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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1-20-CV-22051-DPG

SISVEL INTERNATIONAL S.A.,

3G LICENSING S.A.,

and SISVEL S.p.A.,

Plaintiffs,

v.

HMD AMERICA, INC. 

and HMD GLOBAL OY,

Defendants.

REPORT AND RECOMMENDATION OF THE SPECIAL MASTER

REGARDING CLAIM CONSTRUCTION

This matter comes before the undersigned pursuant to the Court’s July 22, 2021 Order 

Appointing Special Master (DE-108) to conduct a Markman hearing and issue a Report and 

Recommendation as to the claim construction issues in this matter (the “Appointment Order”). 

Pursuant to the Appointment Order, the parties provided the undersigned with the claim 

construction briefing previously submitted to the Court (DE-47, 49, 50, 58, 59, 69, and 81 for the 

Plaintiffs and DE-48, 51, 60, 61, 70, 71, and 82 for Defendants), along with their Joint Claim Chart 

(DE-75) and their respective technology tutorial presentations prepared in support of their claim 

construction positions.

A virtual hearing was conducted on October 7, 2021 via Zoom (the “Hearing”). The 

Hearing commenced at 10:28 AM and ended at 3:50 PM and a transcript of the Hearing was 

prepared by a court reporter jointly retained by the parties. A copy of the Hearing transcript is 

being filed with this Report and Recommendation as Exhibit A. After the Hearing, Plaintiffs

requested an opportunity to submit supplemental briefing with respect to certain issues raised 

during the Hearing, which Plaintiffs submitted on October 19, 2021 (DE-122). In response to 

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Plaintiffs’ Supplemental Claim Construction Brief, Defendants submitted their Responsive 

Supplemental Claim Construction Brief on October 28, 2021 (DE-132). Having reviewed the

parties’ briefs and accompanying materials, and having listened to oral argument during the 

Hearing, I make the following report and recommend that the disputed claim terms be construed

as set forth below.

Person of Ordinary Skill in the Art (“POSITA”)

The parties agree that the person of ordinary skill in the art for purposes of these patents is 

as set forth in both of their expert reports:

one with a bachelor’s degree in electrical engineering, computer sciences, or 

telecommunications and wireless communications, along with three or more years of 

practical experience in the field. A combination of more experience in the field and less 

education or more education and less experience in the field would also suffice.

DE-49-1, ¶¶ 26-29 (Sisvel).

I believe that a POSITA would have had an undergraduate degree in Electrical Engineering, 

or a related field, and would have had a few years of experience working in the field of packet 

communication systems including mobile cellular systems such as GSM, GPRS, UMTS, or 

the associated packet communication protocols.

DE-51-12, ¶ 34 (HMD). The parties agreed at the Hearing that these POSITA positions were 

immaterially different.

Overview of Disputed Claim Constructions

The following summary of the parties’ claim constructions, setting forth both the claim 

terms and the parties’ respective constructions, is as follows1:

1 These summaries are set forth in the parties’ respective Opening Claim Construction Briefs (Doc. No. 47 and 48), with 

record citations as provided by the parties and without inclusion of the parties’ positions as to each other’s constructions.

To the extent the parties addressed each other’s positions in responsive and/or reply briefing or during the Hearing, such 

arguments have been incorporated into the undersigned’s review of the record and analysis of the issues raised herein.

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A. ’070 Patent: “a create communication connection default procedure” (Claim 

1)

Plaintiff Sisvel’s Proposed 

Construction

Defendant HMD’s Proposed Construction

No construction needed. Indefinite.

Alternatively: “a procedure triggered between a support 

node and a gateway device for creating a default PDP 

context” 

1. Plaintiffs’ Construction

The claim term “a create communication connection default procedure” does not require 

construction.

The ’070 patent discloses procedures for connecting a mobile station to a network. (’070 

patent at 3:25-26; 3:63-67; Bates Decl. at ¶ 47.) The patent teaches utilizing an “attach request” 

to join the network, but this is insufficient to receive calls. To originate or receive a call or data, a 

“PDP context activation” is also necessary. (’070 patent at 1:26-42; Bates Decl. at ¶ 47.) 

According to the ’070 patent, in one embodiment the attach procedure may be employed without 

being joined with the PDP context activation. (’070 patent at Fig. 4; Bates Decl. at ¶ 48.) In 

another embodiment the attach request is combined with a PDP context activation request. (’070 

patent at Fig. 3, 3:26-29; Bates Decl. at ¶ 47.) 

A POSITA would understand that the term “a create communication connection default 

procedure” occurs in both embodiments, either connecting the mobile station to the network using 

only an attach request or combining the attach request with the PDP context activation request. 

(Bates Decl. at ¶¶ 48-49.) Therefore, the specification provides reasonable certainty to those 

skilled in the art and the claim term is not indefinite. (Id. at ¶ 50.) A POSITA would understand 

the term refers to the process triggered by the sending of an attach request by a mobile station to 

the network, which may or may not include a combined PDP context activation request according 

to the invention of the ’070 patent. (Id. at ¶ 50.)

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2. Defendants’ Construction

This claim term appears in an element of claim 1 that refers to the user equipment (e.g., a 

cellphone) sending an attach request to a network. Appendix 1 at 1. For context, this claim term 

is shown with some surrounding words as follows: “the attach request is configured to trigger a 

create communication connection default procedure with a gateway device.” Id.

“A create communication connection default procedure” is not a known technical term. 

Rather, it was coined by the inventor of the ’070 patent and does not have an ordinary meaning in 

the field of cellular communications networks. Cooper Decl. ¶47. The specification does not 

define the term or provide any helpful explanation. Id. ¶48. The ’070 patent uses the term in three 

instances. In each instance, the specification only says that the “create communication connection 

default procedure” is triggered with a gateway device. Id.; Ex. 1 at 1:46-53 (“wherein the attach 

request is configured to trigger a create communication connection default procedure with a 

gateway device.”); Ex. 1 at 1:65-2:3, 2:14-21. 

With no guidance from the specification or prosecution history, the POSITA would not 

know what “a create communication connection default procedure” means. Cooper Decl. ¶¶49-

50. There are no criteria to determine whether the procedure should be defined based on the steps 

involved in the procedure, what network elements are involved in the procedure other than the 

gateway device, or even what the ultimate result of the procedure should be. Id. Therefore, there 

are no criteria that can be used to understand the boundaries of the “create communication 

connection default procedure.” Id.

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B. ’611 patent: “prioritizing the existing wireless data connection” (claim 1)

Plaintiff Sisvel’s Proposed 

Construction

Defendant HMD’s Proposed Construction

No construction needed. Indefinite.

1. Plaintiffs’ Construction

The claim term “prioritizing the existing wireless data connection” does not require a 

construction. HMD cannot show that this term is indefinite, and certainly cannot provide such 

evidence sufficient to meet its burden by clear and convincing evidence. 

The ’611 patent discloses a system and method for resolving contention among different 

applications running on a single phone. (’611 patent at 1:17-23; Bates Decl. at ¶ 51.) This 

invention allows higher priority data services such as corporate email or a personal information 

manager to take priority over lower priority data services such as messenger applications and web 

browsing. (’611 patent at 1:28-34; Bates Decl. at ¶ 51.) The ’611 patent provides numerous 

examples of contention parameters for prioritizing which application should release its data 

connection including “application priority” and “duration of connection.” (’611 patent at 2:54-57; 

Bates Decl. at ¶ 51.) 

This claim term is self-explanatory because prioritizing the existing wireless data 

connections according to the process described in the ’611 patent to determine which data 

connection should be released is consistent with the intrinsic evidence. Therefore, the specification 

provides reasonable certainty to those skilled in the art and the claim term is not indefinite. (Bates 

Decl. at ¶¶ 53-54.)

2. Defendants’ Construction

This claim term appears in the last clause of claim 1, which is shown for context as follows: 

“wherein selecting the application to release its existing data connection comprises prioritizing 

the existing wireless data connections.” Appendix 1 at 2. This term is indefinite.

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As a preliminary matter, “the existing wireless data connections” lacks an antecedent basis 

in the claim—that is, the preceding portion of the claim does not refer to or explain what “the 

existing wireless data connections” are. See Advanced Tech. Incubator, Inc. v. Sharp Corp., 

No. 07–CV–468, 2009 WL 4403314, at *25 (E.D. Tex. Jun. 26, 2009) (collecting cases finding 

claims invalid for lack of antecedent basis); MANUAL OF PATENT EXAMINING PROCEDURE

§ 2173.05(e) (9th ed., July 2020) (providing example of potentially-indefinite claim term that 

“refers to ‘said lever’ or ‘the lever,” without any “earlier recitation or limitation of a lever”). 

A claim term can be found not indefinite, despite the absence of explicit antecedent basis, 

“if the scope of a claim would be reasonably ascertainable by those skilled in the art.” See 

Energizer Holdings, Inc. v. ITC, 435 F.3d 1366, 1370-71 (Fed. Cir. 2006). However, that is not 

the case here. The disputed term refers to “prioritizing” a plurality of “the existing wireless data 

connections.” However, the preceding text of claim 1 refers to the mobile communications 

device’s singular “existing data connection,” without providing any information about what the 

other existing wireless data connections might be and how they could be prioritized. Under these 

circumstances, the lack in antecedent basis renders the term indefinite. 

Furthermore, “prioritizing the existing wireless data connections” has additional problems 

that make the term indefinite. Notably, the specification refers to applications having different 

priorities, but it does not explain how to prioritize the associated data connections to select which 

one to release. Absent that guidance, the term lacks reasonable clarity because it would cover 

situations where the released existing data connection is what the cellphone wants to release, and 

situations where the released existing data connection is what the cellphone does not want to 

release.

Dictionary definitions do not solve the problem. A common meaning of “prioritizing” is 

to “give high a priority to.” See Ex. 7, Prioritizing, RANDOM HOUSE UNABRIDGED DICTIONARY,

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at 1540 (2d ed. 1993). But this meaning makes no sense in the context of claim 1, as an “existing 

data connection” must be released to facilitate a new connection; to “give high priority to” multiple 

existing data connections is meaningless when one must be released. 

Another common meaning of “prioritizing” is “to arrange or do in order of priority.” Ex. 7, 

Prioritizing ̧ RANDOM HOUSE, supra, at 1540. The ’611 patent proposes limited criteria for 

ranking data connections—using “data traffic” and “duration of data connection”—and it fails to 

inform a POSITA of how such criteria could be used to “arrange” the connections “in order of 

priority.” See id. at 6:59-67; see also Stored Value Sols., Inc. v. Card Activation Techs., Inc., 499 

F. App’x 5, 14 (Fed. Cir. 2012) (claims to method for processing debit purchase transactions 

indefinite because specification did not disclose method using claimed authorization codes). Here 

again, absent that guidance, the term lacks reasonable clarity because it would cover situations 

where the released existing data connection is what the cellphone wants to release and what the 

cellphone does not want to release.

Finally, to the extent the ’611 patent addresses any “priority,” it is of the applications that 

use data connections, and not of data connections themselves. See, e.g., Ex. 2 at 1:26-34 

(discussing “priority” of data services); 2:54-61 (“application priority”); 6:40-46 (email 

application designated “high priority” while messaging application designated “low priority”); 

6:59-61 (applications having equal priority). But any construction of “prioritizing the existing 

wireless data connections” that depends on prioritizing applications (as opposed to their associated 

data connections) would be contrary to statements the applicant made to the PTO to obtain the 

’611 patent. 

During prosecution, the PTO rejected claims containing this limitation because the claims 

had been disclosed by the prior art Baggstrom patent. Cooper Decl. ¶69. The applicant responded 

to the rejection by distinguishing “the claimed embodiments” from the prior art because they 

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“involve prioritizing the existing data connections rather than the relative priority of the 

applications for purposes of selecting an application to release its data connection.” Id.; see id.

Attachment C (Excerpted File History of ’611 patent) at SISVEL-HMD004876. Such a statement 

during prosecution of a patent application is a clear and unmistakable “prosecution history 

disclaimer” that precludes the patent owner from later asserting that its patent covers the matter so 

disclaimed. Omega Eng’g, Inc, 334 F.3d at 1323-26. To obtain the ’611 patent, the applicant 

stated that prioritizing existing data connections is not based on the relative priority of the 

associated applications.

In view of the foregoing problems, the ’611 patent does not inform a POSITA about the 

scope of “prioritizing the existing wireless data connections” with reasonable certainty, and the 

term is indefinite. Nautilus, 572 U.S. at 901, 910.

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C. ‘383 patent (5 separate claims)

As a result of discussions during and after the hearing, the parties reached an agreement as 

to the construction of certain terms that were previously in dispute from the ‘383 Patent:

Claim Term Agreed Construction

Claim 1 “not considering” ... “as a candidate for 

reselection”

Not considered as a 

candidate for 

reselection

Claim 

17

“does not consider” ... “as a candidate for 

reselection”

Not considered as a 

candidate for 

reselection

Claim 

49

“considers ... as barred as a candidate for 

reselection”

Not considered as a 

candidate for 

reselection

Claim 

66

“excluding” ... “as a candidate for reselection” Not considered as a 

candidate for 

reselection

Claim 

82

“excludes” ... “as a candidate for reselection” Not considered as a 

candidate for 

reselection

As a result of the parties’ agreement as to these constructions, the undersigned recommends that 

the Court adopt them for these claim terms.

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D. ‘653 patent (2 terms)

1. “control means connected with the receiving means adapted to control 

the data transmission rate based on the data rate control command” (claim 

34)

Plaintiff Sisvel’s Proposed Construction Defendant HMD’s 

Proposed 

Construction

The term should be construed in accordance with 

pre-AIA 35 U.S.C. § 112, ¶ 6. 

Function: controlling the transmission rate based on the

data rate control command

Structure: a transmission data rate controller and 

transmission processor, in their entirety or portions 

thereof.

HMD contends that 

this term should be 

construed in 

accordance with 

pre-AIA 35 U.S.C. § 

112, ¶ 6. 

Indefinite. 

a. Plaintiffs’ Construction

The claims and specification delineate a function and structure for this claim element. 

HMD cannot show that these terms are indefinite, and certainly cannot provide such evidence 

sufficient to meet its burden by clear and convincing evidence. 

The invention of the ’653 patent is directed to “controlling data transmission (transfer) rates 

between a base station and mobile stations served by the base station so that data throughput is 

advantageously increased.” (’653 patent 1:8-12; see Lipoff Decl. at ¶ 29-30.) The parties agree 

that the term is a means-plus-function term pursuant to 35 U.S.C. § 112, ¶ 6. A POSITA would 

understand that the recited function is “controlling the transmission rate based on the data rate 

control command,” and that the corresponding structure is “a transmission data rate controller and 

transmission processor, in their entirety or portions thereof.” (Lipoff Decl. at ¶ 33.)

According to the specification of the ’653 patent, the transmission data rate controller 23 

controls the transmission data rate based on the transmission data rate adjustment information in 

the signals as processed by the demodulator 22. (’653 patent at Fig. 2, 22, 23, 24, 5:57-60; Lipoff 

Decl. at ¶ 34.) Figure 2 demonstrates this process, as the information passes from receiver in the 

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mobile 21, to demodulator 22, and then to the transmission data rate controller 23, which ultimately 

implements the command by issuing it to the transmission processor 24. (’653 patent at Fig. 2.) 

The ’653 patent further discloses this structure within the specification itself:

Also, the mobile according to an embodiment of the present invention can comprise an 

adjusting means operatively connected with the determining means, which adjusts a data 

transmission rate based upon a comparison result received from the base station in a

dedicated manner via a common channel, the comparison result being obtained by 

comparing the transmission energy level and the interference level of signals sent to the 

base station by the mobile stations. Here, the adjusting means can comprise the 

transmission data rate controller 23, and the transmission processor 24, in their entirety 

or portions thereof.

(Id. at 6:4-14.) The ’653 patent teaches that a signal from the demodulator 22 containing 

a rate control bit (“RCB”) is communicated to the data rate controller 23, which then adjusts the 

data rate in accordance with the information received either with the transmission processor 24 or 

separate from it. (Id. at 5:57-60, 6:4-14; 14:41-43; Lipoff Decl. at ¶ 34.) A POSITA would 

understand and be familiar with the fact that a data rate controller and a transmission processor 

would be hardwired logic and not a general purpose computer. (Lipoff Decl. at ¶ 34; see also, id. 

at ¶35)

Although not necessary, the ’653 patent discloses an algorithm for data rate control and 

transmission in multiple places within the specification. For example, Figure 4, a portion of the 

Figure 3 base station, demonstrates the steps by which a RCB is mapped to a symbol of either +1, 

-1, or 0. (’653 patent at Fig. 4, 41, 42, 43, 44; 8:44-46; Lipoff Decl. at ¶ 36.) The RCB mapped 

to a +1, -1 or 0, is then sent to the receiver 20 where the data transmission rate is increased, 

decreased, or left unchanged by the transmission data rate controller 23 and/or the transmission 

processor 24. (’653 patent at 6:4-14.)

The ’653 patent specification also lays out a more expansive step-by-step process by which 

data transmission rates a reverse link may be controlled that also encompasses the means by which 

the data rate transmission command is generated: 

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. . . a method for controlling a data transmission rate on a reverse link according to the 

present invention can comprise the steps of determining an interference level at a base 

station due to signals from the mobile stations served by the base station; determining a 

transmission energy level required for each mobile station; comparing the interference 

level with the transmission energy level to obtain a comparison result for each mobile 

station; and adjusting a data transmission rate for each mobile station based upon the 

comparison result sent via a common channel on a forward link to each mobile station in 

a dedicated manner.

(’653 patent at 10:37-48.) This process is illustrated by Figure 4 at 42, where the requisite 

comparisons are made and the symbols mapped to the RCB, and then transferred ultimately to the 

mux 44, and then via the Figure 3 base station to be received at Figure 2 by the reception processor 

21, demodulated by the demodulator 22, and then implemented by the data rate controller and/or 

the transmission processor. (Id. at Fig. 2, 21, 22, 23, 24; Fig. 4 at 42, 44.)

A POSITA would understand that if the RCB is mapped to a +1 symbol, this indicates to 

the receiving mobile that the data rate should increase, a -1 symbol indicates that the data rate 

should decrease and a 0 symbol indicates that the data rate should remain unchanged as that is a 

well understood construct. (Lipoff Decl. at ¶ 33.) However, the claim itself supports this 

understanding. Claim 34 recites “at least one rate control bit that is signal point mapped to at least 

+1, -1, and 0 to indicate whether the mobile station should increase, decrease or maintain its current 

data transmission rate.” (ʼ653 patent at claim 34.) As recited in the claim, a POSITA would 

understand that an RCB set to +1 means to increase the transmission rate, -1 means to decrease the 

transmission rate and 0 means to maintain the current transmission rate. (See, Lipoff Decl. at ¶ 

36.) 

This symbol mapping algorithm adequately discloses to a POSITA the means by which the 

transmission data rate controller 23 and transmission processor 24, in their entirety or portions 

thereof, control the data transmission rate based on the data rate control command. (Id. at ¶ 36.) 

Not only would this be understood naturally by a POSITA, it is reinforced by the language of the 

claims themselves. 

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The prosecution history further establishes that the ’653 patent adequately discloses an 

algorithm that would be understood by a POSITA for use in transmission data rate control. In the 

Examiner’s Notice of Allowance, the Examiner recognizes that the algorithm used by the ’653 

patent would be known to other POSITAs in the field for use in controlling data transmission rates. 

(See, Ex. 7 at ¶ 2 (finding that the POSITAs in the field would be familiar with control bits being 

signal mapped to +1, -1, and 0 to indicate increasing data rates, decreasing data rates, and 

maintaining current data rates, respectively).)

b. Defendants’ Construction

The parties agree that the “control means” is a means-plus-function term that is governed 

by 35 U.S.C. § 112, ¶ 6. The parties also agree that the function of the “control means” is 

“controlling the data transmission rate based on the data rate control command.” Cooper Decl. 

¶124. The parties disagree whether the generic specification disclosure satisfies the definiteness 

requirement for this means-plus-function term or whether a software algorithm is required. See, 

e.g., Blackboard, Inc., 574 F.3d. at 1384.

The “control means” term in claim 34 is indefinite. Where the disclosure for the meansplus-function is a general-purpose computer or microprocessor, the specification must disclose a 

software algorithm that transforms the general-purpose computer into a special purpose computer 

for performing the function. See, e.g., Blackboard, Inc., 574 F.3d. at 1384 (“Thus, in a meansplus-function claim in which the disclosed structure is a computer, or microprocessor, programmed 

to carry out an algorithm, the disclosed structure is not the general purpose computer, but rather 

the special purpose computer programmed to perform the disclosed algorithm.”) (citation omitted). 

The ’653 patent fails to disclose any software or algorithm, and therefore the “control means” term 

is indefinite. See id. at 1385-86 (affirming district court decision holding claim term indefinite for 

failing to disclose a software algorithm).

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As an initial matter, Sisvel essentially points to the specification’s disclosure of 

“transmission data rate controller 23” and a “transmission processor 24, in their entirety or portions 

thereof.” Cooper Decl. ¶126; Ex. 4 at 6:4-14. This specification disclosure amounts to a generalpurpose computer or microprocessor. Cooper Decl. ¶¶126, 127. Therefore, an algorithm is 

necessary. See GoDaddy.com, LLC v. RPost Commc’ns Ltd., No. CV-14-00126, 2016 WL 

212676, at *58 (D. Ariz. Jan. 19, 2016) (holding that an algorithm was required where the 

specification disclosed “controller 56” and off-the-shelf microprocessor); see also In re Qualcomm 

Litig., No. 17-cv-00108, 2018 WL 2229344, at *6-7 (S.D. Cal. May 16, 2018) (holding that an 

algorithm was required where the specification disclosed “microprocessor or software”).

First, a “transmission data rate controller 23” is just another name for an off-the-shelf 

processor that must be programmed. This controller is not any known circuitry (Cooper Decl. 

¶¶127-28) and is instead any “black box” that performs the claimed function. Id. ¶128. Likewise, 

though known, the “transmission processor 24” would require software in order to perform the 

claimed function. Id. ¶129. The Federal Circuit and district courts have found disclosure of an 

algorithm is necessary under such circumstances. See Blackboard, Inc., 574 F.3d. at 1383 (“The 

ACM is essentially a black box that performs a recited function. But how it does so is left 

undisclosed.”); see also GoDaddy.com, 2016 WL 212676, at *58; In re Qualcomm, 2018 WL 

2229344, at *6-7. 

The specification also does not disclose any software or algorithm that is used by the 

“transmission data rate controller 23” and “transmission processor 24, in their entirety or portions 

thereof” in order to perform the claimed function. Cooper Decl. ¶130. Sisvel’s proposed 

construction does not point to any software algorithm. Whereas here, the means-plus-function 

term requires disclosure of a software algorithm but none can be found, the term is indefinite. See, 

e.g., Blackboard, Inc., 574 F.3d. at 1385-86 (affirming district court decision finding lack of 

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software algorithm rendered claim term indefinite).

2. “at least one symbol of +1, -1, and 0” (claim 34)

Plaintiff Sisvel’s Proposed Construction Defendant HMD’s Proposed 

Construction

No construction needed. “at least any one symbol of +1, -1, and 

0”

a. Plaintiffs’ Construction

It is unclear what HMD’s proposed construction is meant to clarify. HMD has expressed 

the notion that there is ambiguity whether the term “at least one symbol of +1, -1, and 0” may be 

read to necessitate two or more symbols rather than one or more symbols. In Sisvel’s view, this 

“ambiguity” does not exist. The claim language is clear: “at least one symbol” indicates that there 

may be one or more symbols. HMD’s addition of the word “any” will not change the meaning of 

this term. “[A]t least any one symbol” still indicates that the number of symbols may be one or 

more. 

HMD’s proposed construction appears to do nothing but add unnecessary verbiage to the 

claim. In such cases, the law is clear that courts should not adopt constructions of claim terms that 

render language of the claims redundant or superfluous. Apple, Inc. v. Ameranth, Inc., 842 F.3d 

1229, 1237 (Fed. Cir. 2016); Power Mosfet Techs., L.L.C. v. Siemens AG., 378 F.3d 1396, 1410 

(Fed. Cir. 2004); see also, EMED Techs. Corp. v. Repro-Med Sys., 2019 U.S. Dist. LEXIS 93737 

at *19-20 (S.D. N.Y June 4, 2019) (finding that “substantially perpendicular to some point along 

the flexible delivery tube” would render the language recited in the claim “substantially 

perpendicular to the delivery tube” redundant, and thus construing the term by its plain and 

ordinary meaning). Having never articulated a valid rationale for its construction, HMD’s addition 

of the word “any” should be precluded as superfluous to the meaning of the claim term.

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b. Defendants’ Construction

The disputed claim term appears in the claim limitation shown below:

the data rate control command being formed of at least one rate control bit that is signal 

point mapped to at least one symbol of +1, -1, and 0 to indicate whether the mobile station 

should increase, decrease, or maintain its current data transmission rate;

Ex. 4 claims 34 and claim 37; Appendix 1 at 4. HMD’s construction will assist the jury in 

understanding the term. HMD’s proposed construction makes clear that the “one rate control bit” 

need not be mapped to each of the three symbols. Instead, the bit needs to be mapped to “any one” 

symbol. 

All three symbols are not required. There are many known signal mapping techniques. Cooper 

Decl. ¶¶115, 118; Ex. 4 at 4:22-38. The specification references one mapping that uses only two 

symbols ‘+1’ and ‘-1.’ Id. Certain dependent claims also reference only two symbols. Id. ¶119; 

Ex. 4 claims 35, 38, 40. Therefore, the claim term does not require that the “one rate control bit” 

is mapped to all three symbols. Instead, the bit could be mapped to any one symbol.

Additionally, the mapping of the +1, -1, and 0 symbols to the data rate is arbitrary. +1 does 

not necessarily mean to increase the data rate, -1 does not necessarily mean to decrease the data 

rate, and 0 does not necessarily mean to maintain the data rate. Id. at ¶120. In other words, any 

of the symbols could be mapped to correspond to an increase, decrease, or maintenance of the rate.

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E. ‘396 patent: “detected as missed” (claims 1 and 8)

Plaintiff Sisvel’s Proposed 

Construction

Defendant HMD’s Proposed Construction

No construction needed. Indefinite. 

1. Plaintiffs’ Construction

The claim term “detected as missed” does not require construction. HMD cannot show 

that this term is indefinite, and certainly cannot provide such evidence sufficient to meet its burden 

by clear and convincing evidence. Independent claims 1 and 8 include the claim language 

“detect[ing] whether at least one data block to be received from a transmitter is missed” and 

“start[ing] a timer when the at least one data block is detected as missed.” (’396 patent at 16:42-

45; 17:17-20.) HMD asserts only that the claim term “detected as missed” is indefinite, but fails 

to consider this phrase in the context of the entire term. 

The claim language itself confirms the relationship between these terms. The first phrase 

above indicates a condition check, namely detecting whether an expected data block is missed. 

The second phrase recites what happens when the condition is met, i.e. when the data bock is 

“detected as missed.” This straightforward process requires no construction, and would be readily 

understood by a POSITA. (Bates Decl. at ¶¶ 64-66.) 

The specification supports this reading. The “ARQ” process disclosed in the ’396 patent 

includes detecting missed data blocks as recited in claims 1 and 8. (Bates Decl. at ¶ 65.) In one 

embodiment, this involves detecting missing “PDUs” in a transmitted sequence. (’396 patent at 

8:67-9:3 (“The receiver 450 sends information on the RLC PDUs not received by the receiver 450 

to the transmitter 400 and the transmitter 400 then transmits the corresponding RLC PDUs.”); 

Bates Decl. at ¶ 64.) A gap in the buffer of the receiver or the sequence number of the PDU can 

indicate that a specific RLC PDU is not received. (’396 patent at 12:34-40; 14:11-15; Bates Decl. 

at ¶ 64.) 

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The ’396 patent further teaches that a timer is started when at least one data block is 

detected as missed. (’396 at 14:28-30 (“When a gap is generated in the buffer of the RLC entity, 

the timer is activated at once.”); Bates Decl. at ¶ 65.) When the timer expires, a status report is 

transmitted indicating receipt or non-receipt of a data block. (’396 patent at 8:29-32; 14:30-33; 

Bates Decl. at ¶ 65.) Thus, the specification further establishes reasonable certainty to those skilled 

in the art, and the claim term is not indefinite.

2. Defendants’ Construction

This claim term refers to the receiver starting a timer when a data block is detected as 

missed. For context, this term is shown with some surrounding words as follows: “starting a timer 

when the at least one data block is detected as missed.” See id., claims 1 and 8; Appendix 1 at 5.

“Detected as missed” is indefinite. The problem is that the specification of the ’396 patent 

says that a data block can be “detected as missed” under two contradictory conditions. Cooper 

Decl. ¶¶142-44. In one passage, the specification discusses a situation where a Protocol Data Unit 

(“PDU”) is detected as missed based on receipt of PDUs out of sequence. Id. PDU1 is received; 

then PDU3 is received, before receipt of PDU2. Id.; Ex. 5 at 14:38-41, FIG. 12. Because the 

receiver knows that PDU3 is out of sequence (i.e., “Since PDU2 having a sequence number lower 

than that of PDU3 does not exist”), it starts the jitter timer (“JT”). Id.; Ex. 5 at 14:40-44, FIG. 12. 

PDU2 is received later but before the timer expires, so the jitter timer stops. Id.; Ex. 5 at 14:45-

46, FIG. 12.

However, in another passage, the specification teaches that data blocks are detected as 

missed when they are received in sequential order, where PDU6 is received, then PDU7, and jitter 

timer is started. Cooper Decl. ¶143; Ex. 5 at 14:47-49 (“In (3), similarly to (1), since the ARQ 

entity received PDU6 having a sequence number smaller than PDU7, the HARQ jitter timer JT is 

activated”). This passage is consistent with claim 2, in which “detected as missed” covers 

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receiving data blocks in sequential order. Id. Claim 2 states, “wherein the at least one data block 

is detected as missed when a sequence number (SN) of a currently received data block is larger 

than a SN of a previously received data block.” Id. 

Thus, the specification of the ’396 patent teaches that a data block is “detected as missed” 

when data blocks are received out of sequential order, as well as the exact opposite, when they are 

received in sequential order. Cooper Decl. ¶144. Accordingly, a POSITA would not know with 

reasonable certainty when a data block is “detected as missed,” and the term is indefinite. Nautilus,

572 U.S. at 901, 910.

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F. ‘279 patent: “at an interval of a subframe period” (claims 1 and 11)

Plaintiff Sisvel’s Proposed 

Construction

Defendant HMD’s Proposed Construction

No construction needed. “at an interval of one subframe period”

1. Plaintiffs’ Construction

This claim term does not require construction. A POSITA would understand this term as 

used in the ’279 patent. (Bates Decl. at ¶ 67.) This is apparent from HMD’s own proposed 

construction, which merely changes the word “a” to “one” and adds nothing to the construction of 

the term. HMD’s attempt to limit this term to “one subframe period” is contrary to established 

caselaw, which as a rule treats “a” or “an” to mean “one or more.” Baldwin Graphic Sys., Inc. v. 

Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008) (“[t]hat ‘a’ or ‘an’ can mean ‘one or more’ is 

best described as a rule”). 

HMD’s construction should also be rejected because it improperly excludes embodiments 

from the specification. For example, Figure 2 demonstrates radio frames according to time 

division duplexing (“TDD”). (’279 patent at 5:50-51; Bates Decl. at ¶ 69.) In TDD each radio 

frame consists of two half frames. (’279 patent at 1:46; Bates Decl. at ¶ 69.) A POSITA would 

understand that in TDD, the interval of the SPS transmission configured by the RRC can include 

a two subframe period. (Bates Decl. at ¶ 69.) HMD’s proposed construction would exclude this 

embodiment, because it would limit the claims to embodiments with a single subframe period. It 

should therefore be rejected. See SynQor, Inc. v. Artesyn Techs., Inc., 709 F.3d 1365, 1378-79 

(Fed. Cir. 2013). There is no basis in the patent to limit the interval to an interval of just one 

subframe period, as proposed by HMD.

2. Defendants’ Construction

The ’279 patent is titled “Method and Apparatus for Indicating Deactivation of SemiPersistent Scheduling.” Ex. 6. The ’279 patent generally relates to deactivation of 

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telecommunications network resources. Cooper Decl. ¶149. A telecommunications network must 

allocate “resources” such as a radio frequency or a time slot that each individual cellphone can 

use. Id. The network must also deactivate these resources when the cellphone no longer needs 

them. Id. The purported “invention” of the ’279 patent is that the protocol format used to allocate 

network resources can also be used to deactivate network resources. Id. ¶¶150-153; Ex. 6 claims 1, 

11. However, in the case of deactivation, a field can be filled with ‘1s’ in order to indicate 

deactivation. Cooper Decl. ¶150.

HMD contends that the plain and ordinary meaning of the phrase “at an interval of a 

subframe period” means “at an interval of one subframe period.” In contrast, Sisvel argues that 

no construction is needed, apparently to create flexibility to argue later that the claimed interval 

can cover a period of multiple subframes (as opposed to one subframe). The plain meaning 

dictates otherwise. 

The disputed claim term appears in the phrase “performing, by a User Equipment (UE), a 

SPS transmission at an interval of a subframe period configured by a radio resource control 

(RRC) signal.” Ex. 6 claims 1 and 11. Appendix 1 at 6. The phrase indicates that the cellphone 

performs transmissions at one specific interval, known as a “subframe period.” A subframe is the 

resource (in this case a time period or slot) that is granted by the network to the cellphone. Id. at 

1:41-52; FIGs. 1 and 2. The plain meaning of the words “at an interval of a subframe period” is 

that the transmission occurs at a specific interval, and the period of that interval is one subframe. 

Sisvel’s position that no construction is needed for this term is unhelpful. Not construing 

this term could allow the jury to conclude incorrectly that the claimed interval can be of any 

duration (e.g., multiple subframes), as opposed to one subframe. Accordingly, Sisvel’s position 

should be rejected.

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Legal Standards

The meaning of language used in a patent claim is construed as a matter of law. Markman

v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370

(1996). The purpose of claim construction is to “determin[e] the meaning and scope of the patent 

claims asserted to be infringed.” Id. at 976; O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 

521 F.3d 1351, 1360 (Fed. Cir. 2008). It is a “bedrock principle” of patent law that the claims of a 

patent define the invention towhich the patentee is entitled the right to exclude. 02 Micro, 521 F.3d 

at 1360; Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (quoting Innova/Pure Water, 

Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111 (Fed. Cir. 2004)).

The words of a claim are generally given their ordinary and customary meaning as they

would have been understood by a person of ordinary skill in the art at the time of the invention.

Phillips, 415 F.3d at 1312-13. In some cases, the ordinary meaning may be readily apparent and

claim construction involves little more than the application of a widely accepted meaning of

commonly understood words. Id. at 1314.

“Claim construction is a matter of resolution of disputed meanings and technical scope, to

clarify and when necessary to explain what the patentee covered by the claims, for use in the

determination of infringement. It is not an obligatory exercise in redundancy.” United States

Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997). For this reason, “district

courts are not (and should not be) required to construe every limitation present in a patent's asserted 

claims.” O2 Micro, 521 F.3d at 1362. At the same time, when “the parties present a fundamental 

dispute regarding the scope of a claim term, it is the court’s duty to resolve it.” Id. In such a case, 

a “determination thata claim term ‘needs no construction’ or has the “plain and ordinary meaning’ 

may be inadequate when a term has more than one ‘ordinary’ meaning or when reliance on a term’s 

‘ordinary’ meaning does not resolve the parties' dispute.” Id., at 1361.

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The claims themselves and the context of the surrounding words can be “highly

instructive” in resolving the meaning of the term. Id. at 1314. Indeed, “a claim construction

analysis must begin and remain centered on the claim language itself, for that is the language the

patentee has chosen to ‘particularly point[] out and distinctly claim[] the subject matter which the

patentee regards as his invention.” Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc.,

381 F.3d 1111, 1116 (Fed. Cir. 2004). Other claims in a patent may also provide valuable

contextual cues for deciphering the meaning of a term. Id. If a limitation is present in a dependent 

claim, then there is a presumption that the limitation is not present in the parent claim. Id. at 1314-

15.

The claims must also be read in light of the specification. Markman, 52 F.3d at 979. Indeed, 

“the person of ordinary skill in the art is deemed to read the claim term not only in the context of 

the particular claim in which the term appears, but in the context of the entire patent, including the 

specification.” Phillips, 415 F.3d at 1313. “The construction that stays true to the claim language 

and most naturally aligns with the patent’s description of the invention will be, inthe end, the 

correct construction.” Id. at 1316. Consequently, the specification is always highly relevant to the 

meaning of a claim term: “Usually, it is dispositive; it is the single best guide to the meaning of a 

disputed term.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir. 1996); 

Phillips, 415 F.3d at 1314-17.

If the specification reveals a definition of a claim term that is different from how that

term would otherwise be used, then “the inventor’s lexicography governs.” See Phillips, 415 F.3d 

at 1316. Care must be taken, however, not to import limitations from the specification into the

claims. Id. at 1323. While the patentee is free to be his own lexicographer, any special

definition given to a word must be clearly set forth in the specification. Intellicall, Inc. v.

Phonometrics, Inc., 952 F.2d 1384, 1388 (Fed. Cir. 1982).

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The prosecution history of a patent should also be considered when construing the claims

of the patent. Phillips, 415 F.3d at 1317. The prosecution history provides evidence of how the

U.S. Patent and Trademark Office (“USPTO”) and the inventor understood the patent. Id.

Nonetheless, the prosecution history represents the ongoing negotiation between the USPTO and

the applicant, rather than the final product. Id. As such, the prosecution history may lack the clarity 

of the specification and may not be as useful for claim construction purposes. Id. In certain 

instances, however, the prosecution history may provide guidance of an applicant’s intentto

specifically limit the scope of a given claim term. Id.

Extrinsic evidence, such as dictionary definitions or expert testimony, may also be

considered when construing patent claims. Id. On its own, extrinsic evidence is unlikely to be

reliable in guiding the court’s claim construction and is less significant than the intrinsic record

in determining the meaning of claim language. Id. at 1318. Dictionaries and other external sources

can be useful in claim construction, “so long as the dictionary definition does not contradict any 

definition found in or ascertained by a reading of the patent documents.” Id. at 1322-23 (quoting 

Vitronics, 90 F.3d at 1584 n.6).

In some instances, the effort to interpret a claim limitation may result in the conclusion that 

the meaning is indefinite. 35 U.S.C. §112 requires “that a patent’s claims, viewed in light of the 

specification and prosecution history, inform those skilled in the art about the scope of the

invention with reasonable certainty. The definiteness requirement, so understood, mandatesclarity,

while recognizing that absolute precision is unattainable.” Nautilus, Inc. v. Biosig Instruments,

Inc., 572 U.S. 898, 910 (2014).

Patent claims, viewed in light of the specification and prosecution history, must inform 

those skilled in the art about the scope of the claimed invention with “reasonable certainty.” Id. at 

901, 910. While the definiteness requirement tolerates a measure of imprecision, patents must 

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provide “clear notice” of what is claimed, thereby “appris[ing] the public of what is still open to 

them.” Id. at 909 (internal quotations omitted); see also Halliburton Energy Services, Inc. v. M-I 

LLC, 514 F.3d 1244, 1249 (Fed. Cir. 2008) (“[T]he patent statute requires that the scope of the 

claims be sufficiently definite to inform the public of the bounds of the protected invention ....”). 

A lack of definiteness renders a claim (and its dependent claims) invalid, and the Court may not 

rewrite the claim to preserve its validity. See Nautilus, 572 U.S. at 902; Allen Eng’g Corp. v. 

Bartell Indus., Inc., 299 F.3d 1336, 1349 (Fed. Cir. 2002).

The indefiniteness inquiry is “inextricably intertwined with claim construction.” Atmel 

Corp. v. Info Storage Devices, Inc., 198 F.3d 1374, 1379 (Fed. Cir. 1999). A party challenging

claim definiteness bears the burden of proving indefiniteness by clear and convincing evidence.

Takeda Pharm. Co. v. Zydus Pharms. USA, Inc., 743 F.3d 1359, 1366 (Fed. Cir. 2014).

“Means-plus-function claiming occurs when a claim term is drafted in a manner that 

invokes 35 U.S.C. § 112 ¶ 6 [now 35 U.S.C. § 112(f)].” See Williamson v. Citrix Online, LLC, 

792 F.3d 1339, 1347-48 (Fed. Cir. 2015) (en banc in relevant part). 35 U.S.C. § 112 ¶ 6 (pre-AIA) 

states:

An element in a claim for a combination may be expressed as a means or step for 

performing a specified function without the recital of structure, material, or acts in 

support thereof, and such claim shall be construed to cover the corresponding structure, 

material, or acts described in the specification and equivalents thereof.

The presence of the word “means” (e.g., “control means”) creates a rebuttable presumption 

that Section 112 ¶ 6 applies. See Williamson, 792 F.3d at 1348-49; see also Biomedino, LLC v. 

Waters Techs. Corp., 490 F.3d 946, 949-50 (Fed. Cir. 2007) (holding that the claim term “control 

means” was drafted in means-plus-function form). 

When Section 112 ¶ 6 applies, the means-plus-function term is limited to “the 

corresponding structure ... described in the specification and equivalents thereof.” Blackboard, 

Inc. v. Desire2Learn Inc., 574 F.3d. 1371, 1382 (Fed. Cir. 2009). “Permitting an applicant to use 

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a broad means expression for claiming a functional limitation provided that the specification 

indicates what structure constitutes the means for performing the claimed function is often referred 

to as the ‘quid pro quo’ for the convenience of employing § 112, ¶ 6.” Biomedino, 490 F.3d at 

948 n.1. However, “[f]ailure to specify the corresponding structure in the specification amounts 

to impermissible pure functional claiming,” and the claim will be held invalid as indefinite. See 

Ergo Licensing, LLC v. CareFusion 303, Inc., 673 F.3d 1361, 1363-64 (Fed. Cir. 2012) (holding 

“controlling the adjusting means” invalid as indefinite where that specification disclosure of 

“control device” and “memory” failed to provide structure for performing the function).

Construction Analyses

1. The ‘070 Patent: “a create communication connection default procedure”

The limitation at issue in the ‘070 patent is “a create communication connection default 

procedure.” The claim limitation appears in claim 1 of the ‘070 patent:

1. An apparatus, comprising:

a user equipment, the user equipment being configured to:

send an attach request to a network, wherein the attach request is configured 

to trigger a create communication connection default procedure with a 

gateway device,

receive a radio bearer establishment request, and

generate a bearer establishment response.

In its brief, Sisvel proposed that the term is sufficiently clear and needs no construction:

A POSITA would understand that the term “a create communication connection default 

procedure occurs in both embodiments, either connecting the mobile station to the network 

using only an attach request, or combining the attach request with the PDP context 

activation request. (Bates Decl. at ¶¶ 48-49.) Therefore, the specification provides 

reasonable certainty to those skilled in the art and the claim term is not indefinite. (Id. at ¶ 

50.) A POSITA would understand the term refers to the process triggered by the sending 

of an attach request by a mobile station to the network, which may or may not include a 

combined PDP context activation request according to the invention of the ’070 patent. 

(Id. at ¶ 50.)

To the contrary, HMD contends that the disputed term is indefinite:

The specification does not define the term or provide any helpful explanation. Id. ¶48. The 

’070 patent uses the term in three instances. In each instance, the specification only says 

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that the “create communication connection default procedure” is triggered with a gateway 

device. Id.; Ex. 1 at 1:46-53 (“wherein the attach request is configured to trigger a create 

communication connection default procedure with a gateway device.”); Ex. 1 at 1:65-2:3, 

2:14-21.

With no guidance from the specification or prosecution history, the POSITA would not 

know what “a create communication connection default procedure” means. Cooper Decl.

¶¶49-50. There are no criteria to determine whether the procedure should be defined based 

on the steps involved in the procedure, what network elements are involved in the 

procedure other than the gateway device, or even what the ultimate result of the procedure 

should be. Id. Therefore, there are no criteria that can be used to understand the boundaries 

of the “create communication connection default procedure.” Id.

For the foregoing reasons, “a create communication connection default procedure” is 

indefinite because it fails to inform a POSITA about the scope of the claimed invention 

with reasonable certainty.

As an alternative to its indefiniteness argument, HMD proposed that a possible construction 

of this term is “a procedure triggered between a support node and a gateway device for creating a 

default PDP context.” In support of this construction, HMD argued that “a person of ordinary skill 

would know that this term, A, it must create a communication connection that derives straight from 

the language of the term itself; B, it must involve a gateway device, that’s the language that 

immediately follows the disputed term to explain the interaction with the system; and, three, it 

must be triggered by the attach request, that’s the language that immediately precedes the term. 

The specification doesn’t identify any other requirements for this term.” Exhibit A, p. 40, l. 18 –

p. 41, l. 3. HMD further argues that the disclosure set forth in Figure 5 of the ’70 patent meets 

these three requirements in its proposed construction:

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HMD further argues that the disclosure set forth in Figure 6 does not meet the same three 

requirements because “it doesn’t meet the requirement that the process, the create communication 

connection default procedure, is triggered by any attach request. Id., at p. 44, l. 12-14. 

Sisvel does not offer a construction of its own and instead contends that plain and ordinary 

meaning of the term is sufficient. However, at the oral hearing, Sisvel conceded, at least partially, 

that “HMD’s proposed construction ... is actually fine with us .... It adds some additional language 

which I think is a little redundant with the claim language, but overall, it’s fine .... There is really 

only one very simple dispute that exists with respect to this particular scope of this claim, now, 

and that is whether the claim, and in particular, this phrase would include what’s shown in the 

embodiment of Figure 5 and exclude the embodiment of Figure 6, or would it include both of those 

embodiments.” Exhibit A, p. 60, l. 12 - p. 61, l. 3.

With respect to Figure 6, Sisvel contents that “the PDP context activation is triggered by 

the attach message, but the PDP context activation occurs after the attach procedure.” Sisvel’s 

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Markman Slides, dated May 4, 2021, at p. 16. Figure 6 appears below:

Although Sisvel originally argued that HMD’s proposed construction is inconsistent with the 

claims, its position at oral argument makes clear that Sisvel views HMD’s proposed construction 

as reasonable, with the only dispute being whether the attach process triggers the create 

communication default procedure.

At the Hearing, the parties both responded to specific inquiries about this narrow dispute, 

with HMD arguing that the disclosure of Figure 6 should be excluded from its construction because 

of a distinction between a “triggering event” and a “preceding event,” Exhibit A, p. 68, l. 11 – p. 

69, l. 11, and Sisvel countering that the specification specifically provides, with respect to Figure 

6, as follows: 

I’m reading from the patent, the ‘070 patent at Column 5, Lines 59 through 63, “In the 

embodiment of Figure 6, the MS first performs a PS attach and then afterwards indicates 

that the default PDP contexts should be activated.”

So it’s basically all one process, of course the PS attach, that’s the attach procedure, that 

starts with the attach request. And the word “triggered,” it doesn’t really have an antecedent 

basis in the claim, it’s redundant with what the claim already says. We already know we 

have to prove that there is triggering of something B that is triggered by A. The claim says 

the attach request is configured to trigger a create communication default procedure so we 

already have to deal with that concept.

Exhibit A, p. 69, l. 17 – p. 70, l. 8. Ultimately, notwithstanding their briefing positions, the parties 

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agreed that the term “a create communication default procedure” has a viable construction. HMD’s 

proposed construction – “a procedure triggered between a support node and a gateway device for 

creating a default PDP context” – is consistent with the disclosure set forth in the specification. 

With respect to the applicability of this construction to the disclosures of both Figures 5 and 6, the

wording utilized in the specification supports Sisvel’s position that both Figures 5 and 6 fall within 

this construction. Although HMD argues that Sisvel’s arguments support a finding of 

indefiniteness, the undersigned disagrees.

In the specification, Figure 5 is identified as “the signaling data flow during a combined

attach and PDP context activation procedure, while Figure 6 is described in the specification as 

“another embodiment and illustrates the signaling data flow during a PS attach and subsequent 

default PDP context activation procedure” and discloses that the attach request occurs in advance 

of the create communication default procedure (“the MS first performs a PS attach and then 

afterwardsindicates that the default PDP context should be activated”), with the “Attach Request” 

step specifically distinguished.

HMD’s effort to distinguish the Figure 6 attach request as a “preceding event,” as opposed 

to a “triggering event,” is not supported by the language used to describe the embodiments 

disclosed in the descriptions of the data flows in Figures 5 and 6. Under both embodiments, the 

create communication default procedure does not occur absent the attach request This conclusion 

is further supported in the specification, particularly Figure 3 and its description:

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In Figure 3, part of an attach request messaging for attach and default PDP context activation is 

shown. Col. 2, l. 29-30. The Attach request is sent from the mobile station to the support node for 

initiating the attach procedure, which is, in the present invention, a combined attach and POP 

context activation request. Col. 3, l. 51-54. According to the specification, the embodiment of 

Figure 6 is distinguished as follows:

In the first embodiment shown in FIGS. 1 to 5, the default PDP context(s) are 

automatically activated at PS attach. In the embodiment of FIG. 6, the MS first performs 

a PS attach and then afterwards indicates that the default PDP context(s) should be 

activated. In both cases, the default PDP context information comes from the HLR.

Col. 5, l. 58-63 (emphasis added). Through its position, HMD appears to attempt to limit the 

“triggering event” language to the “automatically activated at PS attach” description used for the 

embodiment described in Figures 1 through 5. However, the embodiment of Figure 6 also discloses 

that the PS attach step leads to the activation of the default PDP context. Thus, both embodiments

show that the attach request is the triggering event.

Conclusion. The term “a create communication default procedure” should be construed, 

as the parties agree, as “a procedure triggered between a support node and a gateway device for 

creating a default PDP context.” The disclosures of Figures 5 and 6, with their accompanying 

descriptions in the specification, support this construction.

2. The ‘611 Patent: “prioritizing the existing wireless data connection”

The limitation at issue in the ‘611 patent is “prioritizing the existing wireless data 

connection.” This claim limitation appears in claim 1, which reads as follows:

1. A method of managing contention on a mobile communications device when a 

new wireless data connection between the mobile communications device and 

a wireless network is requested, the method, comprising:

determining if a further wireless data connection can be effected between the 

mobile communications device and a wireless network; and

selecting an application to release its existing data connection if a further 

wireless data connection cannot be effected between the mobile 

communications device and a wireless network, wherein selecting the 

application to release its existing data connection comprises prioritizing the 

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existing wireless data connections.

Sisvel contends that this claim limitation requires no construction, while HMD contends 

that the term is indefinite. 

At the Hearing, HMD argued two points in support of its indefiniteness position. First, 

using a collection of shoes having different colors and sizes, HMD attempted to analogize the step 

of prioritizing wireless data connections with organizing one’s shoe collection:

So imagine you were asked to, you know, prioritize your shoes, organize the shoes 

in your closet. You could organize them by color, and then within color you could organize 

them by size or you could organize them by size regardless of color. The third organization 

here might look like no organization at all but it might be the organization, the order in 

which you bought them. It might be the order in which you like them, but it might also be 

that you pass tossed them down the stairs and that's where they landed. Would each of 

these be prioritizing what suffices as prioritizing the order?

Some feel intuitively right but there is no boundary on the requirement. So the 

patent doesn't talk about shoes of course, the patent talks about data connections. It gives 

some examples of prioritizing data connections but there is no definition, no explanation 

of what prioritizing is supposed to be. The public just doesn't know whether its program, 

its procedure would fall within or outside the claim.

Exhibit A, p. 72, l. 23 – p. 73, l. 19; HMD’s Markman Slides, dated May 4, 2021, at p. 37.

Additionally, HMD argues that the term “the existing wireless data connections” has no antecedent 

basis, meaning that “there is no clear pointer as to which data connections are being prioritized.” 

Exhibit A, p. 75, l. 24 – p. 77, l. 2.

In support of its position that this claim limitation requires no construction, Sisvel pointed 

to the specification and the file history in its presentation at the Hearing:

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Sisvel’s Markman Slides at pp. 43, 45 (emphasis in original). Figure 5 of the ‘611 patent illustrates 

the process by which existing data connections are prioritized:

The flowchart illustrates a routine referred to as “Contention Manager” (start block 150). 

This routine is called when an unconnected data application operable on the MCD is 

opened and requests a PDP context (block 152). Upon the request, it is determined whether 

the MCD is capable of conducting an additional PDP context associated with the 

unconnected data application, then a PDP context is established for the unconnected data 

application between the MCD and the wireless network (block 156) and the routine in 

complete (end block 158). If at decision 154 the MCD is not capable of conducting an 

additional PDP context associated with the unconnected data application, then the 

contention manager performs an analysis of the contention parameter associates with the 

connected applications or both (block 160). Based upon the results of the contention 

parameter analysis, the contention manager selects the connected application that should 

have its PDP context released (block 164). A PDP context is then established between the 

MCD and the wireless network for the unconnected data application (block 156) and the 

routine in complete (block 158).

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‘611 patent at col. 5, l. 34-58. In addition, the specification of the ‘611 patent provides guidance 

as to the meaning of this claim limitation. For instance, the “Background” section of the ‘611 

patent includes the following discussion:

[A] mobile communications device may be used to provide certain high priority data 

services such as wireless extending a corporate email account, personal information 

manager or the like. Similarly, the same mobile communications device may also be used

to provide other lower priority data services such as messenger applications, web browsing 

or the like.

‘611 patent at col. 1, l. 29-34. Additionally, the ‘611 patent includes detailed discussion of the 

“methods and systems for resolving contention between applications operable on a mobile 

communications device that require data connections to a wireless packet data service network” 

and “the contention parameters may include application priority, data traffic, duration of current 

connection and the like.” Id. at col. 2, l. 8-11 and 56-58. Ultimately, the term “prioritizing the 

existing data connections” needs no construction. A POSITA would understand the meaning of 

the term based on the written description set forth in the ‘611 patent.

Conclusion. The term “prioritizing the existing data connections” needs no construction 

and should instead simply be given its plain and ordinary meaning.

3. ‘383 patent (5 separate claims)

As a result of discussions during and after the hearing, the parties reached an agreement as 

to the construction of certain terms that were previously in dispute from the ‘383 Patent. 

Accordingly, the undersigned recommends that the Court adopt the agreed constructions for these 

claim terms.

4. ‘653 patent (2 terms)

a. “at least one symbol of +1, -1, and 0”

Claims 34 and 37 of the ‘653 patent both include the following disputed claim limitation:

the data rate control command being formed of at least one rate control bit that 

is signal point mapped to at least one symbol of +1, -1, and 0 to indicate 

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whether the mobile station should increase, decrease, or maintain its current 

data transmission rate

(emphasis added). Sisvel submits that no construction of this claim limitation is required, while 

HMD argues that the claim limitation should be construed as “at least any one symbol of +1, -1, 

and 0,” the inclusion of the word “any” incorporated to assist the jury in understanding that the 

“one rate control bit” needs to be mapped to “any one” symbol. In its brief and again at the Hearing, 

HMD’s position is that “our concern is that one could read the claim to suggest that the one rate 

control bit needs to be mapped to all three symbols, that all three symbols have to be available for 

mapping or that it has to be mapped in a specific order, that +1 has to be increased, that -1 has to 

be decreased and that neither of those could be consistent with the patent specification.” Exhibit 

A, p. 168, l. 3-10. HMD also stated at the Hearing that “[w]e’re just trying to make it clear in case 

it gets before the jury, that there’s no confusion, the rate control bit can be mapped to any of these 

symbols and not all three symbols have to be available for mapping under this claim.” Id. at p. 

169, l. 3-7.

In response to HMD’s position, namely that the word “any” should be added for purposes 

of claim construction, Sisvel points to the plain language of the claims incorporating the claim 

limitation, using HMD’s own slide as an example:

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HMD’s Markman Slides at p. 65 (emphasis in original). As Sisvel argued at the Hearing “the actual 

claim language has a very, I think, straightforward parallelism to it. At least one rate control bit 

and you map that to at least one symbol. So the impression, I think, that’s pretty clearly conveyed 

is that there might only be one rate control bit and if there’s only one, it’s only going to be mapped 

to one of those symbol, +1, -1 or 0. If there is [sic, are] two of them, each one would be mapped 

to one of two of those symbols. If you have three of them, then each one would be mapped to one 

of those three symbols. I think that’s fairly straightforward.” In this case, Sisvel’s position is welltaken. The language of the claim specifically discusses that “at least one rate control bit that is 

signal point mapped to at least one symbol of +1, -1, and 0.” See, e.g., ‘653 patent, claim 34. The 

undersigned agrees with Sisvel that HMD’s proposed construction appears to do nothing but add 

unnecessary verbiage to the claim. This sort of wordsmithing amounts to an “obligatory exercise 

in redundancy,” which is disfavored. United States Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 

1568 (Fed. Cir. 1997); see also Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1237 (Fed. Cir. 2016); 

Power Mosfet Techs., L.L.C. v. Siemens AG., 378 F.3d 1396, 1410 (Fed. Cir. 2004).

Conclusion. The term “at least one symbol of +1, -1, and 0” needs no construction and 

should instead simply be given its plain and ordinary meaning.

b. “control means connected with the receiving means adapted to control 

the data transmission rate based on the data rate control command” 

(claim 34)

The second disputed claim term from the ‘653 patent is a means-plus-function claim term. 

The parties agree that, as such, the claim term is to be construed pursuant to the provision of 35 

U.S.C. § 112, ¶6. A claim limitation invoking Section 112, ¶6 is limited in scope to the 

“corresponding structure, material, or acts described in the specification and equivalents thereof.” 

In the case of computer-implemented means-plus-function claims where the disclosed structure is

a computer programmed to implement an algorithm, “the disclosed structure is not the general

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purpose computer, but rather the special purpose computer programmed to perform the disclosed 

algorithm.” Finisar Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008) (quoting 

WMS Gaming, Inc. v. Intl Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999)). Accordingly, the

algorithm and not the computer is the structure, and the patent must disclose enough of an 

algorithm to provide the necessary structure under §112, ¶6. Typically, that algorithm may be in 

the form of a flow chart, but it may alternatively be provided in any understandable terms such as 

a mathematical formula, in prose, or in any other manner that provides sufficient structure. Id. 

According to Sisvel, “a POSITA would understand that the recited function is ‘controlling 

the transmission rate based on the data rate control command,’ and that the corresponding structure 

is ‘a transmission data rate controller and transmission processor, in their entirety or portions 

thereof.’” DE-47, p. 20. Additionally, Sisvel contends that it has “precisely identified a structure 

that has a specific, limited function and has identified how the structure carries out that function.” 

DE-69, p. 15.

In response, HMD contends that these structures require programming or an algorithm to 

perform the function, citing to Microsoft Corp. v. Motorola, Inc., 2013 WL 454268, *5 (W.D. 

Wash. Feb. 7, 2013):

As a starting point, Motorola seems to misstate the law. Disclosure of an algorithm is 

required when “the disclosed structure is a computer, or microprocessor, programmed to 

carry out an algorithm” . . . and not as Motorola suggest only when the disclosed structure 

is “mere general purpose hardware as the structure.”

According to HMD, both the transmission data rate controller (23) and the transmission processor 

(24), the two elements identified by Sisvel as the structure for this claim term, require an algorithm 

for performing the function. Instead, HMD argues, the specification simply states the inputs and 

outputs and the results that are achieved:

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HMD’s Markman Slides at p. 56 (emphasis in original). The only algorithm disclosed in the ‘653 

patent, according to HMD, is performed by the base station and not by the control means, a point 

with which Sisvel appears to agree:

Although not necessary, the ’653 patent discloses an algorithm for data rate control 

and transmission in multiple places within the specification. For example, Figure 4, a 

portion of the Figure 3 base station, demonstrates the steps by which a RCB is mapped to 

a symbol of either +1, -1, or 0. (’653 patent at Fig. 4, 41, 42, 43, 44; 8:44-46; Lipoff Decl. 

at ¶ 36.) The RCB mapped to a +1, -1 or 0, is then sent to the receiver 20 where the data 

transmission rate is increased, decreased, or left unchanged by the transmission data rate 

controller 23 and/or the transmission processor 24. (’653 patent at 6:4-14.)

DE-47 at p. 21. The parties’ disagreement appears to hinge on whether an algorithm is required 

for the control means. HMD contends that the lack of an algorithm renders the proposed structure 

of the control means indefinite:

I really appreciated Mr. Devlin’s presentation on claim 34 and I like he spent so 

much time talking about all the things that happened at the base station to get to that symbol

of +1 -1 and 0 and he correctly said that's what comes into the control means. That's how 

the control means is supposed to take its input.

But boy do I have a concern with these slides because I think there is almost a slight

of hand in that Mr. Devlin said yes well what's happening at slide 64 that's at the base 

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station, but if it happens at the base station, it's not the part of the algorithm that the control 

means performs. It has nothing to do with how you raise or lower the transmission rate at 

the phone. So, yes, lots of description in the patent about how the base station describes 

channel conditions on Slide 64, lots of discussion about the also base station making 

instructions on Slide 65. Mapping those instruction to a control bit on Slide 66.

This is all happening at the base station. Sending the control bit to the UE, that's

something the base station does on Slide 67. Slide 68 is supposed to snowball you into 

saying, well, there must be an algorithm in there, look at all those boxes, but everything on 

Figure 4 is at the base station to create the output +1, -1, 0 and then it goes to Figure 2, and 

then Figure 2 has two black boxes the transmission data rate controller and 

transmission processor and that's supposed to tell a person of ordinary skill in the art 

how to control a transmission data rate. But there is a hole in the patent. The patent 

never tells you how to control the data transmission rate.

Exhibit A, p. 154, l. 7 – p. 155, l. 9 (emphasis added). In its briefing, HMD relies upon several 

cases that addressed similar analyses:

For the type of means-plus-function term at issue here, the requirement that the 

specification disclose software or an algorithm is not limited to general purpose computers, 

such as a desktop computer. Instead, the requirement applies when the disclosed structure 

requires programming to perform the function. See Microsoft Corp. v. Motorola, Inc., No. 

C10-1823, 2013 WL 454268, at *7 (W.D. Wash. Feb. 7, 2013) (holding “decoder” 

disclosed in specification would require software to perform claimed function and therefore 

an algorithm was required); see also In re Qualcomm Litig., No. 17-cv-00108, 2018 WL 

2229344, at *6-7 (S.D. Cal. May 16, 2018) (holding that an algorithm was required based 

on unrebutted expert testimony showing disclosed structures required algorithm to perform 

function); GoDaddy.com, LLC v. RPost Commc’ns Ltd., No. CV-14-00126, 2016 WL 

212676, at *58 (D. Ariz. Jan. 19, 2016) (holding that an algorithm was required because 

the claimed functions would require a special purpose processor).

. . . .

A “transmission data rate controller” and “transmission processor” are structures 

that cannot perform the claimed function without software or an algorithm. Cooper Decl. 

¶127. Where, as here, the POSITA would not understand the disclosed structures are alone 

capable of performing the claimed function, additional disclosure of software or algorithms 

is required. Sisvel’s expert, Mr. Lipoff, concludes only that the disclosed structures are 

capable of performing the claimed functions “without external general purpose 

computers.” ECF No. 50-1 (“Lipoff Decl.”) ¶35. However, that is not the relevant 

question. The question is whether the disclosed structures can perform the claimed function 

without software or an algorithm. See In re Qualcomm, 2018 WL 2229344, at *7 (“Notably 

[plaintiff’s expert] never states that the [claimed function] can be accomplished without a 

specific algorithm.”). In this case, HMD’s expert opined that the disclosed structures 

would require a software or algorithm. Cooper Decl. ¶127; see also Cooper Resp. Decl. 

¶29. 

The claim term is indefinite because software or an algorithm is required, but the 

specification contains no such algorithm—only, at best a textual restatement of the 

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function. Augme Techs., Inc. v. Yahoo! Inc., 755 F.3d 1326, 1337-38 (Fed. Cir. 2014) 

(holding claim term indefinite where disclosed algorithm merely “restates the recited 

function”). Sisvel argues that the data rate control command itself supplies the algorithm 

by indicating whether to increase, decrease, or maintain the transmission rate. Sisvel 

Opening Br. at 17. But this is a mere restatement of the function. Cooper Resp. Decl. ¶30. 

In other words, that disclosure merely restates the function of “controlling the data 

transmission rate based on the data rate control command.” Augme Techs., 755 F.3d at 

1337-38 (holding claim term indefinite where disclosed algorithm merely “restated the 

function”). Sisvel alternatively points to an algorithm that the base station uses to encode 

the data rate control command. Sisvel Opening Br. at 16; Lipoff Decl. ¶¶36, 37. But this 

is not the algorithm that is used by the claimed “control means” in order to control the data 

transmission rate. Cooper Resp. Decl. ¶30.

DE-61 at pp. 19-21.

Sisvel’s briefing seeks to counter these arguments with statements such as “a POSITA at 

the time of the ‘653 patent would know that semiconductor chips suppliers would be supplying 

‘highly integrated logic chips’ to perform the identified function, because the use of external 

general purpose processors would be comparatively inefficient and costly.” DE-59 at p. 20, citing 

DE-50-1 at ¶ 35 (Declaration of Sisvel’s expert). However, based on the record before the 

undersigned, including the positions promoted during the Hearing, the undersigned is persuaded 

that HMD’s position is well-taken and should prevail. As HMD’s counsel pointed out at the 

Hearing, if “Mr. Lipoff was saying there is an off-the-shelf chip that was programmed to do this 

and every [POSITA] would know that, but if there was a chip in 2001, wouldn’t Mr. Lipoff have 

named it? Wouldn’t the patent have identified it? Wouldn’t Sisvel have cited it in a brief by now? 

I mean, Dr. Cooper repeatedly said there is no such chip. Your need a processor, and a transmission 

processor is a thing but your still have to program a processor.” Exhibit A, p. 156, l. 23 – p. 157, 

l. 5. Additionally, the algorithm only relied upon by Sisvel is performed at the base station and 

does not relate to the “control means” that is the subject of this construction.

Conclusion. The term “control means connected with the receiving means adapted to 

control the data transmission rate based on the data rate control command” is indefinite.

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5. ‘396 patent: “detected as missed” (claims 1 and 8)

The limitation at issue in the ‘396 patent is “detected as missed.” This claim limitation 

appears in claims 1 and 8:

1. A method of performing automatic repeat request (ARQ) in a wireless 

communication system, the method performed by a receiver and comprising:

detecting whether at least one date block to be received from a transmitter is 

missed;

starting a timer when the at least one data block is detected as missed;

stopping the timer when the at least one data block is received from the 

transmitter while the timer is running, in order to prevent a triggering of a 

status report before the timer expires; and

transmitting the status report to the transmitter after the timer expires, wherein 

the status report comprises a positive acknowledgement indicating receipt 

of at least one received data block.

8. A receiver for performing automatic repeat request (ARQ) in a wireless 

communication system, the receiver comprising a Radio Link Control (RLC) 

entity, wherein the RLC entity is configured to:

detect whether at least one date block to be received from a transmitter is 

missed;

start a timer when the at least one data block is detected as missed;

stop the timer when the at least one data block is received from the transmitter 

while the timer is running, in order to prevent a triggering of a status report 

before the timer expires; and

transmit the status report to the transmitter after the timer expires, wherein the 

status report comprises a positive acknowledgement indicating receipt of at 

least one received data block.

Sisvel contends that this claim limitation requires no construction, while HMD contends 

that the term is indefinite. The key issue in construing this term is found in reviewing Figure 12 of 

the ‘396 patent and its accompanying description in the specification:

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‘396 patent, Figure 12 and col. 14, l. 34-65. In drafting the discussion of the operations occurring 

in Figure 12, the inventors of the ‘396 patent discuss, in connection with step 4, that “although the 

HARQ jitter timer expires, the RLC entity cannot receive PDU6. The receiver judges that the 

reception of PDU6 fails and transmits the status report information associated therewith to the 

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transmitter.” Id., col. 14 at l. 51-55 (emphasis added). However, Figure 12 does not include element 

PDU6. While Sisvel contends that this is a typographical error, Exhibit A, p. 188, l. 1-6, HMD 

further points out that, independent of the Figure 12 issue, the operations of Claims 1 and 2 could 

render inconsistent results as to when a data block would be “detected as missed:”

So, again, the issue concerning the passage in column 14 is only part of the basis 

for HMD's assertion of indefiniteness here. Also critical is the existence of Claim 2 and 

once again because it depends from Claim 1, Claim 1 necessarily covers what Claim 2 

covers. What Claim 2 covers – says is that wherein the at least one data block is detected 

as missed when a sequence number of the currently received data block is larger than a 

sequence number of a previously received data block. 

That language, on its face, covers receipt of an unbroken progressively growing 

sequence of data blocks – with unbroken progressively increasing sequence numbers is the 

more accurate way to say if. So one through a million without a single missing sequence 

number satisfies Claim 2 is necessarily covered by Claim 1, and therefore HMD would 

submit renders Claim 1 indefinite because if a data block be can be detected as missed 

when the receiver receives a million data blocks in an unbroken sequence of sequence 

numbers, it's not possible with reasonable certainty for a person of ordinary skill in 

the art to understand when a data block would be detected as missed. Again, just 

going back to the claim language of Claim 1.

That's really the issue, what does detected as missed in the context of Claim 1 mean, 

Claim 2 informs what Claim 1 means necessarily and Claim 1 necessarily covers receipt 

of an unbroken sequence of data blocks.

Exhibit A, p. 191, l. 20 – p. 193, l. 1 (emphasis added). Sisvel argues that HMD’s position takes 

Claim 2 “somewhat out of context,” Id. at p. 193, l. 5-14, but in questioning during the Hearing, 

Sisvel was unable to reconcile the issue, given numerous opportunities. Id. at p. 195, l. 11 – p. 201, 

l. 7. HMD’s position is supported by the record, as Claim 2, which depends on Claim 1 and 

therefore includes all of its limitations, could provide inconsistent results as to when a data block 

would be detected as missed. The term is therefore indefinite2.

Conclusion. The term “detected as missed” is indefinite.

2 The undersigned notes that in its supplemental briefing, Sisvel conceded HMD’s point: “Plaintiffs no longer assert 

that claim 2 concerns how to detect a missed PDU. Rather Plaintiffs are now of the same opinion voiced by Defendants 

during the oral argument: claim 2 is substantive because it says “when” a PDU block is missed. DE-122 at p. 1 

(emphasis in original). The undersigned believes that this concession, notwithstanding Sisvel’s further attempts to 

distinguish claims 1 and 2 based on the “how” v. “when” argument, supports the finding of indefiniteness.

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6. ‘279 patent: “at an interval of a subframe period” (claims 1 and 11)

The limitation at issue in the ‘396 patent is “at an interval of a subframe period.” This claim 

term appears in this limitation of claims 1 and 11: “performing, by a User Equipment (UE), a SPS 

transmission at an interval of a subframe period configured by a radio resource control (RRC) 

signal.” ’279 patent, claims 1 and 11. HMD submits that this term requires construction because 

there is a dispute as to “whether the claim term means one subframe period or ‘one or more’ 

subframe periods.” DE-61 at pp. 23-24. Sisvel, on the other hand, argues that HMD’s proposed 

construction “merely changes the word ‘a’ to ‘one’ and adds nothing to the construction of the 

term. HMD’s attempt to limit this term to ‘one subframe period’ is contrary to established caselaw, 

which as a rule treats ‘a’ or ‘an’ to mean ‘one or more.’ Baldwin Graphic Sys., Inc. v. Siebert, 

Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008) (‘[t]hat ‘a’ or ‘an’ can mean ‘one or more’ is best 

described as a rule’).” DE-47 at p. 20 (emphasis in original). HMD cites to caselaw where “the 

language of the claims themselves, the specification, or the prosecution history necessitate a 

departure from the rule” may serve as exceptions to this rule. DE-61 at pp. 22-23, citing Baldwin 

Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342-43 (Fed. Cir. 2008).

In its papers, Sisvel points out that other disclosures of the ‘279 patent, beyond the Figure 

1 disclosure relied upon by HMD in support of its construction of this term, show time periods 

other than the 1 millisecond time period shown in Figure 1. Thus, the claim term should not be 

construed on the basis of a set time period, making the Novartis case, which construed a claim 

term with a specific time period – 15 minutes – to mean exactly 15 minutes – less relevant to the 

analysis. As Sisvel made clear at the hearing, “Sisvel is going to argue that ... at an interval of a 

subframe period can mean at one or more subframe periods.” Exhibit A, p. 211, l. 2-9. Based on 

the parties’ positions, the claim term “at an interval of a subframe period” does not require 

construction.

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Conclusion. The term “at an interval of a subframe period” needs no construction and 

should instead simply be given its plain and ordinary meaning.

Conclusion:

For the reasons set forth above in this report, I recommend that the disputed claim

limitations be interpreted as follows:

1. ‘070 Patent: The term “a create communication default procedure” should be 

construed, as the parties agree, as “a procedure triggered between a support node and a gateway 

device for creating a default PDP context.” The disclosures of Figures 5 and 6, with their 

accompanying descriptions in the specification, support this construction.

2. ‘611 Patent: The term “prioritizing the existing data connections” needs no 

construction and should instead simply be given its plain and ordinary meaning.

3. ‘383 Patent: As a result of the parties’ agreement, the disputed terms should be 

construed as follows:

Claim Term Agreed Construction

Claim 1 “not considering” ... “as a candidate for 

reselection”

Not considered as a 

candidate for 

reselection

Claim 

17

“does not consider” ... “as a candidate for 

reselection”

Not considered as a 

candidate for 

reselection

Claim 

49

“considers ... as barred as a candidate for 

reselection”

Not considered as a 

candidate for 

reselection

Claim 

66

“excluding” ... “as a candidate for reselection” Not considered as a 

candidate for 

reselection

Claim 

82

“excludes” ... “as a candidate for reselection” Not considered as a 

candidate for 

reselection

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4. ‘653 Patent (1st disputed term): The term “at least one symbol of +1, -1, and 0” 

needs no construction and should instead simply be given its plain and ordinary meaning.

5. ‘653 Patent (2nd disputed term): The term “control means connected with the 

receiving means adapted to control the data transmission rate based on the data rate control 

command” is indefinite.

6. ‘396 Patent: The term “detected as missed” is indefinite.

7. ‘279 Patent: The term “at an interval of a subframe period” needs no construction 

and should instead simply be given its plain and ordinary meaning.

DATED this 14th day of December, 2021

David K. Friedland

Special Master

Friedland Vining, P.A.

Miami, Florida

dkf@friedlandvining.com

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