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UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

WACO DIVISION

NORDIC INTERACTIVE 

TECHNOLOGIES LLC,

Plaintiff,

v.

SAMSUNG ELECTRONICS CO., LTD. and 

SAMSUNG ELECTRONICS AMERICA, 

INC.,

Defendants.

Case No.: 6:20-CV-00064 (ADA)

Judge Alan D. Albright

JURY TRIAL DEMANDED

PLAINTIFF’S REPLY CLAIM CONSTRUCTION BRIEF
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In its Opening and Responsive Briefs, Nordic clearly demonstrated that its proposed 

constructions were accurate and faithful to the specification with a directed goal of resolving 

disputes and assisting the judge/jury. Three disputed terms remain: “call initiation signals” in 

U.S. Patent No. 6,345,095 (“’095 Patent) and “middleware software” and “the middleware 

layer” in U.S. Patent No. 7,590,097 (“’097 Patent”). 

A. “middleware software” from the ’097 Patent

Nordic’s Construction Samsung’s Construction

Software providing discovery of 

applications and/or services

“a software layer with an API that 

negotiates the communication between two 

applications to help an application find a 

counterpart application with the correct 

role”

Samsung’s arguments defending its proposed construction and criticizing Nordic’s 

construction deserve little consideration. Samsung seems to again beg the Court to ignore the 

plain language of the claims and import additional language from the specification into the 

language of the claims. Accordingly, Samsung’s construction does not answer any questions, 

resolve any disputes, or provide any guidance to the jury. By contrast, Nordic’s construction is 

taken directly from the explicit language of the claims and supported by the specification. 

Nordic’s construction is aimed at complying with the specification and the explicit language 

of the claims in the ’097 Patent with a directed goal of assisting the judge/jury in interpreting 

the disputed terms. 

Samsung tries to argue that Nordic’s proposed construction is already in the language 

of the claims, and therefore construing “middleware software” with the same language would 

be redundant and is evidence against Nordic’s construction. See Document 38 in Court Docket, 

9. This argument by Samsung ignores another principle set forth in Phillips: namely that “the 

claims themselves provide substantial guidance to the meaning of particular claim terms.” 
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Phillips v. AWH Corp., 415 F.3d 1303, 1314. This alone should convince the Court to adopt 

Nordic’s position.

Further, Samsung has not provided any rationale for narrowing the explicit language of 

the claims to construe “middleware software” as an “API that negotiates the communication 

between two applications to help an application find a counterpart application with the correct 

role.” Therefore, Samsung’s construction completely ignores the explicit language of the 

claims and attempts to add language from the specification into the reading of the claim 

language. Accordingly, Samsung’s construction is unnecessarily complicated and fails to 

provide the guidance necessary to assist the judge and jury in claim construction. 

Moreover, Samsung argues that “the extrinsic evidence also does not support Nordic’s 

construction” because of a misrepresentation of the definitions from a technical dictionary. See

Document 38 in Court Docket, 10-11. In fact, it is Samsung that is misrepresenting the 

definition of the term “middleware software” when read in conjunction with the language of 

the claims in the ’097 Patent. Specifically, Samsung should be reminded that “[t]he court must 

ensure that any reliance on dictionaries accords with the intrinsic evidence: the claims 

themselves, the specification, and the prosecution history.” Free Motion Fitness, Inc. v. Cybex

Int'l, 423 F.3d 1343, 1348 (Fed. Cir. 2005). And further, “... in those circumstances where 

reference to dictionaries is appropriate, the task is to scrutinize the intrinsic evidence in order 

to determine the most appropriate definition.” Id. at 1349. Accordingly, merely selecting the 

definition that aligns with Samsung’s construction is not only contrary to precedent, but simply 

incorrect. Applying this principle from Free Motion Fitness, Inc. v. Cybex Int'l, the most

important part of the intrinsic evidence - the claims - clearly recite that “the middleware

software [is] configured for providing application and service discovery.” ’097 Patent, 12:63-

64. The more widely accepted dictionary definition of “middleware”, namely “software that

sits between two or more types of software and translates information between them”, is
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consistent with the claim language. Document 35-3 in Court Docket, ¶ 29; Document 35-4 in

Court Docket, 6-7.

Further, Samsung’s argument that Nordic’s expert declaration is irrelevant and “fails to 

articulate the proper legal framework” is not only disrespectful to a technical expert that has 

more than forty years of experience in the field, but also blatantly inconsiderate of what an 

expert opinion must do/not do. See Document 38 in Court Docket, 7-8. Specifically, Samsung 

is misapplying well-accepted case law that “expert opinions that offer legal conclusions are 

generally inadmissible because they do not ‘assist the trier of fact,’ as expert opinions must.” 

United States v. Z Inv. Props., LLC, No. 17-cv-4405, 2018 U.S. Dist. LEXIS 56483, at *8, 121 

A.F.T.R.2d (RIA) 2018-1317 (N.D. Ill. Apr. 2, 2018) (striking the paragraphs from an expert 

declaration that state improper legal conclusions). In contrast, Dr. Gitlin’s Declaration is 

offered as an expert opinion of how a POSITA would understand the disputed terms. Dr. 

Gitlin’s Declaration is not offered as a legal conclusion on any matter. Accordingly, Samsung’s 

statement that “Dr. Gitlin fails to even articulate the proper legal framework” is not to be read 

as a negative remark, but instead agrees that Dr. Gitlin’s Declaration is not offering any legal 

conclusions. 

Therefore, based on the arguments set forth by Nordic in this brief along with Nordic’s 

Opening Claim Construction Brief and Nordic’s Responsive Brief, Nordic’s proposed 

construction that “middleware software” should be construed as software providing discovery 

of applications and/or services is consistent with the intent and the intrinsic evidence of the 

’097 Patent. 

B. “middleware layer” from the ’097 Patent

Nordic’s Construction Samsung’s Construction

Software layer that includes middleware 

software

This term is indefinite
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As previously mentioned, Nordic and Samsung were close to an agreement on this term 

but due to Samsung’s continuously deliberate misconstruction of the term “middleware layer” 

in the dependent claims, a dispute still exists. 

To start, Nordic has attached both the Certificate of Correction filed on November 18, 

2020 (attached as Ex. 1) and the subsequent approval from the USPTO regarding the Certificate 

of Correction (attached as Ex. 2). In the Certificate of Correction, “middleware layer” is 

replaced with “middleware software” where it appears in the dependent claims. Ex. 1. Even 

after providing Samsung the Certificate of Correction, explaining the clear intent of the ’097 

Patent regarding the term “middleware layer” in the dependent claims by citing to the same 

part of the prosecution history of the ’097 Patent that Samsung cites to, and informing Samsung 

of the approval of the Certificate of Correction from the USPTO, Samsung continues to argue 

that “middleware layer” be construed as “middleware software.” Not only is this a complete 

misconstruction of the term, but it seems to be a deliberate action by Samsung to not come to 

an agreement with Nordic regarding this term. 

Additionally, regarding the prosecution history of the ’097 Patent, Nordic again points 

to the Amendment made by the Patentee on October 22, 2008 that replaced the term 

“middleware layer” with “middleware software” in the independent claim but left the term 

“middleware layer” untouched in the dependent claims. See Document 38-7 in Court Docket. 

Even Samsung admits that this was an obvious error in the Amendment because Samsung states 

that “[r]egardless of why, however, the fact remains that the applicants made the change in the 

independent claims. And that change was inadvertently not carried through to the dependent 

claims.” Document 38 in Court Docket, 19 (emphasis added). As emphasized in the previous 

statement, Samsung admits that the change made to the independent claim to replace 

“middleware layer” with “middleware software” was inadvertently not done to the dependent 

claims but then continues to argue that the term “middleware layer” should be construed as 
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“middleware software.” This is blatantly incorrect and goes against Samsung’s own statements 

made in their Responsive Brief.

In further support of replacing the term “middleware layer” with “middleware 

software” in the dependent claims, Nordic requests the court to follow the ruling set forth in 

Novo Indus., L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003) that a district 

court can correct a patent if: “(1) the correction is not subject to reasonable debate based on 

consideration of the claim language and the specification and (2) the prosecution history does 

not suggest a different interpretation of the claims.” This ruling cited to the Supreme Court 

case of I.T.S. Rubber Co. v. Essex Rubber Co., that held that, in a patent infringement suit, the 

courts could properly interpret a patent to correct an obvious error. Id. at 1354 citing to I.T.S.

Rubber Co. v. Essex Rubber Co., 272 U.S. 429, 71 L. Ed. 335, 47 S. Ct. 136, 1927 Dec. Comm'r 

Pat. 228 (1926). Looking first at the specification, “middleware layer” and “middleware 

software” are used as separate terms with separate distinct interpretations that are not

interchangeable. For example, in the ’097 Patent, an embodiment is described wherein “the 

middleware layer includes dedicated middleware software providing advanced application and 

service discovery and execution.” ’097 Patent, 10:8-10 (emphasis added). Accordingly, it 

would be simply incorrect to follow Samsung’s construction that “middleware layer” is 

“middleware software.” 

Supported by the specification and an expert declaration, Nordic has established in the 

previous briefs that “middleware layer” has a concrete construction that differs from the 

construction of “middleware software.” Specifically, Nordic re-asserts that the term 

“middleware layer” be construed as a software layer that includes middleware software. Rather 

than explaining why Nordic’s construction of “middleware layer” should not be considered, 

Samsung, in their Responsive Brief, makes a general statement that Nordic’s construction has 

no support. Document 38 in Court Docket, 20. Accordingly, Samsung has not even attempted 
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to lessen the court’s burden by considering Nordic’s arguments in relation to the term 

“middleware layer.” Therefore, should the Court not correct and replace the term “middleware 

layer” with “middleware software,” Nordic requests the Court to construe “middleware layer” 

as a “software layer that includes middleware software.”

C. “call initiation signals” from the ’095 Patent

Nordic’s Construction Samsung’s Construction

Plain and Ordinary Meaning 

or

Part of a telephone number

“any signal indicating that a calling party is 

going to place a telephone call”

Samsung contends that Nordic’s construction is “contrary to the dependent claims, and 

is so narrow that it only covers two embodiments in the specification.” 

Regarding the embodiments in the specification, Samsung should be again be reminded 

that “claims are interpreted in light of the specification does not mean that everything expressed 

in the specification must be read into the claims.” Teleflex, Inc. v. Ficosa N. Am. Corp., 299 

F.3d 1313, 1326 (Fed. Cir. 2002). “[W]hile... claims are to be interpreted in light of the 

specification and with a view to ascertaining the invention, it does not follow that limitations 

from the specification may be read into the claims.” Comark Communs., Inc. v. Harris Corp.,

156 F.3d 1182, 1186 (Fed. Cir. 1998). More directed to Samsung’s argument, “although the 

specification often describes very specific embodiments of the invention, [the court has] 

repeatedly warned against confining the claims to those embodiments.” Phillips, 415 F.3d at 

1323. Further, even if construction of the term “call initiation signals” was solely based on all 

embodiments described in the ’095 Patent, as Samsung puts forth, Nordic’s construction is 

strongly supported. Looking to an excerpt from the ’095 Patent, cited by Samsung in their 

Opening Claim Construction Brief and by Nordic in Nordic’s Responsive Brief, preferred 

embodiments are described wherein call initiation signals include: a full telephone number, a 

telephone number without an area code, a subscriber number without an area code or an 
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exchange code. See ’095 Patent, 4:66-5:10. Only when the ’095 Patent begins describing 

alternative preferred embodiments does the introduction of call initiation signals that 

includes activation sequences occur. See Id. at 5:10-18 (emphasis added). Even with these 

alternative preferred embodiments, the ’095 Patent utilizes specific language in the 

specification that the call initiation signals may include particular activation sequences, 

whereas when describing the preferred embodiments with call initiation signals as being at 

least part of a telephone number, the ’095 Patent uses more exact language such as “that 

include[s].” Id. This is not merely a coincidence that occurs in the patent, but instead reflects 

the actual intent of the patentee when drafting the ’095 Patent. 

Additionally, Samsung argues that Nordic’s construction of the term “call initiation 

signals” excludes two-thirds of the words in the term. Not only is this argument confusing, but 

doesn’t consider the entirety of the term when attempting to make a construction. The term 

itself specifies that the signal is a call initiation signal, but Samsung seems to want to generalize 

the word signal in the term “call initiation signals” as being any signal. 

Further, regarding Nordic’s expert declaration, Samsung, again, inexplicably dismisses 

Dr. Gitlin’s statements in a disrespectful manner without giving consideration to statements 

made by an expert that has more than forty years of experience in the field. Samsung, 

incorrectly and without any support, states that Dr. Gitlin’s statements are conclusory and “at 

odds with the claims and the specification.” Document 38 in Court Docket, 24. Samsung does 

not provide any specific citations to Dr. Gitlin’s declaration in relation to the term “call 

initiation signals” but merely cites to the Phillips case to generally state that Dr. Gitlin’s 

statements should be discounted.

Therefore, in view of the specification of the ’095 Patent and Dr. Gitlin’s Declaration 

provided with the Nordic’s Opening Claim Construction Brief, Nordic requests the Court to 
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give the term its plain and ordinary meaning or construe “call initiation signals” to include at 

least “part of a telephone number.”

D. Conclusion

For the above reasons, Nordic respectfully requests the Court adopt its proposed 

constructions. 
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Dated: December 11, 2020 Respectfully submitted,

PARKER, BUNT & AINSWORTH, P.C.

/s/ Robert Christopher Bunt

Robert Christopher Bunt

State Bar No. 00787165

Charles Ainsworth

State Bar No. 00783521

100 E. Ferguson, Suite 418

Tyler, TX 75702

903/531-3535

E-mail: charley@pbatyler.com

E-mail: rcbunt@pbatyler.com

William Cory Spence

Jason Wejnert

SpencePC

515 N. State St., 14th Floor

Chicago, Illinois 60654

312-404-8882

william.spence@spencepc.com

jason.wejnert@spencepc.com

Attorneys for Plaintiff Nordic Interactive

Technologies LLC

CERTIFICATE OF SERVICE

I hereby certify that, on December 11, 2020, a true and correct copy of the foregoing was served to 

all counsel of record via who have consented to ECF notices.

/s/ Robert Christopher Bunt

Robert Christopher Bunt