IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

JENS H. S. NYGAARD

Plaintiff,

v. Civil Action No. 6:20-cv-00234-ADA

FÉDÉRATION INTERNATIONALE DE

L’AUTOMOBILE, FORMULA ONE

MANAGEMENT LTD., FORMULA ONE JURY TRIAL REQUESTED

WORLD CHAMPIONSHIP, MERCEDES

BENZ GRAND PRIX LTD., DAIMLER AG,

LEWIS HAMILTON, RED BULL

TECHNOLOGY LTD., RED BULL RACING

LTD., FERRARI S.P.A., CHARLES

LECLERC, AND DALLARA AUTOMOBILI

S.P.A,

Defendants.

DEFENDANTS’ REPLY IN SUPPORT OF THEIR PARTIAL MOTION FOR 

SUMMARY JUDGMENT OF NON-INFRINGEMENT 

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Plaintiff concedes that summary judgment of non-infringement of claim 2 for the accused 

Halo and Aeroscreen must enter if the plain and ordinary meaning of the plural term “the second 

structural units” requires plural second units. Dkt. No. 269 at 1. Defendants’ Motion explained 

that the plain and ordinary meaning requires plural “second structural units.” The term is plural, 

all disclosure in the specification is plural, and Plaintiff conceded that the “plural usage is 

correct” during claim construction. Dkt. No. 262 at 2-3. 

Racing away from that concession, Plaintiff now asks the Court to rewrite and broaden 

the plural “second structural units” to cover a singular “second structural unit[].” Although 

Plaintiff incorrectly accuses Defendants of “re-arguing” claim construction, Plaintiff’s disregard 

of the plain and ordinary meaning in his expert’s report is precisely what the Defendants 

predicted and the Court invited the Defendants to raise during the Markman hearing. 

There is no support for Plaintiff’s attempt to rewrite the plural to cover the singular. 

Plaintiff pins its lead argument on a newfound, purported distinction between limitations related 

to the “purpose” of a claim feature and those related “merely” to “orientation.” Plaintiff argues 

that claim 2’s recitation of a singular “second structural unit” controls because it recites the 

part’s purpose, whereas the plural “second structural units” limitation should be disregarded 

because it merely recites the parts’ orientation. Plaintiff does not cite any support in the law or 

the ’178 patent for this argument, and there is none. Moreover, Plaintiff’s argument that the 

“unit” / “units” distinction in claim 2 is intentional is contradicted by his and his expert’s 

concession during Markman that the “unit” / “units” mismatch is a typographical error. 

None of Plaintiff’s other arguments justify Plaintiff’s interpretation. First, Plaintiff argues 

that he used “at least” when referring to multiple components and the absence of that language 

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 2 of 14
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before “second structural units” implies that this limitation covers one or more units. But 

Plaintiff also used “at least” when referring to one or more in claim 11. 

Second, Plaintiff argues that claim 11’s recitation of “at least two” second units means 

that claim 2 must be broader under claim differentiation. Claim differentiation does not apply, 

because claims 2 and 11 are of different scope and, in any event, the doctrine cannot be applied 

to broaden claim 2’s plural second units beyond what is disclosed in the patent (i.e., only plural 

non-horizontal second units). 

Third, Plaintiff relies on cases that are distinguishable, because the patent context in those 

cases was broad enough to include singular components, whereas the ’178 Patent lacks that 

context. 

Fourth, Plaintiff incorrectly argues that the specification discloses a “single unit,” but the 

cited disclosure describes manufacturing an embodiment with plural second units from a single 

piece of metal. 

In sum, the plain and ordinary meaning of “the second structural units” requires plural 

“second structural units.” Plaintiff concedes that summary judgment is proper under that 

meaning. The Court should grant Defendants’ Motion and enter summary judgment of noninfringement of claim 2 for the Halo and Aeroscreen. 

I. THE COURT SHOULD REJECT PLAINTIFF’S ATTEMPT TO REWRITE THE PLURAL “SECOND 

STRUCTURAL UNITS” TO COVER A SINGULAR “SECOND STRUCTURAL UNIT” 

A. There is no support in the claims for rewriting plural “second structural units” to 

cover a singular “second structural unit[]” 

Plaintiff roots its lead argument in a non-existent distinction between limitations that recite 

the “purpose” of a claimed feature and those that “merely” recite its “orientation.” Plaintiff 

argues that the singular recitation “second structural unit joining the at least three first linearly 

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extending structural units” should control because it recites the unit’s purpose, while the plural 

recitation “the second structural units being not horizontal” should be disregarded because it 

recites the units’ orientation. Dkt. No. 269 at 2 (citing Syson Decl. at ¶¶ 53-54). This argument is 

legally unsupported. Plaintiff does not cite, and Defendants are not aware of, any authority that 

supports Plaintiff’s supposed distinction between limitations related to purpose and orientation. 

If anything, the law is to the contrary: courts can find limitations directed to a part’s purpose 

non-limiting. Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 

1345 (Fed. Cir. 2003) (“An intended use or purpose usually will not limit the scope of the 

claim.”).1

Mr. Syson’s Markman declaration also does not support Plaintiff’s lead argument. Mr. 

Syson’s conclusory declaration opines that “second structural units” means “a unit or units” 

without even mentioning purpose or orientation, let alone attributing significance to such a 

distinction. Dkt. 172-3 (Syson Decl.) at ¶¶ 53-54. Mr. Syson’s declaration also does not identify 

any disclosure of a singular “second structural unit” in the patent. 

Plaintiff’s argument also is contradicted by Plaintiff’s concession during Markman that 

the “unit” / “units” mismatch in claim 2 is a typographical error. During the Markman hearing, 

plaintiff “acknowledge[d] that there – unfortunately, it does appear that there has been a 

typographical error.” Dkt. No. 206 at 43:3-4. Mr. Syson acknowledged the same thing in his 

declaration. Dkt. No. 172-3 at ¶ 53 (referring to “the typographical errors in the claim” including 

regarding “‘second structural unit – second structural units’”). Plaintiff ignores these concessions 

1

 Plaintiff’s argument that Defendants propose construing the singular “second structural unit” in 

claim 2 as plural is a strawman. Dkt. No. 269 at 1. Although there is no written description 

support for that singular “second structural unit,” the Court only needs to address the plain and 

ordinary meaning of the plural “second structural units” to resolve Defendants’ Motion. 

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in his opposition and instead now inconsistently argues that the mismatch was intentional and 

coherent. 

The reality is that the “second structural units being not horizontal” is a structural 

limitation that cannot be disregarded as Plaintiff argues. Leggett & Platt, Inc. v. Hickory Springs 

Mfg. Co. provides an instructive example for similar claim language. 285 F.3d 1353, 1356-57 

(Fed. Cir. 2002). There, the Federal Circuit construed “transversely-spaced, parallel, and 

longitudinally-extending support wires” to require more than one support wire. Id. (emphasis 

added). The court did not disregard the plural “support wires” based on the italicized phrases 

describing the wires’ orientation. See id. As in Leggett, the Court should not disregard the clear 

plural usage of “second structural units” just because the adjacent limitation relates to the units’ 

orientation. 

Plaintiff next argues that because he used the words “at least” in claims 2 and 11 to 

specify multiple components, the absence of “at least” before “the second structural units” refers 

to a single component. Dkt. No. 269 at 2-3. This argument is self-defeating. Plaintiff’s own 

emphasized excerpt of claim 11 shows that he also used “at least” when specifying one or more 

components: “at least one strengthening member.” Id. at 3 (emphasis in original). Thus, the 

absence of “at least” before “the second structural units” is no reason to broaden “second 

structural units” to cover a singular unit. Leggett, 285 F.3d at 1356-57 (construing “support 

wires” as plural even though claim elsewhere specified “two parallel sides” and “two parallel 

ends”). If anything, Plaintiff’s argument shows that he knew how to limit “the second structural 

units” to a singular unit, but did not do so. 

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Plaintiff resorts to a claim differentiation argument that “the second structural units” in 

claim 2 must be broader (i.e., cover a singular unit) than claim 11’s “at least two second 

structural units.” Dkt. No. 269 at 3. Claim differentiation does not apply for at least two reasons. 

First, claim differentiation does not apply when “the claims are not otherwise identical in 

scope.” Indacon, Inc. v. Facebook, Inc., 824 F.3d 1352, 1358 (Fed. Cir. 2016) (declining to apply 

claim differentiation between “instances” in one claim and “all instances” in another, because 

there were other differences in the two claims); Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 

1238 (Fed. Cir. 2016) (declining to apply claim differentiation between two limitations, because 

independent claims otherwise differed in scope). Claims 2 and 11 differ in scope in many ways 

other than claim 11’s recitation of “at least two second linearly extending structural units.” Ex. 4 

(highlighting differences between claims). For example, claim 2 recites “second structural units 

being not horizontal,” while claim 11 does not. Claim 2 also recites that the “first linearly 

extending structural units” are “placed in a triangular arrangement” and have a “width not 

exceeding 65 mm,” while claim 11 does not. These differences render claim differentiation 

inapplicable. 

Second, claim differentiation cannot be used to broaden claim scope beyond what is 

disclosed in the specification. Tandon Corp. v. U.S. Int’l Trade Comm’n, 831 F.2d 1017, 1024 

(Fed. Cir. 1987). The specification never discloses a singular, non-horizontal second structural 

unit, so claim differentiation cannot be used to broaden the plural “second structural units” to 

cover a single “second structural unit[].” 

B. Plaintiff does not cite any disclosure in the patent specification of a singular “second 

structural unit[]” 

Plaintiff strains to find disclosure of a singular “second structural unit[]” in the 

specification, but ends up citing disclosure that confirms that plural second units are required. 

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 6 of 14
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Dkt. No. 269 at 5 (citing ’178 Patent at 17:30, 33-36). Plaintiff’s cited passage refers to the 

“lattice design” depicted in Figure 22 and states that this design “can be cut and folded from one 

sheet of material into the final shape” using “any manufacturing technique” including “lasercutting, hydro-forming, welding if required.” ’178 patent, 17:33-36. Contrary to Plaintiff’s 

argument, this passage does not describe an embodiment with a singular second unit but instead 

describes the “lattice design” of Figure 22 that has plural struts 31 and 32 (i.e., plural second 

structural units) that are not horizontal. Id. at 17:13-16, 17:33-36; Fig. 22. The disclosure that 

this lattice design can be made from a single sheet of material does not alter that the design has 

plural second units, and nothing in the cited passage says otherwise. Tellingly, Mr. Syson did not 

even cite Plaintiff’s relied-upon passage in his declaration. Syson Decl. at ¶¶ 53-54. Plaintiff is 

left without any disclosure of a singular second structural unit to support its broadening 

construction. 

Faced with the consistent disclosure in the ’178 Patent of plural second structural units, 

Plaintiff wrongly accuses Defendants of importing an embodiment from the specification. Dkt. 

No. 269 at 4. This is not a case of limiting a claim to the preferred embodiment. Claim 2 already 

recites plural “second structural units,” and the specification discloses only plural, non-horizontal 

second units. The alleged invention of claim 2 is described the same as it is claimed, and nothing 

needs to be imported into claim 2. If anything, the specification illustrates Plaintiff’s attempt to 

stretch the plural “second structural units” beyond what is disclosed in the patent. 

C. Plaintiff’s cited cases are distinguishable 

Failing to show any support in the claims or specification for rewriting “the second 

structural units” to cover a singular second structural unit, Plaintiff quotes Federal Circuit cases 

for the proposition that “plural can describe a universe ranging from one to some higher 

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number.” Dkt. No. 269 at 4 (citing Versa Corp. v. Ag-Bag Int’l Ltd., 392 F.3d 1325, 1330 (Fed. 

Cir. 2004) and Dayco Prods., Inc. v. Total Containment, Inc., 258 F.3d 1317, 1328 (Fed. Cir. 

2001)). Plaintiff, however, omitted the most critical part of the Versa court’s statement: claim 

language must be viewed “in context.” Versa, 392 F.3d at 1330 (emphasis added). All of the 

context in the ’178 Patent supports interpreting the plural “second structural units” to require 

plural second units. 

And this patent context is why Plaintiff’s cases all are distinguishable. In Dayco, the 

court addressed whether a “plurality of projections with recesses therebetween” required two or 

three projections. Dayco, 258 F.3d at 1328. Defendant argued that there had to be three 

projections, because the claim recited plural “recesses” between the projections, and there was 

one recess between each pair of projections. Id. The court rejected that argument, because plural 

recesses would have necessitated a construction of “plurality” of projections to mean three or 

more, which would have been inconsistent with the ordinary meaning of “plurality.” Id. Unlike 

in Dayco, a plural plain and ordinary meaning for “second structural units” would not require 

interpreting any other term in claim 2 inconsistent with its plain and ordinary meaning. 

The cited Versa case also involved contextual issues not present here. In Versa, the court 

addressed whether the corresponding structure under 35 U.S.C. § 112, ¶ 6 for a “means for . . . 

creating air channels” required both a pipe and a flute. Versa, 392 F.3d at 1328. The court 

concluded that only a pipe was required. Id. at 1329. The court reasoned that (1) the specification 

disclosed that the corresponding structure could be either a pipe or a flute; and (2) claim 

differentiation applied because a dependent claim recited a flute. Id. at 1328-30. In dicta, the 

court rejected an argument that the plural use of “channels” meant that multiple channel-forming 

structures was required based on the above-referenced context in which the plural channels was 

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 8 of 14
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used. Id. at 1330. Here, however, there is no similar context involving § 112, ¶ 6 or claim 

differentiation that would warrant a singular interpretation of the plural term “the second 

structural units.” 

The cited Delta T LLC v. MacroAir Technologies and Intellectual Ventures II LLC v. 

FedEx Corp. decisions involved specification support for a singular meaning—support that is 

absent in the ’178 Patent. In Delta T, the court construed “openings” to mean “one or more 

locations where the arm members may be detachably secured.” No. EDCV-20-728-GW-JPRx, 

2021 WL 3721455, at *9 (C.D. Cal. Mar. 29, 2021). The court based its construction in part on 

the specification “allow[ing] for there to be one or more openings.” Id. In Intellectual Ventures, 

the court construed “field crew” to include “one or more” personnel, because the specification 

used “crew” to refer to one or more people. No. 2:16-cv-980-JRG, 2017 WL 5896180, at *12 

(E.D. Tex. Nov. 29, 2017). Unlike in those cases, however, there is no disclosure of a singular, 

non-horizontal second structural unit in the ’178 Patent specification. 

This case is more like Leggett (discussed above) and United Cannabis Corp. v. Pure 

Hemp Collective Inc. than Plaintiff’s cited decisions. No. 18-cv-1922-WJM-NYW, 2020 WL 

376508, at *2 (D. Colo. Jan. 23, 2020). In United Cannabis, the court construed “cannabinoids” 

to mean “more than one cannaboid.” Id. The court reasoned that the term was plural, and “more 

than one” was the “very definition of plural.” Id. And nothing in the context of the patent showed 

that the plural term should be construed anything other than literally. Id. Here, too, the very 

definition of the plural term “second structural units” requires more than one such unit, and there 

is no context that would justify interpreting that plural recitation to cover a singular unit. 

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 9 of 14
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D. Plaintiff’s reliance on Defendants’ invalidity contentions is a red herring 

Plaintiff distracts from the lack of support for its rewritten claim term by pointing to a 

claim chart in Defendants’ invalidity contentions. Dkt. No. 269 at 6-7. However, invalidity 

contentions themselves are not evidence of the meaning of a claim term. See Innovative Display 

Techs. LLC v. Acer Inc., No. 2:13-CV-522-JRG, 2014 WL 2796555, at *2 (E.D. Tex. June 19, 

2014) (stating that “the Court does not base its claim construction on invalidity contentions”); 

Lam Research Corp. v. Schunk Semiconductor, 65 F. Supp. 3d 863, 871 (N.D. Cal. 2014) 

(declining to consider invalidity contentions as evidence of proper claim construction). 

Plaintiff also omitted the full story. Plaintiff served overbroad final infringement 

contentions identifying, as it now concedes, a single alleged second structural unit on the accused 

Halo and Aeroscreen. Defendants then served invalidity contentions that included prior art 

contentions that matched that theory. Recognizing the incorrectness of Plaintiff’s overbroad 

infringement theory, Defendants included language in their claim chart—which Plaintiff omitted 

from his brief—explaining that the contentions were based on Plaintiff’s interpretation of the 

claims and that Defendants did not agree with those interpretations. Dkt. No. 269-2 at 1-2 

(“Defendants have relied in part on Nygaard’s infringement contentions . . . In those contentions, 

Nygaard pursues overly broad claim interpretations of claim terms construed by the Court . . . In 

relying on Nygaard’s apparent claim interpretations, Defendants do not admit that Nygaard’s 

apparent claim interpretations are supportable or proper.”). The Court should therefore reject 

Plaintiff’s attempt to distract from the real issue underlying Plaintiff’s response to this Motion: 

the total lack of support for Plaintiff’s attempt to rewrite a plural term to cover the singular. 

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 10 of 14
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II. PLAINTIFF AGREES THAT NO FACTUAL DISPUTES PRECLUDE SUMMARY JUDGMENT

Plaintiff agrees that the Court should enter summary judgment of non-infringement of 

claim 2 for the Halo and Aeroscreen if the Court finds that the plain and ordinary meaning of 

“the second structural units” requires plural second structural units. Dkt. No. 269 at 1 (“Plaintiff 

agrees that, if the Court applies Defendants’ revised construction, there is no infringement.”); id.

(conceding that Plaintiff has no evidence that the accused Halo and Aeroscreen have “two or 

more second structural units”). In other words, Plaintiff concedes that there is no fact dispute and 

that the only issue is the legal claim construction issue of the meaning of “second structural 

units”—which the Court can decide on summary judgment. As explained in Defendants’ Motion 

and above, the plain and ordinary meaning of “the second structural units” requires plural second 

units, and Plaintiff’s attempt to broaden the claim term to cover a singular unit is incorrect and 

unsupported. The Court should enter summary judgment of non-infringement for claim 2 for the 

Halo and Aeroscreen devices. 

III. CONCLUSION

The plain and ordinary meaning of “the second structural units” requires plural second 

structural units. The term is plural, all description in the specification shows plural nonhorizontal second units, and Plaintiff has admitted that the plural usage is correct. Plaintiff 

should not be permitted to broaden the scope of its claim by rewriting the term to cover a 

singular unit without any support in the claims, specification, or law. The parties agree that 

summary judgment must enter under Defendants’ plain and ordinary meaning. Defendants 

therefore request that the Court grant their motion for partial summary judgment of noninfringement of claim 2 for the accused Halo and Aeroscreen devices. 

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 11 of 14
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Dated: February 21, 2022 Respectfully submitted, 

By: /s/ Douglas M. Kubehl

Douglas M. Kubehl 

State Bar Number 00796909 

doug.kubehl@bakerbotts.com 

Harrison Rich pro hac vice

State Bar Number 24083730 

harrison.rich@bakerbotts.com 

Bethany R. Salpietra 

State Bar Number 24097699 

bethany.salpietra@bakerbotts.com 

BAKER BOTTS L.L.P.

2001 Ross Avenue, Suite 900 

Dallas, TX 75201 

Telephone: (214) 953-6816 

Facsimile: (214) 661-4816 

ATTORNEYS FOR DEFENDANTS 

FORMULA ONE MANAGEMENT 

LIMITED AND FORMULA ONE WORLD 

CHAMPIONSHIP LIMITED

/s/ Claudia Wilson Frost

Claudia Wilson Frost 

State Bar No. 21671300 

Jeffrey L. Johnson 

State Bar No. 24029638 

Ryan C. Wooten 

State Bar No. 24075308 

ORRICK, HERRINGTON & SUTCLIFFE LLP 

609 Main, 40th Floor 

Houston, TX 77002 

Telephone: 713.658.6400 

Facsimile: 713.658.6401 

cfrost@orrick.com 

jj@orrick.com

rwooten@orrick.com 

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 12 of 14
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Travis Jensen 

CA Bar No. 259925 

ORRICK, HERRINGTON & SUTCLIFFE LLP 

1000 Marsh Rd. 

Menlo Park, CA 94025 

Telephone: 650.614.7400 

Facsimile: 650.614.7401 

tjensen@orrick.com

Jeffrey T. Quilici 

State Bar No. 24083696 

ORRICK, HERRINGTON & SUTCLIFFE LLP 

300 W. 6th Street, Suite 1850 

Austin, TX 78701 

Telephone: 512.582.6916 

Facsimile: 512.582.6949 

jquilici@orrick.com

ATTORNEYS FOR DEFENDANT 

FÉDÉRATION INTERNATIONALE DE 

L’AUTOMOBILE 

By: /s/ Edgar H. Haug 

Deron R. Dacus 

State Bar No. 00790553 

THE DACUS FIRM, P.C. 

821 ESE Loop 323, Suite 430 

Tyler, TX 75701 

Phone: (903) 705-1117 

Fax: (903) 581-2543 

ddacus@dacusfirm.com 

Edgar H. Haug (pro hac vice) 

Mark A. Chapman (pro hac vice) 

Roman Khasidov (pro hac vice) 

HAUG PARTNERS LLP 

745 Fifth Avenue, 10th Floor 

New York, NY 10151

Phone: (212) 588-0800 

Fax: (212) 588-0500 

ATTORNEYS FOR DEFENDANTS RED 

BULL RACING LTD. AND RED BULL 

TECHNOLOGY LTD.

Case 6:20-cv-00234-ADA Document 276 Filed 02/21/22 Page 13 of 14
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CERTIFICATE OF SERVICE

I hereby certify that that on February 21, 2022, a true and correct copy of the foregoing 

was served on all counsel of record who have appeared in this case via email. 

/s/ Douglas M. Kubehl 

Douglas M. Kubehl

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