Akamai Technologies, Inc. v. Mediapointe, Inc., Amhc, Inc.

United States Court of Appeals
for the Federal Circuit
______________________
AKAMAI TECHNOLOGIES, INC.,
Plaintiff-Appellee
v.
MEDIAPOINTE, INC., AMHC, INC.,
Defendants-Appellants
______________________
2024-1571
______________________
Appeal from the United States District Court for the
Central District of California in No. 2:22-cv-06233-MCS-
SHK, Judge Mark C. Scarsi.
______________________
Decided: November 25, 2025
______________________
T HOMAS SAUNDERS, Wilmer Cutler Pickering Hale and
Dorr LLP, Washington, DC, argued for plaintiff-appellee.
Also represented by JAMES BOR -ZALE , ALICIA M. CONEYS,
M ICHAEL JENNINGS SUMMERSGILL, Boston, MA; ARTHUR
W ALLIS COVIELLO, Palo Alto, CA; GARY M. FOX , New York,
NY.
LARRY Y. LIU, Susman Godfrey LLP, Houston, TX, ar-
gued for defendants-appellants. Also represented by MENG
XI ; KALPANA SRINIVASAN, Los Angeles, CA.
______________________
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 2
Before T ARANTO, STOLL, and CUNNINGHAM, Circuit
Judges.
T ARANTO, Circuit Judge.
This case involves U.S. Patent No. 8,559,426 and its
child, U.S. Patent No. 9,426,195, which address systems
and methods for efficiently routing streamed media content
over the Internet. Each describes an “intelligent distribu-
tion network” that centrally manages requests for
streamed media from many geographically dispersed users
to mitigate bandwidth problems inherent in transmitting
large volumes of data. AMHC, Inc. owns the patents, and
MediaPointe, Inc. is its subsidiary. We refer to them to-
gether as MediaPointe.
Akamai Technologies, Inc. brought suit in the Central
District of California against MediaPointe, seeking a de-
claratory judgment of noninfringement of both patents.
MediaPointe counterclaimed for infringement, and Akamai
then sought a declaratory judgment of invalidity. At the
claim-construction stage of proceedings, the district court
held that certain claims using “optimal” and “best” lan-
guage were invalid for indefiniteness. For the remaining
asserted claims, the district court granted Akamai sum-
mary judgment of noninfringement. First, it excluded, as
untimely presented, key portions of MediaPointe’s tech-
nical expert’s testimony, without which MediaPointe could
not reasonably establish infringement. Second, the court
ruled that, even with the expert testimony, the record en-
titled Akamai to summary judgment of noninfringement.
We hold that the judgment of invalidity was correct in
view of the intrinsic record and that the district court did
not err in granting summary judgment of noninfringement
even considering the expert testimony. Accordingly, with-
out reaching the exclusion issue, we affirm.
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 3
I
A
The ’426 patent and its continuation, the ’195 patent,
are titled “System and Method for Distribution of Data
Packets Utilizing an Intelligent Distribution Network.”
The two patents share a specification, so we cite only the
’195 specification. Both patents describe and claim sys-
tems and methods for distributing streamed media content
over the Internet to geographically dispersed users. Data
streams from a server, when transmitted over the Internet
to a client, may pass through various intermediate “nodes”
and other devices (such as routers), each step between ad-
jacent devices constituting a “hop.” See ’195 patent, col. 2,
lines 23–52. The ’426 and ’195 patents explain that, in the
prior art, inefficient routing meant that a stream could be-
come unacceptably delayed because its route contained ei-
ther more hops than necessary or particular devices
suffering bandwidth constraints. Id., col. 1, lines 41–52;
col. 2, lines 53–60.
The patents propose more efficient routing by use of an
“intelligent distribution network.” Id., col. 3, lines 17–29.
A typical intelligent distribution network has a manage-
ment center and several nodes; the management center, in
response to a client request for data, can direct the client
to the “best performance” node for ultimate client delivery
and also identify the best route for data to travel from the
center to get to that node. See id., col. 3, lines 30–40; col. 6,
line 16 through col. 7, line 22. The management center
uses a “mapping engine” to gather information about nodes
and potential routes. Id., col. 3, lines 37–40. The mapping
engine identifies various possible routes to the client and
then probes them to create “trace route results,” which are
ordered lists of each hop on a route, specifying (1) the In-
ternet Protocol (IP) address of the hop’s endpoint device
(node, router, etc.) and (2) “latency,” a round-trip time as-
sociated with that device, i.e., the time it takes for a
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 4
message to reach that device from a starting point (e.g., the
management center) and for a response to return. Id.; see
id., col. 6, line 16 through col. 8, line 7. The parties agreed
in the district court that the reliability of the devices along
a route is inferable from a trace-route result. See J.A. 2030,
2430–33.
According to the specification, comparing trace-route
results “will provide a hierarchical estimate of a plurality
of most likely ‘electronically best performing’” nodes and
routes. ’195 patent, col. 7, lines 12–14. Low latency or
fewer hops (in evaluating nodes and routes) should be fa-
vored—the former improves the user experience, and the
latter reduces inefficiencies associated with loss of data in
transmission (“packet loss”). See id., col. 2, lines 36–46.
The specification explains, for instance, that a particular
node for ultimate client delivery (with a particular route to
it) is “best . . . since the network latency is only 77 [milli-
seconds],” as compared to an alternative node (with an al-
ternative route) having a latency of 189 milliseconds. Id.,
col. 8, lines 15–26; see id., col. 7, lines 42–55. But, in an-
other exemplary comparison of trace routes, a route is
“most efficient” not only because “latency is low,” but also
because “the node is within one network hop to [the] client,”
reducing “packet loss and unacceptable delay.” Id., col. 8,
lines 27–42.
The specification further teaches that criteria other
than those reported in trace-route results may be relevant
to the analysis of which nodes or routes are best, but it does
not explain which factors ought to be considered or how to
balance them. For instance, having produced trace-route
results, operators of the intelligent distribution network
may “assign node-client mappings” (that is, select best
nodes) with reference to “reasons intrinsic to their own op-
eration such as time of day or other variances.” Id., col. 8,
lines 56–58. And an index of “best performing” nodes for a
given client may be compiled by weighing factors such as
cost, “network bandwidth, historical performance, . . . and
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 5
other factors constituting ‘quality of service’ attributes.”
Id., col. 11, line 52 through col. 12, line 3.
For the ’426 patent, all independent claims—claims 1,
2, and 17—recite determining “best,” “best situated,” or
“optimal” nodes or routes. ’426 patent, col. 17, line 32
through col. 18, line 16; col. 18, line 57 through col. 19,
line 17. For the ’195 patent, independent claim 13 (on
which claims 14–18 depend), independent claim 19, and de-
pendent claim 2 have similar limitations. See ’195 patent,
col. 17, lines 64–67; col. 18, lines 30–53; col. 19, lines 1–32.
MediaPointe agreed at oral argument that there is “no
meaningful difference” among those limitations for pur-
poses of this appeal. Oral Arg. 12:51–13:06, https://www.
cafc.uscourts.gov/oral-arguments/24-1571_10092025.mp3.
Independent claim 1 of the ’426 patent is representa-
tive for purposes of the indefiniteness issue before us:
1. A system comprising:
a management center;
a plurality of nodes configured to: relay a continu-
ous stream of data from a content provider to a first
client in response to an initial request for the con-
tinuous stream of data, replicate the continuous
stream of data, and transmit the replicated stream
of data to at least one other client;
wherein the management center comprises a map-
ping engine that is configured to map trace
routes between the management center, at
least one of the nodes, and at least the first
client so as to determine one or more optimal
routes from the management center to the first cli-
ent via the at least one of the nodes, and configured
to direct a node relaying the continuous stream of
data from the content provider to the first client to
replicate the continuous stream of data from the
content provider, in response to subsequent
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 6
requests for the continuous stream of data, while
the node is relaying the continuous stream of data
from the content provider to the first client, and
transmit the replicated stream of data to the at
least one other client in response to the subsequent
requests for the continuous stream of data; and
wherein the management center is configured to
downgrade lower priority clients from a higher
quality of service network link to a less optimal net-
work link when a higher priority client requests
use of the higher quality of service network link.
’426 patent, col. 17, lines 32–59 (emphasis added).
Claims that lack such a limitation—claims 1, 3–4, and
6–7 of the ’195 patent—are at issue for the noninfringe-
ment question before us. Claim 1 is representative:
1. A method comprising:
[a] receiving an initial request for media con-
tent from a first client, the request being re-
ceived by a management center;
[b] directing the first client to a node that is se-
lected to relay a content stream from a content pro-
vider to the first client by using a mapping engine
that maps trace routes between the management
center, the node, and the first client, the first client
being directed to the node by the management cen-
ter;
[c] relaying the content stream from the content
provider to the first client via the selected node;
[d] replicating the content stream for other clients
during the relaying of the content stream at the se-
lected node, in response to the subsequent requests
for the media content from the other clients, the
other clients connected to the selected node based
on an identification that the selected node is
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 7
already relaying the content stream from the con-
tent provider to the first client; and
[e] transmitting the replicated content stream from
the selected node to at least one other client in re-
sponse to the subsequent requests for the media
content.
’195 patent, col. 17, lines 42–63 (emphasis added).
B
In September 2022, Akamai sued MediaPointe for a de-
claratory judgment of noninfringement of the ’426 and ’195
patents. The next month, MediaPointe counterclaimed for
infringement of both patents. Akamai then counterclaimed
for declaratory judgment of invalidity of all claims of both
patents.
The issue of indefiniteness now before us arose during
claim-construction proceedings, which resulted in a July 7,
2023 opinion of the district court. See Akamai Technolo-
gies, Inc. v. MediaPointe, Inc., No. 2:22-cv-6233, 2023 WL
7386057 (C.D. Cal. July 7, 2023) (Claim Construction Or-
der). Akamai argued that the claim limitations reciting
“best” or “optimal” routes or “best situated” nodes were in-
definite. Id. at *4. MediaPointe argued that “optimal
routes” should be construed to mean “a path determined to
be among the most favorable under the circumstances
based on one or more characteristics.” Id. at *4–5. It ar-
gued that the “optimal”/“best” limitations were not indefi-
nite because the specification teaches a relevant artisan
how to generate trace-route results and grounds the words
“best” and “optimal” in the numerical, objective trace-route
results, including latency, number of hops, and transmis-
sion reliability. Id.; see also J.A. 2028–30.
The district court held the pertinent claims to be indef-
inite, relying on the intrinsic record. Claim Construction
Order, at *5–7. Although the court “presume[d]” that
whether a route is optimal is “based on [ ] trace route
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 8
results,” as MediaPointe had argued, the court concluded
that the specification “fails to provide a procedure or any
other detail explaining how to consistently use [ ] hop[, ]la-
tency[, and] reliability information to determine ‘opti-
mal/best’ routes.” Id. at *6. Further, the “expanded range
of factors” listed in the specification as potentially relevant
to compiling an index of best performing nodes (i.e., net-
work bandwidth, historical performance, other quality of
service indicators, and so on) “confirm[ed],” in the court’s
view, “that the specification does not include bounds for the
terms ‘best’ and ‘optimal.’” Id. at *7 (citing ’426 patent, col.
11, line 45 through col. 12, line 22).
C
On June 22, 2023, shortly before the claim-construction
order issued, MediaPointe served its final infringement
contentions on Akamai. See J.A. 2918–19. After issuance
of the Claim Construction Order, which invalidated various
asserted claims, the parties proceeded with litigation over
the surviving claims, specifically, claims 1, 3–4, and 6–7 of
the ’195 patent. See id.; J.A. 104–14. Certain materially
undisputed facts, explained in testimony by MediaPointe’s
technical expert Dr. Aviel Rubin and Akamai’s technical
expert Dr. James Kurose, frame the dispute about infringe-
ment resolved by the district court and now before us.
Akamai’s Internet infrastructure, where the alleged in-
fringement occurs, has three components relevant here:
(1) Domain Name System (DNS) servers, (2) edge servers
that relay media content to clients, and (3) a functionality
called “Mapper.” See J.A. 3313–16 ¶¶ 46–52, 3607–
10 ¶¶ 130–144 (both parties’ expert reports). The DNS
servers carry out the Mapper functionality, but the edge
servers do not. See J.A. 3362–64 ¶¶ 106–09 (Kurose re-
port); J.A. 3697 (Rubin deposition); see MediaPointe Open-
ing Br. at 64. A user who wants to obtain streamed media
content enters a web address into the user’s browser, and
that action results in a DNS query being sent to Akamai’s
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 9
DNS servers (where Mapper functions are performed). J.A.
2653 (Rubin deposition); J.A. 3317–24 ¶¶ 54–61 (Kurose
report). The DNS query asks the DNS servers to translate,
into an IP address, the domain name that was part of the
user-entered web address. J.A. 3374–75 ¶ 118 (Kurose re-
port); J.A. 3607 ¶ 130 (Rubin report). Akamai’s Mapper
then assesses the user’s location in order to identify nearby
edge servers. J.A. 3329 ¶ 66 (Kurose report); J.A.
3608 ¶ 135 (Rubin report).
Critically, as MediaPointe’s expert conceded, the DNS
query in that process does not identify the content the user
wants, and the DNS servers (hence Mapper) receive no
other messages from the user’s computer. See J.A. 2643–
45, 2657 (Rubin deposition); Oral Arg. 17:15–27 (Me-
diaPointe’s counsel agreeing that “Mapper never knows
what the specific content is”); J.A. 3373 ¶ 116 (Kurose re-
port). The DNS servers send an IP address for an edge
server selected by Mapper back to the user’s computer,
which uses the provided IP address to connect to the edge
server. J.A. 3333–34 ¶ 72 (Kurose report); 3607 ¶ 131 (Ru-
bin report). Finally, the user’s computer sends a hypertext
transfer protocol (HTTP) message to the edge server to re-
quest a data stream containing the content (i.e., a “content
stream”), and it is that HTTP message which identifies the
content the user wants to stream. J.A. 2657 (Rubin depo-
sition); J.A. 3334–35 ¶ 73 (Kurose report). The edge server
responds by providing the content stream. See J.A. 3335–
36 ¶¶ 74–75 (Kurose report); 3607 ¶ 132 (Rubin report).
In its June 2023 final infringement contentions, Me-
diaPointe specified an Akamai product called “Global Traf-
fic Management” as being the “management center”
required by claim 1 of the ’195 patent and performing the
claimed method. J.A. 2923–27, 2929. Fact discovery closed
on July 28, 2023, and MediaPointe served its opening ex-
pert report (the Rubin report) on Akamai on August 21,
2023. Akamai Technologies, Inc. v. MediaPointe, Inc.,
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 10
No. 2:22-cv-6233, 2024 WL 608015, at *1 (C.D. Cal. Jan. 3,
2024) (Exclusion Order). The Rubin report, unlike the
June Final Infringement Contentions, opined that it was
actually Mapper that was the management center of claim
1. See id. at *1–2; J.A. 2753–54 n.9, 2756 ¶ 167. That
change from the previous reliance on Global Traffic Man-
agement gave rise to the untimeliness-based exclusion rul-
ing now before us.
The Rubin report also elaborated on MediaPointe’s the-
ory of how Akamai’s products satisfy ’195 limitation 1[a].
Dr. Rubin opined that the receipt of a DNS query by Map-
per’s DNS servers is a receipt of a request for media content
within the meaning of that limitation, stating that “the
end-user (a first client) initiates a request for content, for
instance, by entering a [uniform resource locator (URL)] in
his or her browser,” J.A. 3615 ¶ 166, and “‘Mapper’[ ] re-
ceives the request for content . . . [which] is initiated by a
DNS query,” id. ¶¶ 167–68. When deposed on that point,
Dr. Rubin explained his view that “a DNS query being re-
ceived by the [M]apper [ ] related to [a] user’s request . . .is
the [M]apper receiving the request for the content.” J.A.
2639; see also J.A. 2643 (“[I]n the context of a user making
a request for content . . . that DNS query is also a request
for content.”). But he also agreed that “a DNS query itself
is not the request for content described in the ’195 patent,”
J.A. 2629, and stated that a DNS query is not per se a re-
quest for content, noting that not every such DNS query
results from a user’s attempt to stream media content, see
J.A. 2639–40.
On October 16, 2023, following Akamai’s deposition of
Dr. Rubin and production of its own technical expert re-
port, Akamai moved under Rule 37(c) of the Federal Rules
of Civil Procedure to strike the portions of Dr. Rubin’s re-
port accusing Mapper as untimely, Exclusion Order, at *1;
J.A. 108, and, separately, moved for summary judgment of
noninfringement of claims 1, 3–4, and 6–7 of the ’195
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 11
patent, Akamai Technologies, Inc. v. MediaPointe, Inc., 709
F. Supp. 3d 1058, 1060 (C.D. Cal. 2024) (Summary Judg-
ment); J.A. 108. On January 3, 2024, the district court
granted both motions. See Exclusion Order, at *1–2, 5;
Summary Judgment, 709 F. Supp. 3d at 1060–61.
The district court’s grant of summary judgment of non-
infringement rested on two independent, alternative
grounds. First, the court held that, because the portions of
the Rubin report pertaining to Mapper had been stricken,
MediaPointe had no evidence that Akamai’s technology
met limitation 1[a], so could not prove infringement. Id. at
1064–65. Second, the district court held that, even with
the excluded infringement theory considered, Me-
diaPointe’s evidence failed to create a fact issue about
whether Mapper meets limitation 1[a]. Id. at 1064–67.
Regarding the latter ground, Akamai argued that Me-
diaPointe’s evidence at most established that two mes-
sages—a DNS query and an HTTP request—go to
Akamai’s systems; that, of those two messages, only the
DNS query goes to Mapper; and that Dr. Rubin had con-
ceded that a “DNS query itself is not the request for con-
tent” of limitation 1[a], such that MediaPointe could not
prove that Mapper receives a request for media content.
J.A. 2592–93 (quoting J.A. 2629 (Rubin deposition)). Me-
diaPointe, in opposition, argued that Akamai was belatedly
arguing for a construction limiting “request for media con-
tent” to an HTTP message, when the term (like all terms
not explicitly construed) was to receive its ordinary mean-
ing. J.A. 3547–52; see Claim Construction Order, at *11.
Further, according to MediaPointe, one ordinary sense of
“request for media content” is a user entering a URL, and
a request in that sense is “received” when “Mapper under-
stands that the user has requested media content . . .
[which is] ‘when the [M]apper receives a DNS query that’s
part of a request for content.’” Opposition to Akamai’s Mo-
tion for Summary Judgment at 16, Akamai Technologies,
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 12
Inc. v. MediaPointe, Inc., No. 2:22-cv-6233 (C.D. Cal. Oct.
30, 2023), ECF No. 152 (quoting J.A. 2641 (Rubin deposi-
tion)).
The district court rejected MediaPointe’s arguments.
Citing Dr. Rubin’s testimony, the district court reasoned
that “DNS queries, alone, cannot be the requests for media
content” required by limitation 1[a]. Summary Judgment,
709 F. Supp. 3d at 1065 (citing J.A. 2628–29, 2645, 2653–
54). And “no evidence show[ed] that [Akamai’s] DNS serv-
ers, and thus Mapper, receive some other type of infor-
mation that could comprise a request for media content.”
Id. Indeed, the court found that the undisputed facts es-
tablished that DNS servers cannot receive anything other
than DNS queries. Id. at 1066–67 (citing J.A. 2628–29,
2653–54). Thus, the court found that there was no claim-
construction question to resolve and granted summary
judgment to Akamai because, even on MediaPointe’s un-
derstanding of a request for media content as a user’s en-
tering a URL, MediaPointe’s evidence failed to show how
such a request is “received by a management center,” as
required by limitation 1[a]. Id.; see id. at 1062.
The district court, on February 9, 2024, entered a final
judgment of invalidity for indefiniteness of all claims of the
’426 patent and claims 2 and 13–19 of the ’195 patent, as
well as a final judgment of noninfringement covering all
remaining asserted claims of the ’195 patent. J.A. 1–3. It
dismissed all remaining claims and counterclaims as moot.
Id. MediaPointe timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(1).
II
A
MediaPointe challenges the district court’s holding
that the claims containing the “optimal”/“best” claim limi-
tations were invalid, under what is now 35 U.S.C. § 112(b),
for indefiniteness. (The present case is governed by the
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 13
pre-2011 provision, 35 U.S.C. § 112 ¶ 2 (2006), but the stat-
utory standards remain the same.) We decide the issue de
novo, as the district court’s ruling, properly in this case,
rested only on intrinsic evidence. Teva Pharmaceuticals
USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331–33 (2015).
“[A] patent’s claims, viewed in light of the specification
. . .,” must “inform those skilled in the art about the scope
of the invention with reasonable certainty.” Nautilus, Inc.
v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014). The
language at issue here plainly is language of degree with a
facially discretionary standard. “[T]he written description
is key to determining whether a term of degree is indefi-
nite.” Sonix Technology Co. v. Publications International,
Ltd., 844 F.3d 1370, 1378 (Fed. Cir. 2017). A term is not
definite merely because the specification “identif[ies] some
standard for measuring the scope of the [term].” Interval
Licensing LLC v. AOL, Inc., 766 F.3d 1364, 1370–71 (Fed.
Cir. 2014) (internal quotation marks and citation omitted)
(emphasis in original). Language of degree, like the lan-
guage at issue here, is indefinite unless, “when read in light
of the specification and the prosecution history, [it] pro-
vide[s] objective boundaries for those of skill in the art.” Id.
at 1371; see also Datamize LLC v. Plumtree Software, Inc.,
417 F.3d 1342, 1350–51 (Fed. Cir. 2005). We conclude that,
as the district court correctly held, the patents here do not
give the required objective boundaries for determining
what is “optimal” or “best.”
MediaPointe argues that the claims themselves define
an objective standard for measuring what is optimal or
best, because each such claim includes language requiring
the use of trace routes. MediaPointe Opening Br. at 25–30
(citing Sonix, 844 F.3d at 1377–78); see, e.g., ’426 patent,
col. 17, lines 40–44 (reciting “a mapping engine that is con-
figured to map trace routes . . . so as to determine one or
more optimal routes . . .”). But that claim requirement is
not enough. It “does not provide a reasonably clear and
exclusive definition” of “optimal”/“best” or, therefore,
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 14
provide “an objective boundary.” Interval Licensing, 766
F.3d at 1373 (emphasis added).
The requirement to use trace routes is, first of all, not
exclusive. As a matter of ordinary syntax, the claims re-
quire considering at least, but not only, trace-route results.
See, e.g., ’426 patent, col. 18, lines 65–67. The claims do
not say that the only factors in determining what is optimal
or best are trace-route results.
The specification explicitly confirms the absence of
such a restriction. It states that, after generating trace-
route results, but before “a client is assigned a ‘best’ or
‘nearest’ node,” an intelligent distribution network opera-
tor may consider “reasons intrinsic to their own operation
such as time of day or other variances” in making such as-
signments. ’195 patent, col. 8, lines 43–61. Similarly, the
specification discloses a “preferred embodiment” in which
“‘best performing’ nodes” may be determined with refer-
ence to “various factors” not limited to trace-route results.
Id., col. 11, line 52 through col. 12, line 3. Indeed, Me-
diaPointe’s own proposed claim construction before the dis-
trict court illuminated the open-endedness of the inquiry.
See Claim Construction Order, at *4 (acknowledging Me-
diaPointe’s proposed construction of “optimal routes” as “a
path determined to be among the most favorable under the
circumstances based on one or more characteristics” (em-
phases added)).
In addition, the requirement to rely in part on trace-
route results—which report hops, latency, and (indirectly)
reliability—itself is not “reasonably clear.” Interval Licens-
ing, 766 F.3d at 1373. A claim term, even if it refers to
certain objective measures, is indefinite if it “might mean
several different things [but] no informed and confident
choice is available among the contending definitions.” Id.
at 1371 (quoting Nautilus, 572 U.S. at 911 n.8). That is so
here, where, although what route is best depends on hops,
latency, and reliability, MediaPointe admits that the
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 15
patent provides no guidance about which measure, or what
combinations of measures, to rely on when they diverge.
See J.A. 2414 (MediaPointe’s counsel stating to the district
court that the claims “just teach determining an optimal
route based on mapping of trace routes”).
The specification itself shows that hops and latency, in
a given case, could indicate different “best” routes. Indi-
vidual devices along a route may have an “intrinsically
slow response” or may be “heavily loaded with computa-
tional tasks.” ’195 patent, col. 7, lines 58–63. When a node
fails, the specification instructs the operator to direct re-
quests to the “next nearest node” in a fashion similar to
selecting “the best performing nodes” to avoid “the problem
node.” Id., col. 15, line 37 through col. 16, line 18. Those
disclosures contemplate that the shortest path in hops may
not have the lowest latency, and they provide guidance in
the extreme case of a node failure to prioritize latency, but
they are silent about what to do when a node is merely
slow. See id.
We have repeatedly said that when “multiple methods”
for determining whether a claim limitation is met “lead[ ]
to different results without guidance . . . as to which
method should be used,” the claim is indefinite. Dow
Chemical Co. v. Nova Chemicals Corp. (Canada), 803 F.3d
620, 634 (Fed. Cir. 2015); see Teva Pharmaceuticals USA,
Inc. v. Sandoz, Inc., 789 F.3d 1335, 1344–45 (Fed. Cir.
2015). MediaPointe identified no sufficient guidance.
When the district court noted the apparent potential dis-
parity between hops and latency results, MediaPointe
speaking only through counsel, said only that the two met-
rics “tend to run together” and that an operator “would be
looking at both.” J.A. 2413–14; see also J.A. 2411 (Me-
diaPointe’s counsel conceding to district court that hops,
latency, and reliability “[in] any given instant . . . may not
[ ] line up perfectly”). MediaPointe takes the same position
on appeal. See MediaPointe Opening Br. at 35 (“[H]ops and
latency typically rise and fall together.”). Those lawyer
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assertions do not erase the specification’s suggestion that
latency and hops may diverge, so do not solve the indefi-
niteness problem.
Finally, MediaPointe suggests, for the first time in its
reply brief, that “it is not necessary to identify which of
[hops, latency, or reliability] must be prioritized,” because
any limitation containing an “optimal”/“best” term is met
whenever “one maps and compares the outputs of trace
routes to determine the ‘optimal’ or ‘best’ route.” Me-
diaPointe Reply Br. at 5. That untimely argument is for-
feited. See Norman v. United States, 429 F.3d 1081,
1091 n.5 (Fed. Cir. 2005) (“Arguments raised for the first
time in a reply brief are not properly before this court.”);
Oral Arg. at 5:07–6:25 (MediaPointe’s counsel conceding
that this is “another argument” beyond those made in its
principal brief). Regardless, MediaPointe is wrong. Its
reading of “optimal”/“best” nullifies those very terms—if
one need only map and compare trace routes to infringe,
“optimal” and “best” add nothing to the claim, a disfavored
result. See, e.g., Bicon, Inc. v. Straumann Co., 441 F.3d
945, 950–51 (Fed. Cir. 2006) (“[C]laims are interpreted
with an eye toward giving effect to all terms.”) (collecting
cases). MediaPointe has thus failed to show that the dis-
trict court erred in holding the “optimal”/“best” claim terms
indefinite.
B
MediaPointe challenges the district court’s grant to Ak-
amai of summary judgment of noninfringement of the ’195
patent’s claims 1, 3–4, and 6–7. The grant of summary
judgment rested on two independently sufficient grounds:
(a) exclusion of necessary proposed testimony from Dr. Ru-
bin; and (b) insufficiency of all the evidence even with
Dr. Rubin’s proposed testimony. MediaPointe challenges
both grounds, and we may affirm the judgment of nonin-
fringement on either ground. We determine that the dis-
trict court did not err in holding that, even with Dr. Rubin’s
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proposed testimony included, i.e., treating Mapper as the
claim-required management center, the record did not cre-
ate a genuine dispute of material fact. We do not reach the
challenge to the exclusion order.
We review a district court’s summary judgment ruling
“under the law of the regional circuit, here, the Ninth Cir-
cuit,” Apple Inc. v. Wi-LAN Inc., 25 F.4th 960, 974 (Fed.
Cir. 2022) (citation omitted), which reviews a “grant of
summary judgment de novo, viewing the evidence in the
light most favorable to the non-moving party and drawing
all reasonable inferences in its favor,” Bell v. Wilmott Stor-
age Services, LLC, 12 F.4th 1065, 1068 (9th Cir. 2021). We
may affirm the judgment (though not expand the relief) on
any ground supported by the record. See Atel Financial
Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003);
Glaxo Group Ltd. v. TorPharm, Inc., 153 F.3d 1366, 1370–
71 (Fed. Cir. 1998).
MediaPointe’s challenge on the issue we are deciding
rests on the idea that the district court implicitly, and in-
correctly, construed limitation 1[a] of claim 1 of the ’195
patent, which requires “receiving an initial request for me-
dia content from a first client, the request being received
by a management center.” ’195 patent, col. 17, lines 43–45.
But that limitation, under the unchallenged claim con-
struction, was to be given its ordinary meaning. See Claim
Construction Order, at *11. According to MediaPointe,
there are two reasonable ordinary understandings of a “re-
quest for media content”: (1) “a user’s attempt to access me-
dia content,” MediaPointe Opening Br. at 68, and (2) “a
computing message, like an HTTP request,” id. at 70; see
id. at 65. MediaPointe contends that the district court ig-
nored the first understanding in favor of the second, nar-
rower one. Id. at 67. When the term is given the broader
of those understandings, MediaPointe asserts, relying on
its expert testimony, that Mapper receives a client’s re-
quest for content when it receives a DNS query “related to
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th[e] user’s request” at the browser. Id. at 68 (citing J.A.
2639).
All of MediaPointe’s noninfringement arguments on
this ground thus hinge on the proposition that a “user’s at-
tempt to access media content”—rather than only a partic-
ular communication received by the management center—
is within the ordinary meaning of limitation 1[a], as a rel-
evant artisan would understand that limitation in context.
MediaPointe Reply Br. at 30–31. The district court in sub-
stance concluded otherwise. We agree.
When a claim limitation, like the one at issue here, is
not expressly construed, a jury is entitled to give that lim-
itation any reasonable meaning in determining, as a fac-
tual matter, what comes within its scope. See VLSI
Technology LLC v. Intel Corp., 87 F.4th 1332, 1341 (Fed.
Cir. 2023) (citing Avid Technology, Inc. v. Harmonic, Inc.,
810 F.3d 1040, 1048–49 (Fed. Cir. 2016), and Hewlett-Pack-
ard Co. v. Mustek Systems, Inc., 340 F.3d 1314, 1320–21
(Fed. Cir. 2003)). Here, therefore, the district court was
required to give the issue before us to the jury only if “re-
quest for media content” can reasonably bear Me-
diaPointe’s relied-on meaning—a “user’s attempt to access
media content.”
We conclude, however, that a relevant artisan could
not reasonably have understood the claim language, con-
sidered in the context of the patent, to refer to anything
other than a computer message. The claimed “request for
media content” must be “received by a management cen-
ter.” ’195 patent, col. 17, lines 44–45. This is unmistakably
language about messages, which are what are sent (or en-
tered) and received. The message is one that somehow
identifies content of interest (eventually to be delivered as
a “stream”). It is not language about the activity of “at-
tempts,” which are not “received by” a management center,
even if a message successfully attempted to be sent could
be received. The view now pressed by MediaPointe, if
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AKAMAI TECHNOLOGIES, INC . v. MEDIAPOINTE , INC . 19
raised before the claim-construction stage of proceedings,
would surely have provoked a dispute over the proper con-
struction of the “request for media content” term. That it
was not raised then, the matter being left to the ordinary
meaning, see Claim Construction Order, at *11, is strong
confirmation that there is no reasonable alternative in this
context to understanding “request” to mean a computer
message, not an “attempt.”
Specifically, the “attempt” MediaPointe identifies is
the act of entering a URL into the browser, not the entered
URL, see MediaPointe Opening Br. at 67–68, and the act of
entering a URL is not received by any device, much less the
management center. And even the URL that is entered
does not equate conceptually, and may not equate in fact,
to what is received by any device other than the one hosting
the browser. Here, indeed, the evidence shows that a URL
entered by a user into the browser is not received by Map-
per at the DNS servers; it is received only by the browser,
at which point various computing messages (including the
DNS query and the HTTP request described above) begin
going to and returning from devices other than the client’s
device. See J.A. 3317–18 ¶ 54–55 (Kurose report) (explain-
ing that a DNS server receives only the domain name of a
URL in a DNS query); J.A. 3615 ¶ 166 (Rubin report)
(“[T]he domain name of the URL is translated by the map-
ping system[.]” (emphasis deleted)). In short, the term “re-
ceived by a management center” confirms that “request” is
limited to, at most, those types of things capable of being
received by a management center, and as MediaPointe
acknowledges, it is not the “user’s attempt to access media
content” at the browser, but a related DNS query, that
reaches a management center. MediaPointe Opening Br.
at 68.
MediaPointe makes one, elliptical, argument for its un-
derstanding of an “attempt” as an ordinary meaning of “re-
quest.” Interpreting “request for media content” as a
computing message, it urges, would make the term
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equivalent to “request for a content stream,” which would
be improper because “content stream” is used elsewhere in
the claim but not in the phrase at issue here. See Me-
diaPointe Opening Br. at 71–72. This argument is merit-
less. There is no improper equating of different terms, as
“request for media content” is a broad reference to the con-
tent the user wants, while “request for a content stream”
identifies a form (“stream”) in which the content is deliv-
ered. And in any event, there is no basis for inferring that
“request” is something other than a computer message sent
and received.
The district court was therefore correct in finding no
triable issue of fact, even considering Dr. Rubin’s proposed
testimony, over whether this claim element was met by the
accused system and activity of Akamai.
III
For the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED
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