 

of direct infringement as a matter of law. We have jurisdiction under 28 U.S.C. § 1295(a)(1). Because we find no 

reversible error in the district court’s orders, we affirm. 

I

The ’554 and ’335 patents disclose systems and methods for efficiently managing dynamic web page requests 

from a web client.1 ’554 patent col. 2 ll. 15−31. When a 

web client requests a dynamic web page,2 the server must 

 

1 The ’544 and ’355 patents share the same specification. Citations to the shared specification refer to the ’544 

patent unless otherwise noted. 

2 A dynamic web page is one that contains content 

that changes or updates automatically, as opposed to static

web pages, which must be updated manually. ’554 patent 

col. 1 ll. 38−55. 
PARALLEL NETWORKS v. MICROSOFT 3

generate the content on-the-fly from one or more data 

sources. Id. col. 1 ll. 46−55. According to the patents, conventional web server environments were not equipped to 

process multiple dynamic web page requests simultaneously. Id. col. 2 ll. 1−12, col. 4 ll. 32−53. Prior art systems 

traditionally processed all requests on a single web server 

machine, which could “slow down significantly and become 

highly inefficient” when processing multiple requests at 

the same time. Id. col. 4 ll. 48−51. 

To address this problem, the ’554 and ’335 patents disclose a “partitioned architecture” for managing dynamic 

web page requests, comprising a “web server” and a plurality of “page servers.” Id. col. 4 ll. 51−53, col. 5, ll. 49−51, 

col. 6 ll. 20−31. The claimed methods aim to lighten the 

processing demands on the web server by off-loading dynamic web page requests from the web server to the page 

servers. Id. col. 6 ll. 20−31. This is accomplished by “intercepting” a request for a “dynamic [w]eb page” at the web 

server and routing it to one of the page servers, thereby 

“releasing” the web server to “concurrently process[]” other 

requests. See, e.g., Ex Parte Reexam. Cert. No. 5,894,554

C1, claims 12 and 20 (as corrected by Oct. 2, 2012 Cert. of 

Correction). By allowing the web server and the page servers to “simultaneously process different requests,” the 

claimed methods increase processing efficiency. ’554 patent col. 6 ll. 24−27. 

Claim 30 of the ’335 patent, reproduced below, is representative of the asserted claims3 for the purposes of this 

appeal.

 

3 At summary judgment, Parallel asserted direct 

and indirect infringement of claims 12, 15, 17, 20, 27, 41, 

46, 48, and 49 of the ’554 patent and 30, 43, 46, 48, 66, 78, 

82, 83, and 85 of the ’335 patent. At trial, Parallel asserted
4 PARALLEL NETWORKS v. MICROSOFT

30. A computer-implemented method for managing a dynamic Web page generation request to a 

Web server, said computer-implemented method 

comprising the steps of:

routing a request from a Web server to a 

selected one of a plurality of page servers 

that can each process the request, said selected page server receiving said request 

and releasing said Web server to process 

other requests wherein said routing step 

further includes the steps of:

intercepting said request at said

Web server; and 

selecting said selected page server 

from among said plurality of page 

servers that can each process said 

request based on dynamic information maintained for each of said 

plurality of page servers; and 

routing said request to said selected page server;

processing said request, said processing being performed by said selected page server 

while said Web server concurrently processes said other requests; and 

dynamically generating a Web page at said 

selected page server in response to said request, said Web page including data dynamically retrieved from one or more data 

sources.

 

direct infringement of claims 20, 41, and 49 of the ’554 patent and claims 43 and 78 of the ’335 patent.
PARALLEL NETWORKS v. MICROSOFT 5

Ex Parte Reexam. Cert. No. 6,415,335 C1, claim 30 (as corrected by Sept. 11, 2012 Cert. of Correction).

II

A.

Parallel first argues that the district court erred in excluding its customer-use survey and related expert testimony under Rule 702 of the Federal Rules of Evidence. We 

review procedural questions that are not unique to patent 

law under the law of the regional circuit. Microsoft Corp. 

v. GeoTag, Inc., 817 F.3d 1305, 1310 (Fed. Cir. 2016). The 

Third Circuit reviews a district court’s decision to exclude 

evidence for abuse of discretion. In re Zoloft Prod. Liab. 

Litig., 858 F.3d 787, 792 n.22 (3d Cir. 2017). We are not 

persuaded that the district court abused its discretion by 

excluding Parallel’s survey evidence. 

The district court determined that the survey failed to 

satisfy Rule 702 and Daubert because it was not adequately 

tied to the asserted claims. Rule 702 requires that expert 

testimony “help the trier of fact to understand the evidence 

or to determine a fact in issue.” Fed. R. Evid. 702. To help 

the trier of fact, expert testimony must adequately “fit” the 

factual issue for which it is proffered. Daubert v. Merrell 

Dow Pharm., Inc., 509 U.S. 579, 591 (1993). 

Here, Parallel submitted its survey as evidence that

Microsoft customers use Windows Server to directly infringe the claims. The district court reasonably found that 

the survey evidence would not assist the trier of fact on the 

issue of infringement because the survey results do not provide enough information to determine whether any respondent performed each step of the claimed methods. For 

example, the survey did not ask whether respondents’ systems were configured to perform concurrent processing. 

Additionally, the survey questions contained broad 
6 PARALLEL NETWORKS v. MICROSOFT

language that did not distinguish between infringing and 

non-infringing uses.4 

Parallel argues that the expert testimony of Dr. Jones 

remedies the survey’s deficiencies and that this case is 

analogous to Vita-Mix Corp. v. Basic Holding, Inc., 581 

F.3d 1317 (Fed. Cir. 2009). We disagree. 

The patent claim in Vita-Mix recited a method of preventing the formation of an air pocket around the blades of 

a blender by inserting a “plunger” into the blender without 

stirring. Id. at 1321. A customer-use survey showed that 

a certain percentage of customers using the accused product inserted a “stir stick” into the blender without actively 

stirring. Id. at 1325. The district court excluded the survey 

evidence as irrelevant because the expert who conducted 

the survey only testified about how survey respondents 

used their stir sticks and did not address air pocket formation. Id. In reversing the district court, we noted the 

testimony from a second expert, who opined that the accused device “necessarily” infringed the claimed method

when a stir stick was inserted into the blender but not actively stirred. Id. at 1326. Because the survey addressed 

 

4 For example, the survey asked about respondents’ 

use of Windows Server to manage “web (e.g., HTTP) requests.” But the claims address the management of “dynamic [w]eb page[s],” and the district court construed “web 

page” to mean “[w]eb content on the World Wide Web, displayable by a Web browser.” Parallel Networks Licensing, 

LLC v. Int’l Bus. Machs. Corp., No. 13-cv-2073, slip op. at 

1 (D. Del. Apr. 9, 2015). Parallel does not dispute the district court’s finding that “web (e.g., HTTP) requests” covers 

“far more than just dynamic web page requests,” including 

“requests for, among other things, static web pages, FTPs, 

and information on a local network.” Parallel Networks Licensing, LLC, v. Microsoft Corp., No. 13-cv-2073, slip op. at 

5 n.3 (D. Del. Feb. 22, 2017); see also id. at 6.
PARALLEL NETWORKS v. MICROSOFT 7

whether respondents used their stir sticks in this manner, 

we determined that the survey was relevant to infringement. Id. 

In this case, however, there is no evidence that the survey respondents used Windows Server in a manner that 

necessarily infringes the claimed methods. Dr. Jones 

merely opined, without explanation, that “[a]ppropriate 

answers to survey questions . . . provide evidence that the 

respondent has likely configured and is using the relevant 

product in an infringing manner.” J.A. 8469 ¶ 231; see also

J.A. 8470 ¶ 236 (Dr. Jones stating that the survey results 

provide “sufficient evidence” that Microsoft customers infringe). The district court reasonably found that this testimony does not bridge the gap between the survey results 

and the question of infringement.

Accordingly, we conclude that the district court 

properly exercised its discretion in excluding Parallel’s customer-use survey and expert testimony relying on the survey.5

B.

Parallel next argues that the district court erred in 

granting summary judgment of no indirect infringement. 

The Third Circuit reviews a grant of summary judgment de 

novo, applying the same standard as the district court. 

Gonzalez v. Sec’y of Dep’t of Homeland Sec., 678 F.3d 254, 

 

5 The district court found that “[t]he lack of fit between the survey and the asserted claims is, in and of itself, 

sufficient to exclude the survey as unreliable and prejudicial under Daubert.” Parallel Networks Licensing, LLC v. 

Microsoft Corp., No. 13-cv-2073, slip op. at 8 (D. Del. Feb. 

22, 2017). Because we find no error in this determination, 

we do not address the district court’s additional findings 

regarding the survey’s “serious methodological flaws.” See 

id.
8 PARALLEL NETWORKS v. MICROSOFT

257 (3d Cir. 2012). Summary judgment is appropriate

when “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(a). We conclude that Parallel failed to establish a genuine issue of 

material fact sufficient to preclude summary judgment of 

no indirect infringement. 

To establish indirect infringement, a patentee must 

show that the defendant’s actions led to direct infringement. Dynacore Holdings Corp. v. U.S. Philips Corp., 363 

F.3d 1263, 1274 (Fed. Cir. 2004). “In order to prove direct 

infringement, a patentee must either point to specific instances of direct infringement or show that the accused device necessarily infringes the patent in suit.” ACCO 

Brands, Inc. v. ABA Locks Mfr. Co., 501 F.3d 1307, 1313 

(Fed. Cir. 2007). At best, Parallel’s evidence shows that 

certain Microsoft customers have configured the accused 

Windows Server product in a way that makes it capable of 

infringing the asserted claims. But when an accused product has non-infringing uses and the claims require more 

than the capacity to perform a particular function, “it is not

enough to simply show that a product is capable of infringement.” Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1329 

(Fed. Cir. 2010). 

Parallel asserts that the district court improperly dismissed Dr. Jones’s expert opinion that Dell, Inc. used Windows Server in an infringing manner. We disagree. “[I]t is 

well settled that an expert’s unsupported conclusion on the 

ultimate issue of infringement is insufficient to raise a genuine issue of material fact.” Arthur A. Collins, Inc. v. N. 

Telecom Ltd., 216 F.3d 1042, 1046 (Fed. Cir. 2000). While 

Dr. Jones concluded that Dell infringed some of the asserted claims,6 he did not “set forth the factual foundation 

 

6 Claims 12, 20, 27, 41, 48, and 49 of the ’554 patent 

and 30, 43, 78, 82, and 85 of the ’335 patent.
PARALLEL NETWORKS v. MICROSOFT 9

for his opinion . . . in sufficient detail for the court to determine whether that factual foundation would support a 

finding of infringement.” Id. at 1047. For example, Dr. 

Jones did not explain how Dell’s use of Windows Server 

satisfies the “concurrently processes” limitation. 

Because Parallel did not provide evidence of any instance in which a Microsoft customer used Windows Server 

to perform all the steps of the claimed methods, the district 

court correctly granted summary judgment of no indirect 

infringement. 

C.

Finally, Parallel argues that the district court erred in 

denying its post-verdict motion for judgment of direct infringement as a matter of law. The Third Circuit reviews 

de novo a district court’s denial of a motion for JMOL. 

Graboff v. Colleran Firm, 744 F.3d 128, 134 (3d Cir. 2014). 

Applying the same standard as the district court, we consider “whether, viewing the evidence in the light most favorable to sustaining the verdict, a reasonable jury could 

have found for the prevailing party.” Id. (citation omitted). 

We conclude that the jury reasonably could have found that 

Microsoft’s MSN and Bing services do not infringe the asserted claims because they do not satisfy the “intercepting” 

limitation. 

During claim construction, the parties agreed that the 

“intercepting” limitation means “diverting the handling of 

[the dynamic web page] request before the request is processed by the Web server[].” Parallel Networks Licensing, 

LLC v. Int’l Bus. Machs. Corp., No. 13-cv-2073, slip op. at 

6 (D. Del. Sept. 30, 2014). At summary judgment, the district court declined to hold that the agreed-upon construction precludes any handling, or processing, at the web 

server. The court noted that Figure 5 of the patents discloses an embodiment in which “at least some processing

takes place before the request is intercepted.” Parallel Networks Licensing, LLC v. Microsoft Corp., No. 13-cv-2073, 
10 PARALLEL NETWORKS v. MICROSOFT

slip op. at 10 (D. Del. Feb. 22, 2017) (emphasis added). At 

trial, Microsoft argued that the accused services do not infringe the “intercepting” limitation because they involve a

substantial amount of processing at the web server before 

requests are diverted. In denying Parallel’s motion for 

JMOL, the district court determined that Microsoft’s noninfringement theory was consistent with the parties’ 

agreed-upon construction and supported by sufficient evidence. 

Parallel does not challenge the sufficiency of the evidence under Microsoft’s theory of non-infringement. Rather, Parallel contends that Microsoft’s theory is based on 

an improper interpretation of the parties’ agreed-upon construction. According to Parallel, the “intercepting” limitation prohibits generating the requested web page at the 

web server, but does not limit the amount of processing 

that can occur before the request is diverted. In other 

words, Parallel argues that the limitation only requires diverting requests before processing is complete. We are not 

persuaded that this is a reasonable interpretation of the 

agreed-upon construction, much less the only reasonable 

interpretation. See Avid Tech., Inc. v. Harmonic, Inc., 812 

F.3d 1040, 1048−49 (Fed. Cir. 2016). Indeed, the plain language of the construction requires “diverting the handling 

of [the] request,” not merely diverting the request.

We agree with the district court that, based on the 

plain language of the parties’ agreed-upon construction, 

the jury could have reasonably found that the “intercepting” limitation is not satisfied where the web server performs substantial processing before diverting a request. 

Accordingly, the district court did not err in denying Parallel’s motion for JMOL. 

III

We have considered Parallel’s remaining arguments 

and find them unpersuasive. For the foregoing reasons, we 

affirm the district court’s orders.
PARALLEL NETWORKS v. MICROSOFT 11

AFFIRMED