IN THE 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. 

Civil Action No. 6:20-CV-00064 

 JURY TRIAL DEMANDED 

DEFENDANTS’ REPLY CLAIM CONSTRUCTION BRIEF 
i 

TABLE OF CONTENTS 

Page 

I. Introduction ..................................................................................................................... 1

II. Argument ........................................................................................................................ 2

A. ’097 Patent Terms ................................................................................................ 2

1. “middleware software” (Claims 19-24) ..................................................... 2

a. Nordic does not address the evidence of lexicography ................... 2

b. The law cited by Nordic does not support its position .................... 3

2. “the middleware layer” (Claims 20-21) ..................................................... 5

B. ’095 Patent Term ................................................................................................. 7

1. “call initiation signals” (Claims 16, 30) .................................................... 7

a. Nordic does not dispute that its construction is inconsistent 

with dependent Claim 18............................................................... 7

b. Nordic’s argument that there is no lexicography is a straw 

man ............................................................................................... 8

c. Nordic’s proposal not to construe the term and instead only 

find “plain and ordinary meaning” should be rejected ................... 8

III. Conclusion ...................................................................................................................... 9

 
ii 

TABLE OF AUTHORITIES 

Pages(s) 

Cases

Electro Med. Sys., S.A. v. Cooper Life Sciences, 

34 F.3d 1048 (Fed. Cir. 1994) ............................................................................................. 3, 4 

H-W Tech., L.C. v. Overstock.com, Inc., 

 758 F.3d 1329 (Fed. Cir. 2014)................................................................................................5 

Intellectual Ventures I LLC v. T-Mobile USA, Inc., 

 902 F.3d 1372 (Fed. Cir. 2018)................................................................................................8 

Novo Indus., L.P. v. Micro Molds Corp., 

 350 F.3d 1348 (Fed. Cir. 2003)................................................................................................6 

O2 Micro Int’l, Ltd. v. Beyond Innovation Tech. Co., 

 521 F.3d 1351 (Fed. Cir. 2008)................................................................................................9 

Smartphone Techs. LLC v. Research in Motion Corp., 

 No. 6:10-CV-74-LED-JDL, 2012 WL 489112 (E.D. Tex. Feb. 13, 2012) ................................4 

Teleflex, Inc. v. Ficosa N. Am. Corp., 

299 F.3d 1313 (Fed. Cir. 2002)............................................................................................ 3, 4 

Teva Pharms. USA, Inc. v. Sandoz, Inc., 

 723 F.3d 1363 (Fed. Cir. 2013)............................................................................................ 3, 4 

Statutes 

35 U.S.C. § 254 ...........................................................................................................................5 
I. INTRODUCTION 

Like its Opening Brief, Nordic’s Responsive Brief (Dkt. No. 37, “Nordic’s Responsive 

Br.”) is again replete with contradictions and misapplied law. For example, Nordic now argues 

(for the first time) that the Court should “replace the term ‘middleware layer’ with ‘middleware 

software,’” (id. at 8) but, at the same time, that “middleware layer” does not mean “middleware 

software” in the claims as written. Instead, Nordic argues that, if the Court does not correct the 

term “middleware layer” to “middleware software,” the Court should then “adopt the construction 

that the middleware layer is ‘software layer that includes middleware software.’” Id. Notably, 

Nordic continues to advance this alternative position even though it stated in a recent request for 

correction with the Patent Office that the dependent claims “do not make sense,” unless 

“middleware layer” is “middleware software” — which is what Samsung has been saying all along. 

For the term “call initiation signals,” Nordic flips the law of dependent claims on its head. 

In particular, Nordic’s construction would render independent Claim 16 narrower than dependent 

claim 18 by excluding non-number symbols like “#” and “*” from the meaning of “call initiation 

signals.” Further, Nordic’s assertion that Samsung’s construction imports limitations from the 

dependent claims is incorrect on its face. Specifically, Samsung’s construction (evident by its 

plain language) does not require the limitations in the dependent claims (e.g., symbols like “#” 

and “*”), but rather it is broad enough to include them — consistent with the canons of 

construction for a term in an independent claim. 

Ultimately, the more Nordic has briefed its positions, the clearer it has become that those 

positions have no basis in fact or law and so should be rejected. Samsung’s claim constructions 

should be adopted. 
2 

II. ARGUMENT 

A. ’097 Patent Terms 

1. “middleware software” (Claims 19-24) 

Term Samsung’s Construction Nordic’s Construction 

“middleware software” “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”

“software providing 

discovery of applications 

and/or services” 

a. Nordic does not address the evidence of lexicography 

In its Responsive Brief, Nordic states that “the patentee in the ’097 Patent has not expressed 

any desire to give the term ‘middleware software’ a special definition.” Nordic’s Responsive Br. 

at 6. Nordic does not cite to any intrinsic evidence or provide any reasoning to support this 

conclusory statement. In particular, though Nordic argues that Samsung’s construction improperly 

imports limitations from a particular embodiment into the claims, it does not explain how that is 

true or why the passage cited by Samsung is not lexicography. See id. at 5-6. For example, Nordic 

has not (and cannot) identify any embodiments that fall outside the definition of “middleware 

software” in the lexicographic passage cited by Samsung. Compare Dkt. No. 34 (“Samsung’s 

Opening Br.”) at 6-7 (detailing every occurrence of middleware software/embodiment). More 

broadly, Nordic has not pointed to any intrinsic evidence that would contradict Samsung’s showing 

that the cited passage (reproduced again below) is lexicography:1

Middleware software is 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. 

1

 Even before briefing began, Samsung explained its position to Nordic and cited the definition in 

the specification. Yet, after having submitted two briefs, Nordic still has not explained why that 

passage is not lexicography. 
3 

Samsung’s Opening Br. at 6 (citing ’097 Patent at 6:39-42 (emphasis added)). 

As noted in prior briefing, the patentee’s lexicography governs, and so Nordic’s arguments 

regarding importing limitations from the specification are irrelevant.2

 See id. Strangely, however, 

Nordic now asserts that the term is “plainly defined in the claims...,” suggesting that while there 

is no lexicography in the specification, somehow there is lexicography in the claims themselves. 

Nordic’s Responsive Br. at 6. Like its other conclusory assertions, however, Nordic provides no 

legal basis or any reasoning to support this argument. In any event, Nordic does not even adopt 

the definition that it says is in the claims. Rather, Nordic broadens this purported definition (again 

without explanation) and proposes that middleware software means “software providing discovery 

of applications and/or services.”3 

b. The law cited by Nordic does not support its position 

Nordic cites Electro Med. Sys., S.A. v. Cooper Life Sciences, 34 F.3d 1048, 1054 (Fed. Cir. 

1994) and Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326 (Fed. Cir. 2002) for the 

proposition that the Court should not import embodiments into the claims. Notably, Nordic then 

proceeds to violate this proposition by pointing to specific embodiments, while ignoring others, as 

support for its construction. See Nordic’s Responsive Br. at 6; cf. Samsung’s Responsive Br. at 4-

6. 

In any event, Samsung agrees that there is a general rule against importing embodiments 

into the claims. However, lexicography is an exception to that rule. See, e.g., Teva Pharms. USA, 

2

 The arguments are incorrect, in any event. See Dkt. No. 38 (“Samsung’s Responsive Br.”) at 

2-4. In particular, though Nordic accuses Samsung of importing limitations from the specification, 

it is only Nordic who cherry-picks (and modifies without explanation) language from specific 

embodiments into a construction. Id. 

3

 The clause within Claim 19 that Nordic contends is a definition of middleware software states: 

“the middleware software configured for providing application and service discovery.” 
4 

Inc. v. Sandoz, Inc., 723 F.3d 1363, 1373 (Fed. Cir. 2013); Samsung’s Opening Br. at 2, 5-6 (citing, 

e.g., Smartphone Techs. LLC v. Research in Motion Corp., No. 6:10-CV-74-LED-JDL, 2012 WL 

489112, at *4 (E.D. Tex. Feb. 13, 2012) (“is” signifies lexicography); Samsung’s Responsive Br. 

at 2-4.

Neither Electro Med. nor Teleflex involved lexicography. In Electro Medical, the Federal 

Circuit affirmed the district court’s rejection of a construction that was limited to certain features

in the embodiments, where the patentee never argued lexicography. See Electro Med Sys., 34 F.3d 

at 1054. In contrast with Electro Medical, Samsung relies on lexicography.4

 

Additionally, in Teleflex, the Federal Circuit rejected the argument that where only one 

embodiment is disclosed in the specification, claim terms are limited to the embodiment disclosed. 

See Teleflex, 299 F.3d at 1326-27. Notably, the Federal Circuit explained that the disputed term 

was “not defined in the specification or in the prosecution history.” Id. at 1327. Again, by contrast, 

the specification in this case provides lexicography of the term. 

Accordingly, Nordic’s arguments have no basis in the evidence or the law. In contrast, 

Samsung’s proposed construction is, verbatim, the patentees’ lexicographical definition in the 

specification, and so should be adopted. 

4

 Incidentally, the lexicographical definition here is also consistent with every embodiment. 

Samsung’s Opening Br. at 6-7. 
5 

2. “the middleware layer” (Claims 20-21) 

Term Samsung’s Construction Nordic’s Position 

“the middleware 

layer” 

“the middleware software” New argument: 

Nordic now contends that “the middleware 

layer” should be “corrected to be” or 

“replaced with” “the middleware software” 

Alternatively: if the term is not corrected, 

then “middleware layer” means “software 

layer that includes middleware software” 

In its Responsive Brief, Nordic changes its argument. It particular, Nordic states that it has 

now “considered the intrinsic evidence and Samsung’s arguments and asserts that this term should 

be replaced with ‘middleware software’ where it appears in dependent Claims 20-21.”5

 Nordic’s 

Responsive Br. at 7. Nordic also states that it filed a request for a Certificate of Correction in the 

Patent Office seeking to make that replacement. Id. at n. 3. In that request, Nordic asserts that the 

“dependent claims do not make sense without the correction.” Ex. 16 at 1.7 (emphasis added). 

5

 Samsung provided the same evidence and arguments during the Parties’ meet-and-confer before 

opening briefs were due. 

6

 “Ex.” refers to the Exhibits attached to the Declaration of Jin-Suk Park, filed concurrently 

herewith. 

7

 On December 1, 2020, the Patent Office approved the request. Ex. 2. As the Court may be 

aware, the correction is technically not operative in the instant litigation. See e.g., H-W Tech., L.C. 

v. Overstock.com, Inc., 758 F.3d 1329, 1334 (Fed. Cir. 2014) (“Based on the plain language of the 

statute [35 U.S.C. § 254], this court has specifically held that ‘[t]he certificate of correction is only 

effective for causes of action arising after it was issued.’”) (citation omitted). Accordingly, to the 

extent the Court agrees with the correction, it must, e.g., adopt the correction explicitly in the case. 

Moreover, to the extent the Court adopts the correction (which Samsung agrees with), Samsung 

believes the dispute as to the construction or replacement of the term “[the] middleware layer” 

would be moot. 
6 

Despite what appears to be an agreement between the parties that “[the] middleware layer” 

is “[the] middleware software,” Nordic has stated during subsequent meet-and-confers that they 

are actually not in agreement with Samsung. 

First, Nordic stated that it did not agree that “[the] middleware layer” should be construed

to be “[the] middleware software” (i.e., Samsung’s position) but rather that the term must be 

corrected to be “[the/a] middleware software.” It is unclear what difference Nordic sees between 

“correction” and “construction” of the term “middleware layer” for the purposes of this case, but 

Nordic now insists on correcting, rather than construing, the term, despite the fact that Nordic did 

not raise the doctrine of judicial correction in its Responsive Brief. In any event, whether the term

is corrected under the doctrine of judicial correction or construed under the doctrine of implied 

antecedent basis (as, e.g., discussed in Samsung’s Responsive Br. at 10-16),8

 “[the] middleware 

layer” in the dependent claims should mean “[the] middleware software.” 

Second, Nordic continues to assert that, in the alternative, “[the] middleware layer” should 

be construed as “software layer that includes middleware software.”9

 This is despite the fact that 

Nordic now concedes that the recitation to “middleware layer” should be corrected to “middleware 

software.” It is inexplicable that Nordic seeks to provide a different, alternative construction for 

“middleware layer” given Nordic told the Patent Office in its request for correction that the claims 

8

 Based on the intrinsic evidence, Samsung believes that either legal basis can be used to reach the 

same result. See Samsung’s Responsive Br. at 10-15; see also, e.g., Novo Indus., L.P. v. Micro 

Molds Corp., 350 F.3d 1348, 1357 (Fed. Cir. 2003) (holding that, under the doctrine of judicial 

correction, the court may correct a claim when “(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.”). 

9

 Nordic argues that “[the] middleware layer” should be replaced with “middleware software” but 

also that the “Court should adopt the construction that the middleware layer is ‘software layer that 

includes middleware software.’” See Nordic’s Responsive Br. at 8. 
7 

“do not make sense” unless “middleware layer” means “middleware software.” Ex. 1 at 1. 

Nordic’s Responsive Brief provides no additional argument for its alternative construction, other 

than simply stating that the Court should adopt it. Nordic’s Responsive Br. at 6-8. Indeed, aside 

from the issues of construction vs. correction above, the alternative construction itself is wrong for

reasons set forth in Samsung’s prior briefs. See Samsung’s Opening Br. at 7-8; Samsung’s 

Responsive Br. at 9-17. 

B. ’095 Patent Term 

1. “call initiation signals” (Claims 16, 30) 

Term Samsung’s Construction Nordic’s Construction 

“call initiation signals” “any signal indicating that a 

calling party is going to place a 

telephone call” 

plain and ordinary meaning, 

or “part of a telephone 

number” 

a. Nordic does not dispute that its construction is inconsistent with 

dependent Claim 18 

Nordic appears to ignore the fundamental principle that an independent claim must be 

broad enough to cover the features recited in its dependent claims. See Samsung’s Opening Br. at 

10-11; Samsung’s Responsive Br. at 19. Indeed, Nordic does not (and cannot) dispute that its 

construction would be in conflict with dependent Claim 18. Id. Instead, Nordic argues that 

Samsung “is incorrectly attempting to import the limitation of dependent Claims 17 and 18 into 

that of independent Claim 16.” Nordic’s Responsive Br. at 3. This argument is wrong. 

In particular, Samsung’s construction plainly, on its face, does not require (or even contain 

language) that “call initiation signals” be the “#” or “*” elements of dependent Claim 18. Rather, 

Samsung’s proposed construction for “call initiation signals” is broad enough to include those 

elements, but not otherwise limit them. Indeed, Nordic’s assertion that “the dependent claims 

signifies [sic] that call initiation signals in Claim 16 may include but not require an activation 
8 

sequence” (id. at 4) is entirely consistent with Samsung’s construction. That is, Samsung points 

to dependent Claims 17 and 18, not to import limitations, but rather to show: (1) that Samsung’s 

construction is broad enough to encompass those elements; and (2) in contrast to Samsung’s 

position, Nordic’s “part of a telephone number” construction would exclude those same elements 

(and so would be contrary to the law). See, e.g., Intellectual Ventures I LLC v. T-Mobile USA, 

Inc., 902 F.3d 1372, 1378 (Fed. Cir. 2018) (reversing claim construction that excluded/was 

contrary to limitations recited in dependent claims). 

b. Nordic’s argument that there is no lexicography is a straw man 

Nordic sets up a straw man argument when it asserts that, because the term “call initiation 

signals” is not governed by any lexicography, Nordic’s proposed plain and ordinary meaning 

should be adopted. Specifically, Samsung never argued that there was lexicography defining 

“call initiation signals.” Instead, Samsung has always advanced a plain and ordinary meaning of 

“call initiation signals” and simply demonstrated that its proffered construction was consistent with 

all of the embodiments in the specification and all the dependent claims. See e.g., Samsung’s 

Opening Br. at 9-11; Samsung’s Responsive Br. at 17-20. This is again in contrast to Nordic’s 

construction which excludes embodiments as well as elements in the dependent claims. See id. 

Accordingly, there is no dispute about lexicography with this term. 

c. Nordic’s proposal not to construe the term and instead only 

find “plain and ordinary meaning” should be rejected 

Nordic initially focused its argument on asserting that “call initiation signals” should be 

construed as “part of a telephone number,” but, in its Responsive Brief, Nordic appears to shift its 

emphasis to advocate for the “plain and ordinary meaning” without an explicit construction. 

Compare Nordic’s Opening Br. at 4-6 to Nordic’s Responsive Br. at 1-4. Undoubtedly, Nordic 

hopes that with just a construction of “plain and ordinary meaning,” it can later argue to a jury that
9 

the term should be narrowly understood as “part of a telephone number.” As Samsung explained 

in its Responsive Brief, this would be improper, and the dispute should be resolved by the Court 

with an express construction. See e.g., Samsung’s Responsive Br. at 17-18; see also O2 Micro 

Int’l, Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (Fed. Cir. 2008) (“[w]hen the

parties present a fundamental dispute regarding the scope of a claim term, it is the court’s duty to 

resolve it”). 

III. CONCLUSION 

For the above reasons, Samsung respectfully requests that the Court adopt its proposed 

constructions. 

Dated: December 11, 2020 By: /s/ Jin-Suk Park 

Jin-Suk Park 

Marc A. Cohn (pro hac vice) 

ARNOLD & PORTER KAYE SCHOLER LLP 

601 Massachusetts Ave., NW 

Washington, DC 20001-3743 

Tel: 202-942-5000 

Jin.Park@arnoldporter.com 

Marc.Cohn@arnoldporter.com 

Ryan J. Casamiquela (pro hac vice) 

ARNOLD & PORTER KAYE SCHOLER LLP 

Three Embarcadero Center, 10th Floor 

San Francisco, CA 94111-4024 

Tel: 415-471-3373 

Ryan.Casamiquela@arnoldporter.com 

Michael E. Jones 

State Bar No. 10929400 

POTTER MINTON, P.C. 

110 N. College Ave., Suite 500 

Tyler, TX 75702 

Tel: 903-597-8311 

mikejones@potterminton.com 

Attorneys for Defendants Samsung Electronics Co., 

Ltd. and Samsung Electronics America, Inc. 
CERTIFICATE OF SERVICE 

I hereby certify that all counsel of record who are deemed to have consented to electronic 

service are being served on December 11, 2020 with a copy of this document via electronic mail. 

/s/ Jin-Suk Park 

Jin-Suk Park