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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

EXAFER LTD., 

Plaintiff, Case No. 1:20-cv-00131-ADA 

v. 

MICROSOFT CORPORATION, Jury Trial Demanded 

Defendant. 

DEFENDANT MICROSOFT CORPORATION’S ANSWER AND COUNTERCLAIMS 

TO PLAINTIFF’S AMENDED COMPLAINT FOR PATENT INFRINGEMENT 

Defendant Microsoft Corporation (“Microsoft”), by and through its attorneys, hereby 

responds to Plaintiff Exafer Ltd.’s (“Exafer”) Amended Complaint. Microsoft denies all allegations 

in the Amended Complaint, whether express or implied, that are not specifically admitted below. 

Any factual allegation below is admitted only as to the specific admitted facts and not as to any 

purported conclusions, characterizations, implications, or speculations that arguably follow from the 

admitted facts. Microsoft further denies that Exafer is entitled to the relief requested or any other 

relief. 

NATURE OF THE ACTION 

1. This is an action for patent infringement arising under the patent laws of the United 

States, 35 U.S.C. §§ 1 et seq.

Answer: Microsoft admits that this is an action for alleged patent infringement arising under 

the patent laws of the United States, 35 U.S.C. §§ 1, et seq., but denies that Exafer is entitled 

to any of the relief it requests under the patent laws of the United States. 

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THE PARTIES 

2. Plaintiff Exafer Ltd. is a privately held Israeli limited company with its principal place 

of business at 131 Ramot Meir, Israel. 

Answer: On information and belief, Microsoft admits that Exafer, Ltd. purports to be an 

Israeli limited-liability company. Microsoft lacks knowledge or information sufficient to 

form a belief as to the truth of the remaining allegations in this paragraph and therefore denies 

the same. 

3. On information and belief, Defendant Microsoft Corporation is incorporated under 

the laws of Washington State with its principal place of business at 1 Microsoft Way, Redmond, 

Washington 98052. Microsoft may be served with process through its registered agent Corporation 

Service Company, 211 East 7th Street, Suite 620, Austin, Texas 78701. 

Answer: Microsoft admits that it is a corporation incorporated under the laws of Washington 

State with its principal place of business at 1 Microsoft Way, Redmond, WAS 98052. 

Microsoft admits—for purposes of this litigation—that it may be served with process as set 

forth in the second sentence of Paragraph 4. 

4. On information and belief, Microsoft has been registered to do business in the state of 

Texas under Texas SOS file number 0010404606 since about March 1987. 

Answer: Microsoft admits that it has been registered to do business in Texas under Texas 

SOS file number 0010404606. Except as expressly admitted, Microsoft denies the remaining 

allegations in this paragraph. 

5. On information and belief, Microsoft has had a regular and established place of 

business in this judicial district since at least as early as 2002. 

Answer: Microsoft admits that it is registered to do business in the State of Texas. Except 

as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

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J URISDICTION AND VENUE 

6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 

1331 and 1338(a) because this action arises under the patent laws of the United States, 35 U.S.C. §§ 

1 et seq.

Answer: Microsoft admits that this Court has subject matter jurisdiction pursuant to 28 

U.S.C. §§ 1331 and 1338(a) over actions arising under the patent laws of the United States. 

Except as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

7. Microsoft is subject to this Court’s personal jurisdiction in accordance with due 

process and/or the Texas Long Arm Statute because, in part, Microsoft “[r]ecruits Texas residents, 

directly or through an intermediary located in this state, for employment inside or outside this state.” 

See Tex. Civ. Prac. & Rem. Code § 17.042. 

Answer: Microsoft admits that this Court has personal jurisdiction over Microsoft for the 

purposes of this litigation only. Except as expressly admitted, Microsoft denies the remaining 

allegations in this paragraph. 

8. Microsoft has already admitted that this Court has personal jurisdiction over it in 

patent litigations bearing docket numbers: 6:19-cv-00399-ADA and 1:19-cv-00874-ADA. 

Answer: Microsoft admits that this Court has personal jurisdiction over Microsoft for the 

purposes of this litigation only. Except as expressly admitted, Microsoft denies the remaining 

allegations in this paragraph. 

9. This Court also has personal jurisdiction over Microsoft because it committed and 

continues to commit acts of direct and indirect infringement in this judicial district in violation of at 

least 35 U.S.C. §§ 271(a) and (b). In particular, on information and belief, Microsoft has, made, 

used, offered to sell and sold licenses for, or access to, Azure Platform in this judicial district, and 

has induced others to use the Azure Platform in this judicial district. 

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Answer: Microsoft admits that this Court has personal jurisdiction over Microsoft for the 

purposes of this litigation only. Exafer’s claims for indirect infringement have been 

dismissed without prejudice. (D.I. 25). Except as expressly admitted, Microsoft denies the 

remaining allegations in this paragraph. 

10. As used herein, the term “Azure Platform” is defined to include “(1) the Microsoft 

Azure cloud computing platform, (2) the hardware and software systems and components of the 

Microsoft Azure cloud computing platform, and (3) the numerous cloud-based features, products, 

services, and systems that are dependent upon or that leverage the Microsoft Azure cloud computing 

platform.” 

Answer: For the purposes of this answer only, Microsoft states that the term “Azure 

Platform” shall be used herein to refer to the Azure cloud computing platform offered by 

Microsoft. Except as expressly admitted, Microsoft denies the remaining allegations in this 

paragraph. 

11. On information and belief, Microsoft is subject to the Court’s personal jurisdiction, 

in part, because it regularly conducts and solicits business, or otherwise engages in other persistent 

courses of conduct in this district, and/or derives substantial revenue from the sale and distribution 

of infringing goods and services provided to individuals and businesses in this district. 

Answer: Microsoft admits that this Court has personal jurisdiction over Microsoft for the 

purposes of this litigation only. Except as expressly admitted, Microsoft denies the remaining 

allegations in this paragraph. 

12. This Court has personal jurisdiction over Microsoft because, inter alia, Microsoft, on 

information and belief: (1) has substantial, continuous, and systematic contacts with this State and 

this judicial district; (2) owns, manages, and operates facilities in this State and this judicial district; 

(3) enjoys substantial income from its operations and sales in this State and this judicial district; (4) 

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employs Texas residents in this State and this judicial district, and (5) solicits business and markets 

products, systems and/or services in this State and judicial district including, without limitation, 

related to the infringing Azure Platform. 

Answer: Microsoft admits that this Court has personal jurisdiction over Microsoft for the 

purposes of this litigation only. Except as expressly admitted, Microsoft denies the remaining 

allegations in this paragraph. 

13. On information and belief, Microsoft derives substantial revenue within the State of 

Texas and within this judicial district from the sale of the infringing Azure Platform. 

Answer: Microsoft admits that this Court has personal jurisdiction over Microsoft for the 

purposes of this litigation only. Except as expressly admitted, Microsoft denies the remaining 

allegations in this paragraph. 

14. Venue is proper pursuant to at least 28 U.S.C. § 1400(b), at least because Microsoft, 

either directly or through its agents, has committed acts of infringement in this district, and has a 

regular and established place of business in this district. 

Answer: Microsoft does not contest that venue is proper in this District under 28 U.S.C. § 

1400(b) for the purposes of this litigation only. Microsoft admits that it is registered to 

conduct business in the State of Texas. Microsoft denies that this is a convenient venue and 

denies the remaining allegations of this paragraph. 

15. In fact, this district was deemed to be a proper venue for patent cases against 

Microsoft in actions bearing docket numbers: 6:19-cv-00399-ADA and 1:19-cv- 00874-ADA. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

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16. On information and belief, Microsoft maintains a variety of regular and established 

business locations in the judicial district including its Corporate Sales Office Locations, Retail Store 

Locations, and Datacenter Locations (hereinafter collectively referred to as “Microsoft’s Regular and 

Established Business Locations”). 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

17. On information and belief, Microsoft operates multiple corporate sales offices in the 

judicial district, and these offices constitute regular and established places of business. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

18. On information and belief, Microsoft employs hundreds of employees within its 

corporate sales offices located in the judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

19. Namely, on information and belief, Microsoft has an established place of business in 

this judicial district known as “Corporate Sales Office: Austin” located at 10900 Stonelake 

Boulevard, Suite 225, Austin, TX, USA 78759. 

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Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that it has a corporate sales office at 10900 Stonelake Boulevard, 

Suite 225, Austin, Texas, USA 78759. Microsoft denies that this is a convenient venue and 

denies the remaining allegations of this paragraph. 

20. On information and belief, Microsoft’s “Corporate Sales Office: Austin” location was 

assessed by the Travis County Appraisal District in 2019 to have a market value of over $2.3 Million 

dollars. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

21. On information and belief, Microsoft’s “Corporate Sales Office: Austin” location 

features clear signage demonstrating Microsoft’s established business operations at that location, as 

demonstrated by the photograph below which is accessible through the Google Maps service: 

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Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it has a corporate sales office at 10900 Stonelake 

Boulevard, Suite 225, Austin, Texas, USA 78759. Microsoft denies that this is a convenient venue 

and denies the remaining allegations of this paragraph. 

22. On information and belief, Microsoft’s “Corporate Sales Office: Austin” location has 

been operational at least since June of 2017. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it has a corporate sales office at 10900 Stonelake 

Boulevard, Suite 225, Austin, Texas, USA 78759. Microsoft denies that this is a convenient 

venue and denies the remaining allegations of this paragraph. 

23. On information and belief, Microsoft has another established place of business in this 

judicial district known as “Corporate Sales Office: San Antonio” located at Concord Park II, 401 East 

Sonterra Boulevard, Suite 300, San Antonio, TX, USA 78258. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that it has a corporate sales office at 401 East Sonterra Boulevard, 

Suite 300, San Antonio, Texas USA 78258. Microsoft denies that this is a convenient venue 

and denies the remaining allegations of this paragraph. 

24. On information and belief, affixed to the exterior of Microsoft’s “Corporate Sales 

Office: San Antonio” is signage featuring the “Microsoft” logo as seen in the below image from 

Google Map’s Streetview. 

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Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it has a corporate sales office at 401 East Sonterra 

Boulevard, Suite 300, San Antonio, Texas USA 78258. Microsoft denies that this is a 

convenient venue and denies the remaining allegations of this paragraph. 

25. On information and belief, Microsoft markets, offers to sell, or sells products through 

its corporate sales offices located in this judicial district including but not limited to the accused 

Azure Platform. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

26. On information and belief, Microsoft has placed advertisements for Austin based 

employment positions, including an Education Cloud Program Manager, which are focused, in part, 

on marketing Microsoft’s accused Azure Platform. 

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Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that its website posted an opening for an Education Cloud Program 

Manager located in Austin. Microsoft denies that this is a convenient venue and denies the 

remaining allegations of this paragraph. 

27. On information and belief, Microsoft markets its accused Azure Platform, through its 

corporate sales offices to customers and potential customers located within this judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

28. Microsoft operates multiple retail stores in this judicial district, which also constitute 

regular and established places of business. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that it operates retail stores in Austin and San Antonio. Microsoft 

denies that this is a convenient venue and denies the remaining allegations of this paragraph. 

29. On information and belief, Microsoft employs dozens of employees within its retail 

stores located in the judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that it operates retail stores in Austin and San Antonio. Microsoft 

denies that this is a convenient venue and denies the remaining allegations of this paragraph. 

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30. On information and belief, Microsoft has a regular and established retail store 

locations in this judicial district known as “Microsoft Retail Store: The Domain” located at 3309 

Esperanza Crossing, Suite 104, Austin, TX, USA 78758, and “Microsoft Retail Store: The Shops at 

La Cantera” located at 15900 La Cantera Parkway, Suite 6560, San Antonio, TX, USA 78256

(“Microsoft’s Retail Locations”). 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that it has a retail store at 3309 Esperanza Crossing, Suite 104, 

Austin, Texas USA 78758 and at 15900 La Cantera Parkway, Suite 6560, San Antonio, Texas 

USA 78256. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

31. On information and belief, affixed to the exterior of Microsoft’s Retail Locations is 

signage featuring Microsoft’s red, green, blue, and yellow logo as seen in the below images. 

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Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it has a retail store at 3309 Esperanza Crossing, 

Suite 104, Austin, Texas USA 78758 and at 15900 La Cantera Parkway, Suite 6560, San 

Antonio, Texas USA 78256. Microsoft denies that this is a convenient venue and denies the 

remaining allegations of this paragraph. 

32. On information and belief, Microsoft has continuously operated a retail store location 

in this district at least since as early as December of 2014. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that it has a retail store at 3309 Esperanza Crossing, Suite 104, 

Austin, Texas USA 78758 and at 15900 La Cantera Parkway, Suite 6560, San Antonio, Texas 

USA 78256. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

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33. On information and belief, in addition to selling goods and services, Microsoft utilizes 

its Retail Locations for educational and marketing purposes, to market and increase awareness of the 

Azure Platform. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that it has a retail store at 3309 Esperanza Crossing, Suite 104, 

Austin, Texas USA 78758 and at 15900 La Cantera Parkway, Suite 6560, San Antonio, Texas 

USA 78256. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

34. On information and belief, many of Microsoft’s customers, who use the accused 

Azure Platform reside in the State of Texas and in this judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

35. On information and belief, Microsoft has, offered to sell and sold licenses for, or 

access to, the accused Azure Platform to customers who reside in the State of Texas and in this 

judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

36. On information and belief, Microsoft maintains a list of certified learning partners in 

this judicial district that offer training solutions and “Microsoft Certification preparation to help you 

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take your Microsoft technology skills to the next level.” On information and belief, ONLC Training 

Centers is certified by Microsoft as a Learning Partner who employs “Microsoft Certified Trainers.” 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that its website states that its “Microsoft Learning Partners offer a 

breadth of training solutions,” such as “Microsoft Certification preparation to help you take 

your Microsoft technology skills to the next level.” Microsoft admits that its website lists 

ONLC as a Microsoft Learning Partner. Microsoft denies that this is a convenient venue and 

denies the remaining allegations of this paragraph. 

37. On information and belief, Microsoft certified educational centers including an 

ONLC Training Center located at 700 Lavaca Street, Suite 1400, Austin, Texas 78701, employ 

Microsoft Certified Trainers who teach Microsoft’s customers who work and reside in the judicial 

district on the use and operation of the accused Azure Platform. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft admits that ONLC Training Centers’ website states that ONLC offers 

“authorized Microsoft technical classes,” and that it has a location in Austin, Texas. Microsoft 

denies that this is a convenient venue and denies the remaining allegations of this paragraph. 

38. On information and belief, Microsoft has spent at least tens of millions of dollars on 

networking and server infrastructure to support its accused Azure Platform that is located in the State 

of Texas and in this judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

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Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

39. On information and belief, Microsoft owns and operates multiple datacenters in the 

judicial district, including without limitation data centers located at 5150 Rogers Road, San Antonio, 

TX 78251; 5200 Rogers Rd, San Antonio, TX 78251; 3823 Weisman Blvd, San Antonio, TX 78251; 

and 15000 Lambda Drive, San Antonio, TX 782245, (hereinafter “Microsoft’s Datacenter 

Locations”). 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in and has data 

centers located in the State of Texas. Microsoft denies that this is a convenient venue and 

denies the remaining allegations of this paragraph. 

40. On information and belief, Microsoft utilizes its datacenter locations in this judicial 

district as regular and established places of business. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to conduct business in the State of 

Texas. Microsoft denies that this is a convenient venue and denies the remaining allegations 

of this paragraph. 

41. On information and belief, on or about November 9th, 2017 the San Antonio Business 

Journal reported that “Chevron USA Inc., a subsidiary of Chevron Corp., sold its 5200 Rogers Road 

datacenter to Microsoft Corp. on Oct. 31.” See “Microsoft buys Chevron’s Datacenter in San 

Antonio” (D.I. 1 Ex. 3). On information and belief, as of the publication date of that article, Microsoft 

already “owned four datacenters in San Antonio and leased space inside two other co-location 

centers.” Id. On information and belief, the sale of 5200 Rogers Road datacenter brought 

“Microsoft’s total datacenter usage in San Antonio to seven different buildings.” Id.

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Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that Exhibit 3 to Exafer’s Original Complaint states 

that: “Microsoft sells cloud computing to businesses through Microsoft Azure, already owned 

four data centers in San Antonio and leases space inside two other co-location centers.” 

Microsoft admits that Exhibit 3 further provides: “The recent sale brings Microsoft’s total 

data center usage in San Antonio to seven different buildings.” Microsoft denies that this is 

a convenient venue and denies the remaining allegations of this paragraph. 

42. On information and belief, Microsoft built “an Azure cloud environment inside 

Chevron’s old datacenter.” Id. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that Exhibit 3 states: “So essentially Microsoft expects 

to build an Azure cloud environment inside Chevron’s old data center for the client.” 

Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

43. On information and belief, Microsoft’s Azure Cloud Network includes 54 Azure 

regions worldwide. On information and belief, one of those regions is known as “South Central US”. 

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Answer: Microsoft does not contest that venue is proper in this District for the 

purposes of this litigation only. Microsoft admits that its website currently states there are 

56 Azure regions worldwide, including in South Central US. Microsoft denies that this is a 

convenient venue and denies the remaining allegations of this paragraph. 

44. On information and belief, a substantial portion of the network and server 

infrastructure related to the “South Central US” Azure region is housed and operated in the 

Microsoft’s Datacenter Locations. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

45. Microsoft has acknowledged in publicly available documents that the “South Central 

US” Azure region is hosted within one or more of the Microsoft Datacenter Locations. See “Windows 

Azure for G Cloud” (D.I. 1, Ex. 4). 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that Exhibit 4 to Exafer’s Original Complaint states 

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that: “If required data transfer rates are determined by the region in which your solution is 

deployed.” Microsoft admits that Exhibit 4 further indicates that South Central US is a subregion in Zone 1. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

46. On information and belief, the relationship between “South Central US” Azure region 

and one or more of the Microsoft Datacenter Locations was publicly reported on the website 

datacenterknowledge.com on or about September 4, 2018. See “Microsoft Blames ‘Severe Weather’ 

for Azure Cloud Outage” (D.I. 1, Ex. 5). On information and belief, on or about September 4, 2018, 

a “severe weather event” led to an outage of some Azure resources in the “South Central US 

availability region” which is “hosted in San Antonio.” Id. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that Exhibit 5 to Exafer’s Original Complaint states 

that: “A cooling problem in one of its San Antonio, Texas centers effected [sic] Office 365 

and Azure cloud outages for some customers Tuesday, Microsoft said. The problem was 

caused by a voltage spike that resulted from a ‘severe weather event, including lightning 

strikes’ near the facility, the company said.” Microsoft admits that Exhibit 5 further states: 

“The outage was limited to resources hosted in the South Central US availability region.” 

Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

47. On information and belief, one or more of the Microsoft Datacenter Locations houses 

server and network infrastructure related to the Azure Platform. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

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48. On information and belief, a listing of Azure related products and services, which are 

available through the Azure Platform in the US South Central Azure Region is published on the 

Microsoft’s web site. On information and belief, one or more of the Azure related products and 

services listed on Microsoft’s website rely on the accused Azure Platform. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that its website provides a list of Azure products 

available by region, including South Central US. Microsoft denies that this is a convenient 

venue and denies the remaining allegations of this paragraph. 

49. On information and belief, Microsoft uses infringing network and server systems as 

part of its infringing Azure Platform, including specifically in the Microsoft Datacenter Locations. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

50. On information and belief, Microsoft offers cloud services, which are enabled by 

infringing network and server systems that are located within the Microsoft Datacenter Locations. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

51. On information and belief, many of the potential customers, customers, and users of 

the accused Azure Platform are located in this judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to do business in the State of Texas. 

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Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

52. On information and belief, Microsoft uses Microsoft’s Regular and Established 

Business Locations as a regular and established place of business because these locations are home 

to Microsoft’s Cloud Infrastructure and Operations (MCIO) Team, Datacenter Operations Group, 

engineering teams and corporate and retail sales teams. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to do business in the State of Texas. 

Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

53. On information and belief, Microsoft has recently advertised 24 open positions in the 

judicial district on its careers.microsoft.com website: 

See https://careers.microsoft.com/us/en/c/data-center-jobs

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that its website posted 24 job openings that were 

available in Austin and San Antonio. Microsoft denies that this is a convenient venue and 

denies the remaining allegations of this paragraph. 

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54. On information and belief, Microsoft has posted job advertisements for positions in 

this judicial district, including: Datacenter Campus Director, Director of Field Operations 

Integration, Datacenter Project Manager, Regional Critical Environment Operations Manager, IT 

Operations Manager, Datacenter Operations/Electrical Engineer, Mechanical Engineer, Datacenter 

Hardware Engineer. 

See e.g. https://careers.microsoft.com/us/en/c/data-center-jobs 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that its website posted job openings that were available 

in San Antonio. Microsoft denies that this is a convenient venue and denies the remaining 

allegations of this paragraph. 

55. On information and belief, thousands of customers who rely on the infringing 

datacenter infrastructure that Microsoft’s engineering and operations teams have built, reside in this 

judicial district. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to do business in the State of Texas. 

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Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

56. On information and belief, the accused Azure Platform, was made by, was developed 

by, was marketed by, or was serviced by, employees located in the judicial district who work at one 

or more of Microsoft’s Regular and Established Business Locations. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to do business in the State of Texas. 

Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

57. On information and belief, Microsoft’s Regular and Established Business Locations 

are regular and established business locations because these locations are where numerous important 

Microsoft employees are located, including but not limited to Microsoft employees holding the 

following titles: Director of Product Management, Director of Solutions Sales, Director of Global 

Commissioning, Regional Director of Datacenter Operations, Program Manager, Senior Principal 

Software Engineering Manager, Regional Logistics Program Manager, Global Technical Account 

Manager, Regional OPS Assurance Manager, Construction Program Manager, Facilities Operations 

Manager, Field Operations DC Manager, Critical Environment Operational Excellence Program 

Manager, Senior Technical Delivery Manager, Global Lease Program Manager, Critical 

Environments Program Manager, Principal Program Manager, Regional Program Manager, Store 

Manager, Senior EHS Manager, Senior Mechanical Engineer, Information Technology and 

Operations Service Engineer, Senior Premier Field Engineer, Office 365 SMB Engineer, Service 

Engineer, Principal Software Development Engineer, Critical Facilities Engineer, Mechanical 

Engineer, System Center Configuration Management Engineer, Premier Field Engineer, Senior 

Solutions Architect, World Wide Secure Infrastructure Solution Architect, National Cloud Solution 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 22 of 74
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Architect, Delivery Architect, Digital Architect, Cloud Solutions Architect, Senior Datacenter 

Technician, Datacenter Lead, and Partner Technology Strategist. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to do business in the State of Texas. 

Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

58. On information and belief, publicly-available information lists 36 H-1B labor 

condition applications that Microsoft filed for persons employed in Austin, Texas since 2001. See 

D.I. 1, Ex. 6. On information and belief, publicly-available information lists 16 H-1B labor condition 

applications that Microsoft filed for persons employed in San Antonio, Texas since 2010. See D.I. 1, 

Ex. 7. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that Exhibits 6 and 7 to Exafer’s Original Complaint 

speak for themselves. Microsoft denies that this is a convenient venue and denies the 

remaining allegations of this paragraph. 

59. On information and belief, the workers Microsoft employs in the judicial district are 

highly specialized and important to the regular operation of Microsoft because workers holding an 

H-1B visa are employed in a specialty occupation that requires a “theoretical and practical 

application of a body of highly specialized knowledge . . . and attainment of a bachelor’s or higher 

degree in the specific specialty. . . “ See generally 8 U.S.C. § 1184. 

Answer: Microsoft does not contest that venue is proper in this District for the purposes of 

this litigation only. Microsoft admits that it is registered to do business in the State of Texas. 

Microsoft denies that this is a convenient venue and denies the remaining allegations of this 

paragraph. 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 23 of 74
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B ACKGROUND 

60. The patents-in-suit are the result of Exafer’s years of research, design and 

development of innovative and proprietary networking technologies, which were led by Alon Lelcuk, 

Exafer’s co-founder and an inventor of the patents-in-suit. 

Answer: Microsoft admits that Alon Lelcuk is listed as an inventor on the face of the U.S. 

Patent Nos. 8,325,733 and 8,971,335 (the “patents-in-suit”). Microsoft lacks knowledge or 

information sufficient to form a belief as to the remaining allegations in this paragraph, and 

therefore denies the same. 

61. Mr. Lelcuk has worked as a senior executive in technology start-ups and corporations 

for over 25 years. In the early 1990s, Mr. Lelcuk founded the first commercial Israeli company with 

a connection to the Internet. Mr. Lelcuk also helped develop networking systems for some of the 

largest governmental and non- governmental network deployments in Israel. 

Answer: Microsoft lacks knowledge or information sufficient to form a belief as to the 

remaining allegations in this paragraph, and therefore denies the same. 

62. In or around, May of 2008 Mr. Lelcuk began developing technology related to out of 

band control planes for network data flows. 

Answer: Microsoft lacks knowledge or information sufficient to form a belief as to the 

remaining allegations in this paragraph, and therefore denies the same. 

63. In May 2009, Mr. Lelcuk co-founded Exafer along with co-inventor Amir Harel in 

order to commercialize their innovations. 

Answer: Microsoft lacks knowledge or information sufficient to form a belief as to the 

remaining allegations in this paragraph, and therefore denies the same. 

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64. The patents-in-suit relate, in part, to Software Defined Networking, which is an 

approach to computer network management that enables dynamic programmatically efficient 

network configuration to improve network performance and monitoring. 

Answer: Microsoft admits that on its face, U.S. Patent No. 8,325,733 is entitled “Methods 

and System for Layer 2 Manipulator and Forwarder.” Microsoft admits that on its face, U.S. 

Patent No. 8,971,335 is entitled “System and Method for Creating a Transitive Optimized 

Flow Path.” Except as expressly admitted, Microsoft denies the remaining allegations of this 

paragraph. 

65. A declaration from Dr. Nader Mir, attached as Exhibit 14 and Incorporated into this 

Amended Complaint by reference, sets forth the qualifications of a person skilled in the art 

(“POSITA”) and explains how a POSITA would understand Certain claim terms and the inventions 

disclosed in the patent-in-suit. 

Answer: Microsoft admits that Exhibit 14 to the Amended Complaint purports to be a 

declaration from Dr. Nader Mir. Except as expressly admitted, Microsoft denies the 

remaining allegations of this paragraph. 

United States Patent No. 8,325,733

66. On December 4, 2012, the United States Patent and Trademark Office (“USPTO”) 

duly and legally issued United States Patent No. 8,325,733 (“the ’733 patent”) entitled “Method and 

System For Layer 2 Manipulator and Forwarder” to inventors Amir Harel, Alon Lelcuk, Ronit 

Nossenson, and Avinoam Zakai. 

Answer: Microsoft admits that the ’733 patent states on its face that it issued on December 

4, 2012. Microsoft admits that Amir Harel, Alon Lelcuk, Ronit Nossenson, and Avinoam 

Zakai are listed as inventors on the face of the ʼ733 patent. Except as expressly admitted, 

Microsoft denies the remaining allegations of this paragraph. 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 25 of 74
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67. The ’733 patent is presumed valid under 35 U.S.C. § 282. 

Answer: This paragraph contains a legal conclusion to which no response is required. To 

the extent a response is required, Microsoft denies the allegations in this paragraph. 

68. Exafer owns all rights, title, and interest in the ’733 patent. 

Answer: Microsoft admits that Exafer is listed as an assignee on the face of the ʼ733 patent. 

Microsoft lacks knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations in this paragraph, and therefore denies the same. 

69. Exafer has not granted a license to Microsoft relating to the ’733 patent. 

Answer: Admitted. 

70. The abstract of the ’733 patent describes a “method and system for forwarding frames 

of a flow via a layer 2 forwarder and manipulator (L2FM) for improving network utilization and 

improving users experience by reducing the latency associated with the flow. When a new flow is 

identified, forward control information for frames of the new flow is obtained. The forward control 

information can include re- writing of at least one field in an original header of the frames of the new 

flow. At least one field in an original header of the frames of the new flow is manipulated according 

to the obtained forward control information, and the manipulated frames of the new flow are 

forwarded accordingly.” See D.I. 1, Ex. 1, ’733 patent, Abstract. 

Answer: Microsoft admits that the abstract of the ʼ733 patent speaks for itself. Except as 

expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

71. The ’733 patent disclosure provided, inter alia, solutions for problems with, and 

improvements upon, existing computer networks and how such networks operate. For example, the 

’733 patent provides: 

[T]here are no remotely controlled supporting admission mechanisms that are 

capable of communicating with a forwarding device for delivering control 

information on a per session basis or per flow basis. Meaning there is no method 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 26 of 74
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that verifies per each flow/session if the path chosen (forward information) is 

optimal. . . . 

[Deep Packet Inspection] uses multi dimension classification are computational 

intensive, consume a lot of power and expensive while generally delivering more 

than an order magnitude slower throughput. 

See D.I. 1, Ex. 1, ’733 patent, Specification at col. 2, ll. 34-41. 

Answer: Microsoft admits that the specification of the ʼ733 patent speaks for itself. Except 

as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

72. The ’733 patent then also provides: 

Therefore there is a need for a novel system and method that will control and 

manipulate forwarding rules and information of flows on a per session basis or per 

flow basis at intelligent switches. A need for a novel system and method that will 

check and verify per flow and/or per session basis if the control information can 

be optimized and change it accordingly at different novel intelligent switches along 

communication paths. 

See D.I. 1, Ex. 1,’733 patent, Specification at col. 2, ll. 60-67. 

Answer: Microsoft admits that the specification of the ʼ733 patent speaks for itself. Except 

as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

73. The ’733 patent solves various technological problems inherent in computer networks 

and enables computer networks to, among other things, (1) function more efficiently, (2) be more 

agile in meeting customers’ cloud computing needs, and (3) maximize the use of server and network 

hardware. 

Answer: Microsoft admits that the specification of the ʼ733 patent speaks for itself. Except 

as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

74. At least claim 1 of the ’733 patent recites the phrase “the flow manager, based on the 

received frame of the flow, obtains the forwarding control information.” 

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Answer: Microsoft admits that claim 1 of the ’733 patent recites “the flow manager, based 

on the received frame of the flow, obtains the forwarding control information.” Except as 

expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

75. When read in light of the ’733 patent specification including at least Figs. 2 and 3, 

Col 7:25-35, and 8:28-36, and the plain language of claim 1, this phrase above informs a POSITA 

about the scope of the invention in claim 1 with reasonable certainty. Specifically, these disclosures 

generally describe how the frames of the flow are received and processed and, more specifically, 

how a received frame of a new flow can be used by the flow manager to obtain the forwarding control 

information. See Mir Dec., Ex. 14 at ¶¶18-19. 

Answer: This paragraph contains legal conclusions to which no response is required. To 

the extent a response is required, Microsoft denies the allegations in this paragraph. 

76. As such, based on at least these disclosures, a POSITA would be informed, with 

reasonable certainty, that “the received frame of the flow” refers to one of the received frames of the 

new flow. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

77. At least claim 1 of the ’733 patent recites the phrase “a layer 2 forwarder and 

manipulator (L2FM) located in a layer 2 network and serves a plurality of networks entities.” 

Answer: Microsoft admits that claim 1 of the ’733 patent recites “a layer 2 forwarder and 

manipulator (L2FM) located in a layer 2 network and serves a plurality of networks entities.” 

Except as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

78. When read in light of the ’733 patent specification including at least Fig. 7, Col. 3:42-

44, 3:51-54, 11:40-12:14, and the plain language of claim 1, this phrase above informs a POSITA 

about the scope of the invention in Claim 1 with reasonable certainty. Specifically, these disclosures 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 28 of 74
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generally describe how the L2FM is an intelligent layer 2 switch that is located in a network that 

uses layer 2 networking protocols and forwards digital data to and/or from entities that are within 

that network. See Mir Dec., Ex. 14 at ¶¶20-21. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

79. As such, based on at least these disclosures, a POSITA would be informed, with 

reasonable certainty, that “a layer 2 forwarder and manipulator (L2FM) located in a layer 2 network 

and serves a plurality of networks entities” refers to an L2FM that is located in a network that uses 

layer 2 protocols and forwards digital data to and/or from entities belonging to that network 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

80. At least claim 1 of the ’733 patent recites the phrase “the RAIC is an external entity 

to the network served by the L2FM.” 

Answer: Microsoft admits that claim 1 of the ’733 patent recites “the RAIC is an external 

entity to the network served by the L2FM.” Except as expressly admitted, Microsoft denies 

the remaining allegations of this paragraph. 

81. When read in light of the ‘733 patent specification including at least Figs. 1, 5, and 7, 

Col. 10:24-11:39, and 11:40- 12:14, and the plain language of claim 1, this phrase above informs a 

POSITA about the scope of the invention in Claim 1 with reasonable certainty. Specifically, these 

disclosures generally describe the location of the RAIC. See Mir Dec., Ex. 14 at ¶¶22-23.

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 29 of 74
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82. As such, based on at least these disclosures, a POSITA would be informed, with 

reasonable certainty, that “RAIC is an external entity to the network served by the L2FM” refers to 

the RAIC being external to (i.e., not belonging to) the L2FM’s network. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

83. At least claim 1 of the ’733 patent recites the phrases “the flow frames” and “the 

flow.” 

Answer: Microsoft admits that claim 1 of the ’733 patent recites “the flow frames” and “the 

flow.” Except as expressly admitted, Microsoft denies the remaining allegations of this 

paragraph. 

84. When read in light of the ’733 patent specification including at least Figs. 1, 2, and 3, 

Col. 6:40-44, 7:25-61, and 8:1-59, and the plain language of claim 1, this phrase above informs a 

POSITA about the scope of the invention in Claim 1 with reasonable certainty. Specifically, these 

disclosures generally describe the flow and flow frames. See Mir Dec., Ex. 14 at ¶¶24-26. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

85. As such, based on at least these disclosures, a POSITA would be informed, with 

reasonable certainty, that “the flow frames” refers to the frames of a flow identified by the flow 

identifier and “the flow” refers to the new flow. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

86. At least claim 26 of the ’733 patent recites the phrase “obtaining forward control 

information for frames of the new flow, wherein the forward control information includes re-writing 

of at least one field in an original header of the frames of the new flow.” 

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Answer: Microsoft admits that claim 26 of the ’733 patent recites “obtaining forward control 

information for frames of the new flow, wherein the forward control information includes rewriting of at least one field in an original header of the frames of the new flow.” Except as 

expressly admitted, Microsoft denies the remaining allegations of this paragraph. 

87. When read in light of the ’733 patent specification including at least Figs. 2 and 7, 

Cols. 3:64-66 (which provides a meaning of “an original header”), 4:8-36, and 8:15-22, and the plain 

language of claims 9, 18, 20, and 26, this phrase above informs a POSITA about the scope of the 

invention in claim 26 with reasonable certainty. Specifically, these disclosures generally describe rewriting of at least one field in an original header of a frame and that the forward control information 

includes instructions for performing re-writing. See Mir Dec., Ex. 14 at ¶¶27-29. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

88. As such, based on at least these disclosures, a POSITA would be informed, with 

reasonable certainty, that “obtaining forward control information for frames of the new flow, wherein 

the forward control information includes re- writing of at least one field in an original header of the 

frames of the new flow” refers to obtaining forward control information for frames of the new flow, 

wherein the forward control information is used to re-write at least one field in an original header of 

the frames of the new flow. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

89. A POSITA would also be informed with reasonable certainty that “an original header” 

refers to one of the headers that is associated with the frame at the host that created the frame. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 31 of 74
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90. At least claim 26 of the ’733 patent recites the phrase “changing the at least one field 

in an original header of the frames of the new flow.” 

Answer: Microsoft admits that claim 26 of the ’733 patent recites “changing the at least one 

field in an original header of the frames of the new flow.” Except as expressly admitted, 

Microsoft denies the remaining allegations of this paragraph. 

91. When read in light of the ’733 patent specification including at least Cols. 3:64-66, 

4:30-36, and 8:15-22, and the plain language of claims 9, 18, 20, and 26, this phrase above informs 

a POSITA about the scope of the invention in claim 26 with reasonable certainty. Specifically, these 

disclosures generally describe changing of at least one field in an original header of a frame. See Mir 

Dec., Ex. 14 at ¶¶30-31. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

92. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “changing the at least one field in an original header of the frames of the 

new flow” has its plain and ordinary meaning. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

93. At least claim 10 of the ’733 patent recites the phrase “the encapsulation casing of the 

flow.” 

Answer: Microsoft admits that claim 10 of the ’733 patent recites “the encapsulation casing 

of the flow.” Except as expressly admitted, Microsoft denies the remaining allegations of 

this paragraph. 

94. When read in light of the ’733 patent specification including at least Fig. 2, Fig. 7, 

Cols. 4:30-37 and 5:66-6:8 and the plain language of claim 1, 9, 10, 26 and 35, this phrase above 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 32 of 74
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informs a POSITA about the scope of the invention in claim 10 with reasonable certainty. 

Specifically, these disclosures generally describe that digital data carried by a frame is encapsulated 

within a casing which has a header. Claims 9 and 26, on which claims 10 and 35 respectively depend, 

recite re-writing one or more fields in the original header of the frame. See Mir Dec., Ex. 14 at ¶¶32-

33. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

95. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “the encapsulation casing of the flow” has its plain and ordinary meaning. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

96. At least claim 5 of the ’733 patent recites the phrase “the communication with the 

RAIC is done out of band.” 

Answer: Microsoft admits that claim 5 of the ’733 patent recites “the communication with 

the RAIC is done out of band.” Except as expressly admitted, Microsoft denies the remaining 

allegations of this paragraph. 

97. When read in light of the ’733 patent specification including at least Figs. 1, 3, 6, and 

7, Cols. 3:42-58, 8:28-59, 9:45- 49, and 11:6-8 and the plain language of claims 1 2, 5, 22, and 27, 

this phrase above informs a POSITA about the scope of the invention in claim 5 with reasonable 

certainty. Specifically, these disclosures generally describe how the flow manager obtains 

forwarding control information and claim 1 recites “the flow manager, obtains forwarding control 

information for the new flow from a remote- admission-and-information controller (RAIC).” See 

Mir Dec., Ex. 14 at ¶¶34-35. 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 33 of 74
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Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

98. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “the communication with the RAIC” refers to the transmission of 

information by which the forwarding control information for the new flow is obtained from the 

RAIC. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

99. At least claim 18 of the ’733 patent recites the phrase “wherein the original header is 

a header that was associated to the frame at the host that created the frame.” 

Answer: Microsoft admits that claim 18 of the ’733 patent recites “wherein the original 

header is a header that was associated to the frame at the host that created the frame.” Except 

as expressly admitted, Microsoft denies the remaining allegations of this paragraph. 

100. When read in light of the ’733 patent specification including at least Figs. 

2, 3, and 7, Cols. 7:25-35, and 8:28-36, and claims 1, 9, and 18, this phrase above informs a POSITA 

about the scope of the invention in claim 18 with reasonable certainty. Specifically, these disclosures 

generally describe how the frames of a flow are processed. Claims 1 and 9, on which claim 18 

depends, recite “the flow identifier receives a plurality of frames” and re-writing one or more fields 

in the original header of the frames. See Mir Dec., Ex. 14 at ¶¶36-37. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

101. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “the frame” refers to one of the frames of the flow received by the flow 

identifier. 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 34 of 74
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Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

102. At least claim 18 of the ’733 patent recites the phrase “...the host that created the 

frame.” 

Answer: Microsoft admits that claim 18 of the ’733 patent recites “...the host that created 

the frame.” Except as expressly admitted, Microsoft denies the remaining allegations of this 

paragraph. 

103. When read in light of the ’733 patent specification including at least Fig. 7, Cols. 

3:64-66, and 10:12-23 and the plain language of claims 1, 9, and 18, this phrase above informs a 

POSITA about the scope of the invention in claim 18 with reasonable certainty. Specifically, these 

disclosures generally describe that the host is the entity that creates a frame i.e., a source host. See 

Mir Dec., Ex. 14 at ¶¶38-39. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph.

104. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “the host that created the frame” refers to a source host. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

United States Patent No. 8,971,335 

105. On March 3, 2015, the USPTO duly and legally issued United States Patent No. 

8,971,335 (“the ’335 patent”) entitled “System and Method for Creating a Transitive Optimized Flow 

Path” to inventors Amir Harel, Alon Lelcuk, Ronit Nossenson, and Avinoam Zakai. 

Answer: Microsoft admits the ’335 patent states on its face that it issued on March 3, 2015. 

Microsoft admits that Amir Harel, Alon Lelcuk, Ronit Nossenson, and Avinoam Zakai are 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 35 of 74
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listed as inventors on the face of the ʼ335 patent. Except as expressly admitted, Microsoft 

denies the remaining allegations of this paragraph. 

106. The ’335 patent is presumed valid under 35 U.S.C. § 282. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

107. Exafer owns all rights, title and interest in the ’335 patent. 

Answer: Microsoft admits that Exafer is listed as an assignee on the face of the ʼ335 patent. 

Microsoft lacks knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in this paragraph, and therefore denies the same. 

108. Exafer has not granted a license to Microsoft relating to the ’335 patent. 

Answer: Admitted. 

109. The abstract of the ’335 patent describes how “[t]raffic paths based on common 

devices available in a network are optimized, controlled, manipulated and created. The new paths 

used to optimize are not limited to the original OSI layer and/or original networks. Thus, various 

kinds of users/computers/devices, working in the same or in different abstraction layer networks, are 

combined into one collective virtual network providing the ability to compute and utilize the best 

(optimal) traffic path for each flow at each given time. The traffic path can be constructed especially 

for each flow. All or most devices and layer networks are combined in a collective virtual network 

when computing and constructing an optimized path for a flow. Thus, there is no need to add 

additional headers to a flow thereby eliminating the addition of overhead to the flow. See D.I. 1, Ex. 

2. ’335 patent, Abstract. 

Answer: Microsoft admits that the abstract of the ʼ335 patent speaks for itself. Except as 

expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

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110. The ’335 patent disclosure provided, inter alia, solutions for problems with, and 

improvements upon, existing computer networks and how such networks operate. For example, the 

’335 patent provides: 

In common communication networks it is possible to change a path of a flow to a 

different network and/or to a different OSI layer. In such communication networks, 

the flow is encapsulated and additional headers are added to it thereby increasing 

the overhead of the data packets of the flow.... 

This operation results in increasing the overhead of the data packets of the flow. 

Communication networks that add additional headers are fast but not sophisticated 

networks. Flows can accumulate many headers across the path that it needs to be 

transferred through.... 

Adding more headers (encapsulation of the data traffic) increases the bandwidth 

consumption of the flow. Furthermore existing communication networks that 

calculate an optimized path and modify the flow accordingly can require edge 

devices at the edges of the flow path. The edge devices are needed for encapsulating 

and\or de-encapsulation and adding additional headers with forwarding 

information in order to divert the flow to a new path according to the optimization 

plane.... 

Common communication networks may also require a link management system 

and or method because they create a new network on top of existing networks, 

creating more complexity and so on. 

See D.I. 1, Ex. 2, ’335 patent, Specification at col. 3, ll. 22-54. 

Answer: Microsoft admits that the specification of the ʼ335 patent speaks for itself. Except 

as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

111. The ’335 patent then also provides: 

Therefore there is a need for an elegant, sophisticated, and uncomplicated method 

and system that will enable creating an optimized path for a flow with minimal or 

no overhead. 

See D.I. 1, Ex. 2, ’335 patent, Specification at col. 3, ll. 54-57. 

Answer: Microsoft admits that the specification of the ʼ335 patent speaks for itself. Except 

as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 37 of 74
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112. The ’335 patent solves various technological problems inherent in computer networks 

and enables computer networks to, among other things, (1) function more efficiently, (2) be more 

agile in meeting customers’ cloud computing needs, and (3) maximize the use of server and network 

hardware. 

Answer: Microsoft admits that the specification of the ʼ335 patent speaks for itself. Except 

as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

113. At least claim 1 of the ’335 patent recites the phrases “identifying a new flow 

establishment to be carried over a new path” and “the new flow.” 

Answer: Microsoft admits that claim 1 of the ’335 patent recites “identifying a new flow 

establishment to be carried over a new path” and “the new flow.” Except as expressly 

admitted, Microsoft denies the remaining allegations of this paragraph. 

114. When read in light of the ’335 patent specification including at least Cols. 9:55-60 

and 10:10-13, and the plain language of claim 1, this phrase above informs a POSITA about the 

scope of the invention in claim 1 with reasonable certainty. Specifically, these disclosures generally 

describe how a new flow is established. See Mir Dec., Ex. 14 at ¶¶40-41. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

115. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that (1) “identifying a new flow establishment to be carried over a new path ” 

refers to identifying the establishing of a new flow to be carried over a first path and (2) “the new 

flow” has its plain and ordinary meaning. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

Case 1:20-cv-00131-ADA Document 59 Filed 11/20/20 Page 38 of 74
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116. At least claims 1 and 15 of the ’335 patent recite the phrase “the traffic over [the] two 

or more CPNs.” 

Answer: Microsoft admits that claims 1 and 15 of the ’335 patent recite the phrase “the traffic 

over [t]he two or more CPNs.” Except as expressly admitted, Microsoft denies the remaining 

allegations of this paragraph. 

117. When read in light of the ’335 patent specification including at least Cols. 1:15-19, 

4:40-42, and 5:22 - 6:42, and the plain language of the claims, this phrase above informs a POSITA 

about the scope of the invention in claims 1 and 15 with reasonable certainty. Specifically, these 

disclosures generally describe “the traffic” as network traffic to and/or from the CPNs. See Mir Dec., 

Ex. 14 at ¶¶42-43. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

118. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “the traffic over [the] two or more CPNs” refers to digital data transmitted 

over two or more CPNs. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

119. At least claims 15 and 21 of the ’335 patent recite the phrase “trivial path.” 

Answer: Microsoft admits that claims 15 and 21 of the ’335 patent recite the phrase “trivial 

path.” Except as expressly admitted, Microsoft denies the remaining allegations of this 

paragraph. 

120. When read in light of the ’335 patent specification including at least Cols. 6:36-38, 

7:17-21, 12:47-53, 15:19-23 and 17:20-22, and the plain language of claims 1, 2, 15, 18 and 21, this 

phrase above informs a POSITA about the scope of the invention in claims 15 and 21 with reasonable 

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certainty. Specifically, these disclosures generally describe a trivial path and how the original headers 

of frames are re-written to change the path through which the frames travel. See Mir Dec., Ex. 14 at 

¶¶44-45. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

121. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “trivial path” refers to the path that a frame takes based on the frame’s 

original header. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

122. At least claim 26 of the ’335 patent recites the phrase “identify an optimal path in the 

CVN instead of a known path.” 

Answer: Microsoft admits that claim 26 of the ’335 patent recites “identify an optimal path 

in the CVN instead of a known path.” Except as expressly admitted, Microsoft denies the 

remaining allegations of this paragraph. 

123. When read in light of the ’335 patent specification including at least Fig. 10, Col. 

4:55-5:4, and the plain language of the claim, this phrase above informs a POSITA about the scope 

of the invention in claim 26 with reasonable certainty. Specifically, these disclosures generally 

describe known and optimal paths, which are well understood concepts in networking. See Mir Dec., 

Ex. 14 at ¶¶46-47. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

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124. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “identify an optimal path in the CVN instead of a known path” has its plain 

and ordinary meaning. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

125. At least claim 15 of the ’335 patent recites the phrase “wherein the flow- path 

optimizer-and-creator is configured to . . . define two or more coupled promiscuity networks (CPN) 

from the plurality of CVNs according to the one or more TDSPRCs.” 

Answer: Microsoft admits that claim 15 of the ’335 patent recites “wherein the flow- path 

optimizer-and-creator is configured to . . . define two or more coupled promiscuity networks 

(CPN) from the plurality of CVNs according to the one or more TDSPRCs.” Except as 

expressly admitted, Microsoft denies the remaining allegations of this paragraph. 

126. When read in light of the ’335 patent specification including at least Figs. 6, 7, 9, 10, 

12, and 13, Cols. 10:47-51 and 12:33-62, and the plain language of the claim, this phrase above 

informs a POSITA about the scope of the invention in claim 15 with reasonable certainty. 

Specifically, these disclosures generally describe that the flow- path-optimizer-and-creator as the 

entity responsible for defining the two or more coupled promiscuity networks (CPNs). CPNs are 

networks connected through one or more common TDSPRC(s). See Mir Dec., Ex. 14 at ¶¶48-49. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

127. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that “the flow-path optimizer-and-creator is configured to . . . define two or 

more coupled promiscuity networks (CPN) from the plurality of CVNs according to the one or more 

TDSPRCs” refers to the flow-path optimizer-and-creator being configured to define two or more 

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coupled promiscuity networks (CPN) from the plurality of CVNs where the two or more CPNs are 

connected through the one or more TDSPRC(s). 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

128. At least claim 21 of the ’335 patent recites the phrase “wherein the CPN manager is 

configured to collect topology information related to three or more different Open System 

Interconnection (OSI) model layers from a plurality of network devices working in different OSI 

layers, store the collected topology information in the database of topology information, and 

dynamically maintain the database of topology information on collective virtual networks (CVNs), 

wherein a CVN connects network devices working in networks that belong to different layer OSI 

layers, and one or more Transmitting Device Set with Promiscuous and Re-writing Capabilities 

(TDSPRC), perform network registration processes, and update the database of topology 

information.” 

Answer: Microsoft admits that claim 21 of the ’335 patent recites “wherein the CPN manager 

is configured to collect topology information related to three or more different Open System 

Interconnection (OSI) model layers from a plurality of network devices working in different 

OSI layers, store the collected topology information in the database of topology information, 

and dynamically maintain the database of topology information on collective virtual networks 

(CVNs), wherein a CVN connects network devices working in networks that belong to 

different layer OSI layers, and one or more Transmitting Device Set with Promiscuous and 

Re-writing Capabilities (TDSPRC), perform network registration processes, and update the 

database of topology information.” Except as expressly admitted, Microsoft denies the 

remaining allegations of this paragraph. 

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129. When read in light of the ’335 patent specification including at least Figs. 5 and 7, 

Cols. 9:49 - 10:22, 12:42 - 13:62, and the plain language of the claim, this phrase above informs a 

POSITA about the scope of the invention in claim 21 with reasonable certainty. Specifically, these 

disclosures generally describe the functions of the CPN manager. See Mir Dec., Ex. 14 at ¶¶50-51. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

130. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that this phrase refers to configuring the CPN manager to: (1a) collect topology 

information related to three or more different Open System Interconnection (OSI) model layers from 

a plurality of network devices working in different OSI layers, (1b) store the collected topology 

information in the database of topology information, and (1c) dynamically maintain the database of 

topology information on collective virtual networks (CVNs), wherein a CVN connects network 

devices working in networks that belong to different layer OSI layers, and one or more Transmitting 

Device Set with Promiscuous and Re-writing Capabilities (TDSPRC); (2) perform network 

registration processes, and (3) update the database of topology information.” 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

131. At least claim 21 of the ’335 patent recites the phrase “wherein the one or more 

session managers plans, based at least in part on information from the CVN database, a session 

optimization path, instead of a trivial path, over two or more coupled promiscuity networks (CPN), 

based on the database of topology information and accordingly creates a session virtualization 

process by controlling a selected TDSPRC to rewrite at least one header of an original frame of a 

flow, generates a session’s flows forwarding rules and transfers the session's flows forwarding rules 

to the selected TDSPRC.” 

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Answer: Microsoft admits that claim 21 of the ’335 patent recites “wherein the one or more 

session managers plans, based at least in part on information from the CVN database, a 

session optimization path, instead of a trivial path, over two or more coupled promiscuity 

networks (CPN), based on the database of topology information and accordingly creates a 

session virtualization process by controlling a selected TDSPRC to rewrite at least one header 

of an original frame of a flow, generates a session’s flows forwarding rules and transfers the 

session's flows forwarding rules to the selected TDSPRC.” Except as expressly admitted, 

Microsoft denies the remaining allegations of this paragraph. 

132. When read in light of the ’335 patent specification including at least Fig. 6, Col. 

10:47-12:32, and the plain language of the claim, this phrase above informs a POSITA about the 

scope of the invention in claim 21 with reasonable certainty. Specifically, these disclosures generally 

describe the functions of the session manager. See Mir Dec., Ex. 14 at ¶¶52-53. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

133. As such, based on at least these disclosures, a POSITA would be informed with 

reasonable certainty, that this phrase refers to the session manager(s): (1a) planning, based at least in 

part on information from the CVN database, a session optimization path, instead of a trivial path, 

over two or more coupled promiscuity networks (CPN), based on the database of topology 

information, and (1b) accordingly creating a session virtualization process by controlling a selected 

TDSPRC to rewrite at least one header of an original frame of a flow; (2) generating a session's flows 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

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Microsoft’s Azure Platform

134. On information and belief, Microsoft is the developer, owner, and operator of the 

Azure Platform, which is available in 140 countries and 54 regions worldwide. 

Answer: Microsoft admits that that the “Azure Platform” is a product offered by Microsoft. 

Microsoft admits that its website currently states that the “Azure Platform” is available in 56 

regions worldwide and is available in 140 countries. Except as expressly admitted, Microsoft 

denies the remaining allegations in this paragraph. 

135. On information and belief, in order to accommodate the scale of the Azure Platform, 

Microsoft has built datacenters throughout the United States and in this judicial district, which enable 

Microsoft to offer the accused Azure Platform to its customers. 

Answer: Microsoft admits that that the “Azure Platform” is a product offered by Microsoft. 

Microsoft admits that its website currently states that the “Azure Platform” is available in 56 

regions worldwide and is available in 140 countries. Except as expressly admitted, Microsoft 

denies the remaining allegations in this paragraph. 

CLAIMS FOR RELIEF 

Count I – Infringement of United States Patent No. 8,325,733 

136. Exafer repeats, realleges, and incorporates by reference, as if fully set forth here, the 

allegations of the preceding paragraphs, as set forth above. 

Answer: Microsoft repeats and realleges its responses to the foregoing paragraphs as if fully 

set forth herein. 

137. Microsoft makes, uses, offers to sell access to, and sells access to the accused Azure 

Platform. The Azure Platform infringes, literally and/or under the doctrine of equivalents, at least 

claim 26 of the ’733 patent. 

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Answer: Microsoft admits that the “Azure Platform” is a product that is offered by Microsoft. 

Microsoft denies that the Azure Platform infringes, literally or under the doctrine of 

equivalents, any claims of the ʼ733 patent, including claim 26. Microsoft denies the 

remaining allegations in this paragraph. 

138. Claim 26 of the ’733 patent provides as follows: 

26. A method for forwarding frames of a flow via a layer 2 forwarder and manipulator 

(L2FM), the method comprising: 

a. identifying, at the L2FM, one or more first frames of a new flow; 

b. obtaining forward control information for frames of the new flow, wherein the 

forward control information includes re-writing of at least one field in an original 

header of the frames of the new flow, wherein obtaining forward control information 

is done out of band; 

c. changing the at least one field in an original header of the frames of the new flow 

according to the obtained forward control information; and 

d. forwarding the frames of the new flow according to the forward control 

information; 

wherein at least portion of the control information is obtained from a remoteadmission-and-information controller (RAIC). 

See D.I. 1, Ex. 1, ’733 patent, Claim 26. 

Answer: Admitted. 

139. On information and belief, the Azure Platform comprises a layer 2 forwarder and 

manipulator (L2FM) that employs a method for forwarding frames of a flow. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

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140. On information and belief, the L2FMs of the Azure Platform, include without 

limitation, Azure Smart Network Interface Cards (“Azure SmartNICs”) which are integrated within 

the Azure Platform’s servers: 

See “Accelerated SDN in Azure” Presentation, Open Networking Summit 2017 Conference, Slide 

14. (D.I. 1, Ex. 8). 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 8 to Exafer’s Original Complaint 

provides a description of Azure SmartNIC, and the document speaks for itself. 

Implementation of the Azure Platform may differ from the representations in Exhibit 8. 

Except as expressly admitted, Microsoft denies the remaining allegations in this paragraph. 

141. On information and belief, the Azure Platform forwards frames of flows using at least 

the Azure SmartNICs: 

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See Firestone, Daniel, et al. "Azure accelerated networking: SmartNICs in the public cloud." 15th 

{USENIX} Symposium on Networked Systems Design and Implementation ({NSDI} 18). 2018 at 

p. 1 (D.I. 1, Ex. 9). See also Firestone, Daniel. "{VFP}: A Virtual Switch Platform for Host {SDN} 

in the Public Cloud." 14th {USENIX} Symposium on Networked Systems Design and 

Implementation ({NSDI} 17). 2017 (D.I. 1, Ex. 10). 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 10 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 10. Except as expressly admitted, Microsoft denies the remaining allegations in 

this paragraph. 

142. On information and belief, components of the Azure Platform including, but not 

limited to, the Virtual Filtering Platform (“VFP”) Packet Processor software component and the 

SmartNIC, identify one or more first frames of a new flow when a new network traffic flow arrives 

at or is generated by the Azure Platform: 

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See D.I. 1, Ex. 10 at Section 6.1.1. 

See also “Accelerating Host Networking in the Cloud” Presentation, Slide 59. (D.I. 1, Ex. 11). 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibits 10 and 11 to Exafer’s Original 

Complaint speak for themselves. Implementation of the Azure Platform may differ from the 

representations in Exhibits 10 and 11. Except as expressly admitted, Microsoft denies the 

remaining allegations in this paragraph. 

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143. On information and belief, components of the Azure Platform including, but not 

limited to servers and Azure SmartNICs, obtain forward control information for frames of new flows 

from components of the Azure Platform including, but not limited to controllers. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

144. On information and belief, components of the Azure Platform including, but not 

limited to, servers, Azure SmartNICs, and virtual switch software, obtain forward control 

information for frames of new flows from components of the Azure Platform including, but not 

limited to controllers: 

See D.I. 1, Ex. 8 at Slide 7. 

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See “Azure Accelerated Networking: SmartNICs in the Public Cloud,” NSDI '18 Conference, Slide 

No. 23. (D.I. 1, Ex. 12). 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibits 8 and 12 to Exafer’s Original 

Complaint speak for themselves. Implementation of the Azure Platform may differ from the 

representations in Exhibits 8 and 12. Except as expressly admitted, Microsoft denies the 

remaining allegations in this paragraph. 

145. On information and belief, “VFP’s core programming model is based on a hierarchy 

of VFP objects that controllers can create and program to specify their SDN policy.” See D.I. 1, Ex. 

10 at Section 5. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 10 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 10. Except as expressly admitted, Microsoft denies the remaining allegations in 

this paragraph. 

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146. On information and belief, the forward control information obtained by components 

of the Azure Platform including, but not limited to, servers, the virtual switch software, and the Azure 

SmartNICs, includes instructions for re-writing at least one field in an original header of the frames 

of the new flow: 

See “Virtual Filtering Platform: A retrospective on 8 years of shipping Host SDN in the Public 

Cloud,” NSDI '17 Conference, Slide 32 (D.I. 1, Ex. 13). 

See D.I. 1, Ex. 9, Section 2.4. 

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Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibits 9 and 13 to Exafer’s Original 

Complaint speak for themselves. Implementation of the Azure Platform may differ from the 

representations in Exhibits 9 and 13. Except as expressly admitted, Microsoft denies the 

remaining allegations in this paragraph. 

147. On information and belief, the forward control information obtained by the 

components of the Azure Platform including, but not limited to servers, virtual switch software, and 

the Azure SmartNICs, is obtained out of band: 

See D.I. 1, Ex. 13, Slide 20. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 13 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 13. Except as expressly admitted, Microsoft denies the remaining allegations in 

this paragraph. 

148. On information and belief, components of the Azure Platform including, but not 

limited to servers, virtual switch software, and the Azure SmartNICs, change at least one field in an 

original header of the frames of the new flow according to the obtained forward control information: 

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See D.I. 1, Ex. 13, Slide 33. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 13 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 13. Except as expressly admitted, Microsoft denies the remaining allegations in 

this paragraph. 

149. On information and belief, components of the Azure Platform including, but not 

limited to servers, virtual switch software, and the Azure SmartNICs, forward the frames of the new 

flow according to forward control information. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

150. On information and belief, components of the Azure Platform including, but not 

limited to servers, virtual switch software, and Azure SmartNICs, obtain at least a portion of the 

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control information from remote-admission-and-information controllers, referred to by Microsoft as 

“controllers.” 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

151. On information and belief, Microsoft has been on notice of the ’733 patent at least as 

early as the filing and service of the Complaint in this action. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

152. On information and belief, Microsoft’s domestic Azure Platform customers, including 

but not limited to the 173 Microsoft’s Azure Platform customers who are listed on their website, 

directly infringe every element of, at least claim 26 of the ’733 patent through their use of the Azure 

Platform. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

153. On information and belief, at least since its post-filing knowledge of the ’733 Patent, 

Microsoft knowingly encourages, and continues to encourage, customers to directly infringe one or 

more claims of the ’733 patent, including by Microsoft’s actions that include, without limitation, 

instructing and encouraging customers to use the Azure Platform through user guides/manuals,

advertisements, promotional materials, and instructions. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

154. On information and belief, at least since its post-filing knowledge of the ’733 patent, 

Microsoft knows that the acts Microsoft induced customers to take constitute patent infringement 

and Microsoft’s encouraging acts result in direct infringement by customers. 

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Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

155. On information and belief, Microsoft instructs and continues to instruct customers to 

use the Azure Platform including, without limitation, through Microsoft’s websites, which provide 

support for using the Azure Platform. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

156. On information and belief, at least the 173 customers listed on Microsoft’s website 

directly infringe, literally and/or under the doctrine of equivalents, at least claim 26 of the ’733 patent 

through their use of the Azure Platform. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

157. On information and belief, Microsoft is in violation of 35 U.S.C. § 271(b) and has 

been, at least since its post-filing knowledge of the ’733 patent, indirectly infringing and continues 

to indirectly infringe at least claim 26 of the ’733 patent by knowingly and specifically intending to 

induce infringement by others (including, without limitation, Microsoft’s customers) and possessing 

specific intent to encourage infringement by Microsoft’s customers. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

158. Exafer has been damaged by the direct and/or indirect infringement of Microsoft and 

is suffering and will continue to suffer irreparable harm and damages as a result of this infringement. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). Denied. 

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Count II – Infringement of United States Patent No. 8,971,335 

159. Exafer repeats, realleges, and incorporates by reference, as if fully set forth here, the 

allegations of the preceding paragraphs, as set forth above. 

Answer: Microsoft repeats and realleges its responses to the foregoing paragraphs as if fully 

set forth herein. 

160. The Azure Platform infringes, literally and/or under the doctrine of equivalents, at 

least claim 26 of the ’335 patent. 

Answer: Denied. 

161. Claim 26 of the ’335 patent provides as follows: 

26. A method to optimize information delivery between a first node on a first network 

and a second node on the same or different network, the delivery being made through 

a networked system in which one or more paths between the first node and the second 

node are known and, through a Transmitting Device Set with Promiscuous and Rewriting Capabilities (TDSPRC) that receives and retransmits all frames of the first 

network and the same or different network, and the method comprising: 

collecting topology information related to three or more different Open 

System Interconnection (OSI) model layers from a plurality of network 

devices working in networks that belong to different OSI layers; 

identifying alternate paths, based at least in part on the collected 

topology information related to three or more different OSI layers, 

between the first node and the second node; 

creating a collective virtual network (CVN) including the known paths 

and the alternate paths, for a particular flow, identify an optimal path 

in the CVN instead of a known path between the first node and the 

second node; and 

modifying the data frames of the particular flow to be compatible 

with a network technology employed by the identified optimal 

path, wherein the modification is implemented by the TDSPRC 

and the TDSPRC is not a member in at least one of the networks. 

See D.I. 1, Ex. 2, ’335 patent, claim 26. 

Answer: Admitted. 

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162. On information and belief, the accused Azure Platform practices a method to optimize 

information delivery between a first node on a first network and a second node on the same or 

different network: 

See e.g. D.I. 1, Ex. 13 at slide 11. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 13 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 13. Except as expressly admitted, Microsoft denies the remaining allegations in 

this paragraph. 

163. On information and belief, the information delivery optimization of the Azure 

Platform is exemplified by, but is not limited to, the improvements claimed in the following 

conference presentation slide: 

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See e.g. D.I. 1, Ex. 8 at slide 16. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 8 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 8. Except as expressly admitted, Microsoft denies the remaining allegations in this 

paragraph. 

164. On information and belief, the accused Azure Platform delivers information through 

a networked system in which one or more paths between the first node and the second node are 

known. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

165. On information and belief, the Azure Platform includes one or more transmitting 

device sets with promiscuous and re-writing capabilities, (“TDSPRCs”). More specifically, on 

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information and belief, the Azure Platform includes, without limitation, servers, as well as serverbased hardware and software components including but not limited to the Azure SmartNICs, the 

virtual switch, and the VFP, which collectively or alone can form a device set that is capable of 

performing both promiscuous network data monitoring and re-writing of network transmission 

header information: 

See D.I. 1, Ex. 13 at Slide 37. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 13 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 13. Except as expressly admitted, Microsoft denies the remaining allegations in 

this paragraph. 

166. On information and belief, the Azure Platform receives and retransmits all frames of 

a network and the same or different network through a TDSPRC. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

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167. On information and belief, components of the Azure Platform, including but not 

limited to, the Azure controllers or the VFP, individually or collectively are configured to collect 

topology information related to three or more different OSI layers from a plurality of network devices 

working in different OSI layers as evidenced by the disclosures below: 

See D.I. 1, Ex. 9 at Section 2.4. 

See also D.I. 1, Ex. 10 at Section 6.1.1. 

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See also D.I. 1, Ex. 10 at Table 3, presented on p. 322. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibits 9 and 10 to Exafer’s Original 

Complaint speak for themselves. Implementation of the Azure Platform may differ from the 

representations in Exhibits 9 and 10. Except as expressly admitted, Microsoft denies the 

remaining allegations in this paragraph. 

168. On information and belief, one or more components of the Azure Platform including 

without limitation, controllers identify alternate paths, based at least in part on the collected topology 

information related to three or more different OSI layers, between the first node and the second node. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

169. On information and belief, components of the Azure Platform including but not 

limited to, controllers, networking equipment, and server equipment, create a collective virtual 

network (CVN) including the known paths and the alternate paths, for a particular flow, and identify 

an optimal path in the CVN instead of a known path between the first node and the second node. 

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Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

170. On information and belief, the Azure Platform comprises a plurality of collective 

virtual networks, (“CVNs”). On information and belief, a non-limiting example of collective virtual 

networks within the Azure Platform is demonstrated by green and blue Generic Routing 

Encapsulation (GRE) networks depicted in the following conference slide: 

See e.g. D.I. 1, Ex. 13 at slide 11. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 13 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 13. Except as expressly admitted, Microsoft denies the remaining allegations in 

this paragraph. 

171. On information and belief, components of the Azure Platform which individually or 

collectively function as a TDSPRC modify data frames of a flow to be compatible with a network 

technology employed by the identified optimal path, as disclosed below: 

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See D.I. 1, Ex. 9 at Section 5.3.2. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft admits that Exhibit 9 to Exafer’s Original Complaint 

speaks for itself. Implementation of the Azure Platform may differ from the representations 

in Exhibit 9. Except as expressly admitted, Microsoft denies the remaining allegations in this 

paragraph. 

172. On information and belief, components of the Azure Platform, which individually or 

collectively function as a TDSPRC are not a member or members in at least one of the networks to 

which either the first node or the second node belong. 

Answer: This paragraph contains legal conclusions to which no response is required. To the 

extent a response is required, Microsoft denies the allegations in this paragraph. 

173. On information and belief, Microsoft has been on notice of the ’335 patent at least as 

early as the filing and service of the Complaint in this action. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

174. On information and belief, at least since its post-filing knowledge of the ʼ335 Patent, 

Microsoft knowingly encourages, and continues to encourage, customers to directly infringe one or 

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more claims of the ’335 patent, including by Microsoft’s actions that include, without limitation, 

instructing and encouraging customers to use the Azure Platform through user guides/manuals,

advertisements, promotional materials, and instructions. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

175. On information and belief, at least since its post-filing knowledge of the ’335 patent, 

Microsoft knows that the acts Microsoft induced customers to take constitute patent infringement 

and Microsoft’s encouraging acts result in direct infringement by its customers. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

176. On information and belief, Microsoft instructs and continues to instruct customers to 

use the Azure Platform including, without limitation, through Microsoft’s websites, which provide 

support for using the Azure Platform. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

177. On information and belief, Microsoft’s domestic Azure Platform customers, including 

but not limited to the 173 Microsoft’s Azure Platform customers who are listed on their website,

directly infringe every element of, at least, claim 26 of the ’335 patent through their use of the Azure 

Platform. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

178. On information and belief, Microsoft is in violation of 35 U.S.C. § 271(b) and has 

been, at least since its post-filing knowledge of the ‘335 patent, indirectly infringing and continues 

to indirectly infringe at least claim 26 of the ‘335 patent by knowingly and specifically intending to 

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induce infringement by others (including, without limitation, Microsoft’s customers) and possessing 

specific intent to encourage infringement by Microsoft’s customers. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). No further response to this allegation is required. 

179. Exafer has been damaged by the direct and/or indirect infringement of Microsoft and 

is suffering and will continue to suffer irreparable harm and damages as a result of this infringement. 

Answer: Exafer’s claims for indirect infringement have been dismissed without prejudice. 

(D.I. 25). Denied. 

JURY DEMANDED 

 180. Pursuant to Federal Rule of Civil Procedure 38(b), Exafer hereby requests a trial by 

jury on all issues so triable. 

Answer: Exafer’s jury demand contains no statements that require an admission or denial. 

PRAYER FOR RELIEF 

 Microsoft denies all allegations that Exafer is entitled to any of the relief requested against 

Microsoft in its Prayer for Relief, or any other relief. Microsoft denies any remaining allegations in 

the Prayer for Relief. 

AFFIRMATIVE AND OTHER DEFENSES 

 Microsoft asserts the following affirmative defenses, without assuming the burden of proof 

when such burden would otherwise be on Exafer. In addition to the affirmative defenses described 

below, Microsoft specifically reserves all rights to assert additional affirmative defenses as additional 

information becomes available. 

FIRST DEFENSE 

 Microsoft does not infringe and has not infringed, either literally or under the doctrine of 

equivalents, alone or jointly, any valid and enforceable claim of the patents-in-suit. 

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SECOND DEFENSE

 One or more claims of the patents-in-suit are invalid for failure to satisfy one or more 

conditions for patentability set forth in 35 U.S.C. § 101 et seq., including but not limited to §§ 101, 

102, 103, and 112, the applicable provisions of title 37 of the Code of Federal Regulations, and 

judicially created bases for invalidation, such as double patenting. One or more claims of the patentsin-suit are invalid under 35 U.S.C. §§ 102 and 103 because one or more prior-art references, 

including those references listed on the face of the patents-in-suit, that either alone or in combination 

disclose one or more claims of the patents-in-suit or the alleged inventions claimed therein are 

obvious to one having ordinary skill in the art in view of the prior art, including, but not limited to, 

the prior art listed on the face of the patents-in-suit. Additional prior art that invalidates the asserted 

claims will be set forth in Microsoft’s invalidity contentions, amendments, and proposed 

amendments thereto. 

THIRD DEFENSE

 One or more claims of the patents-in-suit are unpatentable for failure to comply with the 

requirements of 35 U.S.C. § 101. 

FOURTH DEFENSE

 To the extent Exafer alleged infringement by the doctrine of equivalents, Exafer’s claims for 

relief are barred in whole or in part by prosecution history estoppel, claim vitiation, or recapture. 

Exafer is estopped, based on statements, representations, and admissions made during the 

prosecution before the USPTO of the patent applications resulting in the patents-in-suit, as well as 

patent applications and proceedings related to the patents-in-suit, from asserting that Microsoft has 

infringed one or more claims of the patents-in-suit. 

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FIFTH DEFENSE

 Exafer’s claim for damages is barred or limited by the equitable doctrines of estoppel, waiver, 

or other equitable doctrines. 

SIXTH DEFENSE

 Exafer’s claim for damages is limited by or barred in whole or in part by 35 U.S.C. §§ 286 

and 287. Exafer is precluded from recovering costs under 35 U.S.C. § 288. 

SEVENTH DEFENSE

 Exafer fails to state a claim upon which relief may be granted. 

EIGHTH DEFENSE

 Exafer is not entitled to any injunctive relief because, among other reasons, any alleged injury 

is not immediate or irreparable and Exafer has an adequate remedy at law for any alleged injury. 

NINTH DEFENSE

 Exafer fails to show it has proper standing to seek equitable or other remedies. 

OTHER DEFENSES RESERVED

 Microsoft specifically reserves the right to assert additional affirmative defenses and other 

defense permitted under the Federal Rules of Civil Procedure, the patent laws of the United States, 

or at law or in equity as they may now exist, be discovered, or otherwise become available based on 

discovery and further investigation in this case. 

COUNTERCLAIMS

Microsoft counterclaims against Exafer as follows: 

PARTIES:

1. Microsoft is a corporation organized under the laws of the State of Washington and 

having a principal place of business at One Microsoft Way, Redmond, Washington 98052. 

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2. According to the allegations in Exafer’s Amended Complaint, Exafer Ltd. is a 

privately held Israeli limited company with its principal place of business at 131 Ramot Meir, Israel. 

JURISDICTION AND VENUE

3. These counterclaims arise under title 35 of the United States Code. The Court 

therefore has subject matter jurisdiction over these counterclaims pursuant to 28 U.S.C. §§ 1331, 

1338(a), 2201, and 2202. 

4. Exafer is subject to personal jurisdiction in this District because it has availed itself 

of this Court by filing this action in this District. 

5. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 insofar as venue is 

determined to be proper with respect to Exafer’s allegations of infringement against Microsoft. 

FIRST COUNTERCLAIM – DECLARATORY JUDGMENT OF INVALIDITY OF U.S. 

PATENT NO. 8,325,733 

6. Microsoft realleges and reincorporates by reference Paragraphs 1–180 of the Answer 

and its Affirmative Defenses and Paragraphs 1–5 of the Counterclaims as though set forth fully 

herein. 

7. Microsoft counterclaims against Exafer pursuant to the patent laws of the United 

States, title 35 of the United States Code, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 

2202. 

8. Exafer has filed an action for patent infringement alleging that Microsoft has infringed 

one or more claims of U.S. Patent No. 8,325, 733 (“the ʼ733 patent”). 

9. An actual controversy exists between Exafer and Microsoft by virtue of the 

allegations of Exafer’s Complaint and Microsoft’s Answer and Affirmative Defenses as to the 

invalidity of the ʼ733 patent. 

10. The ʼ733 patent is invalid, as set forth above in Microsoft’s Affirmative Defenses. 

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11. Pursuant to the Declaratory Judgments Act, Microsoft is entitled to a judicial 

declaration from the Court that that one or more claims of the ʼ733 patent are invalid. 

SECOND COUNTERCLAIM – DECLARATORY JUDGMENT OF NONINFRINGEMENT 

OF U.S. PATENT NO. 8,325,733 

12. Microsoft realleges and reincorporates by reference Paragraphs 1–180 of the Answer 

and its Affirmative Defenses and Paragraphs 1–11 of the Counterclaims as though set forth fully 

herein. 

13. Microsoft counterclaims against Exafer pursuant to the patent laws of the United 

States, title 35 of the United States Code, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 

2202. 

14. Exafer has filed an action for patent infringement alleging that Microsoft has infringed 

one or more claims of the ʼ733 patent. 

15. An actual controversy exists between Exafer and Microsoft by virtue of the 

allegations of Exafer’s Complaint and Microsoft’s Answer and Affirmative Defenses as to the 

noninfringement of the ʼ733 patent. 

16. The ʼ733 patent is not infringed, as set forth above in Microsoft’s Affirmative 

Defenses. 

17. Pursuant to the Declaratory Judgments Act, Microsoft is entitled to a judicial 

declaration from the Court that Microsoft does not and has not infringed any valid and enforceable 

claim of the ʼ733 patent. 

THIRD COUNTERCLAIM – DECLARATORY JUDGMENT OF INVALIDITY OF U.S. 

PATENT NO. 8,971,335 

18. Microsoft realleges and reincorporates by reference Paragraphs 1–180 of the Answer 

its Affirmative Defenses and Paragraphs 1–17 of the Counterclaims as though set forth fully herein. 

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19. Microsoft counterclaims against Exafer pursuant to the patent laws of the United 

States, title 35 of the United States Code, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 

2202. 

20. Exafer has filed an action for patent infringement alleging that Microsoft has infringed 

one or more claims of U.S. Patent No. 8,971,335 (“the ʼ335 patent”). 

21. An actual controversy exists between Exafer and Microsoft by virtue of the 

allegations of Exafer’s Complaint and Microsoft’s Answer as to the invalidity of the ʼ335 patent. 

22. The ʼ335 patent is invalid, as set forth above in Microsoft’s affirmative defenses. 

23. Pursuant to the Declaratory Judgments Act, Microsoft is entitled to a judicial 

declaration from the Court that one or more claims of the ʼ335 patent are invalid. 

FOURTH COUNTERCLAIM – DECLARATORY JUDGMENT OF NONINFRINGEMENT 

OF U.S. PATENT NO. 8,971,335 

24. Microsoft realleges and reincorporates by reference Paragraphs 1–180 of the Answer 

and its Affirmative Defenses and Paragraphs 1–23 of the Counterclaims as though set forth fully 

herein. 

25. Microsoft counterclaims against Exafer pursuant to the patent laws of the United 

States, title 35 of the United States Code, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 

2202. 

26. Exafer has filed an action for patent infringement alleging that Microsoft has infringed 

one or more claims of the ʼ335 patent. 

27. An actual controversy exists between Exafer and Microsoft by virtue of the 

allegations of Exafer’s Complaint and Microsoft’s Answer as to the noninfringement of the ʼ335 

patent. 

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28. The ʼ335 patent is not infringed, as set forth above in Microsoft’s affirmative 

defenses. 

29. Pursuant to the Declaratory Judgments Act, Microsoft is entitled to a judicial 

declaration from the Court that Microsoft does not and has not infringed any valid and enforceable 

claim of the ʼ335 patent. 

DEMAND FOR JURY TRIAL 

30. Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Microsoft respectfully 

requests a trial by jury on all claims and issues so triable. 

PRAYER FOR RELIEF

 WHEREFORE, Microsoft prays for judgment as follows on Exafer’s Complaint and on 

Microsoft’s Answer and Counterclaims: 

A. That Exafer’s Complaint be dismissed with prejudice and that Plaintiffs take 

nothing; 

B. That judgment be entered in favor of Microsoft and against Exafer; 

C. That judgment be entered declaring the asserted claims of the ʼ733 and ʼ335 

patents invalid and not infringed by Microsoft or by the use of its products or 

services; 

D. That Exafer’s conduct be declared to render this case an exceptional case; 

E. That Microsoft be awarded its attorneys’ fees in connection with this action 

pursuant to 35 U.S.C. § 285 and/or other applicable laws; 

F. That Plaintiffs be required to pay Microsoft’s costs of suit; and 

G. That Microsoft be awarded such other and further relief as the Court deems 

just and proper. 

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DATED: November 20, 2020 

Respectfully Submitted, 

By: /s/ Katherine Vidal 

M. Brett Johnson 

Texas Bar No. 00790975 

Peter Tong (admitted pro hac vice) 

WINSTON & STRAWN LLP 

2121 North Pearl Street, Suite 900 

Dallas, TX 75201 

Tel. (214) 453-6500 

Fax (214) 453-6400 

mbjohnson@winston.com 

ptong@winston.com 

Katherine Vidal (admitted pro hac vice)

WINSTON & STRAWN LLP 

275 Middlefield Road, Suite 205 

Menlo Park, CA 94025 

Tel. (650) 858-6500 

Fax (650) 858-6550 

kvidal@winston.com 

Samantha M. Lerner (admitted pro hac vice) 

Vivek V. Krishnan (admitted pro hac vice)

WINSTON & STRAWN LLP 

35 W. Wacker Drive, Suite 4100 

Chicago, IL 60601 

Tel. (312) 558-5600 

Fax (312) 558-5700 

slerner@winston.com 

vkrishnan@winston.com 

COUNSEL FOR DEFENDANT 

MICROSOFT CORPORATION 

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CERTIFICATE OF SERVICE 

I hereby certify that, on November 20, 2020, the foregoing document was served to counsel 

of record for Plaintiff Exafer Ltd. 

/s/ Katherine Vidal 

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